Special Needs Planning Lawyer in Worcester County
If you are raising a child with special needs, you are already aware that while it can be one of life’s richest experiences, it can also be a costly one. Blog.mint.com reports that the Department of Agriculture placed the cost of raising a child from birth to age 18 at about $240,000. Those who have a special needs child can expect that cost to triple or even quadruple. Further reported in this article is the fact that the likelihood of a school-aged American child being diagnosed with Asperger syndrome, autism, or a related developmental disorder increased by more than 70 percent from 2007 to 2012. For reasons which are not clearly understood, about one in 50 children in the U.S. will be diagnosed with autism—a rise from one in 1,000 in 1980.
While all families with a special needs child are likely to face some level of financial challenge, early planning can go a long way in easing the financial burden. Parents with a special needs child should plan financially in the same way they would for a child’s college education. This can include saving and building a fund for a time later in the child’s life when more services could be required. This saving must be done thoughtfully and carefully, however, to avoid disqualifying your special needs child from state and federal benefits. The Law Offices of James A. Miller, P.C., can assist you in planning for your child’s future, taking into account any special needs, and ensuring your child remains eligible for necessary benefits.
What is Special Needs Planning?
Individuals with disabilities are increasingly outliving their caregiver parents; while that may seem like a distant concern, it is very important that special needs planning be started as early as possible. Although the needs will vary for every special needs individual, families who want to ensure the long-term quality of life for the individual may face complexities and high costs—and may also not know where they should begin. Consulting a Massachusetts attorney who has experience with special needs planning is a good first step. When possible, this first contact should occur prior to the child’s 18th birthday because once the child is legally considered an adult, the parents may lose certain access to health, legal, financial, and education records unless action is taken before that milestone.
Special needs planning may include a special needs trust, a power of attorney, a health care proxy, or a guardianship—whatever documents are necessary for your situation. It is also essential that as the parent or guardian of a special needs child, you fully understand any implications related to government benefits for the child, such as Medicaid (MassHealth) and SSI. A Massachusetts special needs attorney can carefully guide you through all the considerations that will determine which services your special needs child will require throughout his or her lifetime—and the costs involved for those services.
You will need to determine whether the child will be able to work, what level of care he or she will require, where the child would live, and even what type of social life is anticipated. Taking the first step toward special needs planning can definitely feel like a daunting task, yet it is the only way to ensure your loved one will remain secure, even after you are no longer around.
What is a Special Needs Trust?
Because government programs, such as Supplemental Security Income and MassHealth benefits, are based on certain assets—such as money in the bank—money left to a loved one with special needs could potentially disqualify him or her from these benefits. To avoid jeopardizing your loved one’s ability to receive necessary benefits, you could consider setting up a special needs trust. A special needs trust is also known as a supplemental needs trust; instead of leaving property or money directly to a loved one with special needs, you leave it to the special needs trust, choosing a person to serve as trustee.
The trustee has discretion over the trust property, spending money on behalf of the special need’s individual. Since the special need’s individual has no control over how the money is spent, those assets are ignored by Medicaid and SSI for purposes of program eligibility. Trust funds can be spent on such things as personal care attendants, out-of-pocket medical and dental expenses, educations, recreation, physical rehabilitation, and many other things. The trust ends upon the death of the beneficiary, or when the trust funds have been depleted.
What Types of Special Needs Trusts are Available?
There are two types of Special Needs Trusts—a first-party trust and a third-party trust. The type of Special Needs Trust you will choose depends on whose property will be funding the trust. A first-party Special Needs Trust is used when the person with a disability inherits money or property outright or receives a court settlement. A first-party Special Needs Trust can also be used when a person without a prior disability owns assets in his or her name, becomes disabled, and needs to qualify for public benefits that have eligibility limits.
Under federal law, a first-party Special Needs Trust may be established by a parent, grandparent, legal guardian, court, or the beneficiary of a first-party Special Needs Trust who is deemed mentally and legally competent. The first-party Special Needs Trust can only be created and funded for an individual who meets the definition of “disabled” as set forth by the government, and who is under the age of 65 when the trust is established and funded. Upon the death of the beneficiary, any funds remaining in a first-party Special Needs Trust must be repaid to Medicaid and other state programs, up to an amount equal to benefits paid to the beneficiary. If there is a remaining balance, it can then be distributed to other beneficiaries.
A third-party Special Needs Trust is more commonly used by parents, grandparents, or guardians to plan in advance for a loved one with special needs. Most often, the parents of a special need’s individual will establish a third-party Special needs Trust, although a grandparent, sibling, or another person can also establish such a trust. This type of trust may be included in a Last Will and Testament, established as a sub-trust within a Living Trust, or drafted as a stand-alone trust.
A third-party Special Needs Trust only comes into existence after the death of the person who created the trust if it is created under a Will or Living Trust. If there are multiple donors who wish to fund the trust, a stand-alone third-party Special Needs Trust may be a better option. One primary difference between a third-party Special Needs Trust and a first-party Special Needs Trust is that when the beneficiary dies, a third-party Special Needs Trust does not require reimbursement from remaining assets to Medicaid and other government programs.
How the Law Offices of James A. Miller, P.C., Can Help
If you have a loved one with special needs, planning ahead for his or her future is extremely important, and is not a task which should be put off. Attorney James Miller has been helping people like you for many, many years, so he fully understands not only state and federal laws relating to special needs planning but also the individual’s needs. When you set up an appointment with the Law Offices of James A. Miller, P.C., you will receive a comprehensive evaluation of your situation and your options. James will then help you choose the best options for your loved one and your financial circumstances. Special needs planning is always better when it is done early, but even if you have put it off, James Miller can help. Contact the Law Offices of James A. Miller, P.C., today!
