Estate planning for a child with a disability presents unique challenges. You must address the same issues as every parent – establishing trusts, naming guardians, and dealing with tax issues – but you face additional concerns too. You may be asking yourself:
- Who will look after my child’s personal needs, make medical decisions, and look for opportunities that can help my child lead as complete and fulfilling a life as possible?
- If I leave assets to my child, will my child be ineligible for government benefits he or she may be receiving?
- How can I leave financial assets to care for my child?
- Where will my child live for the rest of his or her life when I’m no longer there?
At Harrison & Held, our attorneys have helped many families navigate these challenges. We work closely with our clients and a network of advisors to develop comprehensive, holistic estate and life-care planning that integrates traditional estate planning tools with the use of discretionary and special needs trusts, letters of intent and future-care planning. We have the experience to counsel families through the labyrinth of federal and state government benefits and design plans that preserve eligibility. Our attorneys have knowledge and expertise in trust and estate law, trust income tax issues and guardianships. We collaborate with the family’s financial planner, insurance advisor, and introduce care-managers and professional trustees, when necessary, to ensure that the individual with a disability has a system of support and oversight beyond basic government benefits. We also work with family law attorneys when parents of a child with special needs divorce. Special planning is required for child support payments when the child attains age 18.
The anchor of a well-designed legal plan for a person with a disability is the Third Party Discretionary Special Needs Trust (SNT). The SNT enhances the quality of life for the beneficiary by providing for personal care, housing, support services, therapy, recreation and other services without affecting the person’s eligibility for benefits.
If a person with a disability who is dependent upon Medicaid or SSI receives an inheritance or award in a personal injury or malpractice suit, it may be necessary to establish a self-settled OBRA ’93 Payback SNT, a trust named for the law that created it, established by a parent, grandparent, legal guardian or court. This kind of SNT is funded with the assets of the beneficiary and is only available to a beneficiary under the age of 65. A person with a disability is permitted to transfer his or her assets into the SNT, have the benefit and use of the assets in the trust during lifetime, and still receive Medicaid and SSI as long as the trust provides that the state be paid back after the beneficiary dies for benefits provided.
We have extensive experience with all of the concerns that arise with special needs planning. We can guide you through the process, every step of the way.