​K E R R  L A W

If you have a child with special needs there are some really important legal steps you should take to protect your child.  As you probably know by now, government benefits are available to individuals with diabilties and/or chronic illness to pay for medical care, housing, and other basic needs.  You probably also know that obtaining these benefits for your child will require you to jump through a lot of hoops and may take sevearal years.  Whether you've already successfully obtained benefits for your child, or you believe he or she may be entitled to benefits in the future, it is imperative you take action now to ensure your child stays eligible to receive those valuable benefits throughout his or her lifetime.

Many parents diligently sock away money or buy life insurance so their child will be supported after they pass away.  While that's good intended, it's ill advised.  Here's why...  To receive benefits an individual must have less than $2000 in assets.  So, if your child is receiving medical coverage and housing costs from the government and you die and leave a sum of money greater than $2000 to your child, he or she is no longer qualified to receive any benefits.   Those hard earned benefits are gone, just like that.  

"Well, I'm leaving my child a lot of money, so he won't need benefits any longer" you say.   Sorry.  It's still not smart.  First of all, why would you give up potential benefits??  Second, consider just a few potential scenarios.  What if your child spends it all on that rock band he always wanted to start?  What if your child is taken advantage of by a "care taker" or, worse, an opportunistic "spouse" that appeared out of the woodwork and takes off with all the money?  What if your child is in an accident and loses it all in a lawsuit?  Or what if your child simply can not manage the funds to use for his care and maintenance?  If your child inherits money, loses his benefits, and loses his inheritance what will happen to him?  Will your other children be willing and able to bear the financial responsiblity for him?  Who will help him go through the time consuming benefits application process again?   Where will he end up? Will he be cared for like you envisioned when you so dilligently saved?  

To ensure your child maintains his eligibilty for governmental benefits AND still receives the comforts, care, and positive experiences you want for him, you need to set up a Special Needs Trust.  Here's how it works...

When you die, assets are in - or paid to - the Special Needs Trust. Your special needs child is the beneficiary of that trust, meaning he gets the benefit of the assets/money in the trust. In your trust documents, you select a trustee, who manages the trust assets on behalf of the beneficiary.  The trust dictates that the trustee may give the beneficiary supplemental and extra care over and above what the government provides. SInce the trust can not provide items covered by governmental benefits, your child keeps the benefits he has! And because the child isn't inheriting money outright, he is still eligible for the benefits and is protected from losing the money to scams, lawsuits, etc.  

In addition to protecting your child from loss of benefits and scams, your child can have the quality of life you've envisioned for him.  You can leave a "Letter of Intent" describing how you want the trust funds used.  For example, while the trustee can not purchase food or pay rent for the beneficiary (if those things are covered by governmental benefits), you can direct that the beneficiary may be given trust funds to take a vacation, dine out with friends, join a sports team, take guitar lessons, enroll in an art class, go to a concert, get braces, etc. etc. etc.  Essentially, your child can, indeed, have the quality of life you so lovingly saved up for him to enjoy.  Win - Win!       

Don't wait.  No matter your child's age or current condition, you should establish a special needs trust based on your child's needs today as if something could happen to you tomorrow

Another very important consideration for parents of adult children with special needs is creating their powers of attorney. While you as the parent may fully support the adult child financially and provide care for the child, if he is admitted to an emergency facility the medical professionals are expressly prohibited by HIPAA to disclose information about your adult child's condition.  If your child is over age 18 you need to be sure he has the apporiate documents in place allowing you to obtain information and provide care for his health and well being.