At the Ronald J. Fichera Law Firm, we understand how delicate special needs planning can be. Parents worry, and rightfully so. We have solutions, though. Below is an overview of special needs planning. Contact us online or at 610-768-9255 to learn more about it and how our legal services can help you and your special needs child.
Special needs are also referred to as “disability,” "handicap,” or “incapacity.” Each term is differently defined by state and federal law. Under the Americans with Disabilities Act (ADA), special needs are cited as a disability and are defined per as
The meaning of the above definition gets further broken down by the ADA and then narrowed by case precedent. The definition matters if you want your child to get federal and/or state assistance and/or protection. Our estate planning attorney can help you understand what your child may qualify for and how to get it, as well as how to arrange and distribute your own assets upon your death in a way that will best benefit your child.
In the end, though, if your child has special needs––however significant they are or are not––you want to make sure your child is safe and financially stable throughout their life. You can do this through a comprehensive estate plan.
It's simple. An estate plan can help make sure your child has all the necessities they need. Of course, it all depends on how you put your estate plan together to ensure they have what they need and more. If planned correctly, you can help provide:
Your tailored-made estate plan can incorporate things like identifying care providers, appointing a guardian, creating a trust and designating a trusted trustee, and finding housing.
The most important elements of your estate plan, however, will be the guardianship and creating a trust.
One of the most important aspects of estate planning for parents of special needs children is choosing a guardian to look after the child once both parents have passed away. This can be done in the parents' last will and testament. If the parents do not make a joint will, they should make a point of ensuring that they both name the same person as their child's legal guardian.
In either case, parents should choose someone who is trustworthy, reliable, and professional.
Children with special needs are rarely able to earn a living on their own. Instead, they rely on their parents for financial security.
Parents can continue to provide that financial security by establishing a testamentary trust or a special needs trust. Both set aside assets from the parents' estate to fund a trust that would be professionally managed by a trustee of the parents' choice. The principal in that trust would create interest payments that can be used to cover the child's ongoing needs and care. Also, if drafted properly as a spendthrift trust with strict limits on the trustee's ability to give money to the child, the child may still qualify for public assistance––if desired and necessary.
When selecting the trustee for the trust, you want to consider seriously who you want the trustee to be, especially if the trust is not set up as a spendthrift trust. If the trustee, like a family member, views the trust's assets as family assets, they may spend the money themselves, too. In lieu of a family member of a trust, you could also consider the following:
You can also opt to have co-trustees where one trustee is a family member and the other is not. There are, of course, pros and cons to all of these options, so speaking to a special needs lawyer works in your favor.
When parents have the assets and want to leave them to their children, including a special needs child, there are a few mistakes often made.
In the end, it is always best to speak to an estate planning attorney to make sure you set up the estate in your special needs child's best interest.
You want what's best for your special needs child, and we at RJ Fichera Law Firm understand that. We will review your assets, listen to your wants and needs, and provide the best legal options for you so that your goals for your family are met. Contact us by filling out the online form or calling us directly at 610-768-9255 to schedule a FREE Consultation today.
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