Special Needs Planning
Children and adults with special needs are gifts and many options are available as you determine how to protect and care for them. Special considerations are included in the estate plan of families with minor and grown children with different abilities and needs.
NOTHING IS MORE CHALLENGING THAN:
- Having a Child with Special Needs.
- Dealing with Incapacity.
- Needing Long Term Care.
- Losing a Loved One.
- Becoming Disabled.
WHY IS SPECIAL NEEDS AND DISABILITY PLANNING SO IMPORTANT?
Individuals with special needs–such as intellectual and developmental disabilities (IDDs) and mental health disorders—must have a solid and well thought out plan in place to maintain their safety and well-being now and in the future. Proper planning can preserve eligibility for lifeline government benefits, while protecting inheritances and maintaining the desired standard of living. Our experienced and dedicated interdisciplinary Special Needs team helps families navigate the matrix of governmental and private financial resources to create a plan that provides proper management of living arrangements, trustees, guardians, care managers, and healthcare and financial advocates.
SPECIAL NEEDS AND DISABILITY PLANNING
Our interdisciplinary Special Needs team provides legal counsel and support in creating a comprehensive plan for families of individuals with IDDs and mental health disorders. Our team can help families achieve their goals including maintaining a person with disabilities’ eligibility for government benefits, protecting and managing assets and inheritances for the disabled individual while ensuring he/she is cared for in the manner and standard the family envisions when they are unable to care for their loved one themselves. Such plans may consist of a life care plan, healthcare, health and wellness advocacy, wills, health care proxies, powers of attorney, life insurance trusts, family trusts, credit shelter trusts as well as third party supplemental needs trusts and first party Medicaid payback trusts.
We provide consultation services for families to better understand the eligibility and application processes of government and private benefits for individuals with special needs, including SSI, MoHealthNet/KanCare, Childhood Disability Benefits (CDB) (formerly called “DAC” benefits), Medicare, public housing vouchers and ABLE accounts. Our attorneys will review and advise families relative to both private and public funding sources. We can help families formulate a plan to maintain eligibility for services and to plan for the future.
SPECIAL NEEDS TRUSTS
We serve as Adviser, Attorney, Health Care Advocate, Trustee and/or Co-Trustee of Special Needs Trust (SNT), sometimes also referred to as a Supplemental Needs Trusts, for individuals with IDDs. We work closely with family members and other trusted individuals to provide the support and other assistance a beneficiary may need, to accommodate his/her level of capability at any particular time and to understand, to evaluate the eligibility rules of government and private benefits that he/she may be receiving and to make distributions in the beneficiary’s interest without jeopardizing those benefits.
Often, when a person is receiving Medicaid, SSI, Food Stamps, housing assistance or other need-based government benefits, these benefits, particularly Medicaid health insurance, are irreplaceable or have an incalculable replacement value. Individuals who are receiving Medicaid may not qualify for any other health insurance by reason of their disabilities. Yet, if the person comes into money (through a settlement, inheritance, winning the lottery, or otherwise) their newfound assets can cause them to lose their benefits because they would no longer meet the financial tests for eligibility. In order to qualify for Medicaid and other need-based government benefits, the individuals must have under a certain amount of assets and be earning below a certain income. Coming into other assets may therefore substantially harm the person by causing them to lose their health insurance or other need-based government benefits. Special needs trusts can help address this problem.
Some individuals may not be on need-based government benefits at present but may require those benefits in the future. Often the person is not receiving the benefits because they simply did not apply or because the government improperly denied eligibility. Other times, the person may not now qualify but, due to the nature of the injuries and the prognosis for future care, the person may outlive their money and may require need-based benefits in the future. Special needs trusts can address this situation, as well.
Fortunately, there are sound legal methods to protect the proceeds of civil actions, inheritances, and other assets of disabled people. The goal of all special needs planning is to provide a safe harbor for the disabled individual’s money without jeopardizing the person’s need-based government benefits. There are certain trusts and transactions that the government permits (or has been forced to permit) to allow the disabled person to qualify or retain eligibility for need-based benefits while keeping the benefit of their assets.
An SNT can be established for a person who is already receiving Medicaid or SSI benefits or who may need benefits in the future. A properly drafted and administered SNT will enable the person with disabilities to maintain eligibility for public benefits, while benefiting from the funds placed in trust. The assets in the trust can be used to provide a higher quality of life for the trust beneficiary through the trustee’s purchase of supplemental goods and services.
A SNT can be established for a person with disabilities by different people, depending on the circumstances. For instance, family members often create SNTs for relatives with IDDs as part of their estate planning. A SNT can also be established with the person with disabilities’ own funds or with the proceeds of a personal injury settlement. When a person with IDDs uses their own funds or personal injury settlement proceeds to establish a SNT, the trust is an exempt asset for public benefit eligibility purposes; however, at the beneficiary’s death the state will require payback for services rendered before any of the trust proceeds can be distributed to family members or others designated by the person with IDDs in the trust document.
GUARDIANSHIP & ALTERNATIVES
Upon turning 18 years old, all Missouri and Kansas residents are considered legally competent adults in the eyes of the law. For those individuals with special needs who are unable to advocate for their own health and safety and to make competent decisions on their own, our team works with families through the Probate and Family Court to obtain guardianship and/or conservatorship of their loved one. We also maintain an on-going relationship with the guardian to assist in preparing annual reports to the court.
Alternatively, for those individuals who are competent to make their own decisions with guidance from their family, friends and support network, we can prepare supported decision-making documents including health care proxies, HIPAA releases, powers of attorney and appointments of advocate. These documents allow the individual to make his/her own decisions relative to his/her life while having a legally appointed support system to help consider his/her options, weigh the risks and benefits and make informed decisions.
GET IN TOUCH
Our team supports families as they navigate the various systems that can aid their child’s personal growth – this might include the school or governmental systems. We aim to minimize stress and provide useful resources to the family through the process.