Parents who have a child who has a disability often wonder how they can ensure their child is cared for after they pass away. There are many options available to make this happen. One of these is a special needs trust. This type of trust provides very specific benefits for the child to help parents feel they’ve done their best to ensure the child will be taken care of long term. A special needs trust can help provide financial support for a loved one who relies on needs-based programs.
What Is a Special Needs Trust?
A special needs trust is an irrevocable trust, which means that it can’t be changed or canceled once the trust is established. The beneficiary never has control of the trust because there is always a trustee to oversee its contents. The trustee distributes the trust in accordance with the beneficiary’s needs.
Since the beneficiary doesn’t have direct control or access to the trust, the value of the trust can’t be counted as an asset for them when they apply for needs-based programs. This means that what’s in the special needs trust won’t have any impact on being able to receive Medicaid or Supplemental Security Income.
The special needs trust enables the person to keep getting the services they need. For many people, this is valuable because the total value of the trust might not be enough to provide them with continued care.
What Are the Limitations of a Special Needs Trust?
Special needs trusts can only be used to cover certain expenses, and must be written in a specific manner that clearly denotes what it can and can’t be used for. Typically, these trusts are used to provide supplemental assistance for the beneficiary. This can cover things like entertainment and food expenses. It can also cover some items that other insurance won’t pay for.
You can ask your attorney to review what this means for this case. Reviewing a sample special needs trust might also be beneficial to you. This is a chance for you to see exactly what wording and limitations are present in this estate plan component.
What Types of Special Needs Trusts Are Available?
Once you determine that you need to establish a special needs trust, you’ll need to discuss the specific type you should start. There are some vast differences between these types, so be sure to review your options with your lawyer and consider which one would work best for your loved one.
- First-party or self-settled special needs trust: This is used when a person has assets prior to becoming disabled or when they receive an inheritance while disabled. Upon the death of the beneficiary, any remaining assets in the trust are used to reimburse Medicaid for the person’s coverage.
- Third-party special needs trust: This type of trust is funded by someone other than the person with special needs. When the beneficiary passes away, the trust’s assets are distributed to other designated beneficiaries.
- ABLE account: Based on the Achieving a Better Life Experience Act of 2014, one advantage of these special needs trusts is they’re funded with post-tax dollars and have tax advantages.
- Pooled asset trust: These trusts put the assets of multiple beneficiaries together. Thoroughly vet this type of trust as they are handled a bit differently.
What Else Should You Know About Special Needs Trusts?
The special needs trust is only one aspect of your estate plan that you need to think about when you have a dependent who may need special care after you’re not able to provide it any longer. Your attorney can provide you with detailed information about what options you have to make sure you have as many aspects of their care covered as necessary.
Something else to consider is who will take on your role as guardian. You should determine whether you have the legal capability to name a guardian who can step in and provide care for your dependant when you pass away.
Estate Planning
You should also ensure that other aspects of your estate plan are in place. This can help the individuals who will help your disabled child after you pass away to know what plans you have. These include:
Will
Payable on death designations
Power of attorney
Living will and advance directives
Your attorney can help ensure that your wishes translate to a legally binding plan. Be sure to discuss your wishes for your child with special needs with your attorney so they can provide you with guidance that adheres to your state’s requirements.
