Attorney Malkie Scher explains long-term planning, decision-making options, and guardianship for families of children with special needs, below.
Ever heard of the term guardianship? Or special needs planning?
Many families of special needs children only learn about either one when something goes wrong. Maybe it’s an emergency room visit. A doctor who won’t speak to you. An important medical decision for your child you assumed you’d always be allowed to make, and suddenly, legally, you can’t.
Or maybe it’s after a parent passes away, when a family discovers too late that their child with special needs has automatically inherited money, and as a result, has been kicked off their absolutely vital government benefits.
‘That’s exactly what I help families avoid,’ explains Malkie Scher, an attorney at Moskowitz Legal Group. Malkie heads the firm’s special needs planning and guardianship department, where her focus is helping families plan ahead, before crisis hits.
Special needs planning is essential for any family raising a child with disabilities who relies on government benefits like Medicaid or SSI (supplemental security income). A prerequisite to being on these programs is that a very limited amount of money be kept in the individual’s name.
‘Most parents are aware of this, and therefore super careful to keep money out of their child’s name,’ she says. ‘But what many don’t realize is that without proper planning, a child will automatically inherit when a parent passes away, unless parents leave clear instructions ahead of time.’
Without a will and a properly structured supplemental needs trust, that inheritance can immediately disqualify a child from the benefits they depend on.
‘We see this every single day,’ Malkie says. ‘Some parents assume estate planning is only for the wealthy. It’s not true! Everyone should have a will, but for families with a child with special needs, proper planning is essential.’
Estate planning type has no specific target age. It’s about parents making sure their child is protected, no matter what.
Guardianship, on the other hand, takes place at age 18. ‘When a child turns 18, the law assumes they can make their own medical, financial, and personal decisions,’ Malkie explains. ‘For many people, that’s perfectly fine. But for others, especially individuals with lower-functioning special needs, it can leave families unprotected.’
Without guardianship in place, doctors may legally refuse to treat or even speak to parents. Malkie regularly receives calls from families already in the middle of a crisis, realizing too late that they no longer have the authority they assumed they did.
For individuals who are more high-functioning, able to work or manage parts of daily life but still reliant on parental support, guardianship may not be appropriate or granted. In those cases, Malkie helps families explore alternatives like HIPAA releases, medical proxies, and supported decision-making agreements.
There’s also a future-planning element to guardianship itself. ‘It’s important to name standby or backup guardians,’ Malkie notes. ‘That way, if you’re no longer able to serve, your child is never left without someone legally designated.’
‘The best time to plan is before you need to,’ Malkie says. ‘These are not crisis conversations. They’re about setting your child up for stability, protection, and continuity—both now and in the future.’
Contact Malkie Scher directly to set up a call here to get the conversation started! You can also email at mscher@moskowitzlegalgroup.com.
