The following article is a good starting point for families looking for information.
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Law Office of Margaret Ward, PLLC
Margaret R. Ward, Attorney At Law
Estate Planning for Families of Individuals with Special Needs
My husband and I have two sons, one of whom is a young adult with Autism. For many reasons, families like ours need to be proactive in planning for our future and our children’s future. That includes estate planning.
A big reason for us to be careful with our estate plan is the asset and income limits on programs like SSI and Medicaid. An individual like our son can’t have more than $2,000 in the bank. But with good estate planning, we can make sure there is money available to enrich his life after we are gone without losing his healthcare and benefits.
What is “estate planning”?
Estate planning is an umbrella term that covers many legal steps you can take to plan for your incapacity, and for after your death.
The most commonly used documents are:
- Trusts: A trust is a legal entity created by a written document that says what the money in the trust is to be used for, and who is in charge of it. There are many different types of trusts. The most common trust for estate planning is the Living Revocable Trust. This type of trust lets you say who will be in control of your assets if you are incapacitated and who gets your money and property after your death, and avoids probate. It puts you in charge of major decisions, rather than a judge going by state law.
- Will: A Will determines who will inherit your money and property after your estate goes through the probate process. You can also say who you would want to be the Executor of your estate. A Will does not address periods of incapacity. If you are the parent of a minor child, your Will is where you can nominate the person(s) you would want to be your child’s guardian. If you are a parent who has been appointed Guardian of an adult child, you also need to nominate your replacement as Guardian in your Will.
- Durable Power of Attorney: A Durable Power of Attorney lets you say who can sign your name for you. That person can do almost any financial transaction you can do. The Durable Power of Attorney stays in effect until your death, even during incapacity.
- Healthcare Proxy (also called Healthcare Power of Attorney): You can say who you want physicians or other healthcare providers to go to for medical decisions if you are not able to answer questions or make decisions yourself.
- Living Will: Your Living Will is your chance, in calm waters, to let your family know what your wishes are for end-of-life care.
How can we take care of our children without costing them their benefits?
One of the best options is to use a “special needs trust” for any loved ones who are on benefits programs with asset limitations. A special needs trust can provide money and property to help a person on these programs by providing for goods and services that benefits programs do not provide. Examples are things like haircuts, personal care that the benefits program does not provide, recreational travel, entertainment, furnishing and clothing, among others. There are different types of special needs trusts, and which one you should use depends on your family’s specific situation.
Many families plan instead to leave everything to someone – perhaps a sibling or other relative or friend – with the understanding that the money will be used for your loved one. This is a risky plan. Once the money is in that person’s hands, it is theirs. They could do everything you expect, or they could have to use the money for their own needs.
None of us lives forever. One of the best gifts you can give your family is making the tough decisions for them now, while you have a clear head. Knowing what your wishes are and having the legal tools they need to carry out those wishes will let your family focus on taking care of you, and each other.
As an attorney, I can help families like mine with our most common legal needs such as estate planning and guardianships. I have been on both sides – I’ve been the parent looking for help, and I’ve been the attorney helping families identify their options and choose what’s best. I would be honored to help your family.
Margaret R. Ward, Attorney
| www.margaretwardlaw.com | (501) 295-5248 |
| mwardlawoffice@gmail.com | 11610 Pleasant Ridge Road, Ste. 103-411 |
| Little Rock, AR 72223 |
