Every family has a story
My family is very open about our story. We have been raising awareness and financial support for the Foundry Kelowna because we understand firsthand the challenge in finding the right care and resources for a young person to live a healthy and meaningful life. Many families include a family member with a mental, psychological or physical disability, or “special needs”, and these needs may be permanent or cyclical. These include mental illness, developmental disabilities, learning disabilities, autism spectrum disorder, physical disabilities, and others. These conditions may impact an individual’s ability to make some or all financial, legal or health related decisions. Estate planning for families and putting the right supports in place is critical to help protect these individuals and their families.
As a lawyer and parent, I am keenly aware of the importance of estate planning for families with a child with unique needs. I also understand that estate planning for loved ones with such needs requires careful considerations and skill to tailor a plan specific to the circumstances of each family.
If you have a minor or adult child that requires unique supports, consider the following two questions.
1. Do I have a comprehensive estate plan that is tailored for the unique needs of my child?
Parents should ensure that their own estate planning addresses the specific needs of their child. There are two aspects to this. Parents need to think about planning for what happens after they both pass away, but just as important, they need to plan for the possibility of incapacity during their lives. Accordingly, estate planning for the parents’ assets can be divided into two phases:
- Planning for the parents’ incapacity including a Power of Attorney and Representation Agreement, and
- Planning for the parent’s death, including a Will.
The latter may include identifying the appropriate Guardian for your child and the appointment of a Trustee to manage your child’s inheritance once you are gone. As with any estate plan, obtaining tax advise from an accountant is always highly recommended.
Trust planning is also an important consideration for families with a child with special needs. Trust planning is complex and it’s imperative that parents seek assistance from a lawyer and accountant to do trust planning. Also, special care is required when planning for a person with disability status to ensure that all disability benefits are preserved.
Estate planning for families is a process, not a one-time task. As circumstances change for you and your child, and changes are made to programs, supports, funding and tax, you will need to revisit your plan. I recommend you review your planning every year and update when needed.
In addition to legal planning, parents are also encouraged to consider preparing a letter of intent, setting out practical information to guide an alternate guardian with practical information to assist and support of your child. If you were suddenly unavailable to care for your child, your absence would alone be difficult for your child. A Letter of Intent will guard against your child’s supports, schedule, medical needs, routines, and daily life being thrown into upheaval as well. This letter should be updated regularly.
2. Does my adult child need his or her own plan?
When your child is under 19 years, you as the parent (or legal guardian) is legally entitled to make decisions on behalf of your child. However, this changes once your child becomes an adult. Therefore, once 19, your child should engage in his own estate and personal planning. At 19 your child is able to legally appoint you or another trusted individual as his
“appointee” or decision maker to assist with these types of decisions when needed.
Comprehensive planning for your child includes planning not just after death, but for temporary or permanent incapacity during his life. The three key planning documents include a Power of Attorney (“POA”), to assist with legal and financial decision making, a (health) Representation Agreement (“RA”), to assist with medical and personal care decision making, and a Will.
All families want to protect their child’s independence and autonomy. It’s important to understand that both a POA and RA do not displace the child’s ability to make her own decisions and deal with her own assets as long as she holds the requisite mental capacity to do so. These two agreements merely appoint an alternate decision maker to assist in these decisions when the child is not capable of doing so either temporarily or permanently due to illness or disability.
This topic is too broad to fully address all considerations in this article. I would happy to meet with your family to discuss your unique planning considerations.The information provided above is for educational purposes only. This information is not intended to replace the advice of a lawyer or address specific situations. Your personal situation should be discussed with a lawyer. If you have any questions or concerns, contact a legal professional.