On February 17, 2016, Life Development Institute hosted its monthly Speaker Series event. During this presentation, Nathan Buckles of the Special Needs Project spoke about “The ABC’s of Special Needs Planning.” During his discussion, Nathan stated that special needs planning encompasses the items that surround the idea of what happens when parents are no longer alive and able to care for their child on a daily basis. Some of the questions related to this situation are as follows: Who are the people that will be involved? How do we make sure that the ones we want to be involved will actually be those who are involved? And, ultimately, how do we plan from a financial perspective? How do we make sure that on a day-to-day basis their quality of life is maintained without disrupting government benefits, such as healthcare and cash benefits of social security?
In answering these questions, Nathan identified the special needs trust as the key tool or document that is used during special needs planning. This third-party irrevocably special needs trust enables loved ones to receive assets without these assets being considered as a countable resource by any government agency. This offers families the opportunity to leave inheritances and money behind for loved ones without going directly into their names. A third party trustee is always in charge of this special needs trust. Even for persons who are high-functioning and may not receive benefits, a special needs trust can be beneficial in that a third party manages and maintains the trust. Additionally, special needs trusts are great tools to provide “peace of mind” when leaving assets to the trust because money within the 3rd-party irrevocable trust cannot be sought after through lawsuits or by creditors and comes with “no payback” to any government agencies.
As such, consideration for how assets are left and what occurs after death is a necessity for families. Furthermore, proper treatment of a variety of documents is necessary. To begin, the will should identify guardianship and advocacy concerning loved ones with special needs. After death, the probate court will want to know who is involved in the care of loved ones. This is especially true if parents have legal guardianship over their adult children. The will must be in place to name the persons who will be there after parents are gone. Additionally, families can name persons who they do not want to ever be involved in the care of loved ones with special needs. Concurrently, families can create a special needs trust to oversee the distribution of assets and can use the will to name the individuals who will handle the financial pieces contained within the special needs trust. This person can be the same as the guardian, or the guardian can manage the everyday affairs while the trustee handles the assets and the trusts.