Estate planning is an important aspect for all families to ensure an individual’s wishes are honored after they pass away. However, estate planning becomes even more critical when there is a person with disabilities involved. Not having a plan in place for when you are no longer able to advocate and care for a loved one with special needs can leave them in a dire position.

When parents and other guardians of special needs beneficiaries are making arrangements for their own planning, it is necessary to take the special needs of your loved one under consideration and answer the following questions:

• Who will take care of my loved one when I pass away?

• What happens if I become incapacitated and unable to care for my loved one?

• Who will manage the assets I leave to my loved one?

• How can I pass on assets to my special needs loved one without negatively affecting their benefits?

• What can I do to make the transition smooth after my death, or incapacity?

Special Needs Planning

Planning for a loved one with disabilities requires particular attention to detail. Numerous legal and financial complexities must be taken into consideration to ensure your loved one maintains eligibility for public benefits while receiving the care they need. Trying to balance those two objectives can be overwhelming and frustrating.

At North Carolina Estate Planning and Fiduciary Law, our attorneys understand that special needs planning should be a holistic approach. Creating a comprehensive plan should consider the totality of the circumstances involved to be effective.

With over 20 years of experience in helping families create estate plans for all types of situations, from complex lifetime and post-mortem issues to special needs planning, our attorneys are knowledgeable in all facets of estate matters and can help you make informed decisions about the type of plan that aligns with your family’s best interests. We are skilled attorneys who can help guide our clients in making tough decisions surrounding special needs planning, which includes consideration of the following issues:

Naming a Guardian

A guardian can be appointed by the court to legally act on behalf of a disabled individual who is not able to make their own decisions. Three different types of guardianship can be granted. A guardian of the person is appointed to be responsible for the disabled person’s well-being and day-to-day care.

A guardian of the estate is appointed to handle the financial affairs of the individual, not including those separate from funds allocated within a trust. A general guardian is the term used for a person serving as both guardian of the person and guardian of the estate.

It's ideal to name a primary guardian and at least one backup guardian in estate planning documents in case your primary guardian is unable to serve. Another consideration to be made when appointing a guardian is to name a backup successor who has a similar or longer life expectancy as the disabled person. Additional details about guardianships can be found in our guardianship article here.

Special Needs Trust

A special needs trust (“SNT”) can be utilized to hold assets for the benefit of the beneficiary while still allowing them to remain or become eligible for government assistance programs such as North Carolina Special Assistance, Medicaid, or Social Security Disability Insurance (SSDI).

Assets held in an SNT are not counted against a beneficiary when their assets and income are calculated for government assistance eligibility. A properly structured SNT would allow a beneficiary to have their basic housing, food, and medical needs met by government programs while preserving assets in the SNT for supplemental needs such as education, recreation, therapy, and specialized care and equipment.

SNTs are complex and riddled with numerous rules and requirements that you should be familiar with before establishing. A knowledgeable attorney can help you navigate through the special needs trust process and ensure that the trust is set up and administered correctly.

Gifts

Family members and friends may have good intentions when planning to gift money to loved ones, however, gifting to a person who is a recipient of government assistance programs can cause them to become ineligible for assistance if not done properly. An estate planning attorney should be consulted before making gifts or accepting gifts on behalf of a person who is a recipient of government assistance.

At North Carolina Estate and Fiduciary Planning, ensuring a loved one is cared for after a primary caregiver passes away is a top priority for many of our clients. Our goal is to provide a seamless transition and effective strategy for their care after you are unable to do so.

Whether you need assistance in creating an estate plan for your special needs loved one, or need a plan reviewed and revised, our attorneys can help you navigate through the process. To schedule a confidential consultation with one of our experienced estate planning and administration attorneys, call our office at (704) 248-6325 or complete our online form.