A Plan for Lifelong Support
Planning for a loved one with special needs ensures continued care and benefit protection. We’ll help you create a thoughtful roadmap.
If you have a family member with special needs, it is often a challenge to maintain government benefits for them while preserving assets. Although you want family members with special needs to inherit and receive property just like anyone else, their participation in certain government programs may be jeopardized.
You want your loved one to participate in government programs such as Medicaid and SSI. However, these programs just cover the bare necessities, and they are only available to those who have incomes and assets below a certain level. You must find a way to balance the two needs because you do not want your loved one to be limited to just the bare essentials. At The Law Offices of Brenton C. McWilliams, we can help you with special needs planning so you can provide for your loved one without losing important public benefits.
Orange Beach Office
Located near the water, close to The Wharf and marinas.
Foley Office
Located near Tanger Outlets, just off the Foley Beach Express.
Spanish Fort Office
Just minutes from I-10, serving Baldwin County’s east side.
Special Needs Trusts
The federal government specifically allows for the creation of special needs trusts, subject to certain rules. The government can be very strict about enforcing these rules, meaning that if you make a mistake or do not have legal help, your loved one may lose benefits. The rules include the following:
- The beneficiary must be under the age of 65 when the trust is created
- The trust must be administered for the sole benefit of the beneficiary
In a special needs trust, money from the trust is distributed to a third party who will provide for the needs of the family member. The proceeds should not be given directly to the person with special needs because they may then exceed asset and income limitations.
The money from a special needs trust is used to make your loved one’s life better. They do not have to live impoverished just because they want to receive government benefits. These funds can handle life-enhancing activities such as vacations, hobbies, and transportation. They can also be used for out-of-pocket medical expenses that your loved one incurs for their care.
Here are some things that you will need to consider in establishing a special needs trust:
- Finding a trustee with the knowledge to manage and administer the trust
- Ensuring that the terms of the trust comply with federal rules
- Designating a successor trustee in case the first trustee becomes incapacitated or no longer wishes to administer the trust
- Establishing a remainder beneficiary
You may choose to have a family member as a trustee, or you can elect a corporate trustee. In either event, the trustee is entitled to compensation for their role.
Why You Need an Attorney for a Special Needs Trust
Special needs trust can be very complex. They must provide for a family member and their own specific situation. These trusts are not intended to be boilerplate. You will likely need your own specific language that is tailored to your family member. Therefore, you will need an experienced attorney who is knowledgeable in this area. Not every lawyer has the right experience to meet your needs.
Not only will your lawyer work with you on establishing the trust, but they will also educate and assist you in following the terms. You can make mistakes, even with a trust agreement in place. There also may be ongoing issues with administration of the special needs trust. With trust administration, the trustee owes a fiduciary duty to the trust, and they must put the needs of the beneficiary ahead of their own. If they fail to do so (including not using reasonable care to make decisions), they may be personally liable.
Schedule Your Consultation
Contact a Baldwin County Special Needs Planning Attorney Today
The attorneys at The Law Offices of Brenton C. McWilliams are intimately familiar with the legal arrangements necessary to establish a special needs trust. We can sit down with you and your family to discuss your needs and the best option for caring for your loved one.
Our firm prides itself on being a resource for the special needs community and their families. We can help your special needs child live their life to the fullest, including helping to protect their future by establishing special needs trust. Contact us to schedule a special needs planning consultation.
Frequently Asked Questions
Will a special needs trust stop my child from getting government benefits?
No. You establish a special needs trust to ensure you or your beneficiary will continue to get government assistance, including public benefits, while still being able to use trust money. This assistance includes Medicaid and Supplemental Security Income (SSI) for the disabled person.
Should I use a professional trustee for the special needs trust?
It depends on your family’s own needs. If you do not have someone in your family who has the ability to serve as a trustee, you should consider a professional trustee.
Who can establish a special needs trust?
Anyone has the ability to establish a special needs trust. Usually, it is done by a parent, grandparent, or another loved one with the financial means to help and support their family member.
