Special Needs Estate Planning focuses on providing the legal, financial, and special care of a child or loved one with special needs (such as mental, emotional, or physical disabilities) when you are no longer here to do it yourself.
Families with special needs children know how important the right planning is so that their loved one is cared for in the future.
If you have a person with special needs in your life, it is important that you plan now. Do not wait. Failure to properly plan could have disastrous results. Rhonda Miller is here to help you. Call now for an appointment with a Fairfax special needs trust attorney.
A properly drafted Special Needs Trust or Supplemental Needs Trust provides funding for a variety of life-enhancing expenditures without compromising your loved one’s eligibility for certain government benefits, including Supplemental Security Income (SSI), Medicaid, or certain military benefits.
Too often clients come to our office and their special needs planning consists of leaving all of their money to the nondisabled child and disinheriting the child with special needs. That was the legal plan put into place by the attorney who did not know how to do a special needs trust.
There are several types of special needs trusts. The type of trust needed will depend on the situation:
This trust is created by a third party (parent, grandparent) with their money and is usually part of a larger estate plan. Typically, these trusts are funded when the parents or grandparent dies.
This trust is set up with the money from the person with the special needs. This may happen if the person with the special needs was accidentally named a beneficiary outright. Proceeds from a settlement from a lawsuit can go into this type of trust. Usually, this trust is still set up by a parent, grandparent, guardian, or conservator.
The main difference with this type of trust is that after the death of the person with special needs, the state and federal government are paid back for the benefits provided to that person. Any remaining over money can be given to a beneficiary. Those with questions regarding these types of trusts can turn to a Fairfax special needs trust attorney for guidance.
A big concern in the special needs community is what to do when your child reaches 18. Despite the special needs, you as the parent no longer have the right to make medical and financial decisions for your child.
If the child is capable he or she can sign a Power of Attorney and Health Care Power of Attorney naming his or her parents as Agents. It gives me great joy to do these documents. I have had many proud children execute their documents.
If the child is not capable if executing his or her own documents then the parent(s) should seek a Guardian and Conservatorship over the child. You may not need the conservatorship unless the child has income other than government benefits however, it is important to speak to the attorney about this issue.
A guardian is a person appointed by a judge after a formal court proceeding who is charged with making all the personal i.e. health issues, non-financial decisions for an incapacitated individual.
A conservator is a person appointed by a judge after a formal court proceeding who is charged with taking control of and managing the estate and finances for an incapacitated individual.
How does it Work?
In order to get a guardianship and conservatorship a trip to court is necessary. A petition is filed asking the court to grant the necessary powers. What is in the petition is dependent on the situation. However, the Petition has many statutory requirements.
After the petition is filed the clerk’s office appoints a guardian ad litem. That is an attorney appointed by the court to protect the rights of the person for whom a guardianship or/and conservatorship is sought. The guardian ad litem does this by meeting with the person prior to the formal hearing, explaining the process, assessing the situation, and then making a recommendation to the judge. A guardian ad litem must be appointed as it is required by the law. A guardian ad litem must also visit with the person and explain the process even if there is little or no change of reciprocal commination. This happens frequently with adults in cases where they are in persistent vegetative states. Only an attorney certified by the courts can serve as a guardian ad litem.
In Fairfax County the process takes about 3 to 4 weeks. It is possible to expedite the process if it is truly an emergency. In Loudoun County they hold the hearing once a month. Again if it is an emergency it is possible to get the court to hear the matter on a different date.
After the guardianship and conservatorship is granted reports have to be filed regularly with the state and county.
Regardless of the type of trust, the trustee will have the discretion to make distributions to the beneficiary to enhance his or her life to the extent possible without reducing benefits during the his or her lifetime. Additionally, trust assets are available if the beneficiary no longer qualifies for governmental assistance or that assistance is no longer available. Money from the trust can be used to pay for supplemental and extra care, over and above any benefits that the person receives – now or in the future:
Here are some common supplemental care needs and services:
Special Needs Trusts are usually part of a coordinated estate plan and can be highly personalized documents. Through the language in the document, or in a Letter of Intent (sometimes called a Memorandum of Intent), you may leave specific instructions – in your own words if you choose – as to the care of your loved one: his/her likes and dislikes, special diet, important medical therapies, favorite activities, etc. You can impart your wishes, hopes, and goals as to the kind of life you envision for your loved one.
Visit our Special Needs Planning FAQ for additional Information.
Fairfax attorney Rhonda A. Miller has more than 20 years of experience handling and establishing trusts. Contact her today to learn more about planning with a Special Needs or Supplemental Needs Trust.