If your child requires or is likely to require governmental assistance to meet their basic needs, do not leave money directly to your child. Instead, establish a Special Needs Trust.
Unless the trust your attorney prepares for your child is designed with your child's special needs in mind, it will probably render your child ineligible for government benefits. A Special Needs Trust is designed to manage resources while maintaining the individual's eligibility for government benefits. Planning is important because many adults with disabilities will rely on government benefits for support. If the disabled person has assets in their own name (the current limit is $2,000), they might lose eligibility.
Medicaid, and other public benefits programs, will not pay for everything your child might need. A Special Needs Trust can pay for items not provided by government assistance or other resources - including extra medical and dental expenses, annual check-ups, necessary or desirable equipment (such as a custom wheelchair, bed, or specially equipped van), insurance, training and education, social activities, and special foods.
Unfortunately, some Special Needs Trusts are not customized to the needs of the particular child and do not "fit" the child's needs. Thus, the child might not receive the support and benefits the parent wanted the Special Needs Trust to provide. For example, children who are high functioning and active in their communities can benefit from a Special Needs Trust that is carefully tailored to provide adequate resources to support their social lives.
Does your child have significant medical concerns? Should the trust allow for birthday gifts for other family members? What about travel expenses to visit loved ones? Do you have a preferred living arrangement for your child? Your child's Special Needs Trust should address all these issues and more.
Many Special Needs Trusts mistakenly include a "pay-back" provision rather than allow the remainder of the trust to go to others upon the death of the child with special needs. If a "pay-back" provision is included unnecessarily, Medicaid will receive the remainder (up to the amount of benefits provided) in the trust upon the death of the beneficiary. These "pay-back" provisions are necessary in certain types of special needs trusts, but an attorney who knows the difference can save your family thousands of dollars. Special Needs Trust will help you avoid one of the most common mistakes parents make. Although many people with disabilities rely on SSI, Medicaid, or other needs-based government benefits, you may have been advised to disinherit your child with disabilities to protect that child's public benefits. If your child receives public benefits but no additional financial support, it is likely that your child's standard of living will be only at a subsistence level. If your other children are adults, financially stable, and have plenty of money, disinheriting your child with special needs might work in the short term.
In all other cases, disinheriting your child with special needs is a mistake! It is not a solution that will protect your child after you and your spouse are gone. The money given to siblings can easily be spent down or lost in a lawsuit or divorce. What if your child with the money divorces? His or her spouse may be entitled to half of the money you set aside for your child with special needs. Further, what if your child with the money dies or becomes incapacitated while your child with special needs is still living? Will his or her heirs care for your child with special needs?
Instead of disinheriting your child, a Special Needs Trust allows you to provide your child with assistance and support after you are incapacitated or gone.
We'd love to walk you through this process. Contact us today!