What Can an Estate Planning Attorney Do for Special Needs Clients?

August 27, 2018

It’s ok to admit it; estate planning is not easy. Wills, trusts, and other financial processes are highly complicated and inherently stressful for a majority of people. Now imagine if these processes had to mesh with government programs like Supplemental Security Income (SSI) and Medicaid. That is the reality for families with a special needs family member; however, an estate planning attorney can help families with any of these needs.

Preparedness Is Key

Raising or taking care of someone with special needs is not an easy task. Families who take care of special needs members have to be flexible, prepared, and patient in every situation. A simple trip to the store can be a challenge, and it may seem like guardians of special needs children never have a break.

Here are some statistics about families with a person with special needs:

- More than 75% of special needs adults are without employment

- Households with at least one family member with a mental disorder have the highest poverty rate (32%) in the nation

- 69% of families with a special needs member are highly concerned about their ability to provide lifetime care

- 88% of parents who have children with special needs have not set up a trust to keep their designation for Medicaid and Supplemental Social Income

- 84% of parents who have children with special needs have not created a letter of intent outlining a plan for the future care of the child

- 72% have not named a trustee to handle their child’s finances;
Nearly 50% have not identified a guardian for their child

- 59% of special needs caregivers say there is too little information available about financial assistance

- Parents spend an average $326 a month, close to $4,000 a year, on out-of-pocket medical expenses for their special needs child

Based on the statistics families and guardians who take care of a person with special needs require financial help. One of the best ways to prepare for the future is to make a plan with a trusted estate planning attorney.

Wills

When preparing for an expected death, creating a will is an integral part of the process. Typically, leaving assets in a will is a simple procedure. However, a special needs beneficiary poses a variety of challenges. If a special needs beneficiary is capable of handling assets on their own, but needs extra help, an estate planning attorney can walk him or her through the collection process. If a special needs beneficiary cannot handle assets on their own, it may be best for the gift to be held in a trust or a special needs trust (explained below).

Trusts

Trusts (like wills) allow people to transfer assets from their possession to the possession of others.

Trusts are different from wills in a variety of ways:

- Unlike a will that directs assets only at the time of death, trusts can award assets before the grantor (the person that funds the trust) dies, or long after

- Trusts can award assets conditionally (i.e., the assets cannot be touched until the beneficiary turns 21 years old)

- Trusts can be explicitly crafted for a special needs beneficiary

- Trusts are managed by a trustee of the grantor’s choosing The trustee has a legal responsibility to ensure that the beneficiary receives their assets in the manner prescribed in the trust.

A special needs trust is arguably one of the most important financial tools for individuals with special needs.

Special needs trusts can:

hold an unlimited amount of money or other assets

safeguard assets without impacting government benefits (i.e. SSI eligibility, Medicaid, food stamps, etc.)

be used for a wide array of expenses

go to other beneficiaries (after Medicaid has been reimbursed) in the event of the beneficiary’s death

Special needs trusts can do a lot for a special needs person; however, the creation, drafting, and implementation of a special needs trust is very challenging without the help of an attorney focused on estate and special needs planning. One wrong sentence can hamstring the entire document, so every sentence needs to be precise. Chestnut Hill Legal can create a special needs trust that works for your family, so you can rest easy.

Power of Attorney

When someone becomes incapacitated and cannot make decisions for themselves, a power of attorney document, if already in place, allows a named agent to take control of the incapacitated person’s assets and manage his or her affairs. The agent usually has complete authority to control the assets, so the principal must have complete trust in their chosen agent.

A special needs family member can significantly benefit from a power of attorney document. If a mother or father falls ill and cannot take care of the family member, a power of attorney document allows the named agent to immediately take control of the assets to ensure continued care for the person with special needs. If someone has not implemented a power of attorney before he or she becomes incapacitated, however, a loved one will need to obtain guardianship before the assets can be transferred to his or her account.

The guardianship process is:

- Time-consuming

- Costly

- Stressful

- Complicated

However, a power of attorney document can cut out the guardianship process, saving the whole family money, time, and energy: valuable commodities when caring for a special needs family member.

Ready to Plan: Start Today

Chestnut Hill Legal is ready to assist you with your estate planning needs. Attorney Louis DiLello has helped many families prepare for the future, and he can help you too.

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