Estate Planning for People with Special Needs
Estate planning, guardianship, and its alternatives are critical aspects of meeting the legal needs of people with disabilities. Families of persons with special needs face unique challenges when it comes to planning for their own incapacity or death, managing their assets, making financial decisions, ensuring their loved ones have access to certain benefits, and providing for their future care.
In this article, we will delve into the importance of estate planning for families of people with special needs and explore the benefits of guardianship and its alternatives for individuals with disabilities. We will explore the legal considerations, available options, and the significance of tailored plans to protect their interests and provide ongoing support.
How a Special Needs Planning Attorney Can Help
Estate planning involves creating a comprehensive strategy for managing one’s assets, healthcare decisions, and other personal matters, both during lifetime and after death. For families of individuals with special needs or disabilities, a special needs planning attorney can create sound legal strategies that ensure your loved one’s financial security, continued access to government benefits, and the distribution of your assets according to your wishes.
Many people who are physically disabled have full mental capacity, while the opposite is also true. Therefore, each scenario needs to be evaluated thoroughly with a special needs planning attorney to determine the best legal strategies for the person with special needs and their loved ones.
Special Needs Trusts
Special needs trusts (SNTs) are vital tools in planning for people with disabilities. There are First Party Special Needs Trusts for disabled individuals who acquire assets, such as from an inheritance, and there are Third Party Special Needs Trusts where the funds come from anyone other than the disabled person. These trusts allow individuals to protect their assets without jeopardizing their eligibility for means-tested government benefits such as Medicaid or Supplemental Security Income (SSI). The special needs planning attorney can explain the differences in the types of trusts and determine what type is most appropriate for your situation. Further, SNTs will provide a designated trustee who can manage the assets on behalf of the disabled individual, ensuring their long-term financial security.
Healthcare directives, including durable powers of attorney for healthcare, allow individuals to designate a trusted person to make medical decisions on their behalf and on behalf of their disabled minor child, in the event they are unable to do so themselves. This ensures that their medical preferences and treatment choices are respected.
It is important for families planning for a family member with disabilities to review and update beneficiary designations on financial accounts, retirement plans, life insurance policies, and other assets. These designations dictate who will receive the assets upon their passing, and ensure that they are properly distributed to the SNT. This will help avoid potential complications and disputes.
Understanding Guardianship for People with Disabilities
Guardianship is a legal arrangement that allows a designated person (the guardian) to make decisions and provide care for an individual who is unable to manage their affairs due to a disability or incapacitation. However, guardianship should be a last resort because the legal effect is that it takes away the disabled person’s right of self-determination. In recent years, there has been a shift towards exploring alternatives to guardianship. Therefore it is important to explore and understand the unique alternatives that are available to assist people with special needs.
- Power of Attorney Arrangements Power of attorney arrangements, healthcare proxies, and advance directives are alternatives that provide individuals with disabilities more control over their decision-making process, while still receiving necessary support.
- Supported Decision-Making: Supported decision-making is an alternative to guardianship that promotes the autonomy and self-determination of individuals with disabilities. It involves identifying a team of trusted individuals who assist the individual in making decisions, ensuring their preferences and best interests are considered.
- Types of Guardianship: Depending on the specific needs of the individual, different types of guardianship may be appropriate. Guardianship is an important consideration for individuals with disabilities who may require ongoing support and assistance.
a. Guardian of Person grants the guardian decision-making authority, with respect to housing, healthcare, and personal matters.
b. Guardian of Property grants the guardian with decision-making authority with respect to the disabled person’s property and finances.
Both types of Guardianship can either have broad decision making authority or be limited to specific decision-making powers while allowing the individual to retain some independence.
The Importance of Tailored Planning for Special Needs
Each person’s situation and needs are unique, requiring a unique approach to estate planning,guardianship or one of the alternatives. It is crucial to consult with an attorney who understands and specializes in disability law and special needs circumstances. The special needs attorneys at Frame & Frame can help you and your loved ones navigate the complexities and ensure that legal documents align with the individual’s specific circumstances.
What Does Special Needs Planning Encompass?
As discussed previously, the issues pertaining to estate planning, guardianship, and its alternatives should be discussed with an experienced special needs planning attorney. This is a niche area of law that can help ensure the best possible outcomes with respect to the legal instruments that will serve the best interest of the person with disabilities and their family. Your special needs planning attorney will review:
- Protection of Assets: Tailored estate planning allows families of individuals with disabilities to protect their assets while maintaining the person’s eligibility for government benefits. Special needs trusts can safeguard assets and ensure their proper management, providing financial security without sacrificing vital support programs.
- Person-Centered Care: By establishing guardianship,supported decision-making arrangements or another alternative, individuals can have their personal preferences and best interests considered when making decisions about healthcare, living arrangements, and other important matters. This promotes a person-centered approach that respects their autonomy and values.
- Long-Term Support: Tailored planning provides a roadmap for ongoing support and care, even after the individual’s primary caregivers are no longer able to fulfill their roles. It ensures a smooth transition of responsibilities and provides continuity of care to maintain the individual’s quality of life.
Estate Planning for Special Needs Child
If you have a child, grandchild or younger family member with special needs, there are many things you can do now to plan and prepare for your loved one’ future. It is imperative, however, that thoughtful planning occurs well in advance of any crisis. This will provide reassurance to all loved ones that, in the event of a parent’s illness, incapacitation, or death, your loved ones will have a good plan in place. Your special needs planning attorney will also help you review and consider the options and preferences for long-term care and support.
Estate planning and long term support options are crucial legal considerations for people with disabilities. By engaging in comprehensive estate planning, including the establishment of special needs trusts and healthcare directives, individuals can secure their financial future and ensure their healthcare preferences are honored. Similarly, exploring the various options for guardianship, supported decision-making, and alternatives allows individuals to strike a balance between independence and necessary support. Tailored planning provides individuals with disabilities the peace of mind that their interests will be protected, their wishes respected, and their long-term care needs met.
Find a Special Needs Attorney Near You
Seeking guidance from lawyers who are well-versed in disability law is essential to navigating the intricacies of estate planning, guardianship, or one of the alternatives effectively. Do you need help planning for a loved one with special needs? Frame & Frame Attorneys at Law has offices in Annapolis, Pasadena, Frederick, and Stevensville, Maryland. Contact us today to schedule an appointment with a special needs attorney at Frame & Frame.
Frequently Asked Questions About Estate Planning for People with Special Needs
A special needs trust is a particular kind of trust that is set up by one person for the benefit of another person who has an incapacitating disability. In certain circumstances, the disabled person can establish their own special needs trust. Whether that individual has a physical, mental, or developmental disability, a special needs trust can help. In short, the beneficiary of this kind of trust has special needs, and the trust is designed to provide financial resources for that beneficiary. Special needs trusts typically are tailored specifically to the requirements of the beneficiary for whom the trust is created. A Maryland special needs trusts attorney can explain some of the benefits of such a trust in more detail.
In many cases, a special needs trust is established as a safeguard in the event that a parent, spouse or primary caregiver is incapacitated or passes and therefore, no longer able to care for the family member with special needs. But, in these cases, it may be wise to consider who will administer the trust. The estate planning and trust attorneys at Frame & Frame can help you make these important decisions and offer suggestions and options for trustees to provide trust administration and fiduciary services. This can provide immense peace of mind to all family members.
Often, a well-intentioned family member will leave assets or money to a person with special needs to provide for their care. However, this is not always the best option as it can affect their ability to qualify for government assistance programs. Our estate planning attorneys are specialists in the laws that impact families with special needs. Our lawyers can advise you and your loved ones on the best way to handle inherited assets, while ensuring your special needs family member remains eligible for applicable public benefit programs.
Even if your disabled child or loved one with special needs does not currently require benefits from government assistance programs, a special needs trust can still be tailored to provide specifically for the unique needs of the beneficiary, if you pass. Estate planning can address financial necessities and needs such as:
- Personal care attendant costs;
- Medical expenses;
- Educational expenses;
- Physical therapy needs;
- Individual product and service needs; and
- Recreational activities.
As you look to the future for your loved one with special needs, obtaining public benefits and protecting assets are critical, but the true goal is to provide for a life of quality, the support of loved ones and the support from a super hero team, along with the ability to contribute meaningfully and with a purpose. What makes for a good life is personal, so we work with you and your family to figure out what that might mean to them and to you. We help to identify and assemble the superhero team that will be there to ensure the planning works, now and in the future. This team might be made up of family members, neighbors, professional colleagues or mentors, religious figures, third-party agencies, attorneys, financial advisors, and other professionals. Diversifying this team helps build in resources, continuity and a group of advocates that help support you and your loved one with disabilities as time moves on.
A letter of intent is not a legal document, like a will or a power of attorney, but rather it is a document that can capture information about your loved one so that those in your superhero team who may not know your loved one’s history, connections, preferences, and goals are able to quickly get up to speed. When properly utilized, a letter of intent is treated as a living and ever-changing document, updated as your family member with disabilities changes. A letter of intent may include important family history, contact information for superhero teammates or other potential advocates, likes and dislikes, religious wishes, effective and not effective communication methods, and other personal and systematic information that may otherwise be taken for granted. The attorneys at Frame & Frame can help you prepare a letter of intent to include in your own estate plan. We also provide a free service to our clients that enhances this concept. Our ePlan365 assures that important information is documented and accessible to the people you designate, for any issues that arise.