Estate Planning for Family Member with Special needs

The country’s population continues to grow at a fast rate. This is also true for the people diagnosed with mental and physical disabilities. This increases the chances of seeing families in need of an estate plan, and care for member of the family with special needs. There are a many tools available to these families, which can serve to provide long-term care of the individual after the death of his or her parents or caretaker.  It is also meant to provide tax benefits for expenses accumulated that come with the care of the special needs person.

Special Needs Trusts permit the caregiver of an individual with special needs to provide for the individual long after their death. The typical plan provides for a testamentary trust.  After the caretaker’s death, a trustee will be appointed the assets of the trust for the assistance of the special needs individual.   Special are is taken to make sure that nothing will disqualify the beneficiary from being eligible for benefits under certain governmental programs such as Medicaid and Social Security.

The terms of the Special Needs Trust will provide the trustee with good judgment to make distributions from income that is deemed essential or advisable for the satisfaction of the beneficiary’s special non-support needs. Special non-support needs should be defined as necessary to sustain the beneficiary’s good health, wellbeing, and welfare when, in the discretion of the trustee, those essentials are not being provided by any office, public agency, or department. It also is ok in the event that fundamentals are not being provided by other forms of income available to the beneficiary. A non-exclusive list should be included containing what special non-support needs may consist of.  These can include medical, dental, or diagnostic work or treatment in which funds are not available.  These could include plastic surgery or other non-necessary medical procedures, private rehabilitation, dental care, and recreation and transportation. It is crucial, however, to specify that compensation for such special needs can only be a supplement for governmental or private assistance. This is vital to ensure that the assets of the Special Needs Trust never prohibit the beneficiary’s eligibility for the government assistance that he or she may be getting at the current time.

One goal of a Special Needs Trust includes allowing the trustee to take whatever judicial or administrative steps may be necessary in order for the beneficiary to still qualify for public assistance. This also includes specifying that the beneficiary may not have control of the assets. The assets are not to be given to the beneficiary except in the trustee’s discretion.  The trustee needs to control assets in order for them to be working in the best interest of the beneficiary.

Many people worry about what will happen to their special needs loved one when they are deceased.  A Florida estate and probate attorney can help you implement a special needs trust in order to ensure the comfort and well-being of your loved one.

This article is not intended to provide legal advice.

Additional Legal Resources: The Fort Lauderdale Law Offices of Adrian Philip Thomas. Serving clients throughout Florida and in Fort Lauderdale.

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