A special needs trust may be established in a variety of ways, but at its core, this is a trust to provide for the needs of a person who is disabled over and above those which may be covered by public assistance benefits the beneficiary may be entitled to receive. Oftentimes, the receipt of personal injury proceeds or inheritance will disqualify the individual from these important benefits. Brinkley Walser Stoner is experienced in this area of special needs trust planning, drafting, and administration in order to enhance the quality of life and benefits for such individuals. If you are caring for someone with special needs, making sure you and your dependent are protected under the law is imperative. When we talk about a dependent with special needs, often what comes to mind is a child who is physically or cognitively impaired, but children with special needs grow to become adults with special needs. Likewise, an illness may cause a spouse or elderly parent to become disabled and fall under the category of a special needs dependent.
There are many nuances under the law that parents or guardians must understand. For example, many parents caring for children with special needs do not know that in a divorce, property settlements can impact benefits available to a special needs dependent. In addition, once the child with special needs reaches adulthood, he or she is automatically considered a competent adult unless legal action is taken to prove otherwise. Government benefit eligibility is also now based on the individual’s income and assets. If an individual with special needs is still competent despite their disability or special needs, then it is advisable that upon attaining 18 years of age, the individual consider executing a durable power of attorney, health care power of attorney, and HIPAA authorization for release of medical information to their designated health care agent(s). Absent these directives signed by the competent person with special needs, should they later become incompetent, a legal guardianship through the Court will have to be obtained.
A recent study showed that 84% of parents with children having special needs have made no provisions for lifetime financial assistance for those children and 88% have not established a special needs trust to maintain public benefits eligibility for their children upon their death. If you fail to do so, any inheritance left to your dependent with special needs could disqualify him or her from Supplemental Security Income or other government benefits. You must take steps to establish guardianships or special needs trusts that will ensure your loved one is safeguarded.
The National Academy of Elder Law Attorneys (NAELA) has designated October of each year as Special Needs Law Month to bring awareness to special needs law issues. Brinkley Walser Stoner’s David Inabinett has written an article on the subject that you can access by clicking the link below. Inabinett is a member of NAELA and was just named to The Best Lawyers in America® 2021 in the fields of Elder Law and Trusts & Estates.
If you have any questions or need assistance with guardianships, elder care, or estate planning, contact the attorneys at Brinkley Walser Stoner today online or by calling (336) 249-2101 (Lexington) or (336) 235-2941 (Greensboro).