There is a “special needs” child or adult in your life. What should you do? Here are some thoughts to consider.
• Change – Nothing will remain as it is right now. The Special Needs Person (“SNP”) grows up and grows older. Their needs today are not likely to be their needs in the future. You need to design flexibility into your estate plan, usually best achieved by creating a trust granting broad authority to address the ever changing environment and appointing a trustee(s) whose discretion you trust to implement those provisions. Be careful about putting restrictions (handcuffs) on your trustee; that may prevent them from achieving your goals.
• Public Assistance – One of the principal goals of the Special Needs Trust (“SNT”) is to preserve the SNP’s right to receive public assistance. The assets in the SNT are ignored for purposes of qualifying for public assistance and at the same time are available to provide for the wants and needs of the SNP above and beyond what public assistance will provide. Like what might you ask? Anything other than food and shelter, and is not intended to replace medical assistance already being provided. But everything else is permitted to be provided, for instance:
o Travel (for any reason);
o Entertainment (theatre or athletic events);
o Furniture (that big screen TV);
o A specially (or not) designed van;
o A wheel chair;
o Special therapy;
o Medical treatment not provided by public assistance (outside of California or the USA);
o Or anything else except food, housing and to replace medical assistance already being provided.
• Guardian – If the SNP is a minor, it will be important to prepare an estate plan and designate a guardian who can legally care for them until they become an adult. Having attained adulthood, it may be necessary to have a court appointed conservator appointed for them to make their medical decisions, and provide for their personal needs. If the SNP lacks sufficient mental capacity to manage their own finances, the SNT creates the structure by which the trustee of that trust will handle those financial affairs, thus avoiding the appointment of a conservator of the estate of a SNP.
• Avoiding Probate – When the SNP passes away, what happens to any assets they own? If the assets are held in a SNT, the provisions of the trust will dictate who will inherit what’s left and will not be subject to the death probate process.
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