Before parents decide whether their child with a disability needs some type of guardian, they should consider the alternatives to guardianship. These include special needs trusts, representative payees, and citizen advocates.

Special Needs Trusts

Special Needs Trusts are a highly recommended alternative to a guardian of the estate. Special needs trusts accomplish the same objective as the guardian of the estate, management of the assets of a person with a disability.

However, special needs trust offers several advantages as compared to guardians of the estate.

Chief among the advantages is a solution to the resource problems that might jeopardize the person's eligibility for governmental aid. To be eligible for many governmental benefits such as Supplemental Security Income and Medicaid, the person with a disability's total assets cannot exceed certain stated maximum amounts (often just $2,000).

However, amounts held for the person with a disability in properly drafted special needs trusts do not count as the person's assets for these purposes, while amounts managed for the person with a disability by a guardian of the estate are considered assets of the person with a disability.

Accordingly, if parents think their child with a disability may require government benefits after their death, it is better to leave money in a special needs trust for their child than to have a guardian of the estate appointed and leave money to their child outright.

Special needs trusts offer other advantages over guardians of the estate as well.

In order to secure proper financial management, it is not necessary to declare the person who has a disability incompetent. There is no need for the constant, detailed reports that a guardian of the estate must submit to the court. It is not necessary to get approval from the court for expenditures on behalf of the person. The posting of a bond is not required. (However, with a professional trustee there will be management fees.)

The trustee will also have greater flexibility in investing than a guardian of the estate, and parents can select a trustee without the approval of the court.

The trust document containing the duties of the trustee can be written to include all the preferences of the parents. While family objectives will vary, normally a special needs trust is a better alternative than a guardian of the estate.

Representative Payee

A representative payee is a person or organization authorized to cash and manage public assistance checks such as Supplementary Security Income and Social Security for a person considered incapable of managing the money.

The payee is appointed by the agency administering the funds. If the parents want a particular representative payee selected, they must notify the agency. If the representative payee is not a relative, service fees may be required.

The representative payee must keep an accurate record of all expenditures made on behalf of the person with a disability. The representative payee can be an alternative to a guardian of the estate when the only money the person with a disability receives is from the government or from a trust.