Areas of Practice
Special Needs Planning
Careful planning is essential for families with a special needs child. Parents must consider who will care for their child when they are no longer able to, how to give them an inheritance without eliminating government aid eligibility, and what they can do now to plan for meeting future needs. When working with special needs families, our priority is to understand each family’s unique situation and address concerns one by one. Some common solutions are drafting an estate plan that incorporates special needs provisions, establishing a supplemental needs trust, drafting powers of attorney and related documents for special needs adults, obtaining a guardianship, and/or connecting families with a government aid specialist or financial advisor who specializes in special needs solutions.
Estate Planning Considerations
All estate plans that name a special needs beneficiary must be carefully drafted to both preserve government aid eligibility and name a trusted person to help the special needs beneficiary manage the inheritance. We work with families to make sure that all planning, including their wills, revocable living trusts, other trusts, personal business interests, and beneficiary designations, incorporate the beneficiary’s special needs and benefits. This comprehensive approach is essential to the success of special needs planning.
Supplemental Needs Trust
A Supplemental Needs Trust, also called a Special Needs Trust or SNT, is an excellent way to provide for a special needs child without supplanting or reducing government benefits. It can be established by parents, grandparents or any other person wanting to set money aside for the needs of their special needs loved one. A trustee manages the assets in the trust and can use them to provide for the beneficiary, including things such as education, recreation, travel, medical expenses or counseling services. Most SNTs are established using third-party funds (not the beneficiary’s funds), but some are established using first-party funds (the beneficiary’s funds). This practice area is nuanced and requires thoughtful drafting to ensure the beneficiary’s needs are met while maintaining eligibility for government aid and avoiding Medicaid payback (MERP).
If adults with special needs have sufficient mental capacity, one of the best ways to continue caring for them is through financial and medical powers of attorney. They can also enter into a supported decision-making agreement, whereby the person with special needs agrees with the caregiver to share information and accept assistance, but unlike a guardianship, the agreement does not take away the special needs person’s rights. This approach is not always available depending on the level of incapacity, but it should be considered as a potential alternative to guardianship.
If adults with special needs do not have the mental capacity to care for themselves, guardianship may be warranted. When a child turns 18, a parent’s legal authority over the child automatically ends, even if the child is mentally incapacitated. However, the parent (or other qualified person) can petition the court to become the incapacitated adult’s legal guardian, or in other words, establish a guardianship. This is a court-monitored process that involves a doctor’s evaluation and annual accountings. Once established, it is relatively straightforward to maintain, but it does involve continuous court oversight. Therefore, all alternatives to guardianship should be explored before initiating a guardianship proceeding. We work with families to evaluate whether guardianship is needed, consider alternatives, and represent them in the guardianship proceeding if it is determined to be the best next step.