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#1 Establish a Comprehensive Plan
Most estate planning attorneys will say that no person should use a “do-it-yourself” will kit to establish their estate plan. If you have a child with special needs, it is extremely important to seek competent legal counsel from an estate planning lawyer with special needs planning experience before and during the process of writing your will.
In your estate plan, make sure that any bequests to your child are left to his or her trust (see #2, below) instead of to the child directly. Your will should also name the person or persons you want to serve as guardian of your child (see #3, below).
Once your estate plan is complete you should give copies to all the guardians and executors named in the will.
#2 Establish a Special Needs Trust
A special needs trust is the most important legal document you will prepare for your child. In order to preserve your child’s eligibility for federal financial benefits like Supplemental Security Income (SSI) and Medicaid, all financial assets for your child should be placed into this trust instead of being held in your child’s name. This is because federal benefit programs restrict the amount of income and assets the recipient may have. If your child has too many financial assets, he or she could lose his eligibility for important federal assistance programs.
You can use this trust as a depository for any money you save for your child’s future, money others give as a gift, funds awarded in a legal settlement or successful lawsuit, and other financial assets.
Should you create a special needs trust if your child doesn’t currently have any financial assets? Yes. Once you create the special needs trust, then the trust can immediately become the named beneficiary of any life insurance policies or planned bequests, either yours or family members’.
#3 Appoint a guardian and complete necessary guardianship papers
Like any parent, you worry about who will care for your child if you were to die before the child becomes an adult. Unlike other parents, you worry about who will care for your child and provide guidance even after he or she is an adult.
A legal guardian is the person who will care for your child after your death and until the child turns 18. If your child is unable to live independently, then you can either make arrangements for adult care or discuss your preferences with the appointed guardian.
As you consider choices of a guardian for your special needs child, consider how much time is required to raise a child with special needs. Who do you know who can respond to the challenge? Who do you know who has already formed a bond with your child?
After you make a choice, ask the individual if he or she will accept the responsibility of serving as your child’s named, legal guardian. It is never wise to keep this decision a secret. Also, discuss with your selected guardian how he or she will probably still have responsibilities toward your child even after his or her 18th birthday.
#4 Apply for an adult guardianship
Even if your child is still a minor, you can start planning now for when he or she reaches the age of majority. When children turn 18, the law considers them adults and able to make their own financial and medical decisions. If your special needs child will be incapable of managing his or her own health and finances, consider a legal guardianship.
#5 Prioritiz