Having a family member with special needs requires special attention.  A qualified, experienced family law and estate planning attorney can help you determine what issues a lawyer can help you with in caring for your special needs family member.

To begin with, your family member may qualify for certain government subsidies.  More specifically, they may qualify for Social Security Disability Insurance (SSDI) Supplemental Security Income (SSI) and/orMedicare. Sometimes, determining eligibility for these benefits is clear cut and easy.  On the other hand, sometimes determining eligibility for these benefits must be fought for through administrative hearings. This is where an attorney can help you get the benefits your family member is entitled to.  Further, if your family member has assets that may help pay for these benefits, the administrative process may deny their benefits because the family member is “able” to pay for the benefits they are asking for.  Therefore, it is of utmost import to you and your family member to plan how to manage those assets in order to protect them from a denial of possible benefits and subsidies.  See below on special needs trusts information.

Second, you may want to consider certain types of guardianships as they grow older.  When your special needs child is under the age of 19, you are most likely their guardian.  However, when the child reaches the age of 19, you should consider whether or not you would like to be their guardian.  Not being their guardian does not mean not being a part of their life.  Rather, there is also the choice of being their conservator; that is, being responsible for their money and property.  The Guardianship Alliance of Colorado is a great educational resource on this matter.

Finally, you should consider planning for your and the special needs individual’s future by having a well drawn up estate plan, including lifetime trusts, and testamentary special needs trusts.  A special needs trust can be created to support the person’s “quality of life” needs, not support needs.  Creating this type of trust will protect the special needs individual from their assets being diverted to pay for benefits they had originally qualified for under Medicare or the like.

Assets a special needs individual has earned, inherited, or received by way of a personal injury settlement, should be moved into a special needs trust.  On the other hand, a person who would like to give to a special needs individual by way of a will may do so, but should do so by a testamentary special needs trusts.  This may sound like a lot of legal jargon, but the basics of it are when the trust is created.  If the trust is created during the individuals’ life, then it is a special needs trust.  If the trust is created because of language in a will, then it is a testamentary special needs trust.  In the end, the trusts are basically the same thing, but the creation of it was different legal maneuvering.  There are other types of trusts that can be created for the benefit of a special needs individual, including pooled trusts, disability trusts, and third party trusts. The difference between these and the aforementioned ones are in the administration, and again, the creation of the trust.  However, again, in the end they are to benefit the special needs individual without jeopardizing their benefits of Medicare, SSDI, or SSI.

A special needs individual cannot use these types of trusts to pass their assets on to their heirs, but these types of trusts can be used to help protect the individuals’ families from the potentially heavy financial burden of caring for a special needs individual.

It should be noted that, because special needs trusts are a specific and unique type of estate planning, it is recommended that you not just speak with an attorney, but speak with an attorney that has knowledge and experience in the area.  This way, you will avert the problem of having created an improperly functioning trust, or improperly drafted will by one that is not knowledgeable on the subject of public benefits and special needs individuals’ necessity for them.  Please call Peter Loyd Weber & Associates for a free phone consultation on your questions about your special needs family member.  We are here for you.