SPECIAL NEEDS PLANNING

Special Needs Trust

The law entitles disabled individuals to keep money in a special trust called a Special Needs Trust or Supplemental Needs Trust. This is a special type of trust designed only for disabled people to provide extra things that are not paid for by government programs. A Special Needs Trust may maintain for the disabled person an unlimited amount of money without affecting, eliminating or reducing their government benefits.

The Special Needs Trusts can pay for things like:

• Home modifications
• Purchase of a home
• Transportation, including purchase of a car or van
• Computer equipment
• Clothing and personal care items
• Vacations and recreational costs
• Medical care that is not covered by Medicaid

This type of trust is a viable option in cases involving proceeds from a malpractice or personal injury lawsuit or an inheritance. These proceeds can be deposited into a Supplemental Needs Trust without having a negative impact on government benefit eligibility.   

Guardianships

Privacy laws were enacted so that when a child turns 18, his or her parents are no longer able to make medical or financial decisions for them because that child is now considered a legal adult. This is the case for all children turning 18, even those with special needs and those who are unable to make appropriate decisions for themselves.

A 17A Guardianship is a Surrogate’s Court proceeding specifically created for individuals with developmental and/or intellectual disabilities. This proceeding is based on cognitive abilities and not on functionality. The petitioner will be required to submit a recent psychological evaluation with the petition for guardianship along with other supporting documents and two doctors must certify as to the permanency of the person’s disability. The Court may or may not require the appearance of the person with special needs at the hearing. Once appointed, the Guardian has the power to make any and all decisions, including financial, medical, and end-of-life decision making as necessary. 

Pooled Trusts

A Pooled Trust is a type of Supplemental Needs Trust which is administered by a non-profit organization.  The funds are held in an account for the benefit of a person with special needs.

A Pooled Trust can be useful for families who need a corporate or institutional trustee or for Medicaid Home Care recipients who have excess income.

This is good news for you and your loved ones. You can still plan for your loved ones without jeopardizing their government benefits. Since many people with special needs rely on Social Security and Medicaid benefits, this is something that is very important to consider.

The experienced special needs planning attorneys at Cona Elder Law can provide guidance and assistance along the way.

Advance Directives

If your child with special needs is able to understand and make his or her own decisions regarding finances and health care, then your child may be able to execute advanced directives. Advanced directives include a Power of Attorney, a Health Care Proxy (with a HIPAA release) and a Living Will. A Power of Attorney is a legal document wherein an individual appoints an agent to make financial decisions for them if he or she is unable to do so themselves. A Health Care Proxy is a document that allows an individual to appoint a health care agent to make medical decisions on their behalf in the event they are unable to make decisions themselves. The Health Care Proxy should contain a HIPAA release allowing the agent access to medical records. A Living Will is a document wherein an individual sets forth their end-of-life care wishes, including the use of life-sustaining treatments. If your child with special needs appoints you as their agent, you will remain involved in this important decision-making role, even after your child reaches age 18 and beyond.