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4 Considerations for Estate Planning If You Have Children With Special Needs

Parents who have children (including adult children) with special needs face unique challenges when it comes to planning for the future. Here are four things special needs parents might consider when putting together an estate plan.

  1. Name a Guardian. 
    1. If you know that your special needs child is unlikely to be able to live independently and will need on-going support, you can name a guardian in your Will. A guardian can be named for both minor and adult children. The person you name still must apply for guardianship and be approved by the Court, but the Court can take your wishes into consideration when making the guardian appointment.
  • Create a Special Needs Trust.
    • If your child with special needs receives Medicaid or may receive Medicaid in the future, you might consider setting up a special needs trust for the child. A Medicaid recipient cannot have more than $2,000 in assets (with some exceptions) or they could lose their Medicaid benefits. A Special Needs Trust is one way for parents to leave an inheritance for their child without putting those Medicaid benefits in jeopardy. 
  • Create a Testamentary Trust.
    • Don’t want to set up a Special Needs Trust? A Testamentary Trust (a trust within your Will) may meet your needs. Talk to your estate planning attorney about the benefits of a testamentary trust and how it can work for you.
  • Have a Family Conversation.
    • Talk to your other family members and let them know your wishes and plan for your child with special needs. Make sure family members know the child’s doctors, medications, personal information, and other necessities. It may be a good idea to write these things down and update the list regularly. A family member will likely have to file at the clerk of court’s office to obtain legal guardianship if the child is 18 or older. Make sure the person you want to care for your child knows the process and the steps they may need to take to make sure your adult child with special needs is safe and cared for.

Your Estate Planning attorney may have other ideas and suggestions depending on your unique situation. Schedule a consultation with an Estate Planning attorney today to make sure your child with special needs is safe and cared for when you aren’t there to care for him anymore.


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