Burlingame Special Needs Estate Planning Attorney

Special Needs Planning Attorney Here To Help You

Many people look toward the future with the goal of making sure their loved ones will be taken care of if anything happens to them. However, families with special needs children or loved ones often face an urgency to create a thorough estate plan which will establish a financial and legal strategy to protect their loved ones with special needs both now and after they are gone. Indeed, many people with special needs or disabilities may depend on public benefits as well, and an estate plan must be carefully crafted to accommodate these benefits and ensure they are not unintentionally cut off by a lack of special planning by your attorney. By understanding the unique requirements and needs that an estate plan must consider for special needs loved ones, an experienced estate planning attorney like Mark Gullotta can create a framework that ensures that these loved ones will receive the proper medical care and asset management they need.

What May Be Included in Your Special Needs Estate Planning?

Depending on your loved ones with special needs and unique situations, your estate plan may need to include special needs trusts to protect your assets for future use while not impacting their eligibility for public benefits. You might need to establish guardianships or conservatorships to protect and manage your loved one’s financial and medical decisions. You should also consider naming a guardian for minors with special needs if you were to suddenly and unexpectedly pass away. 

Special Needs Trusts

Estate planning attorneys often use a special needs trust in California to allow your loved ones who have disabilities or special needs, to receive an inheritance while continuing to receive their typical public benefits. These benefits could include Social Security Disability (SSD), Supplemental Security Income (SSI), Medi-Cal, or other critical needs-based government benefits. Notably, a special needs trust can be highly technical and complex. It is crucial that they only be drafted and created by an experienced estate planning attorney to avoid even the smallest oversight that could significantly burden your beneficiaries with special needs.

An individual may continue to receive SSI by placing any inheritance within the self-funded Special Needs Trust (SNT). At the same time, the trust assets are then used to supplement those public benefits during the individual’s lifetime. 

A third-party Special Needs Trust functions similarly to a self-funded SNT in that the trust can be used to protect the disabled beneficiary’s assets or inheritance. By using this trust, the beneficiary remains able to continue to receive government benefits. However, the main difference between a self-funded and a third-party Special Needs Trust is that any remaining benefits in a third-party SNT will not be used to reimburse the government. Instead, the remaining benefits can be distributed to other loved ones, friends, charities, or other desired recipients. This difference exists because a third-party is usually created and funded using the parent’s assets, as provided for in an estate plan.

Conservatorship or Guardianship

With estate planning for special needs, your lawyer may usually recommend you review the guardianship or conservatorship nominations for your special needs loved one. Suppose you pass away and have not designated a guardian or conservator for your special needs child. In that case, a court may instead choose who to appoint to handle the individual’s financial or health care decisions. To ensure the best care for your loved one, including a conservator or guardian nomination for the court to appoint from to make decisions for and care for your special needs loved one, if a conservatorship or guardianship is necessary. You should discuss this element of your estate plan with your attorney, so your loved one is protected if something happened to you. Your attorney can help you identify family members or someone close to you that you trust to be there for your loved one when you are gone. Your attorney can also make sure these individuals understand their potential roles and the necessary steps to follow for the court to appoint them as a conservator or guardian for your special needs family member or loved one.

Your attorney will help you decide whether a guardianship or conservatorship nomination may be appropriate, generally depending on the age of your loved one. If your special needs loved one is a minor, guardianship would generally be recommended so that your guardian will have custody of the child and provide for them as if they were their child. Failing to name a guardian in your estate plan will typically lead to the court appointing a guardian, even if it may be someone who you would not have chosen.

Meanwhile, if your loved one is a senior, a conservatorship may often be appropriate. Here, your attorney can help you formally appoint a conservator to be in charge of the special needs adult’s financial decisions as well as healthcare decisions. With seniors, if they are unable to choose their own conservator, you should choose one with the assistance of your estate planning attorney to avoid the expensive process of a court searching and appointing a conservator.