When a Marietta special needs lawyer is creating a special needs plan for a loved one with disabilities, it’s the hope that all family members are in agreement and ideally on the same page. But, even if everyone is working together, there can be issues when the parents are divorced. Often, there are separate estates, separate finances, and other factors to consider for both parents when creating trusts and other care plans for children with special needs. By facing the following challenges now, divorced parents have the best chance of creating solid plans for the future:
Understand that you two may have distinct financial and familial obligations. Remarriage and new families may make less money available for special needs planning. One parent may rely on the other to financially back any plans without fully understanding whether the other parent can do what is expected. Since divorced parents’ finances are separate, one parent cannot obligate the other to invest in or pay for something. Also, considering that lump sum inheritances can disqualify your child with special needs from receiving SSI and Medicaid, it’s best to make sure neither of you will accidentally undermine the other’s planning due to unintended consequences of your estate.
Work out any differences in opinion or desired outcomes. Parents may not want the same the thing for their adult child with disabilities, even though they both want the best. This can result in fights and disputes, which can turn ugly and contentious if not resolved. Hiring a Marietta lawyer to handle your child’s special needs plan means having a knowledgeable neutral party working in the best interest of your child, no matter what happens between the two of you.
Decide if one parent should take the lead. If a child with disabilities primarily lives with one parent who is more involved in the child’s ongoing care, then it may be in the best interest of the child for the more involved parent to take the lead and do the lion’s share of the planning. If one parent takes on more responsibility, that parent should strive to keep the other in the loop, while the other pledges support, both emotional and financial.
Make sure all families know what’s going on. Your child may have family members on both sides that don’t communicate with each other or know what’s planned. More importantly, they may have siblings, half-siblings, and step-siblings who may be very concerned about your plans, and especially with any lack of planning. Just because you’ve asked one or all of your children to take over for you when you’re gone, doesn’t mean they can just slip into your place, even if they have the time and means to do so. All parties who would be interested should be kept in the loop to avoid any arguments or fights over your child’s plan when you’re gone.
Special needs planning in Georgia can be just as unique as your own family. Contact our Marietta special needs attorney at 770-425-6060 when you’re ready to start planning. We have the experience and knowledge to work with challenges like divorced and blended families to create the right plan for your child and your family.
By: Steve Worrall, Marietta GA special needs attorney
As a Marietta special needs attorney, I’m often asked, “What exactly is a Special Needs Trust?”
For starters, a special needs trust is a legal entity created to hold assets of a person with a mental or physical disability. The trust names a trustee whose job is to manage the assets and distribute them according to the provisions of the trust. There are specific limitations on the way assets can be distributed so that they do not disqualify the beneficiary from eligibility for government programs.
There are two primary types of special needs trusts. They are:
Self Settled Special Needs Trusts
In a self-settled special needs trust the assets in the trust belong to the beneficiary. For example, if the person becomes disabled due to the negligence of a doctor or car accident, it is possible that the beneficiary received a settlement as a result of litigation. In this case, a self-settled special needs trust would be created for the beneficiary to receive and hold the settlement funds in order to preserve government benefits.
Third Party Special Needs Trusts
A third party special needs trust is created by a third party with assets that belong to the third party. For example, the parents of a child born with Down syndrome or autism might create a special needs trust for their child as a part of their overall estate plan. In the case of a third party special needs trust, family members may make lifetime gifts to the child.
Distributions for Special Needs Trusts
In order to preserve government benefits, it is important to direct the trustee not to pay for services that are provided by a government agency. If done correctly, the assets in the special needs trust will not be counted as a resource. The trust must authorize distributions only for special or supplemental needs. Some examples of this might include dental care, specialized therapy, and services of a caregiver. Improper distributions of a special needs trust can cause a loss of government services, so it is critical that the trust is set up and then managed properly.
Who Should Create a Special Needs Trust?
Not all Georgia estate planning attorneys have the training, expertise or knowledge to create a special needs trust. You should consult with an attorney who is experienced in creating these trusts and who knows how to properly advise trustees.
The documentation that you create with your special needs planning lawyer in Marietta will be quite detailed and will take an incredible amount into consideration, but it will likely not cover every possible concern or wish you may have for your child’s future care. For that purpose, many parents work with their lawyer to create a Letter of Intent.
The Letter of Intent is along the lines of a personal letter, rather than being a more formal legal document. It is used to supplement the special needs plan in order to provide additional information.
Uses for the Letter of Intent
- Parents often use it to address wishes that they have which don’t really fall under the purview of legal requirements.
- This document is also useful for addressing information about your child that is subject to change. While various other special needs planning documents tend to be more static, the Letter of Intent can be changed out as the information in it needs to be updated.
- Finally, a Letter of Intent is used to discuss topics that are just too lengthy to include in the special needs trust.
The letter is typically addressed to the people who will be caring for your child once you are unable to fulfill that role. When the time comes, your attorney will share the Letter of Intent with the child’s caregivers, as well as with the trustee. They can use the letter to help interpret your desires and to help follow through on the wishes you have for your child.
Where to Get the Letter
Your special needs attorney in Marietta can help you draw up your Letter of Intent as a supplemental piece of your special needs trust. You may also wish to download a template for organizing your thoughts. As with any online resource, be sure to have your attorney review the document and offer advice and recommendations. At Georgia Estate Plan: Worrall Law LLC, we’re happy to help. Call us at 770-425-6060 and let’s schedule a Georgia Family Treasures Planning Session at no charge to those readers of this blog post.
If your child has been recently diagnosed with autism, you are probably feeling overwhelmed with this new direction your life has taken and inundated with information about how to care for your very special child. The good news is that there are a number of ways that the government and other organizations can help you. A few of them are listed below.
Social Security Disability Insurance (SSI)
SSI is a financial benefit through Social Security and is available for children younger than age 18. Your child can qualify if he or she has a physical or mental condition (or combination of conditions) that meets Social Security’s definition of disability.
The required level of severity for autistic disorders is met when a doctor finds that your child has the following:
- Deficits in reciprocal social interaction
- Deficits in communication and imagination, and
- A restricted range of activities and interests (this is not needed for Asperger’s syndrome)
In addition, the conditions above must cause serious limitations in at least two of the following:
- Communicative/cognitive functioning
- Social functioning
- Personal functioning, and/or
- Sustained concentration, persistence or pace.
Help for Adults with Autism
Social Security Disability Insurance (SSDI) is a program administered by the Social Security Administration that provides financial assistance to individuals who have a disability that began before age 22. SSDI is paid based on a parent’s Social Security earnings record and are available if one of the parents is either receiving Social Security retirement or disability benefits, has died and worked for a sufficient amount of time under Social Security, or if the disabled adult received “dependent’s benefits” on the parent’s Social Security earnings prior to age 18.
Luckily, there are a growing number of government financial resources that are available for adults with autism spectrum disorders or to programs that they attend. However, many of these resources are “income dependent,” meaning that there is a limit to what an autistic adult can make or own. This includes any money or assets that may be left to them by parents or grandparents in their will or trust.
That is why our Marietta Georgia special needs lawyers are passionate about making sure people know that even if they have the best intentions in mind for their child/ grandchild, they could actually be harming them by leaving an inheritance that causes the child to become ineligible for government benefits (including Medicaid, which may be the only health insurance option available).
The good news is that a Special Needs Trust can help with this. By putting your child’s future inheritance in a trust, he or she can enjoy the benefits of owning assets while maintaining their eligibility for government benefits. Special Needs Trusts can be very complicated and must be created properly by an experienced Special Needs Trust attorney here in Marietta GA to ensure it works as the family intends.
If you have a child who falls within the autism spectrum and need help sorting through all of your options, call our Marietta special needs lawyers today at 770-425-6060 and schedule a free, no-obligation Georgia Family Treasures Planning Session. We can help you make sure your child’s financial future is secure while maintaining the benefits they need.
For families with special needs individuals, ensuring the care for their loved ones once the caretakers are gone is of the utmost priority. The loss of specialized care and Medicaid or SSI benefits is a very real danger if proper special needs planning is not put in place, which is why Atlanta special needs lawyers often share the benefits of special needs planning involving Special Needs Trusts.
What is a Special Needs Trust?
Since even a small amount of cash assets can disqualify special needs individuals from the care and assistance they need, it is important to not let these assets pass directly to them upon your passing. A Special Needs Trust is the best way to ensure your special needs loved one keeps their care and assistance while also benefiting from the legacy you leave behind. Atlanta special needs lawyers design these Trusts in such a way that the assets in it do not belong to your special needs beneficiary; instead, they are owned by the Trust and managed by a Trustee of your choosing who will direct the assets to be used for the benefit of your special needs loved one. Medicaid and SSI will ignore the assets in the Special Needs Trust as they are not directly owned by your special needs loved one.
How may the assets in a Special Needs Trust be spent?
Assets in a Special Needs Trust can be spent in a number of ways which benefit the special needs individual. These include education, recreation, vacations, home improvement, and certain out-of-pocket medical expenses. These expenses are considered “non-countable” by Medicaid and SSI since they do not count as the special needs individual’s personal assets. Atlanta special needs attorneys caution that assets in a Special Needs Trust may not be given directly to the special needs individual, as this will oftentimes disqualify them from receiving state assistance.
What if I don’t have a Trustee or I’m not leaving behind a large sum of money?
In cases where a suitable Trustee cannot be chosen or a small or moderate sum of money is being left behind, Atlanta special needs lawyers often direct their clients towards Pooled Trusts. Pooled Trusts are typically run by non-profits which manage the assets for special needs individuals. The non-profit will assign a Trustee who is responsible for managing the assets on behalf of the special needs individual; the benefit of such an arrangement is that the Trustee and the non-profit are both heavily involved in the special needs community and understand the care and compassion needed to look after your special needs loved one. While there are fees and different types of services attached to Pooled Trusts, they are often a good alternative to an individual Special Needs Trust in certain situations.
If you have any questions about how a Special Needs Trust can benefit you and your loved ones, please contact us at 770.425.6060 to schedule a consultation.
Special needs planning attorneys in Atlanta have very specialized knowledge that can help families plan for their children’s future. There are so many things to keep straight when it comes to raising your special needs child, and focusing on what will happen to him or her after your death is not something that is pleasant to contemplate. Still, it is very important to take the time to meet with a special needs planning attorney in Atlanta in order to give your child the best opportunities.
An Important Tool
Special needs planning is a part of estate planning, and one of the most common things an Atlanta GA special needs atttorney is likely to advise will be a “special needs trust.” The reason that this trust is so important is that it allows you to set aside money for your child’s future without jeopardizing his or her eligibility for government benefits such as Social Security and Medicaid. Unfortunately, leaving your child even a small inheritance can make it so he or she is no longer eligible for this kind of aid and can severely impact quality of life.
Trusts for Your Child
There are different types of trusts that the attorney will go over with you. Some are funded by the person with special needs, say through an award from a personal injury case or from an inheritance. Others are specifically funded by a third party such as parents or other family members. The second kind is the special needs trust, and if it’s the right choice for you, a qualified Georgia special needs trust attorney will be able to help you understand your options with the trust.
People to Consider
In addition to helping you set up the trust, a special needs attorney will also be able to help you determine the appropriate trustee. In some cases, this may be a family member or other caregiver. In other cases, the lawyer or firm may take care of the administration of the trust. An advocate may also be chosen. This person will be familiar with both the beneficiary’s needs and the intentions and wishes of the person creating the special needs trust.
Using the Trust
When the trust is set up, the person creating it (called the “grantor”) has a say in how the funds are to be used. For example, money can be dedicated to the daily needs of the beneficiary. Dispersal schedules can be created, as well. In this way, rather than giving someone a single lump sum, you can set up a situation where monthly allotments are made. The advocate would understand this and work with the trustee to make sure the terms were being followed in the beneficiary’s best interest. At the same time, the trustee is charged with managing the funds through investments or other means that keep the trust funded.
Of course, this is just an introduction to the possibilities of a trust. For a much fuller understanding and to get the ball rolling, we invite you to contact our Atlanta special needs attorneys who are knowledgeable about the field, as well as how Georgia’s state laws come into play. To schedule a Georgia Treasures Planning Session (valued at $750) at no charge, simply call 770.425.6060 and mention this article.