“Special needs planning” by attorneys usually implies legal work performed on behalf of a person with special needs, e.g., developmental disabilities (intellectual disabilities, cerebral palsy, autism, spina bifida, or Prader-Willi syndrome). But “special needs” also entails legal work for any person in need of special planning due to infirmities of the aged, mental health illness, or other serious medical disabilities. And such planning is for everyone because we never know when a serious injury or illness may befall us.
Most of the planning is intended to avoid guardianship, remain (or become) eligible for means tested public benefits, and possibly avoid the costs of subsequent probate administration. When my son came home from college for his first Christmas break, he was proud to show me his picture from the Duke University newspaper wherein he was photographed leaping off the steps of the Duke library, using roller blades. He was not wearing a helmet or shin guards, and I gave him the “Mommy lecture,” telling him that he could have killed himself or become seriously injured. And then I realized that my 18 year old son was an adult under Florida law. He had a small bank account that we funded, but it was only in his name, hence, a potential guardianship or probate asset. He had never done any advance care directives, and if he were seriously injured, a guardianship would have been required. So, based on the facts, I prepared advance care directives for him to sign - a durable power of attorney, a health care surrogate designation, and a living will. Because his only asset was a small bank account, my husband and I simply added our names to the account. This is a practical example of “special needs,” planning for someone who may (or may not) have “special needs” in the future.
Our other son was born with multiple congenital anomalies including profound intellectual disabilities. When he was 18 years of age, we filed for guardianship so we could retain legal authority over his care. He never had capacity, and his impairment was profound, so my husband and I filed for plenary (“complete”) control of his person and property. This is an example of planning for someone who currently has special needs.
In the elder law practice, I am always surprised to see how many seniors come to my office who have never done any basic documents or planning to avoid guardianship or probate. Frequently, the senior assumes that their adult child has brought them in for a consultation because they are terminally ill, which is usually not the case. It is just that the adult child has identified that the aging parent is declining, may need assistance including the possibility of placement in an assisted living facility (ALF) or a skilled nursing facility (SNF). Frequently, I turn to their middle aged children and learn that they, too, have never seen a qualified attorney to assist them in planning for their special needs, which can occur in an instant. Reversals of health and finances can change dramatically and suddenly, so persons of all ages need to prepare for these contingencies.
Special needs trusts (SNT) are appropriate when a family member has special needs and is receiving means-tested governmental benefits such as Medicaid or SSI. Other family members (e.g., the parents, grandparents, siblings, etc.) should consider a third party SNT so their disabled family member remains eligible for means-tested governmental benefits. These SNT’s can simply be a death provision under a Will or a Trust, or it may be a free-standing SNT which may be funded today and perpetually. Such free-standing third party SNT’s also serve as an available depository for estate assets by other families who would like to financially assist their disabled family member but not jeopardize his or her governmental benefits. If the disabled individual comes into money due to an unexpected inheritance or a personal injury settlement, the disabled individual couldl lose their governmental benefits, as most programs allow no more than $ 2,000.00 in assets. Now we are looking at the first party (self-settled) SNT for the individual. Depending on the amount of money (and the age of the individual), the excess funds could be deposited into a pooled trust (“d4C” SNT), or else, the disabled individual may need to have a “d4A” SNT established on their behalf by a parent, grandparent, guardian, or the court.
It is imperative that everyone consider setting up the appropriate documents for themselves and for anyone they care about who now has “special needs.” One never knows what the future holds in store for us.
Submitted by Arlene Lakin, Esq.
7284 W. Atlantic Blvd.
Margate, FL 33063
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