Estate planning for your future can be tricky enough. It becomes even more difficult when you need to plan for a special needs child who may need a lot more care than a normal child. If something happens to you — chronic illness, catastrophic injury or even death — what will happen to your special needs child? Will they be able to care for themselves? Have you set aside the funds that will allow them to life as full and as happy a life as possible? Will the money last through their lifetime?
Planning early may seem expensive upfront but will save a lot of money in the long run — and it gives everyone peace of mind: you, your friends, your family, and your child.
First, start by considering all the factors as you shape your plan:
• Think about how you should divide your estate if you have more than one child, especially if one or more has special needs?
• Figure out how much financial support a special needs child will require? Think about what care he or she might need to meet physical and emotional needs, ongoing education or therapy, medical care, etc. Don't forget to figure inflation into the mix.
• Make sure the money you leave your child doesn't disqualify him or her from government benefits such as AHCSS, Supplemental Security Income, Medicare, etc. That often means setting up a Special Needs Trust.
• Pick a trustee you know won't take advantage of or divert funds away from your special needs child.
An IRA Beneficiary Trust or Special Needs Trust can be established for the benefit of a minor or adult special needs child (or other family member) in two basic ways. (1) A quality Revocable Living Trust and Last Will and Testament will contain appropriate language to create a Special Needs Trust in the event one become needed at the time of or your death or (2) If there is a child who already needs the benefit of a Special Needs Trust, you can establish a “stand-alone” Special Needs Trust which takes effect as soon as you create it.
Here are some advantages for using the stand-alone Special Needs Trust.
Establishing a stand-alone Special Needs Trust will allow other family members to provide benefits for your child. For example, assume the child's grandparents wish to leave the child a bequest. Without the trust, such a gift might cause a loss or interruption for government benefits. By establishing the stand-alone trust, you just need to let the grandparents know the name of the trust, which can be written into their own wills, trust, insurance, IRA or other retirement plan benefits. Upon their death, money will go into the trust, and not directly to the child.
In addition, your own beneficiary designations can list the stand-alone trust and make doubly sure that you won't accidentally disqualify your child.
Just In Case
If you become incapacitated and unable to handle your own financial affairs, someone else must do it for you. If you have used your will or living trust to establish a special needs trust for your child upon your death, that won't help if you are still alive. So a stand-alone trust is the best way to assure your special needs child is properly cared for. In this case, you specify that in the event you become incapacitated, funds can be paid into the special needs trust to meet your child's needs.
If not you, then who? You will need to choose someone to serve as trustee if you are not able to. That person will have complete discretion over the trust so selecting the right person is extremely important.
Keep in mind that any Trustee, including you, cannot give money directly to the beneficiary. You can however, within guidelines pay for items for their benefit.
Just because you set up a Stand-Alone Special Needs Trust doesn't mean you have to fund it immediately. You can put assets into it at any time. It is simply a safety net to protect your special needs child and you can decide when and how much to fund the trust as the future shapes itself.
Do I Need an Attorney?
YES! Drafting a Special Needs Trust should not be left to “do-it-yourself” documents. It takes an attorney with f relevant experience to help create a document that complies with all the laws and requirements and will help you understand how to protect your needs and the needs of your special needs child.