Those of us who have primary responsibility for a family member with special needs have unique concerns about what will happen after we die: How can I ensure the continuity of quality care for my loved one? Will they be able to stay in their current living situation? Will my other children provide for their sibling and uphold their best interests? How can I make sure that entitled benefits are received?
Both personally and professionally, I understand the emotional weight this puts on a care-giving parent, sibling or family. As an Elder Law and Special Needs attorney, I help educate all my clients on the range of options available to protect their special needs family member, and it is my job to advocate on behalf of their loved one’s best interests. Fortunately, the law provides ways to create peace of mind and clarity for everyone. Regardless of income or asset level, the responsible party should establish some form of Special Needs Trust. Here are just a few reasons why:
- Proactive planning costs much less than unanticipated costs of care or legal entanglements (with the state or other heirs) that may arise.
- The care of your loved one may be disrupted if funding is in question during probate.
- Even just a small amount of a direct inheritance (that is, outside of a trust) can interfere with Social Security and Medicaid eligibility, and this will certainly be the case if your loved one is the direct beneficiary of your life insurance policy.
- Even the most in the most loving families, the surviving spouse, siblings or others (whether related by blood or marriage) may have different priorities and capabilities and may not be willing or able to sustain the standard of care you’ve deemed best. Unfortunately, I’ve seen how money and loss of a family member can change people’s motivations and behaviors in surprising ways. Specific directives, selection of an objective Trustee, and carefully structured plans take the onus off grieving survivors, which can help maintain family unity. There are many intricacies related to a trust’s design based on needs, assets, and tax implications; it helps to understand the fundamental differences between the types of Special Needs Trusts (SNTs). The table in the image provides a high-level summary.