Special Needs Planning
Planning for the care and support of someone with special needs encompasses arrangements for living, vocational, and financial support. We can assist you with a plan for the ongoing future support for yourself or a loved one with a disability. This planning may include the use of a special needs trust, certain other legal documents, and possibly court proceedings to provide for the needs and wellbeing of the individual with disabilities. We guide individuals and families of various circumstances, to customize a plan with the right balance of independence, protection, and assistance.
For many clients, the comparison and interplay of ABLE accounts and different types of special needs trusts is an important consideration. The comparison chart created by the ABLE National Resource Center and the Special Needs Alliance is a helpful tool to start the conversation.
Special Needs Trusts
For all ages, we can prepare special needs trusts for current and future needs. For a family with a young child who is disabled, a special needs trust is a way to manage and preserve inheritance and gifts, especially when the child becomes an adult and begins receiving means-tested public assistance, like SSI and Medicaid. Individuals of any age may benefit from a special needs trust if they receive personal injury or medical malpractice settlements that need to be protected while the individual is also receiving means-tested public assistance. A special needs trust can be established with a customized trust, specific to the individual, assets, and selected trustee. Alternatively, a special needs trust can be established within a non-profit pooled trust program, which has a professional corporate trustee. The two pooled trust programs in Wisconsin are Wispact and Life Navigators.
In addition, we can advise trustees of special needs trusts about proper administration of the trust. We help trustees comply with various laws related to public benefits, trusts, and taxes, so that the trust is used for the beneficiary’s long-term needs and quality of life.
Transition to Adulthood
Any individual becomes a legal adult upon turning age 18, but a young person with a disability may need additional assistance and support with the transition to adulthood. For such young adults, we can assist with financial, educational, and health care support through powers of attorney, conservatorship, and guardianship. If a person is competent, he or she can sign powers of attorney to name someone to act on their behalf. A power of attorney for finances, education, and health care can keep a parent involved in their child’s decision making through early adulthood and beyond. For some individuals, a court-appointed conservator is the best choice for dealing with financial decisions. In cases where the young person is not competent to make decisions, then it is probably necessary to seek guardianship of the person for healthcare and other personal decisions and guardianship of the estate for financial and property decisions for the individual.
Supported Decision-Making Agreements
In many cases, a supported decision-making agreement can be part of a plan for independence with support and advice from others. A supported decision-making agreement allows an individual to name one or more “supporters” to assist with obtaining information, evaluating options, and expressing a decision. The individual keeps all decision-making authority, so the supporter has no power to make a decision or deal with personal affairs (unless there is a power of attorney too). A supported decision-making agreement can supplement powers of attorney or a limited guardianship to create a complete plan for support, guidance, and assistance.
The federal ABLE (Achieving a Better Life Experience) Act is a recent development in the range of options for special needs planning. An ABLE account can be created for an individual whose disability began before age 26, and annual contributions to the account may be up to $17,000 total. The funds in an ABLE account are exempt for Medicaid purposes, with a limit of $100,000 for those who receive SSI (Supplemental Security Income). ABLE account funds may be used for qualified disability expenses, and the accounts have certain tax advantages too. Finally, after the individual’s death, the ABLE account is required to reimburse the state for public assistance benefits paid on the individual’s behalf before any funds are paid to the individual’s estate.
The attorneys at Johnson Teigen, LLC can help you decide how one or more of these options fit into a complete plan for you or a loved one with a disability.