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A Better Partnership


Oct 2014
October 22, 2014

Nominating a Guardian for Your Special Needs Child is Essential

As the parent of a child with special needs, you’re often running on empty. Beyond providing the basics for your child, you’re constantly anticipating the next emergency: when will the next seizure happen?; will my child aspirate his applesauce into his lungs; will classmates tease my child again?

Your unceasing concern for the details of your child’s life evidences one thing: his or her wellbeing is your top priority.

So who will care for your child that much when you’re unable? It can be a scary question, but it’s most frightening when left unanswered. Nominating the right guardian in your will is critical, and it can relieve some of the stress you experience when considering your child’s future.

Under Michigan’s Estates and Protected Individuals Code (EPIC), a guardian is the person who will care for your child’s physical wellbeing. The guardian’s powers can be as broad as your own. EPIC’s sample of a valid will (MCL 700.2519) states that a guardian has “the same authority with respect to the child as a parent having legal custody would have.”

You should nominate a guardian who is trustworthy, familiar, responsible and patient. But your child needs a guardian who also understands your child’s disability: symptoms, challenges, doctors, medications, dietary restrictions and so on. Discuss the nominee with your child, if possible, in order to gauge your child’s comfort level with the nominee.

You must also decide who will handle your child’s finances. Under EPIC, a court will appoint a conservator for that. The person nominated in your will is going to be considered and your nominee for guardian can be your nominee for conservator, too. If your nominee for guardian is fiscally responsible, nominating him or her as conservator makes sense. Having fewer people involved can also help ease decision-making, leading to quicker solutions to your child’s challenges. If you nominate different people as guardian and conservator, consider the state of those individuals’ relationship.

Many parents of children with special needs will also set up a special needs trust (SNT), which is a topic for a future article. What you need to know when nominating a guardian is that he or she will interact regularly with your SNT trustee. The SNT’s trustee will manage the assets in the trust and make the necessary distributions for your child. The guardian, and conservator if different, will hold your trustee accountable.

Beneficiaries have rights against trustees and your child may need the guardian to exercise those rights. The guardian can only do that if he or she understands the process. Make sure, therefore, that your guardian nominee is competent in financial matters and understands the child-beneficiary’s rights under Michigan law.

Once you’ve selected a nominee, ask whether he or she is willing and able to serve. It’s possible that your nominee doesn’t want or can’t accept the appointment. It’s better to know that now and plan accordingly. Otherwise, if your nominee declines after your death you may have a contest among family members. That will cost money, time and emotional energy. Once your nominee accepts the role, you’ll have one less thing to worry about.

Tips for Selecting a Guardian for a Special Needs Child
  • Nominee must be trustworthy, familiar, responsible and patient;
  • Nominee must understand your child’s disability: symptoms, challenges, doctors, medications, and dietary restrictions;
  • Discuss the nominee with your child, if possible, to gauge his or her comfort level with that person;
  • If your nominee for guardian is fiscally responsible, nominate him or her as conservator of your child’s finances; and
  • Make sure the nominee is willing to accept that role and responsibility.

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