Estate Planning for Special Needs: Basic Strategies and Tactics

Families with children with disabilities should take extra precautions when planning their estate. This is true regardless of whether the child with special needs is a minor or is now an adult, especially if he or she will need to collect public benefits such as Medicaid or SSI one day. The details largely depend on the child's age and proficiency, but it's never too early to start considering how to plan for your loved one with a disability to improve their life after your death.

Prepare Advance Directives

If you have an adult child who has capacity, it is important that they execute a medical and statutory durable power of attorney. Having a medical power of attorney will allow the person to designate an agent to make medical decisions for him if he becomes incapacitated. A durable power of attorney, on the other hand, gives a representative the opportunity to manage her financial affairs.

Guardianship petition

For children who are about to turn 18 and lack capacity, it may be important to file a Petition for Guardianship. It allows parents to continue making medical, financial, and residential decisions for their children even after they turn 18. In doing so, it also allows parents to select alternate guardians in the event of their unexpected death.

A first person trust for special needs

For your disabled loved ones who are under age 65 and inherit directly, consider setting up a first-party supplemental (special) needs trust. This is funded by the assets of a person who has a disability who inherited money, was settled after a lawsuit, or has lump sum disability benefits. The trust can be established by the individual or her guardian and, when properly drafted, will not affect her eligibility for government benefits.

Create a Third Party Special Needs Trust

Establishing a third party supplemental (special) needs trust allows family members to use their assets to fund a special needs trust and leave assets for the child with a disability. This type of trust does not contain a redemption provision, allowing the trust creator to transfer assets between beneficiaries. It also will not affect the ability to seek government benefits.

Medical aid plan

Medical assistance is a public benefit that many people with disabilities benefit from; however, you must be careful when establishing an estate plan so that you do not disqualify your loved one from receiving it. There is a 60-month look-back period when applying for long-term care, and any transfers made during those five years may result in a Medical Assistance sanction. An exception to this rule? Transfers to a special needs trust generally do not incur penalties.

Medical power of attorney

A medical power of attorney gives another person the right to make health care decisions for you.