Estate Planning For A Child With Special Needs: What Parents Need To Know
Estate planning is an obvious concern for all parents, but if you have a child with special needs, it’s crucial that you are aware of the unique considerations that go into planning for a child with special needs. If your child has special needs, you must understand exactly what’s necessary to provide for the emotional, physical, and financial needs of your child, in the event of your own death or potential incapacity.
When creating your Will and Trust, there are two major considerations for you to focus on: 1) Who would care for your child if and when you cannot, and 2) How will your child’s financial needs be met when you are not there to meet them.
Naming Legal Guardians for a Lifetime of Care
The first and most critical step in ensuring the future well-being of your child with special needs is to name both short and long-term legal guardians to care for your child in the event of your death or incapacity. Further, as you well know, if your child will never become fully capable of independently caring for him or herself, your parenting responsibilities will continue on long after your child reaches adulthood.
Although this lifetime responsibility likely feels overwhelming, we’ve been told repeatedly by our clients who have a child with special needs that naming legal guardians and knowing their child will be cared for by the people they want, creates an immense sense of relief. Not only that, but we often build in unique plans through which the named guardians are carefully instructed to give your child the same level of attention and care you provide.
For example, we’ve created plans in which the named guardian is compensated for taking your child to dinner and the movies every week or participating in some similar activity if this is something your child enjoys doing. However, without written instructions built into your Will and Trust, fun activities like this are often neglected once you are gone.
For guidance on selecting the individual(s) best suited to serve as legal guardians and creating the proper instructions for them to provide your special needs child, consult with us as your Personal Family Lawyer®.
Providing For Your Child’s Financial Future: Special Needs Trusts
Beyond naming legal guardians for your child with special needs, you’ll also need to provide financial resources to allow your child to live out his or her life. This is where things can get tricky for children with special needs.
This may even seem like a “Catch-22” situation—you want to leave your child enough money to afford the care and support he or she needs to live a comfortable life, yet if you leave money directly to a person with special needs, you risk disqualifying that individual for much-needed government benefits.
Fortunately, the government allows assets to be held in what’s known as a “special needs trust” to provide supplemental financial resources for a physically, mentally, or developmentally disabled child, without affecting his or her eligibility for public healthcare and income assistance. However, the rules for such trusts are complicated and can vary greatly between states. Therefore, you should always work with us, your Personal Family Lawyer® in order to create a comprehensive special needs trust that’s properly structured and appropriate for your situation.
Setting Up The Trust
Funds from a special needs trust cannot be distributed directly to your child. Instead, they must be disbursed to a third party who’s responsible for managing the trust. Due to this, when you initially set up the trust, you will likely be both the Grantor (trust creator) and Trustee (the person responsible for managing the trust), and your child with special needs is the trust’s Beneficiary.
You’ll then name the person you want responsible for administering the trust’s funds upon your death or incapacity as a successor trustee. To avoid conflicts of interest, overburdening the legal guardian with too much responsibility, and providing a system of checks and balances, it may be a wise decision to name someone other than your child’s legal guardian as the successor Trustee.
As the parent, you serve as the Trustee until you die or become incapacitated. At that time the Successor Trustee takes over. Each person who serves as Trustee is legally required to follow the trust’s terms and use its funds for the benefit of your special needs child.
Additionally, you should name multiple Successor Trustees—which can even be a trust company, bank, or another professional fiduciary—as backups in case something happens to prevent the individual you’ve named as the primary Trustee from serving as the Trustee.
There are two ways to set up a special needs trust. In the first option, we build it into your revocable living trust. In this case, it will arise, or spring up, upon your death. From there, assets that are held in your living trust will be used to fund the special needs trust.
In the other option, a special needs trust that acts as a vehicle for receiving and holding assets can be set up for your child right now. This option makes sense if you have relatives who want to give your special needs child gifts sooner rather than later.
Finally, it is important to ensure that the trust will have enough funds to last throughout the life of your child. One common method to provide funding is for you to name the special needs trust as the beneficiary of your life insurance policy. Another way is for family members and friends to make donations or gifts to the trust and/or include it as a beneficiary of their will.
Meet with us, as your Personal Family Lawyer®, to discuss all of your available options for ensuring your child’s special needs trust has sufficient funds to last for his or her lifetime. We can also provide guidance on the Wills and Trusts planning vehicles best suited for passing money to the trust.
The Trustee’s Role
Once the trust is funded, it’s the Trustee’s job to use the trust funds to support your child without jeopardizing your child’s eligibility for government benefits. To ensure this is handled properly, the Trustee must have a thorough understanding of how eligibility for such benefits works and stay current with the laws regarding this topic. The Trustee is also required to pay the beneficiary’s taxes, keep detailed records of the trust’s assets, invest trust property, and stay current with the beneficiary’s needs.
Given this immense responsibility, it’s often best that you name a legal or financial professional who’s familiar with the complexities of the law as a Trustee or Co-Trustee, so they can properly handle the above duties and not jeopardize your child’s eligibility for government benefits. Alternatively, we can advise your named Trustee on how to manage the Trust.
Your Trusted Source For Special Need Planning
If you have a child with special needs, meet with us, as your Personal Family Lawyer®, for trusted guidance and support in creating a special needs trust. We offer an array of Wills and Trusts planning strategies that are designed to accommodate the unique needs presented by a child with special needs.
We will assist you in passing on the financial assets needed for your child, without jeopardizing his or her eligibility for government benefits. We’ll also support you in finding and appointing a legal guardian and/or Trustee to ensure your child is protected and provided for in the manner you wish when you die or if you become incapacitated. Contact us, your Personal Family Lawyer® today to get started with your Family Wealth Planning Session.
This article is a service of Levi L. Alexander, Personal Family Lawyer®. We do not just draft documents. We help to ensure you make informed and empowered decisions about life and death, for yourself and the people you love. This is why we offer a Family Wealth Planning Session™. During this session, you will get more financially organized than you’ve ever been before and make all the best choices for the people you love. You can begin by calling our office to schedule a Family Wealth Planning Session and mention this article to find out how to get this $750 session for free.
