When you have a child with special needs, your estate planning may look significantly different. Many parents traditionally leave their estate to their children in equal shares. Parents also routinely designate a guardian for their children if they pass away while the children are still minors. However, parents may be reluctant to leave an equal portion of their estate to a child with special needs for various reasons. Likewise, children with special needs may need a guardian beyond their minority, so designating a guardian for these children in a will also can be critical as part of the estate planning process. The attorneys at Rubin Law can assist you in making these important yet complex decisions necessary to protect the future of your child with special needs.

Estate Planning When You Have a Child with Special Needs

The question then becomes how to ensure that a portion of their estate goes to financially support their child with special needs without endangering their eligibility for public benefits programs such as SSI and Medicaid. One approach would be for parents to leave their entire estate to the sibling(s) of their child with special needs, this is rarely a good idea.

Adults receiving SSI benefits are generally limited to $2,000 in countable assets. Likewise, Medicaid has strict resource limits for adults to remain eligible for benefits. These government benefits programs can be crucial to maintaining financial independence and medical care for adult children with special needs. As a result, preserving eligibility for these programs is key.

Due to these restrictions, an inheritance of even a relatively modest amount can jeopardize the eligibility of these individuals for these programs. Therefore, parents must take care of their estate planning to avoid this possibility.

Leaving one’s estate to your children without special needs, assuming they will care for the child with special needs, is a commonly considered possibility. This option avoids the potential to disqualify your child with special needs from eligibility for government benefit programs. Unfortunately, you have no assurances that your other children will carry out your intentions, or that the money will not be jeopardized by a divorce or death resulting in your child with special needs not receiving the support that you intend or prefer that they receive.

A better option may be to set up a special needs trust for the child and direct their share of your estate into a special needs trust. Directing the share of the child’s estate into a special needs trust rather than to the child avoids endangering your child’s eligibility for SSI and Medicaid. The parent also designates a trustee, such as a sibling or another relative, or a professional trustee, such as a bank, to handle the trust assets. That trustee must operate within the bounds of the laws governing special needs trust in disbursing funds to meet the allowable needs of your child.

Designating a Successor Guardian for Your Child with Special Needs

If you already have guardianship over your adult child with special needs, you must plan for the point at which you pass away and can no longer serve as guardian for your child. The successor guardian you name in your will takes your place as guardian and generally will make the decisions you are currently making for your child, including financial, legal, and medical decisions.

Many parents choose the child’s sibling as the successor guardian. However, you should choose the person for your child’s guardian who makes the most sense, whether that is the child’s sibling, another relative, or another person altogether. You want to select the person who will make the best decisions for your child and provide them with the best care, regardless of whether that is your child’s sibling or another person.

You also should choose an alternate to your chosen successor guardian. As time goes by, a successor guardian may pass away, become incapacitated, or otherwise become unable to serve as successor guardian of your child with special needs. Therefore, you should think carefully about an additional person to serve as a successor guardian for your child if your first choice of a successor guardian is unavailable when the time comes.

Call Rubin Law Today to See How We Can Help  

Rubin Law is the only Illinois law firm to dedicate itself exclusively to providing compassionate legal services for children and adults with special needs. We offer unique legal and future planning techniques to meet your family’s individual needs.

Call us today at 866-TO-RUBIN or email us at email@rubinlaw.com to learn more about the services we can offer you and your family.