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Special Needs Adult Children: Trusts and What You Need to Know

Special needs adult child

Having a special needs adult child can present some unique challenges.  Making sure that he or she has the proper care, via special needs trusts and other methods, is both a legal and emotional process.  Taking the steps below, as appropriate, will help ensure the best care for your adult child now and well into the future.

Establish Guardianship

If your adult child is unable to care for him or herself to the extent that you need to handle his or her financial, medical and day to day well-being; you will need to establish guardianship.  You will need to be appointed your child’s guardian through the court system.  This process can take two and a half to three months from start to finish. depending on the current case load and backlog.  You will be required to prove to the court that your adult child lacks the understanding or ability to provide for his or her own care and that the guardianship is necessary.  A court-provided report will be necessary from your child’s physician. The physician does not need to testify in court. You will also have to prove to the court that you, as the parent, are capable of providing the care and assistance your child needs.  A judge will review your petition and evidence.  After this, he or she will determine if your child’s capacity to make decisions and ability to be self-sufficient.  If you have proven your child’s incapacity and your ability to care for him or her, you will be appointed guardian by the court.  Although this process sounds kind of intimidating, it is actually fairly pro forma, with the focus very much on supporting your wish to become guardian. If your child receives social security income, or you plan to apply, the court fees are usually waived.

Familiarize Yourself With the Social Security System, Rules and Regulations

If your special needs adult child needs financial assistance, you will need to apply for supplemental security income through the Social Security Administration once your child is an adult.  Social security benefits will be assessed based on your child’s income, not yours.  If your child receives social security income, he or she cannot have more than $2,000 attributed to him/her in an account without risking their benefits.  For example. this means that the $650 or so your child will receive each month in benefits needs to be spent before it adds up to over $2,000.  It is important that you know and understand your child’s social security benefits and restrictions so that you do not inadvertently put his or her benefits at risk.

Include Your Special Needs Adult Child in Your Estate Plan And/Or Establish a Special Needs Trust

When you create an estate plan, it is important to keep your special needs adult child in mind.  Your estate plan should provide for the care and long-term needs of your child.  You may consider setting up a special needs trust that allows you to put money aside for the care of your disabled child without putting his or her social security benefits at risk.  Any other government benefits may be able to be preserved as well with proper estate planning and trust administration.

Plan Ahead

As you age, you may find caring for your adult child becomes more and more challenging.  Eventually, you may become unable to provide the care that your child needs.  It is important for you to look ahead to the future and establish a comprehensive estate plan, including a special needs trust, that includes a future guardian for your child.  If you are no longer able to serve in your capacity as guardian, you should have someone ready to take your place.  This will help ensure continuity of care for your child.

Establish Alternate Living Arrangements, Just in Case

If your child lives at home with you, what comes next if something happens to you? What are your wishes for where your child would live? It is important to determine the best alternative home for your child and to put a plan for this arrangement in writing.

Create a File That Is Comprehensive and Accessible

No one knows your child the way you do.  No one else understands his or her likes, dislikes and needs.  You need to put together a file that includes all important paperwork pertaining to his or her care.  This should include all legal documents, such as your special needs trust, as well as information about his or her day-to-day life.  What medications does your child need?  What’s his or her favorite pastime?  Does your child have any food allergies or special soothing techniques?  These are all important things the next caregiver will need to know.  Everything about your child that makes him or her unique and relates to his or her care should be in this file.

If you haven’t taken any of the steps above and would like guidance on how to move forward with a special needs trust or other plans, please contact me. I would be happy to help you identify the best way to plan for your child’s future.

This blog is made available by the lawyer or law firm publisher for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand that there is no attorney client relationship between you and the blog publisher. The blog should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.

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