Providing for someone in your life with special needs isn’t as simple as including them in a traditional will or trust. A direct distribution of funds in any form could inadvertently disqualify your loved one from government benefits, or have their inheritance taken away as reimbursement for prior care received.

Managing the legal framework for a person with disabilities can be challenging. Of course, your loved one’s disability and its effects may change over time. The applicability and coverage of government benefits, and even the ease of getting guardian and conservatorships, change over time, too. Planning can also be a delicate balance between promoting your loved one’s independence, and protecting them from inappropriate influences – and even themselves. Not only do you need to plan for the circumstances currently existing, but you also need to think ahead to what will happen in the future. Flexibility is key to ensure your loved one is cared for.

The experienced attorneys at TuckerAllen will work with you to create a plan for your loved one with the goal of addressing the situation right now, as well as adapting to the situation for ten, twenty, or even sixty years from now.

Typically, a special needs trust is the cornerstone of any special needs plan. This can be created by the person with disabilities themselves (“first party”), or by anyone else for their benefit (“third party”). We may also discuss whether a guardian and/or conservatorship is appropriate for your loved one, or whether powers of attorney will be a better alternative, as well as if an ABLE account is a suitable addition for a well-rounded care plan.

Third-Party Special Needs Trusts

A Third-Party Special Needs Trust (often called a Supplemental Needs Trust) is a trust which contains assets for the benefit of the person with a disability, but has the necessary language compliant with the applicable statutes and regulations to keep those assets protected. At TuckerAllen, we have in-depth experience to help you structure your special needs trust to ensure your loved one receives the benefit of your legacy and minimize this potential liability.

We will discuss your loved one’s disability, your ideal living situation for him or her, what the trust’s assets can and cannot be used for, when the trust will be funded, if and when it can be modified, if and when government benefits should be prioritized, and who you want to administer the trust when you are no longer able to do yourself.

Finally, a third-party special needs trust allows for you to designate remainder beneficiaries after your loved one passes, so that any remaining funds can be directed to your other loved ones or charities.

First-Party Special Needs Trusts

A first-party special needs trust may be necessary if you or your loved one has assets in his or her name, but want to be eligible for government benefits. This may happen from a personal injury settlement or a disability which arises after turning age 18. While any benefits after death must go to repay the government benefits received, you or your loved one can have the benefit of the assets to cover expenditures your government benefits do not.

Consider a Corporate Trustee or Co-Trustee

Administering these types of trusts can be complex, and a well-meaning trustee could make an inappropriate distribution to your loved one and inadvertently expose the trust’s assets to take-back from Medicaid or disqualification of benefits under the program. We recommend you name a corporate trustee who can help guide your trustee through all the red tape surrounding special needs trusts, such as TuckerAllen or another trust company specializing in special needs trusts.

How much does Special Needs Planning cost?

An initial estate planning consultation with an attorney is complementary. Your attorney will help you decide what documents or packages you need. We offer published, flat-rate pricing for almost every estate planning service, and guardian and conservatorships at an hourly rate. View our complete pricing list here.

We also offer a 12-month, zero-interest payment plan for estate planning documents. Learn more about the additional terms and conditions.