The unique care needs of a child with special needs can run a wide range. Some children with special needs will be able to live independently. Others may need or eventually need 24-7 care. Oftentimes, a child with special needs will fall somewhere in between, needing assistance on occasion, but not all the time. No matter what type of care your child with special needs may have or eventually have, there are plans that can be put in place to help ensure they maintain quality of life far into the future.
What Type of Planning Should a Child with Special Needs Have in Place?
When talking about special needs planning, special needs trusts are often discussed. While these trusts are commonly funded by a third party, meaning someone other than the individual with special needs, a special needs individual can set up and fund such a trust for themselves. This can happen if a person with special needs is set to inherit money or other financial resources or perhaps will be receiving a settlement from a personal injury claim. The proceeds can go to fund the trust. A special needs trust will allow your child to continue the receipt of benefits from certain needs-based government programs, such as Supplemental Security Income (SSI) and Medicaid. The proceeds from the trust can then go towards things that are not covered by the government benefits.
There are other elements of a plan that your child with special needs can have in place. There can be long-term care plans in place and incapacity plans in place. While your child is still a minor, you, as the parent, will still be able to legally manage things like financial resources and health care decisions for your child. As your child with special needs reaches the age of majority, however, plans should be set in motion to help ensure a trusted individual is always able to assist them in ways they may need.
For instance, you will need a HIPAA authorization to be able to have access to their health care information. You may also want to encourage them to put a power of attorney in place that names you as agent. This way, you can have the legal authority to help them with things such as managing their finances. Establishing a durable power of attorney means that the power granted by the power of attorney will survive even in the event that your child becomes incapacitated. You will also want to have a health care surrogate in place so that you are able to make health care decisions on your child’s behalf should he or she become incapacitated and otherwise unable to communicate preferences for himself or herself.
Without a power of attorney in place, you may need to go through the extensive and involved process of establishing a guardianship and/or conservatorship. A guardianship and conservatorship, however, may not be the best pathway if your adult child with special needs only needs some assistance and not someone to have total control over their affairs.
Estate Planning Attorney
Interested in learning more about plans your child with special needs should have in place? Talk to the trusted estate planning team at Monk Law. Contact Monk Law today.