In good hands: How to arrange care when you have custody of a minor or person with a disability

Stock photo

For some, estate planning goes beyond saving cash to live well in retirement or deciding who in the family might be willed a prized heirloom.

For an individual with legal custody of a minor or, perhaps, an adult child or other person with a disability, the planning becomes crucial to ensure the person is well cared for and has access to needed help and services, and that adequate financial resources are available for housing, medical costs and general living expenses.

When Mark A. McMullin discusses these sensitive decisions, a phrase that frequently comes up is "the best interest of the individual."

The caregiver wants what is best for the person after the caregiver is gone -- whether deceased or incapacitated himself or herself. Petitions are filed with the person's needs in mind, and a judge who oversees the case makes decisions and determinations with well-being as a priority.

McMullin, of the Cape Girardeau law firm of Moss, Stillwell & McMullin, explains a process that puts a judge in the position to take into account very personal issues and the daily quality of life of an individual who may, ultimately, be left without a trusted caregiver.

"The whole process starts with the petitioner and the respondent going before a judge, who is looking at the issues and asking himself, 'Does the incapacitated individual need a guardian? Does the person need a conservator?'" says McMullin.

He explains the petitioner usually is a "close family member, a loved one, a trustworthy individual," who is interested in the welfare of the respondent, the person who is "unable to manage their affairs for some reason." A guardian would look after the affairs of the in-need person, and a conservator is manager of "the financial affairs of the individual." The roles of guardian and the conservator could be, and usually are, filled by the same individual.

McMullin says some with legal custody of another in need of care, may -- as they're planning for the dissolution of their estate after their demise -- ask the court to name a co-guardian and/or co-conservator so, when the time comes, there is a smooth transition.

"In this case, the arrangement already has the judge's blessing," McMullin says, explaining the importance of the successor guardian and/or conservator -- as this is the person who will make decisions in how the respondent is to be looked after, for instance, and whether institutionalization would be an option.

He also would advise those in a guardianship situation to look into establishing a special needs trust that enables a person with a physical or mental disability or other illness to have held in trust an unlimited amount of assets, which are not calculated for the purposes of qualification for benefits such as public assistance, Medicaid and the like. It can be used to provide supplemental care beyond that which the government provides.

McMullin says there are circumstances that may lead a judge to seek the involvement of the public administrator, who may be called upon to act as guardian and/or conservator for, say, a mentally disabled adult when a suitable guardian/conservator is not otherwise available

In Cape Girardeau County, the public administrator, an elected position, is Lisa Reitzel. The mission of the office is to maintain the quality of life of those under guardianship.