Q&A: Special Needs Planning

With October being National Special Needs Law Month, it’s a good opportunity to answer some frequently asked questions regarding special needs planning.

Question: What is Special Needs Planning?

Answer: Special Needs Planning is a holistic approach to assisting individuals with special needs – such as physical or intellectual disabilities and their families with legal issues they may face.  This includes a range of services from decision making and guardianship, obtaining government benefits such as Social Security Disability, Supplemental Security and Medicaid, or accessing other community services such as a proper education plan, career services, or housing.  In addition, a special needs planning attorney can provide the guidance and estate planning assistance through special trusts so that assets can be transferred for the benefit of the special needs individual without losing crucial government benefits.

Question: My daughter is autistic and receives government benefits. What will happen if I leave her money in my will? Should I leave it to her brother and have him pay her bills?

Answer: Leaving an inheritance to a disabled relative may cause that person to lose critical benefits. However, there are ways to continue protecting your loved ones after death.  Supplemental Needs Trusts (SNTs) provide a supplemental source of funds for individuals with disabilities.  Because of certain legal limitations on these trusts, individuals can remain eligible for government benefits that are based on need such as Supplemental Security Income (SSI) and Medicaid.  By leaving the money to your son in the hope he will take care of his sister puts the burden on him and he does not have to use the money to pay for her care.  Should he have financial problems in the future he may lose his money as well as hers.

A Supplemental Needs Trust (SNT) will protect your daughter’s benefits as well as her money should something happen to you.  You can set up the trust now, or it can be established under your will when you pass away.

Question: I have a child with special needs. Who will help them make decisions and take care of them after I’m gone?

Answer: One of the most critical components of a special needs plan is the determination of who may legally make health care and financial decisions for an individual with special needs.   Some individuals with disabilities possess the legal capacity to make their own decisions.  These individuals would sign a Health Care Proxy and a Durable Power of Attorney.

A Health Care Proxy is a legal document which allows an individual, known as the Principal, to designate an Agent to make health care decisions in the event the Principal is unable to make health care decisions for him or herself.   A Durable Power of Attorney is a separate legal document which allows an individual to appoint an Agent to make business and financial decisions for the Principal.

If the individual lacks the legal capacity to make decisions, a guardianship may be necessary.

New York State offers two different types of guardianship proceedings for individuals with special needs who are unable to make health care and financial decisions for themselves.   Article 17-A guardianships work through the local Surrogate’s Court and can be used to appoint guardians of the person and/or property for individuals over the age of 18 with developmental disabilities, other intellectual disabilities and traumatic brain injuries occurring prior to age 22.

An Article 81 Guardianship works through the local Supreme Court and be used to appoint guardians of the person and/or property for individuals of any age and any type of disability.  Generally, however, it is used after the age of 18.

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