Special needs planning

Having a child with special needs (a developmental or intellectual disability that requires additional support) carries with it daily responsibilities that have likely become your “normal.” But there are many issues related to caring for a child with special needs you probably don’t realize or may take for granted. Here are 5 actions you need to take now for your child with special needs.

1. Get your own estate plan in order.

Many parents of children with special needs put their kids’ needs before their own – and that’s true for most things: clothes, meals, doctor appointments, etc. But parents also need to make sure that their own affairs are in order in case the worst-case scenario becomes a reality. If you are in an accident or suffer from an illness, will others have the legal authority to act on your behalf, or act on your child’s behalf? Probably not, unless you’ve taken the steps to give that authority to someone you trust. Parents need to create powers of attorney and health care consents of minor children so that the status quo – and your child’s care and support– can be maintained in your absence. Appointing an agent can allow them to pay your bills for you, take your child to treatment or doctor appointments, and make sure there are groceries in the refrigerator. Without this legal authority in place, you’re leaving it all to chance.

2. Appoint a guardian.

If you pass away unexpectedly, who will care for your minor child(ren)? You can’t know for sure without a will in place which appoints a legal guardian who you choose. Without the appointment of a guardian, the Clerk of Court is free to appoint anyone they feel is right for the position – even crazy Aunt Sue who hasn’t seen the kids in years. If your child has special needs, you need to make sure someone who understands those needs is given the authority they need to care for your child. Appointing a guardian in a valid will is how you do that.

3. Make sure there’s something left for your child.

After you’re gone, will your child’s guardian (see #2 above) have what they need to provide a life for your child? Too often parents are so caught up in the day-to-day support of their child that they forget about providing a life for them past themselves. If your child is unable to work and provide for themselves, you will need to leave behind enough wealth to sustain their needs throughout their life or rely on the public benefit or social programs that may not exist next year let alone 20 years from now.

4. Protect public benefits.

If your child is currently eligible, or likely to be eligible in the future, for SSI or Medicaid (or any other public, means-tested benefits), an unexpected inheritance or gift of cash or wealth to your child will likely disqualify them from those benefits. Structuring your succession plan to make sure wealth will benefit, not hurt, your child long term is important. Being proactive is imperative. This is best done with a Special Needs Trust or testamentary trust within a will.

5. Appoint a trustee.

The protection and administration of assets and wealth for your child is the key to protecting your child long-term. Appointing the right trustee can make or break a special needs legal plan. Even if the plan is created appropriately, the ineffective administration of the trust can still the benefits (SSI and Medicaid) of the child. Sometimes the trustee can be a family member or close friend of the parents, but it’s also smart to appoint a corporate trustee to be sure that 1) the beneficiary does not outlive the trustee, and 2) the trustee knows what they’re doing with complex government regulations.

The main point: plan ahead now for your absence.

You may not get a second chance, and your child’s health and well-being depend on it.

Our attorneys are here to help you plan and strategize for the future of your loved ones.