Caring for a loved one with special needs has a profound effect on the day to day life of a family. This often leaves little or no time to contemplate what may happen when you, as the parent, are no longer able to provide the care they need. Providing for a loved one with a disability is of the utmost importance.
The number of families with special needs children is on the rise. It is crucial that parents create an estate plan which accounts for the complexity of the law governing this area. Many people do not realize that the law has many caveats that allow individuals receiving government benefits such as Supplemental Security Income (SSI) or Medicaid to continue receiving these benefits and still be able to get an inheritance, personal injury settlement or divorce settlement. These types of benefits are preserved if the assets or property are titled in a Special Needs Trust (“SNT”).
These types of Trusts come to life upon the death of the second parent and are much more effective than simply leaving behind a lump sum of money. SNT’s generally work like this: a person wants to make sure their disabled loved one is provided for upon their death. Instead of leaving a lump sum of money behind in their Last Will and Testament, they will create a SNT to benefit the special needs individual (the “Beneficiary”). The person creating the Trust (the “Grantor”) places certain assets into the Trust and designates who will manage them (the “Trustee”). The assets in the Trust are then managed according to the Grantor’s terms and used to help pay for the beneficiary’s needs. The most important aspect of an SNT Trust is that the assets in the Trust are not counted as being owned by the special needs individual. This allows them to qualify for or retain their public assistance benefits such as Medicaid and Supplemental Security Income (SSI).
This was not always the case and the law has changed several times. Most recently, The Special Needs Trust Fairness Act passed in December 2016 and allowed people with disabilities to create their own Special Needs Trusts without relying on someone else to do this, such as through a guardianship process. Additionally, a close family member such as a parent, grandparent, legal guardian or court still has the ability to establish a Special Needs Trust on behalf of the special needs individual.
Other Special Needs Considerations to Keep in Mind:
- Both the caregiver and the disabled individual need to plan for their possible incapacity and create a Durable Power of Attorney and a Health Care Surrogate naming a trusted agent to make decisions on their behalf.
- Choosing the right facility for your loved one in case they could no longer live with you.
- Language, cultural, and religious considerations for long term care facilities.
- Choosing an at home personal health care attendant.
Planning ahead for special needs is not a matter of “if”, but “how”. Contact OC Estate & Elder Law at (954) 251-0332 or info@ocestatelawyers.com to receive a personalized consultation regarding all the intricacies of special needs planning. We will make sure you leave our office with peace of mind for you and your loved ones.
