Children with special needs require special consideration when it comes to estate planning. You’ll need to assess how your child will be able to function in the world as they age. There are many questions to answer, including:
- What is the child’s long-term prognosis
- What type of care is anticipated to meet their needs?
- Are there any potential medical breakthroughs that could change their future?
- What government programs will they be eligible for when they become an adult?
- How will your estate plan change when your child can legally make some decisions on their own?
Involving Your Child in the Planning Process
It’s challenging for parents or guardians to set up the best plan possible for a child with special needs. Most state laws mandate that the parent or fiduciary in charge of a child with special needs must allow the child’s participation in the process as much as possible. This prompts more questions, such as:
- Are they able to express their needs and wants regarding their care?
- To what degree can they manage activities of daily living like eating, bathing, and dressing by themselves?
- Is the child deemed capable being employed outside of the home in the future?
- Can they ride a bus to work?
- Is outside care, such as an assisted living facility, likely?
- Is the family capable of providing income and assets for their future wellbeing?
Special Needs Planning Requires a Flexibility Estate Plan
Your estate plan might need updating in the future due to unforeseen changes in the abilities, requirements, and available government benefits of a child with special needs. Government assistance may not be necessary if you have sufficient assets that can be paid out in a discretionary trust throughout your child’s life at the direction of an appointed trustee.
However, if your child receives government benefits, a special needs trust is a good strategy to supplement their lifestyle. It’s crucial to have a special needs attorney properly draft a trust to ensure the child doesn’t become ineligible for their benefits if they receive lump sums of money or gifts intended to support them.
A Special Needs Trust Offers Options
Whether your child with special needs will be eligible for government benefits or not, an already established trust allows a named trustee to create a special needs trust if something happens to you. You can choose to fund the trust now or leave it empty until your death proceeds flow into the trust from your estate, another trust, or life insurance policy.
Special Needs Planning Mistakes
Some parents choose not to create a trust for their special needs child and completely disinherit them so that government benefits can solely support them. The absence of explicit financial support directives for a special needs child can have lasting negative effects on their financial and emotional wellbeing.
However, parents of children with special needs often try to overcompensate for their child’s future rather than leave them with no family aid whatsoever. Establishing a framework of legal documents that define the future of your loved one with special needs will help ensure you take care of all their financial, medical, and personal needs for life.
If you have any questions or would like to learn more about how to protect a loved one with special needs, please contact our Chicago area office at 630-568-6656. We look forward to the opportunity to work with you.