If you had to guess the largest minority group in America, what would you say? The Department of Labor states that as of January 2016, people with disabilities make up the nation’s largest minority, counting almost 50 million individuals.
For families affected by disability, especially physical and developmental, the care needed can be daunting – on physical, emotional and financial levels. While many government programs exist to aid these individuals, they still fall short in most cases and, in the current economic environment, face budget cuts.
The simple truth? It is vitally important for these families to have the necessary legal documents and financial planning in place. The cornerstone of such a plan can be the Special Needs Trust.
- It provides care above what the government alone can supply. Special Needs Trusts, sometimes called Supplemental Needs Trusts, have existed for years. However, in 1993, Congress specifically authorized the use of Special Needs Trusts for the benefit of disabled individuals under the age of 65. The assets in a Special Needs Trust are not countable when it comes to qualifying for government assistance. This is because the Trust is designed to provide “supplemental and extra care over and above that which the government provides.” As a result, how assets held in trust are used must be carefully managed in order to not jeopardize available government assistance. It is often noted that the Trust should operate on a sliding scale, providing benefits to whatever extent they are not covered by government aid. If not properly executed, some or all government benefits could be forfeited.
- It protects the funds and the individual, alike. Assets in a Special Needs Trust are not subject to creditors or judgment in a lawsuit. The assets remain protected both for and from the individual with disabilities, dispelling the notion that the individual with disabilities is an easy target with “deep pockets” in the form of the Trust.
- It can be the planning tool of choice for families affected by disability. Because of these reasons, the Special Needs Trust can be the estate planning tool of choice for families of an individual with disabilities. However, it is critical that the Trust be established correctly. This is done by meeting with an attorney who is very familiar with, and maybe even specializes in Special Needs Trusts.
- Trustees and caregivers must be appointed. With such a great tool comes very specific legal and financial considerations to be made. As with any trust, a trustee must be appointed to oversee the assets held, often a parent or guardian of the individual with the disability. However, a growing concern for many is that due to improvements in treatment and care, the individual with the disability may outlive their parents. Separately, a caregiver must also be appointed. Again, this is typically one or both parents, but it is important to note that every individual, regardless of ability, is deemed to have the legal rights of an adult over the age of eighteen. This means that even the individual’s parents must petition the court in order to be named a lifetime guardian. However, in the instance that the individual with the disability should outlive their parent and/or current guardian, alternative, viable caregivers should be named. Having separate individuals serving as trustee and guardian can provide a system of checks and balances, ensuring the proper care, both physically and financially for the individual with disability/special needs.
- A Letter of Intent should be considered. Another important document to have in place aside from the Will and Trust is a Letter of Intent. This provides all the necessary information and instructions for the caregiver including doctors, prescriptions
andother medicines, routines and schedules, exercise, contacts, etc. While the information directly pertains to the caregiver, it’s also important that the trustee is aware of the letter’s content.
It goes without saying that caring for an individual with
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This information is not intended to be a substitute for individualized legal advice. Please consult your legal advisor regarding your specific situation.
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