By: Estate and Elder Law Services
The National Academy of Elder Law Attorneys (NAELA) has designated October as National Special Needs Law Month. The purpose of Nation Special Needs Law Month is to raise awareness of the legal challenges and solutions available to older adults, people with disabilities and their families.
Estate and Elder Law Services has years of experience in providing services to the elderly to those with disabilities. Most families are at a loss as to what to do when a special needs child reaches adulthood, or how to leave assets to a special needs child. Not only are there practical challenges to leaving assets to a special needs person, but there are potential consequences as well. Often times, if a special needs person inherits assets, he or she will lose the public benefits to which they are entitled, such as Supplemental Security Income (SSI) and Medicaid.
At Estate and Elder Law Services, we think that families of special needs persons should be armed with the following knowledge:
When Your Child Turns 18, You Will Likely Need a Guardianship
Parents are entitled to and responsible for making decisions for their minor children. However, when a child, even a special needs child, turns 18, the entitlement and responsibility cease immediately. It may be difficult to speak with your child’s physicians, make decisions regarding his or her medical treatment, or determine how his or her income is spent.
If your child is not capable of making his or her own medical and legal decisions, or if he or she is in danger of being taken advantage of, you will need to petition the court to be appointed guardian when your child attains the age of 18.
As guardian, you will be authorized to make financial, medical, lifestyle, and general welfare decisions for your adult child.
You Do Not Need to Disinherit Your Child
Some parents or family members think they need to disinherit their loved ones in fear of disqualifying them from receiving governmental assistance. It is true that receiving an outright gift or inheritance may be wasted, disqualify your loved one, and force him or her to reapply for assistance.
However, there is a third option – beyond disinheritance or disqualification. You and other loved ones can pass along a gift or an inheritance in trust, with carefully crafted special needs provisions.
This means that your gift will supplement, not supplant, governmental assistance and this is called “special needs planning.”
Special Needs Planning is Available
Fortunately, the law permits parents, grandparents, or other caring adults to set up and contribute to special needs trusts. Trust assets are used to increase the quality of special needs person’s life, but typically are drafted to avoid disqualifying him or her from receiving governmental assistance. For example, a special needs trust might pay for an additional caretaker, a hairdresser, a trip, or tickets to a favorite event such as a play, concert, baseball game, or museum.
An attorney must carefully draft the trust to fulfill the goals of the family and to avoid language that could cause the special needs person’s public benefits to become at risk. A trustee is named to carry out trust instructions and make distributions in accordance with the trust’s terms.
Additionally, Congress has recently enacted legislation to expand the options available to special needs persons and their families through the creation of ABLE accounts. Eligible individuals and their families will be allowed to establish ABLE savings accounts that will not affect their eligibility for SSI, Medicaid and other public benefits.
Where to Get Help Avoiding the Legal Pitfalls of Special Needs
When clients visit Estate and Elder Law Services, they generally present problems beyond the need for a will or a power of attorney. Our Special Needs Law attorneys are familiar with the multifaceted aspect of this complex area of the law. If you would like to find out how a guardianship and special needs planning can help your loved one, we welcome you to contact our law office.