Three Special Needs Planning Considerations for Parents

Families who have members with special needs contend with a variety of different concerns, whether it’s traveling to occupational therapy appointments, choosing the most effective medical devices, or contemplating whether to “mainstream” a special needs child in school. Because there are so many moving pieces concerning the care for your loved one with special needs, you may not have even considered the need to consult with an experienced special needs planning lawyer.

Have you addressed what will happen if you become incapacitated or suddenly pass away? Working with an experienced special needs lawyer is an important step in helping to formulate a plan that provides for the care of your loved one even when you’re unable to provide it. The attorney can assist in getting your affairs in order and can advise you on areas that you may not have considered. By taking care of these issues now, you ensure that things are in place and ready to go should you suddenly become unable to care for your family member. Here are the top three things you should take into consideration for special needs planning:

You’ll Likely Need to Apply to Become Your Child’s Conservator  

Once a child with special needs turns 18, the parents lose the legal right to make medical or financial decisions. It doesn’t matter the extent of the child’s disabilities; this is simply the law in California and across the country. Your special needs planning attorney can help you file a Conservatorship to ensure you have the legal right to continue taking care of your child.  The parents should also give thought as to who they may want to name as a successor in the event they are incapacitated or pass away.  If the parents’ eventual choice for caretaker – and importantly, their choice for who should not be a caretaker – is not legally specified, then the decision goes to the courts, and the family’s opinion is disregarded as if it never existed. 

Proper Protections

Most special needs attorneys will recommend that you don’t leave assets outright to your family member with special needs. This may seem cold, but it is actually doing your loved one a favor. If your loved one inherits assets – even an insignificant sum – they can be disqualified from various types of assistance programs. Medi-Cal, for example, could view these inherited assets as a reason to go back and collect payment for benefits that have been paid out previously.  It can also stop future payments from coming in once the child surpasses income and asset thresholds.

Set Up a Special Needs Trust

Your situation may call for a specific trust to be set up and funded for your loved one with special needs. A Special Needs Trust (SNT) is often used to protect assets for a person with disabilities while allowing them to continue receiving benefits. At this point, you may be faced with some choices, such as how you will fund the trust and who will be named as trustee to make sure your loved one receives the care they need when you are no longer around to make decisions. Again, your attorney will walk you through all of your choices and help you create a plan that works best for your family.

If you would like to learn more about special needs planning, or if you would like to have your current Special Needs Trust reviewed to make sure it is still appropriate for your family’s situation, please set up an appointment at our law firm by calling 800-244-8814.

If you have any further questions about estate planning and strategies to shield your wealth, or if you’d like to have your current asset protection plan reviewed to make sure it still meets your needs, please contact us at one of our offices located throughout the state of California 800-244-8814 to set up a consultation.