Succession Planning for Children With Special Needs in India
Learn how succession and estate planning can secure the financial future of children with special needs through wills, trusts, & long-term wealth protection.
A Responsibility that Cannot be Deferred.
To most parents, <u estate planning</u involves transferring their wealth to their loved ones.
For parents who have children with disabilities, estate planning involves taking care of their child with utmost love, respect, and protection forever.
The issue is not only one of inheritance.
It is of, Who will be there for my child? Who will make decisions? Who will take care of their money? Who will take care of them when I am not there anymore? In today’s time, families are becoming smaller, relationships are more fragile and people are moving across cities and countries for a better lifestyle.
For parents with minor children and especially ones with special needs, this raises a serious question: Who will take care of my child when I am no longer there? Planning for your children's future is not expecting the worst, but it is preparing to ensure that they will be emotionally and financially well taken care of even in the worst possible situation.
Why this Conversation Cannot Wait.
“Family will take care of everything,” is what most parents presume.
This presumption often crumbles due to various circumstances and legalities involved, because good intentions alone may not be enough when it comes to children with special needs.
The moment a person with mental or developmental challenges attains the age of majority, he or she is officially a grownup.
Without formal legal authority: No one automatically has the right to operate their bank accounts or manage their property.
Medical decisions may require a legally appointed guardian.
Accessing funds meant for their care can involve court procedures.
Disputes among relatives can delay care.
This is where the gap between “someone will take care of them” and “someone has the legal authority to take care of them” becomes important.
The courts typically get involved when the family has failed to plan ahead.
The courts have always maintained that guardianship for minors and persons with disabilities be done through the proper process as prescribed under the Guardians and Wards Act, 1890 and Rights of Persons with Disabilities Act, 2016.
Although the parents of the child are the natural guardians till the child attains 18 years of age, after that it is only the court which can appoint a legal guardian for the individual.
In the absence of advance planning, families of minor or specially abled children are often compelled to invoke the court’s parens patriae jurisdiction - the inherent power of a court to act as guardian and protect the interests of persons who are unable to care for themselves, resulting in avoidable delay, procedural scrutiny, and emotional strain.
Proactive <u succession planning</u reduces this dependency on reactive judicial intervention.
The legal system does provide remedies, but litigation is not a succession strategy.
The Legal Reality in India.
If you are a parent of a child with special needs, then you should certainly be aware about the legal issues involved in ensuring the rights of that child in India.
The key statutes are: The Guardians and Wards Act, 1890 – governs guardianship of minors including minors with disabilities.