For families of children with special needs, merely navigating their daily routine can be overwhelming. Today’s issues are so time consuming and stressful that the future often takes a back seat. But, estate planning for families with a disabled child is imperative in order to make sure the child is well cared for no matter what circumstances might occur.
Last Will and Testament
Even without a special needs child in the family, a Last Will and Testament is of paramount importance. Every individual with assets should lay out a plan for how assets are distributed upon death. However, when there is a disabled child in the family, the parents’ Last Will and Testament serves the important role of funding a Supplemental Needs Trust (“SNT”) and assigning a trustee to administer the SNT.
While the mechanics of an SNT are beyond the scope of this article, the main purpose of the SNT is to provide assets for the disabled individual that may be used to supplement rather than supplant what government benefits provide. It is a method for allowing a disabled individual to receive a distribution without jeopardizing means-based government benefits programs.
Powers of Attorney
If your disabled child is 18 years of age or older and has the legal capacity to sign documents, he or she should execute a Durable Power of Attorney to allow a parent or sibling to continue to make financial decisions in the event his or her capacity is ever compromised. Durable Powers of Attorney are also effective as a convenient mechanism should the grantor feel that her agent is either more capable or might find it easier to deal with financial institutions. Due to the importance of this document, Goldberg Law Group recommends all individuals who are 18 years of age or older execute a Durable Power of Attorney.
Health Care Power of Attorney/Living Will
If your disabled child is 18 years of age or older and has the legal capacity to sign documents, he or she should execute a Health Care Power of Attorney and Living Will. Unlike a Durable Power of Attorney, the health care representative may act only if the grantor of the power is incapable of making her own health care decisions. A Living Will expresses the individual’s wish that should her death become imminent, she does not want artificial means used to keep her alive. Due to the importance of these documents, Goldberg Law Group recommends all individuals who are 18 years of age or older execute a Health Care Power of Attorney and Living Will.
Guardianship
In the event that the disabled child is suffering from a cognitive disability, it is recommended that the caregiver (usually parents or siblings) be appointed as guardian. Many families assume that they can continue to administer their child’s affairs even after she attains the age of 18. Even though some financial and medical institutions may continue to take direction from a parent, they are doing so in contravention of federal and state law.
Oftentimes, we find families procrastinate important planning due to the intimidating scope of the project. At Goldberg Law Group we have developed a process to help you painlessly navigate this process. We do so much more than just draft your documents. We help our families understand how to use their planning tools to play a crucial role in the life of a special needs child.
Special Needs Trusts
Standalone Special Needs Trusts, another planning tool, will be discussed in later blog posts. As always, feel free to contact us at info@goldbergplanning.com or 973-228-1795 if you have any questions on these important components of an estate plan involving a disabled child.
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