Special Needs Planning
Parents of children with special needs face many challenges, particularly as those children become adults. At Dutcher and Zatkowsky – RochesterElderLaw.com, we can provide a general overview of legal strategies to help you cope with these challenges. We can help you receive financial assistance in caring for your special needs child today, as well as help you plan for the time when you will no longer be around to act as the primary care giver.
Expenses generally increase dramatically when care, management and guidance previously provided by parents must instead be obtained from a professional, such as a case manager. Proper planning can make all the difference in the life of your special needs child, as well as in the lives of his or her siblings who may be left with the responsibility of care taking (and who already have their own families, careers and possibly ailing parents to look after).
It should be noted that families face a host of new challenges when a special needs child reaches adulthood. These include financial independence and support, legal and health care decision making, education and vocational training, health insurance coverage, housing and many more. At Dutcher and Zatkowsky, we can help you plan for these changes and ensure your special needs child will be well cared for after you are gone.
Supplemental Needs Trusts
Supplemental needs trusts allow a disabled beneficiary to receive gifts, lawsuit settlements, certain income or other funds and yet remain eligible for certain government programs. Often, the only way for a special needs beneficiary to qualify for government benefits is to create this unique trust to receive income, known as a “spend-down trust”.
Examples of the use of a supplemental needs trust include a parent creating a fund for a special needs child, a disabled person receiving a lump sum from Social Security Disability, a personal injury or malpractice settlement or verdict, or leaving a bequest in a Last Will and Testament to a family member without jeopardizing his or her public benefits.
As the name implies, supplemental needs trusts are designed not to provide basic support, but instead to pay for comforts and luxuries that could not be paid for by public assistance funds. These trusts typically pay for things like education, recreation, counseling, and medical attention beyond the simple necessities of life. (However, the trustee can use trust funds for food, clothing, and shelter if the trustee decides that doing so is in the beneficiary’s best interest despite a possible loss or reduction in public assistance from Supplemental Security Income (“SSI”).)
Supplemental needs trusts are often created by a parent or other family member for a special needs child, even though the child may be an adult by the time the trust is created or funded. Such trusts may also be set up in a will as a way for an individual to leave assets to a disabled relative without risking the loss of public benefits to the beneficiary. In addition, a disabled individual can create a trust for himself or herself should they become, for instance, disabled as the result of an accident or medical malpractice and later receive the proceeds of a personal injury award or settlement. Different rules apply to these “self-settled” trusts and to “third-party” trusts, so consulting an experienced and knowledgeable Rochester Special Needs firm such as Dutcher and Zatkowsky is critical.