Protecting Those with Disabilities/Special Needs
Family members with special needs and/or disabilities are eligible to receive estate planning benefits through specific supplemental needs trusts (special needs trust). This type of estate planning protects your assets for their intended recipient, without disqualifying them from any state or federal benefit programs. With this specific trust, recipients can use the proceeds to purchase luxuries that they would not otherwise receive under state/federal programs.
In the past, families would disinherit disabled family members and leave assets to an individual who agreed to take care of the assets and family member. If assets were left to a disabled beneficiary, it often disqualified them from state or federal programs under which they were receiving benefits.
Fortunately, in 1993 Congress enacted new laws that entitled disabled individuals to receive the same estate planning benefits as non-disabled individuals without affecting their eligibility for state or federal benefits. These laws made it possible to establish supplemental needs trusts for your loved ones, without affecting their state or federal benefits.
Creating A Supplemental Needs Trust
A supplemental needs trust (special needs trust) can be created by an individual with their own funds or be created by someone other than the disabled individual, typically a parent or relative.
There are different rights and restrictions to each of these trusts, but both ensure immediate qualification for federal and state benefits (i.e. Medicaid) and provide luxuries to the disabled beneficiary they otherwise, most likely, would be unable to have.
When Do I Need Guardianship for My Special Needs Child?
As a parent of a special needs or disabled child, you are the child’s “natural guardian” and can make all decisions regarding the child until their turn eighteen. However, your rights as guardian do not allow you to have access or control of your child’s assets (i.e., proceeds from a lawsuit or gifts from a family member). Once your child reaches the age of eighteen, you lose your rights as the natural guardian to make healthcare and life decisions for them.
To maintain these guardianship rights, you must commence a guardianship proceeding or the State will assume legal authority over your disabled loved one. To avoid losing your authority, you should contact a qualified attorney to begin a guardianship proceeding at least six months prior to your child’s 18th birthday.
Contact the Gordon Law Group today at 615-649-0401 today and let us guide you.