National Special Needs Law Month – October
Bratton Scott joined the National Academy of Elder Law Attorneys (NAELA) in a nationwide observance of National Special Needs Law Month during the month of October. However, as October comes to a close we would like to stress the importance of special needs law next month and throughout the year. The program was created in response to the growing needs of older adults and people with disabilities in coping with the legal problems of aging and special needs and raise awareness, both to the challenges and the solutions available to families, so let’s continue the conversation all year.
Legal Challenges and Solutions
The top 3 things you need to know from a legal perspective, are:
- When Your Child Attains the Age of 18 You Will Likely Need to Request a Guardianship.
- You Do Not Need to Disinherit Your Child from Your Estate.
- Special Needs Planning is Available.
At 18, a Guardianship is required if your child is unable to make his/her own decisions
Parents are entitled to and responsible for making decisions for their minor children. However, when a child, even a special needs child, turns 18, the entitlement and responsibility cease immediately.
If your child is not capable of making his or her own medical and legal decisions, you will need to petition the court to be appointed guardian, when your child attains the age of 18.
As guardian, you will be authorized to make financial, medical, lifestyle, and general welfare decisions for your adult child.
You Do Not Need to Disinherit Your Child
Some parents or family members think they need to disinherit their loved ones in fear of disqualifying them from receiving governmental assistance. It is true that receiving an outright gift or inheritance may be wasted, disqualify your loved one, and force him or her to reapply for assistance.
However, there is a third option – beyond disinheritance or disqualification. You and other loved ones can pass along a gift or an inheritance in trust, with carefully crafted special needs provisions.
This means that your gift will supplement, not supplant, governmental assistance and this is called “special needs planning.”
Special Needs Planning is Available
Fortunately, the law permits parents, grandparents, or other caring adults to set up and contribute to special needs trusts. Trust assets are used to increase the quality of special needs person’s life, but typically are drafted to avoid disqualifying him or her from receiving governmental assistance, which covers the basics.
For example, a special needs trust might pay for an additional caretaker, a hairdresser, a trip, or tickets to a favorite event such as a play, concert, baseball game, or museum.
The trust must be carefully drafted to obtain family goals and avoid legal pitfalls. A trustee is named to carry out trust instructions and make distributions in accordance with the trust’s terms.
Where to Get Help Avoiding the Legal Pitfalls of Special Needs
When clients visit a Bratton Scott Special Needs Law attorney, they generally present problems beyond the need for a will or a power of attorney. Our Special Needs Law attorneys are familiar with the multifaceted aspect of this complex area of the law, as well as a network of services and providers who assist clients effectively.
If you would like to find out how a guardianship and special needs planning can help your loved one, we welcome you to contact our law office. Bratton Scott is committed to helping families likes yours plan for a secure future. 856-857-6007