Planning for a Child with Disabilities

As a parent of a child with disabilities, it is important to have a legal plan in place to ensure that your child is taken care of after you are no longer able to provide for them. This can be a daunting task, but with the right guidance, it can be done effectively. In this article, we will explore the steps involved in legal planning for a child with disabilities.

Step 1: Establish a Special Needs Trust

The first step in legal planning for a child with disabilities is to establish a special needs trust. A special needs trust is a legal tool that allows you to leave assets to your child without disqualifying them from government benefits such as Medicaid and Supplemental Security Income (SSI). This is important because these benefits are often crucial for the ongoing care of a child with disabilities.

There are two types of special needs trusts: a first-party trust and a third-party trust. A first-party trust is funded with the child’s own assets, such as a settlement from a personal injury lawsuit. A third-party trust is funded with assets from someone other than the child, such as a parent or grandparent. It is important to work with an attorney to determine which type of trust is appropriate for your situation.

Step 2: Appoint a Guardian 

If your now adult child is competent enough to understand and sign a good medical proxy and durable power of attorney, you should have those documents signed as soon as they turn 18.  If not, the next step in legal planning for a child with disabilities is to appoint a guardian. A guardian is responsible for making decisions about the child’s personal care, such as where they live, what medical treatment they receive, and where they go to school, along with being responsible for managing the child’s financial affairs, such as paying bills and managing investments.

It is important to choose someone who is trustworthy, responsible, and capable of making decisions in the best interest of your child. You can also choose to appoint different individuals as guardians, depending on their strengths and abilities.

Step 3: Create a Letter of Intent

A letter of intent is a document that provides instructions for the care of your child after your death. It is not a legal document, but it can be helpful in providing guidance to your child’s future caregivers. The letter should include information about your child’s medical history, daily routines, likes and dislikes, and any other important information that will help ensure their well-being.

It is important to update the letter of intent regularly, as your child’s needs and preferences may change over time. You should also keep a copy of the letter with your estate planning documents and give a copy to your child’s future caregivers.

Step 4: Review Your Estate Plan

An estate plan is a set of legal documents that determine how your assets will be distributed after your death. It is important to review your estate plan regularly, especially if you have a child with disabilities. You may need to update your will, trust, or other estate planning documents to ensure that your child’s needs are met.

It is also important to consider the tax implications of your estate plan. There are special rules for the taxation of trusts that benefit individuals with disabilities, so it is important to work with an attorney who is knowledgeable in this area.

Step 5: Explore Government Benefits

Government benefits such as Medicaid and SSI can be crucial for the ongoing care of a child with disabilities. It is important to understand the eligibility requirements for these programs and to explore all available options for obtaining benefits.

One option is to work with a special needs planning attorney who can help you navigate the complex rules and regulations of government benefit programs. You may also be eligible for state-specific programs that provide additional support for individuals with disabilities

In addition to the above steps, it is important to involve your child in the planning process as much as possible. This can help ensure that their needs and preferences are taken into account and that they feel empowered to make decisions about their own care.

Legal planning for a child with disabilities can be complex, but it is essential for ensuring their long-term well-being. By taking the time to establish a special needs trust, appoint guardians and conservators, create a letter of intent, review your estate plan, and explore government benefits, you can help ensure that your child receives the care and support they need throughout their life.

Remember to consult with an attorney who is knowledgeable in special needs planning to ensure that your legal plan is comprehensive and meets the unique needs of your child. With careful planning, you can provide peace of mind for yourself and a secure future for your child with disabilities.