Do you have a family member with Special Needs? Special needs includes persons with developmental delays, cognitive impairments, mental illness, substance abuse, other addiction (such as gambling), etc. Our firm has more than 25 years experience in estate planning for families with special needs and the unique challenges they face in planning for the future. We meet these challenges through planning tools such as Revocable and Irrevocable Trusts, Supplemental Needs Trusts, Guardianships and traditional estate planning techniques that are tailored to the needs of your particular circumstances.

Revocable & Irrevocable Trusts for Special Needs

Do you have a family member who is in danger of wasting a gift or inheritance as a result of addiction, immaturity, inexperience, or is simply in need of protection from predators and/or creditors? The use of traditional trusts can provide the peace of mind that you need to ensure the assets you would like to give them will be used as you intended and not to pay debt or be wasted in a similar matter. A trust in your Will (also known as a testamentary trust) or a lifetime trust (also known as an inter vivos trust) can provide for your loved one while still protecting his or her inheritance. A revocable trust can be changed as circumstances change as is as flexible as a Last Will and Testament. Some circumstances warrant the creation of an irrevocable trust, which can also provide the protection for your loved one that you want.

Supplemental Needs Trust

If a beneficiary of an estate has special needs, a supplemental needs trust will provide an inheritance without compromising his or her eligibility for governmental benefits, most importantly, Medicaid and Supplemental Security Income. Eligibility for public entitlements is strictly regulated, and it is therefore critical that the drafting of all estate planning documents be done with careful attention to this particular detail.

A Supplemental Needs Trust, like any trust, can be created during one’s lifetime (also know as an Inter Vivos Trust) or upon death under the terms of a Will (Testamentary Trust). The purpose of setting aside funds in a supplemental needs trust is to provide the beneficiary with an enhanced quality of life. Trustees of such a trust would have discretion to use the trust income and principal to pay expenses that are not otherwise available through public entitlements, such as private duty nursing and experimental medical treatment, all the while keeping the public benefits in place. The theme of the law governing this type of trust is to supplement the beneficiary’s quality of life. In addition, the trust assets are protected from creditors.

Guardianship

Upon reaching the age of 18 years, a person in New York is legally considered an adult. A parent of an 18-year old adult has no right to receive medical, financial or personal information about such an adult without that adult’s consent. To parents of children with special needs, this reality often sneaks up unexpectedly. Suddenly, the primary care physician who has been treating your child advises you that you have no legal authority to direct treatment. Or you request medical records from an insurance carrier for your child, and are unable to obtain them, without showing proof of legal authority. Although many doctors and facilities would not question the decision of an involved parent, in the case of end-of-life decisions, legal authority is all that really matters.

In addition, what will happen when you are gone and suddenly, a different family member contacts the doctor or facility that has been caring for your child? Will they be more reluctant to speak to a newcomer? New York state law explicitly provides procedures for the appointment of a guardian of a person with developmental or intellectual disability. That guardian can make health care decisions for such persons, including decisions regarding life-sustaining treatment.

Planning for your special needs child or other loved one requires careful attention to these important issues that would provide the greatest quality of life for your child. In the same way you would plan for your own disability or death, a family with a special needs member must plan for his or her lifetime care. It is, in short, estate planning for families with special needs and one aspect of that plan is the need for a guardian. Estate planning in the context of planning for special needs and guardianship involves the consideration of some of the following issues:

1. Who will receive my assets after my death?
2. Does my special needs child need a guardian now?
3. Who will be the guardian after my death and the death of my spouse?
4. How will I provide for financial support for my child with special needs for his or her lifetime?
5. How will my child receive all the government benefits he or she is entitled to?

There are two types of Guardianship proceedings – one is commenced in Supreme Court pursuant to Article 81 of the Mental Hygiene Law for incapacitated adults. This was traditionally known as a Conservatorship and is usually commenced for a person who becomes disabled later in life.

The second type of Guardianship is commenced pursuant to the Surrogate’s Court Procedure Act under Article 17-A. This statute governs the appointment, duties and authority of a developmentally or intellectually disabled person. For purposes of Article 17-A, it is a person who has been certified by two licensed professionals as being incapable of managing himself or herself and his affairs by reason of such disability. There are proceedings for the naming of a guardian of the person, the property or both. In cases when the disabled person has no property and there is no expectation that any property will be received in the future, a guardian over the person may be enough. In other cases, where there may be earnings in the future or a person may receive gifts or inheritance from a relative, a guardian of the property may be required.

A guardianship proceeding is commenced in the Surrogate’s Court by a petition (usually brought by the parents of the child) and accompanying documents. The most important part of the proceeding is the physician certifications. Two physicians (or a psychologist and physician) must conclude that the alleged disabled person is either developmentally or intellectually disabled. In addition, the certifications must conclude that such disability prevents the disabled person from fully appreciating the nature and consequences of health care decisions, including the benefits and risks, alternatives to any proposed health care, and reaching an informed decision in order to promote his/her own well being. A health care decision may include a decision to withhold or withdraw life-sustaining treatment. If the Court finds that it is in the best interest of the person with a developmental or intellectual disability to have a guardian, then a guardian will be appointed for the person. A hearing may be required depending upon the county and local rules. In conclusion, a guardian appointment is critically important in planning for your child with special needs.

At the Law Office of Audra E Dehan, we will help you navigate the complex planning required for a loved one with special needs with the care and compassion you and your family deserve.