October of each year has been designated Special Needs Law Month. As estate planning and elder law attorneys, we encourage all adults – no matter their age – to plan ahead. This is especially important when a family has a child or adult dependent with special needs counting on them for care. Planning ahead can ensure your loved one is covered in the event you are no longer there to care for them.
A recent statistic from the U.S. Census Bureau reported that of the estimated 53.9 million school age children in the country in 2010, 2.8 million (5.2%) have some form of disability. The study did not include children who were institutionalized. These disabilities range from autism , to emotional issues, to epilepsy, to traumatic brain injury and many others. Whether the disability has existed since birth or is the result of an accident or injury, parents must take action to ensure their child is protected. This is critical when the disability is severe or the child is not expected to be fully able to care for him or herself in the future.
Children are not the only potential special needs dependents. As the U.S. population ages, more adult children are caring for their parents. The percentage of individuals with disabilities increases with age. For those 65+, it is estimated that 36.6% have some form of long-term, severe disability. While we don’t like to think about it, there is always a possibility that the younger caregiver will predecease his or her disabled parent. Again, you will want to have taken the necessary steps to ensure quality care continues.
If you are new parents – even if your child does not have special needs – when your child is born you should immediately update your will and estate plans to include the child. If your child does have special needs or you have been tasked with caring for an adult with special needs, you should schedule an appointment with an estate planning attorney with experience structuring estate plans that include special needs trusts.
When set up correctly, special needs trusts are not included as assets when determining whether the beneficiary is eligible for government assistance through programs like Supplemental Security Income (SSI) and Medicaid. The other big benefit of the trust is ensuring the quality of care continues, even after you are gone.
There are several types of special needs trusts based primarily on how they will be funded. The trust for a child with special needs will typically be set up differently than a trust for an adult with special needs who may have accumulated assets. An estate planning attorney will generally ask questions to determine the specifics of your loved one’s situation and your wishes in terms of how your loved one is protected. Designation of a trustee – be it a trusted family member or professional trustee – will be discussed. There will also be a detailed discussion regarding funding the trust.
By taking steps immediately upon learning your loved one will have special needs, you can help ensure their care into the future. If you have any questions or need assistance with guardianships, elder care or estate planning, contact the attorneys at Brinkley Walser today.
About Brinkley Walser, PLLC
Brinkley Walser prides itself on providing new and cutting edge legal counsel built on a foundation of knowledge and integrity. Brinkley Walser’s attorneys are first and foremost counselors, advising clients on their legal rights and options for appropriate solutions. Practice areas include business law, real estate, litigation, elder law, estate planning, injury and disability, criminal defense, traffic and DWI, banking, family law, municipal, governmental, and education law, among others. Based in Lexington, North Carolina, our primary practice area covers, but is not limited to Davidson, Forsyth, Rowan, Guilford, Davie, Montgomery, Cabarrus, and Randolph Counties. Brinkley Walser is an AV rated firm by Martindale-Hubble®. The firm has offices at 10 LSB Plaza in Lexington and in the First Citizens Building, 620 Green Valley Road, Suite 306, in Greensboro. Visit Brinkley Walser on the web at www.brinkleywalserstoner.com and on Facebook at www.facebook.com/brinkleywalser.