The National Academy of Elder Law Attorneys, an organization of over 4200 attorneys nationwide who are dedicated to improving the quality of legal services provided to seniors and those with special needs, has designated October as Special Needs Law Month. In conjunction with this, NAELA attorneys are taking time to educate the public about what special needs law is and why it such a vital cornerstone to protecting our country’s special needs population.
Government programs are often critical for those with disabilities as they provide cash benefits as well as medical coverage and long-term care support and services. These programs are generally based on a person’s income level and financial resources. Therefore, if a special needs person inherits property or other assets, they may lose eligibility for these benefits. This issue is critical in Louisiana for two reasons. First, if a person does not have a will or trust, his property is distributed according to the laws of intestacy which divides the property among the descendants. Further, in Louisiana a person who is disabled and cannot take care of himself is likely a forced heir and entitled to receive a portion of his parent’s estate even if there is a will or trust which does not provide for him. Therefore, it is imperative to create a special or supplemental needs trust for the disabled person in Louisiana to avoid the loss of benefits.
A special needs trust must be designed specifically to supplement and not supplant government benefits. Money from the trust cannot be distributed directly to the person with the disability, but rather, must be distributed to third parties for goods and services to be used by a person with a disability. The special needs trust can be used for such things as out of pocket medical and dental expenses, eyeglasses, transportation, insurance, rehabilitation, materials for a hobby or recreational activity or trips, vacations or entertainment.
Besides insuring continued access to government benefits, estate planning for special needs persons is especially important because the needs of that person may be much greater than the needs of others who may inherit from you. Without a will or trust, assets are likely to be divided equally among heirs not leaving enough for the disabled person. There may also be a need to explore the use of life insurance to provide additional resources for the special needs person.
Another key issue for special needs trust planning is the selection of an appropriate trustee. A trustee will be the person who steps in and handles the disabled person’s assets and care when you are no longer able to do so. In some cases, this will be another family member or friend who is highly responsible and who will be able to take care of the special needs person. In some cases it may be a bank or other financial institution that will be named for this purpose. Obviously, the choice of a trustee to take over in this situation is a very important decision that must be made with much thought for the special needs person’s well-being.
These and many more difficult issues present themselves when planning your estate to insure the best possible outcome for your loved one with special needs. The result of failing to face these difficult issues can be disastrous, but the peace of mind of knowing that you have prepared for the inevitable will make facing these difficult issues worthwhile. While it is always important to work with knowledgeable professionals to assist with your estate planning, if you are planning for a loved one with special needs it is critical because the consequences of a mistake can be disastrous for that person’s future well-being.
