Private Social Service Safety Net, Finding the Immortal Trustee for the Special Needs Mentally Disabled Person

Private Social Service Safety Net. In our last blog, we discussed how the need for care for those loved ones with physical or mental disabilities is increasing while the federal and state programs for them are being cut or unable to keep up with growing demand and expenses. No one wants a loved one to be forced to live in an unsanitary and abusive institution. There remain many excellent governmental programs that are only available to those who do not have money. You can’t buy your way into many of the better programs. Instead, parents and planners for those with special needs should realize they will have to set up their own social service safety net for their loved ones. The first step is to recognize these dynamics and to establish a plan to take care of the disabled person using government benefits where available as a floor and their inheritance as a way to elevate their children’s quality of life.

A Special Needs Trust That Works. This type of special needs trust will be crafted to provide the specific treatment and the economic security for the special needs child or loved one. The focus is not on qualifying for government welfare benefits, but on designing a plan which will provide a safe and secure future for the special needs person. Where possible, there may be an attempt to qualify for governmental benefits, but whether governmental benefits are there or not, the special needs trust will provide for the disabled loved one.

People, Not Documents Are the Answer. Stephen Dale is a national expert on designing and drafting special needs trusts. Before becoming a lawyer, Dale had seventeen years of hands on experience as a psychiatric nurse taking care of persons with mental disabilities. He drafted the special needs language used by Wealth Counsel, the largest national organization of estate planners in the country with thousands of members and representation in every state. You should have the best documents. But, even though Dale is the guru of special needs trust documents, Dale’s experience is that even with the best documents, the documents will not come to life, jump off the table and protect your disabled child from abuse, neglect and lack of adequate care. In decades of hands on experience, Dale knows that the key is to find the right care giver advocate for your disabled child or loved one when you are no longer able to be the advocate of your child.

A Professional Care Manager. Most families assign the task of taking care of the disabled loved one to a spouse, sister or brother of the disabled person. In Dale’s experience, this is a usually a huge mistake. The family member is not an expert in this field, doesn’t know what resources are available, does not know which practices will improve or help the condition of the disabled person, does not have the time to spare from their own family and career and often will face care giver burn out. Ask yourself: Is this a fair and wise thing to impose on your child? Dale has seen people with disabilities have their conditions improve when their care is supervised by a professional care manager. Dale says a great source to find a care manager is http://www.caremanager.org/.

Role of the Family, Trustee and Care Manager. Dale recommends that the family serve as the Trust Advisory Committee which can supervise and replace the Trustee and Care Manager, direct distributions and amend the Trust to conform to changing laws where necessary. The Trustee will be a professional Trust Company which will use discretion in making distributions, understand and keep up with public benefit requirements, wisely invest the funds, conform to statutory fiduciary requirements, file taxes, do tax planning, keep perfect books, provide advocacy and be immortal, that is, stay in business longer than the lifetime of the disabled person. There are several national trust companies which have specialized divisions for disabled persons or extensive experience in this field. The Care Manager can supervise the distributions by the Trustee and the care of the disabled person. For additional information, go to http://www.achievingindependence.com/.

Separate Stand Alone Trust. Dale recommends in nearly all cases the creation of a special needs trust as a stand alone trust separate and apart from the estate planning living trust document of the parents. With a stand alone trust, grandparents, siblings and others have the opportunity to contribute funds to this trust. In our experience, stand alone trusts are much more readily accepted by banks, title companies and financial institutions. This facilitates the reduction of future estate taxes of the parents. Properly structured, the funds in the stand alone trust will be very hard to reach by a creditor of the parent or of the special needs child. In the separate trust document, the parent can decide who will receive the funds not used by the special needs child. A down side is that you have to determine whether the fully funded stand alone trust would restrict or deny present governmental benefits.

Change Your Special Needs Plan. If your plan for your special needs person is not set up in the way discussed in this blog or if you want your current plan revised or reviewed, contact us for a review and adoption of a better plan for your special needs child or person.