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It is imperative that families of individuals with disabilities and special needs get appropriate advice when it comes to their estate planning. Special needs trust planning can provide a family significant peace of mind knowing that their children will not only continue to receive the government benefits that they are entitled to, but also access to the money that they are leaving them in a special needs trust.
It is often a shame to see mistakes that families make in this area. They often are the same mistakes and I would like to assist today by shining a light on them. Although there are many more, here are just a few of the biggest mistakes that we see families making in the special needs context:
1. Taking the cheap way out – In light of how easy it is to get documents done online or in the age of every attorney believing that they “do that too” it is very easy for consumers to believe that quality does not matter. Although I have written many other blogs that talk about why quality does matter in all planning contexts, it certainly matters in the special needs context more than ever. Many of your online drafting companies as well as your inexpensive local attorney options are usually not people who specialize in this area. Special needs planning, more than any other area, requires knowledge and skill to ensure that a beneficiary does not get disqualified from any governmental benefits. Avoid the temptation of taking the inexpensive or cheap way out and get the planning done correctly.
2. Waiting until it is necessary – We often see people in this context who do not want to come to grips with the fact that they need to get the planning done sooner rather than later. They often will wait until the moment is perfect or until they have every answer to every question that they may ever need to know. Because of what is at stake, it is essential not to procrastinate and to get the planning done as early as possible. If you die without the correct planning in place, the risk is loss of benefits to your child, not only from their government benefit perspective but the loss of access to all the money that you are going to leave them as well. Avoid the temptation to be perfect and get documents placed that will protect your family. You can always update and make changes later to make it “perfect” but don’t procrastinate and take a chance on it being too late.
3. Failing to name an appropriate trustee or co-trustee – The selection of a trustee is an extremely important decision in all trusts. However, this decision is probably more important in the special needs context than in any other context because of all the stringent rules that are required for special needs trust administration and the fact that one mistake or one improper distribution can have an individual lose their SSI benefit or Medicaid benefit. It is imperative that the trustee be up on the law and know the rules that apply to special or supplemental needs trusts inside and out. We typically recommend a corporate trustee in this instance and many of them are non-profit organizations that will act as trustees and do so as a profession on a normal ongoing basis. If you have a family member that you would like to name, consider adding them as the co-trustee with a corporate fiduciary. It is difficult for a corporate fiduciary to stay on top of all of the real changes in the social security context through the POMS and in the Medicaid context through case law and regulations, which makes it impossible for an individual to stay on top of all of those regulations. Our recommendation is to find a corporate fiduciary that you are comfortable with and then add a family member as a co-trustee to allow a family member to be involved.
4. Getting it done early and forgetting about it – As I stated above, getting it done early is imperative, but you also don’t want to get it done and never update it. These are living, breathing documents and there are a lot of things that can change in our lives that would affect the documents themselves. Make it a plan to touch base with the attorney who drafted the documents at least once a year. There are often changes in the special needs arena and we recommend making updates as changes in the law and changes in the social security POMS occur on at least an annual basis. Don’t fall into the trap of creating the documents and never reviewing them.
We hope that these common mistakes to avoid when drafting special needs trust planning was a valuable use of your time. If you would like to learn more about special needs trust planning, please contact our office to learn more information about our special needs trust workshop.
If you would like to have additional information or to discuss this further, please give us a call at 717-845-5490.
Why Hire an Elder Law Attorney? Elder law attorneys specialize in estate planning, incapacity planning, and end-of-life care for seniors, helping them remain in their homes and protect against abuse. They are essential in planning for the future and addressing the needs of a vulnerable population. How Can an Elder Law Attorney Help? Long-Term Care Planning: As the number of Americans over 65 is projected to exceed 80 million by 2040, planning for long-term care is increasingly important. Elder law attorneys assist seniors in creating financial plans to cover essential needs like food, rent, and medical care. They also guide clients in applying for public benefits such as Medicaid and Medicare. Housing: Many seniors wish to age in place. Attorneys can represent clients in landlord-tenant disputes, helping them navigate issues like city ordinance violations. They also protect seniors against housing discrimination under the Fair Housing Act. Estate Planning Document Preparation: Elder law attorneys draft critical documents such as wills, health care directives, and powers of attorney, ensuring that seniors rights are protected regarding retirement benefits and medical decisions. A solid estate plan reduces family stress and potential inheritance disputes. Incapacity Planning: Attorneys can help document care wishes for seniors facing disabilities or conditions like dementia. With the rising number of Alzheimers cases, having a plan for incapacity is vital for protecting financial and physical well-being. Guardianship: In cases where an older adult cant make decisions due to conditions like dementia, attorneys assist family members in securing guardianship, which involves legal proceedings and court hearings. They can also advocate for the seniors autonomy by exploring alternatives to full guardianship. Combating Elder Abuse: Elder abuse is a significant public health issue, affecting one in six adults aged 60 and older. Elder law attorneys are well-versed in the rights of seniors and can provide legal recourse against abusers while implementing safeguards like advance directives to protect against financial exploitation. By addressing these diverse needs, elder law attorneys play a critical role in supporting the aging population and ensuring their rights and well-being are protected. Editors Note: This article is for informational purposes only and is not intended to be legal advice.This article was submitted by Ashley Day, Esq. Reach her at 251-277-3377.
When I ask our younger clients if they would like to complete a Health Care Directive, they often say no, stating that they are too young to need such a thing. My response is always, What does age have to do with end-of-life decisions? I can think of at least fifty examples of a young person ending up in the end stage of life and a family member having to make difficult decisions on their behalf. Please, do not get lulled into complacency by thinking that age is protection. I was in my doctors office recently when I noticed a large collage talking about the importance of having a Living Will or Health care Directive. It emphasized the importance of having such a document, regardless of how old you are, reinforcing to me what our office always stresses to our clients and the community. A Health care Directive is a document in which each of us tells our loved ones how we want the end of our life to be handled. When we are in a permanent vegetative state, a permanent state of unconsciousness, or in the end-stage of a medical condition, all with no reasonable likelihood of any significant recovery, it provides answers such as Do you or do you not want to be resuscitated, to you want tube feeding, and appoints an agent that can serve to make decisions for you once you are unable to do so yourself. One of the quotes on the doctors display said, End-of-life decisions should not be made at the end of life. Another said, For human beings, life is meaningful because it is a story, and in stories, endings matter. Another said, I have an Advanced Directive, not because I have a serious illness, but because I have a family. Most of us know what medical decisions we want at the end of our lives, but have we communicated that to our family and loved ones? When we meet with clients to help them create estate planning documents, we always point out to them that they have the option in their Health Care Directive of deciding what, if any, extraordinary measures they want to be taken at the end of their lives. Once they select those options, we then come to perhaps the most difficult question of all: Should these instructions be binding on their families and providers, or do they want their loved ones to be able to override their decisions? Many opt for binding instructions so their loved ones do not have to make any of those difficult decisions in the heat of a devastating crisis. Either way, they have expressed their desire to guide their loved ones. Age is not a factor in creating a Health Care Directive; tragedy can strike unexpectedly at any age. The expense is low, but the peace of mind comes from knowing that when our time comes, we have already made those decisions for ourselves and our loved ones. So, start the conversation with your family. Communicate your wishes to them and urge them to communicate theirs to you. Then, go to a qualified estate attorney and put those wishes on paper so that when your time comes, all involved, including your medical providers, know how you want the end of your life to be managed. We offer FREE Workshops each week. You can also call our office at (717) 208-2899.
Durable Power of Attorney Documents: Why They Are IMPORTANT Adults make decisions every day in life. You make financial choices regarding banking, paying bills and managing assets. You decide with whom to socialize and also where to live. You make health care decisions such as consenting to or refusing treatment, obtaining medical records and choose a course of treatment when ill. But what happens if you are too sick or disabled to manage these decisions? Before it is too late, have you prepared for someone to act on your behalf in the event of a crisis or if you are unable to manage decisions on your own? Adding a person to your bank accounts is not the answer because, among other reasons, it is dangerous and places your accounts at risk. Thankfully, there is a key legal tool for substitute decision making called a Durable Power of Attorney. A Durable Power of Attorney means one person (the principal) gives legal authority to another (the agent or attorney-in-fact) to act on behalf of the principal. Durable means the agent can act when the principal loses capacity. A General Durable Power of Attorney permits your agent to manage any part or all of your financial affairs and property. A Health Care Durable Power of Attorney enables your agent to make any or all health care decisions if you become incapacitated. A Living Will allows you to spell out your desired medical treatment regarding life-saving procedures, artificial nutrition and artificial hydration if you become unable to speak for yourself and have a terminal illness, or are in a persistent vegetative state. Choosing the right person as an agent is a very important decision and should be given careful consideration. It should be someone who is trustworthy, honest, knows how to handle money and accepts the responsibility as an agent. This agent owes a duty to the principal called a fiduciary duty, which means the agent has to act in the principals best interest, in good faith and with care, and keep good records. Abuse by an agent or a breach of fiduciary duty can be punishable civilly and criminally. A principal has the control to revoke a Power of Attorney at any time. If you become incapacitated and have not executed Power of Attorney documents, court proceedings called Guardianship and Conservatorship may be needed for someone to obtain decision making authority, which is both time consuming and costly. However, this may be avoided by planning in advance the execution of Durable Power of Attorney documents, which give you greater control and freedom of choice in an affordable manner. This article was written by Donna A. Schuyler, Attorney, who practices in the areas of estate planning, elder law, guardianship and probate. Donna Schuyler Law, PLLC; elderlawboise.com; Phone 208-344-1947
We Educate so what happened to the Bellomo Family doesn't happen to yours!Our firms mission is to ensure that you and your family never needlessly, painfully suffer. Every team member has a personal story that has brought us here to advocate for you and your family. We want to replace your burden with peace of mind. We have the answers, but more important, we have your back.Bellomo & Associates, LLC advises Individuals and families, business owners, senior citizens, and their families about the estate planning and elder law challenges facing them today. For seniors and their families facing the issues of aging, or for those of any age who wish to protect their familys financial future, we counsel clients and provide solutions on Asset Protection; Specials Needs Trusts; Wills; Trust Design; Medicaid; Estate Planning; Nursing Home Matters; and Estate Administration. For our clients who own businesses, our team assists them with succession planning for their business in conjunction with their estate planning. We have office locations in York, PA, and Lancaster, PA.We offer FREE workshops! Our workshops are fun and entertaining ways to learn! We provide you with the information to decide what is right for you. If after attending, you decide we arent the right fit no problem! Youll never feel any pressure from our team.