We all want to do what is best for our families. When a family member has a disorder, disability or disease that affects their ability to function either physically or financially, they have special needs that most others do not have. They may not be able to properly handle their own property or inheritance. When a family member has special needs, we want to make sure those needs are provided for. Families come in all different shapes and sizes, and estate planning must be as creative as families are unique. Planning for the support and care of a family member living with extraordinary circumstances is a gift that can contribute assistance for a lifetime.
At the South Florida estate planning law firm of Ginsberg Shulman, we work with families to create considerate solutions for loved ones with special circumstances. Our special needs planning attorneys combine their knowledge with individual needs to develop the best possible resolutions and give our clients lasting peace of mind.
Special Needs Planning as Part of an Estate Plan
Estate planning focuses primarily on how people want to have their property distributed when they die. Sometimes property is given to beneficiaries outright and without restriction. But other times, there may be reasons to limit a beneficiary’s free access to the financial resources they may inherit.
When special needs planning is part of an estate plan, it is often done so that an intended beneficiary can have access to an inheritance without jeopardizing the ongoing receipt of government-sourced disability benefits – such as Supplemental Security Income (SSI) and Medicaid.
The goal of this type of planning is to maximize the financial resources available to a beneficiary with special needs, while still maintaining whatever government benefits to which they qualify.
Why You Might Consider Special Needs Planning
Special needs planning may have to be done to preserve an estate beneficiary’s ability to qualify for government disability benefits. The allowed asset amount is very small, and inheriting any amount over the limit will require spending down the inherited assets before the beneficiary will again qualify to receive the government benefits.
However, by using legal tools to limit the use of inherited assets for only certain authorized purposes, disability benefits can continue, and a beneficiary can supplement those benefits with the inherited resources.
When is the Right Time to Plan for the Special Needs of a Family Member?
The right time to plan for special needs depends on the age of the affected family member, the nature of the special needs, and the goals of the family.
A permanently disabled minor child may require care for a lifetime. It would be important to ensure the child will receive the maximum amount of available financial resources for as long as possible. Consideration must also be given to the child’s ability to handle their affairs for themselves once they reach adulthood.
Special Needs Planning Options
Special needs planning involves making decisions for the benefit of a loved one who needs extra help. Planning can benefit a family member financially and assist with decisions of daily living. Planning is often done to increase the available resources for a person receiving government disability benefits.
Special Needs Trusts (Otherwise known as SNT)
Special needs trusts are a specific type of non-revocable trust that can supplement a beneficiary without disqualifying the person from receiving government disability benefits. Trusts can be created as part of a comprehensive estate plan to allow a beneficiary to receive an inheritance and still qualify for disability benefits. Ginsberg Shulman, PL can assist with the drafting of the Special Needs Trust as well as the amending or modifying of Special Needs Trust, both stand alone trusts and those as part of an estate plan.
The trust assets can only be used for certain types of purchases and cannot be used as a source of cash for the beneficiary. There are two types of special needs trusts.
- First-party – A first-party special needs trust is set up using assets belonging to the person receiving disability benefits and has age limit requirements. The trust beneficiary can continue to receive government benefits and supplement living expenses from the trust assets. However, when the beneficiary dies the government has the right to seek reimbursement for benefits paid if the property remains in the trust.
- Third-party – Third-party special needs trusts are set up with the assets of family members for the benefit of a loved one receiving disability benefits. While the assets in the trust may benefit a disability recipient, they are never owned by the beneficiary and any remaining property in the trust may be passed to whoever the party creating the trust directs.
How Special Needs Trust Assets can be Used
Funds from a special needs trust can be used for a variety of expenditures. Monies must be paid directly to a vendor or service provider and not to the beneficiary. Trust assets generally can be used for the following purposes:
- Uninsured medical expenses
- Furniture, appliances, home care equipment
- Recreation and entertainment
- Transportation expenses
- Legal expenses
- Home care services
Guardianships may also be appropriate into adulthood for persons living with disabilities.
In Florida, guardianships for adults are only granted if the court determines that a person (ward) lacks the capacity to successfully manage the affairs of daily living. Because guardianships remove a significant amount of personal freedom, they are imposed as a last resort after less restrictive alternatives are ruled out.
A Guardian may be appointed over a person, a person’s property, or both a person and their property.
- Guardian of person – Guardianship of a person is the transferring of certain rights from the ward to the guardian such as the right to enter into contracts or the right to make healthcare decisions. The guardianship only includes rights specifically delegated by the court.
- Guardian of property – A guardianship of property is closely scrutinized by the court. Guardians are not allowed to sell, transfer, or mortgage any property without court approval.
South Florida Special Needs Lawyer Near Me
Appropriate special needs planning will combine the needs of the individual and the wishes of family members with the available legal tools to create the best possible solutions. A South Florida special needs lawyer can help you design a plan to ensure your loved one is well taken care of whether it includes special needs trusts or other documents.
With offices in Fort Lauderdale and Boca Raton, Ginsberg Shulman serves clients throughout Broward and Palm Beach counties. Contact the special needs lawyers at Ginsberg Shulman to ensure protection and adequate resources for a family member with special needs.