As a Brandon special needs lawyer, I’m often asked, “Is a will enough to protect my child if something happens to me?” Unfortunately, the answer to this question is almost always “no.”
Having a will is a great first start, but when you have a child with a disability, a will does very little to address his or her needs now, or in the future.
The reason for this is simple. A will only covers your wishes after death. It does nothing to protect your child if something happens during your lifetime.
Let’s say you and/or your spouse are seriously injured in an accident. Your will would not kick in because you are still alive. Even if you had family members ready and willing to care for your child, the decision of custody would rest solely on a judge, who doesn’t know you or your wishes. Worse—your child could be placed in foster care until a decision is actually made. This could happen to any parent who fails to plan, but it’s especially dangerous for children with disabilities who will likely require special attention and care in your absence.
A will also does not address the issue of Guardianship, which you will likely need assistance with once your child turns 18. This is a special court process that will give you legal permission to make medical and financial decisions on your child’s behalf when your parental rights would otherwise be terminated.
And what if you pass away…?
Even though a will states your wishes after death, it likely does not offer the protections you really want or need to ensure your child has a safe and secure future. Here’s why:
- With just a will, your child will receive his or her inheritance outright. This can interfere with his or her ability to receive Social Security or Medicaid benefits in the future.
- A will does not avoid probate. This is a court process that could take anywhere from six months to a few years in Florida, depending on the complexity of your estate.
- Your assets will not be made available to your heirs until the probate process is completed—leaving your child in a lurch. What if he or she needs access to your resources right away to cover day-to-day expenses or medical care?
- The process is entirely public, so every con artist in town can see just how much your child stands to inherit and when. The last thing you want is for strangers to prey upon a vulnerable child or adult with special needs after you are gone.
There are many more reasons why a will alone is never enough to protect a child with special needs. If you have a will and nothing more, or you are just starting the process of creating a plan and you’re not entirely clear on what documents may be better suited for your family’s needs (such as a Special Needs Trust), please feel free to call our Tampa area law firm at (813) 438-8503 to schedule an appointment. We’d be happy to sit down with you and walk you through your next steps based on your child’s needs today and what type of care or resources may be necessary for the future.