ESTATE PLANNING FOR CHILDREN WITH SPECIAL NEEDS

Planning for a Child With Special Needs
Like so many other aspects of parenting a special needs child, there are unique challenges and considerations in setting up your estate plan.  It may seem overwhelming, but the good news is that there are tried and true tools available for special needs planning through the use of wills and trusts, including a special needs trust, to help you protect your disabled child and your entire family long after you are gone.  We can help.  Below are some of the key issues that you should address with your estate planning lawyer to help you with careful planning for the needs of your special needs child and all of your family members for years to come.
Guardians and Conservators
​Of course, as you would for any young children, if your child is a minor you will want to name a guardian in your will in case something happens to you and the other parent.  Once your special needs child becomes an adult, however, he or she may still need a guardian and/or a conservator, depending on the nature of his or her disability.  In addition, these roles may need to be more specifically described and planned, as there may be some things that your child can manage on his own and others that he cannot.  For example, he may be able to live independently and make adult decisions, but not to manage finances, so you will need to identify who has the legal authority to help him with that. Chances are this is currently (or will be) you or your surviving spouse, but it is important to think ahead about who will take your place so that the transition is as smooth as possible for your child.  You can name a successor (including alternates) in your will- it is also a good idea to prepare that person for this responsibility with as much information as you can provide about your disabled child.  Even a simple letter with a list of medical providers, likes and dislikes, and what you want for your child can go a long way in helping the successor guardian make things easier for your child.
Financial Security for the Adult With Special Needs
Your child with special needs most likely will have limitations on his or her ability to earn income throughout their lifetime. This means that, despite a desire to treat all of your children equally, you may have to allocate more resources for that child than for other children you have without special needs. In addition, even if your child is legally competent, he or she may not function at a high enough level to effectively manage the inheritance. If you want assets to go directly to your children instead of to your spouse, or want anything other than an equal distribution among all of your children, you have to have at least a will.   If you want to ensure that someone you trust will be responsible for managing your disabled child's assets after you are gone, you are going to need a combination of wills and trusts, including a special needs trust, and appointment of an appropriate trustee to help manage the assets your child receives. 
Protecting Your Child's Eligibility for Benefits
Many people with special needs are eligible for federal Supplemental Security Income (SSI), and also may qualify for other need-based federal, state, or local public benefit programs. These sources of income from public benefit programs can be critically important for your child throughout his or her lifetime, especially after you and your spouse are gone or unable to take care of their needs.  You don't want to jeopardize eligibility when your child suddenly receives assets in an inheritance.  You can use a special needs trust to hold these assets, and to set out clear guidance for the trustee who will administer and oversee the trust. A special needs trust places limits on how money can be used, and if set up correctly the assets in that trust will not count in determination of continued eligibility for benefits.  
In Summary: The Documents You Will Need
Your estate plan should include:
  • Wills for you and your spouse which identify a guardian and/or conservator for your disabled child and any other young children;
  • Trusts to protect as many of your assets as possible from estate tax and the potential future cost of long term care for you and your spouse; 
  • A special needs trust to protect your disabled child's eligibility for government benefits;  A durable power of attorney for you and your spouse;
  • A health care proxy for you, your spouse, and your special needs child if he/she is an adult, with alternates identified in case something happens to you and your spouse.
Additional documents you can create outside of your estate plan that will help someone stepping into your shoes as guardian or conservator make the smoothest transition possible for your child:
  • A list of your child's medical and other providers with a brief description of the services they provide;
  • A summary of your child's functional strengths and weaknesses- what they can do independently, where they need help, their most common sources of frustration, etc.; and
  • A copy of your child's most recent IEP or 504 plan if they are still school-aged.
Taking Care of the Whole Family
Careful planning not only protects your special needs child, but can also help the rest of your family members.  The non-special needs siblings who are such great support may face life challenges of their own, and clarity about a guardian and an alternate can help minimize stress and conflict for them.  If you are the parent who has been the most directly involved in managing things for your special needs child, a clear plan, complete information, and a vehicle to protect and manage assets can be of similar benefit to your surviving spouse.  And, finally, getting a plan in place will help you take one more thing to worry about out of your mind and focus one the people and things you love.

    Need help with a plan for your child with special needs? contact us

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Ready to Get Started?
We are ready to help.  Honestly, this topic is way harder to think about than it is to actually do once you decide to take the first step. We have a simple process for getting you from wherever you are now to executed and final documents and peace of mind.  It starts with an initial consultation, which is absolutely free.  You can use the button below to schedule your consultation, or simply give us a call at  413-667-2322, or fill out our web form.