When someone close to you has special needs, it is natural to feel overwhelmed. Whether the loved one is a child, an adult, or an elderly person in addition to being concerned about making the right decisions in the present, you also worry about the future. If your special needs loved one is younger than you are, the realization that you will probably predecease him or her weighs heavy since you know you must prepare for someone else to take on the role of caretaker. Working closely with a keen and compassionate estate planning attorney who has an-depth knowledge of special needs planning can make a tremendous difference. Being advised and guided by an experienced professional will help relieve your stress and provide you with the peace of mind you need to make wise decisions. One immediate thing you may be advised to do is give a trusted person your Power of Attorney which will authorize that person to take over your duties if you suddenly die or become incapacitated.
Naming a Guardian in Your Will
Another step you can take is to name a guardian to take over your responsibilities if you are unable to function in that capacity. If you don’t make this choice, once you are unable to be in charge, the state may make a decision about guardianship for you and may choose someone you think inappropriate. You can choose any reliable person over the age of 18 and you can also choose co-guardians, two people you feel sure will share the task in a responsible, companionable manner. Because guardianships give enormous power to the person in charge, the courts require regular reports on financial and healthcare arrangements made on behalf of the ward to make sure he or she is not being neglected or abused.
The guardian you choose can be a family member, a friend or neighbor, or a trained professional, perhaps one with whom the ward already has an agreeable relationship. It is also possible to name an entity, such as a nonprofit agency, as guardian. There are two types of guardianships in New Jersey: general (plenary) and limited. The former is designed to provide care for a person who is completed incapacitated and unable to participate in any decision-making process. The latter is established when, though disabled, the ward can voice opinions and discuss options. A limited guardianship allows the special needs individual to retain legal authority to make as many decisions as possible.
Special Needs Trusts
A great many families have at least one member with special needs. Special needs trusts are often the best estate planning tool to make sure your disabled loved one lives a life protected from any additional hardship.
Assuming the special needs trust is properly constructed, the funds it holds will in no way interfere with your family member’s eligibility to receive government benefits, such as Medicaid or SSI. The reason the trust does not get in the way of receiving such benefits its that a trustee is selected to have full control over the trust’s funds. Since the special needs individual has no control over these resources, they are not considered his or her property. It should be noted that a special needs trust must be irrevocable to serve its purpose.
The trustee (the person designated to disburse its funds to the special needs individual) can provide “extras” for the ward, but may not pay for routine food and shelter. This means that while government subsidies may pay for rent and groceries, the special needs trust can provide for such things as extra clothing, home furnishings, travel or recreation, and occasional restaurant meals.
Give yourself and your loved ones the security of planning for the inevitable changes life brings. Make sure that your estate plan makes the necessary provisions to take care of everyone in your family, including those members who are unable to take care of themselves.
Posted in: Estate Planning