Yes, estate planning will help you provide for family with special needs. By taking the right actions now, you can feel confident your loved one will receive the care they need and deserve even when you can no longer provide for them.
Understanding a Special Needs Trust
While there is not a one-size-fits-all answer for all estate planning situations, we often opt for special needs trusts to help our clients support their loved ones who need ongoing care after their death.
The key reason we so frequently use this type of trust for families with a child with special needs is that it allows you to leave money to your child without it hurting their ability to qualify for government benefits they may need later, such as Supplemental Security Income (SSI), Medicaid, SNAP, and other similar programs.
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Setting Up Your Special Needs Trust
Most special needs trusts we establish as a part of an estate plan are third-party trusts. This means you fund the trust with your money, but it benefits a third party. In this case, the third party is your child with special needs. While we complete the paperwork to establish the trust when we create your estate plan, you will fund it through your will.
We can help you determine where the funds will come from. Some of the most common funding sources include:
- Retirement accounts (e.g., IRAs, 401(k)s)
- Savings set aside for the purpose
- Life insurance policies
- The sale of your home or estate
- Other assets
We will also help you choose a trustee to manage the trust. This trustee gets the final say about when and how to distribute the assets. For this reason, we recommend a family member who knows the beneficiary well and understands their needs.
In some cases, families choose their loved one’s guardian as the trustee, but in others, they choose another family member or even a financial professional. We will help you weigh your options to determine the best choice. We also encourage families to choose a contingent trustee in case your family member outlives your original choice.
Who Will Care for My Loved One on a Day-to-Day Basis?
We can also create a plan for what happens to your child with special needs if you can no longer care for them or immediately after your death. If you have a family member who cannot live on their own and you currently provide care for them, this is a key part of your estate plan.
If you currently serve as your child’s guardian or conservator, we can help you put a plan in place for who will succeed you. That is, who will take care of your child if you cannot.
If you do not currently have a guardianship or conservatorship in place for your child with special needs, we can help you create a plan for how you can maintain control over this process even after your death. This will likely include:
- Identifying the guardians or conservators who you want to care for your child
- Discussing the process with these trusted friends or family members
- Helping them understand the legal process required for the court to appoint them as guardian or conservator
- Documenting your wishes as a part of your estate plan
We Will Help You Find the Best Option for Ensuring the Care of Your Family Member with Special Needs
We understand how stressful it can be worrying about your loved one with special needs and wondering what will happen to them after you can no longer provide their care. Our Cape May team — comprised of estate planning attorneys, social workers, and a registered nurse — is here to offer compassionate support while also helping you put a plan in place that will ensure your loved one with special needs receives the continued care they need.
Planning for the future of your loved one who requires extra care and support is complex. Many people leave their assets to their children with special needs in a will, which is not always the best choice.
This may jeopardize their ability to draw SSI, receive Medicaid benefits, and participate in programs that provide housing, food assistance, and other living expenses. It could also leave them unable to access these assets for months while the will goes through probate, leaving them without the money they need.
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