While estate planning is important for every family, it is especially important for aging parents who have children with special needs. These clients need to create a solid and well-informed estate plan in order to ensure the continued wellbeing of their child.
If your elder law clients need to plan for a child with special needs, it is first important to understand how public benefits work and what role they will play in the planning process. Most individuals with special needs receive public benefits including Medicaid and other supplemental income programs. These benefits are need-based. Therefore, if the individual suddenly inherits a significant amount of assets, he or she may lose public benefits. Rather than forfeit public benefits, most families set up a special needs trust to benefit the individual.
Establishing Special Needs Trusts
Leveraging the legal strategies for special needs planning can greatly benefit your clients. Special needs, or supplemental, trusts help preserve an individual’s qualification for government assistance because the trust, rather than the individual, holds the assets. Families who do not have significant assets can also fund a special needs trust with a life insurance policy. In order to do this, your clients simply name the trust as the beneficiary of the policy.
Special needs trusts are managed and administered by a trustee and come in two forms: a general support trust and a supplemental care trust. The most common and effective special needs trusts are supplemental care trusts, which are designed to provide a supplementary source of resources for the beneficiary in the event government benefits are exhausted. The assets in these trusts are not viewed as available resources for purposes of qualifying for needs-based benefits. A general support trust, on the other hand, acts as a primary source of resources for the beneficiary and is viewed as an available resource.
Selecting a guardian for children with special needs
If your client’s child with special needs is still a minor, it is also important to select the right guardian for him or her. Advise your clients to select a person who has the capacity and discipline required to care for their child. Counsel your clients to have a conversation with this person before designating him or her in a will, to ensure that he or she is willing to take on this responsibility, if necessary.
Special Needs Planning is a rewarding area of elder law practice. If you’re in the process of deciding to become a special needs planning attorney, we can help. ElderCounseloffers tools to support elder law attorneys who would like to add this area to their existing practices and to those already practicing in this area through educational courses, including the new Special Needs Immersion Camp offered semi-annually; connection through online member discussion forums which are contributed to by top special needs attorneys throughout the country; as well as providing tools to help you market your practice effectively in this specialty area.
If you are interested in learning more, please schedule a time to discuss your practice needs with one of our member recruitment specialists here.