Planning for the Future of Your Special Needs Child: Five Tools That Will Give You Peace Of Mind

Part 2

In my last post, I discussed the tools that should be put in place to ensure that your child with special needs is taken care of properly.  The “Five Pieces for Peace of Mind” that I suggested were:

            1.         A Letter of Intent;

            2.         A Will;

            3.         A Supplemental Needs Trust;

            4.         Advanced Directives; and

            5          A Guardianship

In my last post we discussed A Letter of Intent.   I will continue the discussion in this post discussing the importance of A Will, and A Supplemental Needs Trust.

 A Last Will & Testament: A Last Will and Testament or “Will” is a legal document that provides instructions on how you want your assets distributed at your death.    Why is it so important to direct how assets are to be distributed?  When your special needs child is no longer eligible for services from their local school district, the only way to receive the necessary, therapeutic, residential, vocational, and educational services they require, is through means tested public benefits.  These benefits, (for example, SSI, Medicaid, etc.) not only require a determination of disability in order to be eligible, but an applicant must meet stringent income and resource levels.  This means that if your child has more than, or inherits more than, the applicable income and resource levels they would not be eligible for public benefits.  These benefits are typically the lifeline for services once your child’s school program is done.  A Last Will and Testament is important tool since it would ensure that your child with special needs would not inherit your assets directly, which may put them over the applicable public benefits levels. 

A Supplemental Needs Trust:  While public benefits cover many services your child may require as an adult, they do not cover everything.  Additionally, most parents are not pleased with the fact that they have to disinherit their special needs child in order for their child to access public benefits.  Fortunately, there is a very important tool that loved ones can use to allow a child to remain eligible for public benefits, but also have the “extras” that you would want them to have.  This important tool is the Supplemental Needs Trust, also sometimes referred to as a Special Needs Trust.  A Supplemental Needs Trust holds assets for the benefit of the special needs child without those assets being included in determining eligibility for public benefits.  Generally speaking, monies in the trust can be used to pay for items that are not provided by the public benefit system.  For example, money in the trust can buy a television, or pay for a companion, or pay for a vacation.     An attorney who specializes in the area of special needs planning is necessary when preparing this type of trust. There are different types of Supplemental Needs Trusts to consider and review with your attorney.

I know that the thought of predeceasing your special needs child is frightening. The fear of not being here to care for my son whose needs nobody knows better than I do, scares me so very much.  This fear, and the many distractions of life, put planning for the future at the bottom of our “to do” lists.  Nevertheless, as an attorney who has worked with special families for over 15 years, I can assure you that waiting to put a plan in place is a huge mistake. If a plan is not put in place, the only person you are potentially hurting is the child you are trying so desperately to help and you will be leaving your child’s future caregivers with no direction.  There are tools available to you to help you have the peace of mind that your cherished child will be cared for. 

Please look out for my next blog post where I will continue to discuss the necessary planning tools for peace of mind!