Parents who have special needs children often need to deal with issues that parents who don’t have special needs children don’t have to face. While all parents need to create a comprehensive estate plan, especially after they have a new child, parents of special needs children have to take a little extra time when they develop their plan so they can address the specific issues relevant to their situation. Let’s take a look at some of the common concerns that parents with special needs children should think about.
As parents, you have the right to choose who will have the legal authority to care for your minor child should you die. In many situations, parents with children who do not have disabilities choose a family member, or even adult children, to act as guardian. But with a special needs child you need to give the selection a little bit more thought. Depending on how much care your child needs, how much time a caregiver has to provide, and other similar issues, selecting the appropriate guardian can take time. As you consider your choices you should make sure that your selection is capable of providing the kind of care you want your child to receive. You also need to make sure your selection is willing to act as guardian, as well as make provisions for replacement guardians in the event your first selection cannot serve.
While it’s very common for parents with young children to create testamentary or living trusts, parents with a special needs child should consider a special needs trust. These trusts allow you to pass assets along to your child while still giving the child the ability to benefit from any government programs available.
For example, a child with disabilities could receive medical care through California’s Medi-Cal program, but only if that child meets the asset limit requirement. A special needs trust can ensure that your child is both financially provided for and capable of benefiting from government provided assistance.
In addition to a special needs trust, it’s important to make sure that your special needs child does not directly inherit property. For example, naming your child as beneficiary of your transfer on death investment account is a big mistake. Your child will not be able to receive that investment directly and will need someone to manage the property on his or her behalf.
If you haven’t taken the appropriate steps to choose someone who will take on this role, it will be up to a court to make the decision for you. This can add a needless complication that you can easily avoid by creating the appropriate special needs plan.
Careful planning for a special needs child can be obtained by working with an experienced and qualified estate planning attorney whose practice includes special needs planning.
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