As our country's population ages, the chance that any one of us, or a loved one, will experience a disability increases exponentially. This results in a demand for special planning for those persons with a physical or mental disability, or special needs. A special-needs-based-plan is designated to combine legal, financial, and medical planning to help ensure that a disabled individual can live a full and enhanced lifestyle.
Our attorneys are experienced in preparing estate plans for family members who want to help a disabled or elderly spouse, parent, child, partner, or sibling. Typically, these disabled family members are receiving some form of government benefits, such as Medicaid, Supplemental Security Income (SSI), Social Security Disability Income (SSDI) and other forms of public benefits. If assets are given outright to the disabled individual, either in the form of a lifetime gift or an inheritance under a Last Will and Testament or Revocable Trust, the receipt of these assets by the disabled individual will jeopardize or even result in termination of the disabled individual's entitlement to public benefits.
Our attorneys have the expertise to prepare appropriate estate plans that will not impact the disabled individual's entitlements, through the use of “special needs trust” or “supplemental needs trust” planning. A special needs trust is a trust document that allows a person with a physical or mental disability to retain an unlimited amount of assets in trust for his or her own benefit without those assets being considered a countable resource for public-benefits eligibility. For example, the parent of a disabled child can establish a special needs trust for the child's benefit by entering into a Last Will and Testament or Revocable Trust document that the parent would execute. In the parent's Will or Revocable Trust, the parent would designate a Trustee to receive, hold, and manage the assets and distributions from the special needs trust following the parent's death. Our attorneys would prepare the special needs trust, and advise the Trustee of the trust, in such a way that the trust principal and income would be legally unavailable to the disabled child for purposes of continuing entitlements to public benefits while at the same time assuring that the trust funds may be distributed by the Trustee, in a discretionary manner, for the care and support of the disabled child in order to improve the child's quality of life.
Our attorneys are also specialized in preparing special needs trusts on behalf of a disabled person who is entitled to a monetary settlement or award due to a personal injury claim. Ensuring the recipient of a settlement award has his or her public benefits eligibility preserved is considered part of providing competent legal representation. In this type of planning, the trust is funded with assets of the disabled person, and the trust is created by the disabled person's parent or the Court having jurisdiction over the personal injury litigation.
Special needs planning can be an attractive option for clients with disabled family members. With proper legal and financial planning, families can guarantee that members with a disability will enjoy a comfortable lifestyle while preserving their governmental program eligibility.
