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I have child with Special Needs. If I want to provide for him in my Will, is there a proper way to do this?

November 14, 2018

By Nicolas J. Sasso, Esq.

Estate planning to provide for children with special needs involves some of the more complicated areas of the law.  When I meet with either the parents or grandparents of a child with special needs, the first question often involves what type of public benefits the child is receiving.  It is absolutely vital that a determination be made as to whether or not the child is receiving any benefit that is based on the child’s income and resources.

The concern that most parents and grandparents have stem from the risk of the child losing Medicaid and SSI benefits should the child receive an inheritance.   This is a very real risk and concern, and without proper planning, the receipt of an inheritance could very well jeopardize benefits being received.  For children or disabled adults, this could be very problematic, particularly if Medicaid Waiver is involved and substantial therapies, caretakers, or medical treatments are no longer funded by the program.  Because of this very real risk, it is imperative that proper planning is put into place to ensure that the assets can benefit the disabled individual without jeopardizing the benefits.

The general planning technique involves the utilization of a Supplemental (or Special/Third Party) Needs Trust.  This is an estate-planning tool that allows for the disabled child to benefit from such a trust without Medicaid benefits being lost.  This type of planning provides a means to enhance the disabled individual’s quality of life.  Generally, the Trust is designed to allow for the funds to be utilized for any purpose that is not otherwise being provided by SSI or Medicaid.  So, let me give you an example.  Suppose that your special needs child absolutely loves going to Penguins games, or suppose that he or she looks forward to going to a camp each summer.  Medicaid is not going to pay for these types of expenses, but a properly drafted Supplemental Needs Trust can provide a means for these activities to continue for that child’s lifetime.  Another example may be that new, experimental therapies or procedures become available in the future.  If these therapies or procedures are not covered by Medicaid, the Trust can provide the funding to allow the child to participate.

I cannot emphasize enough the importance of planning in the case of a child with special needs.  There are significant risks involved in these situations due to the value of the benefit often being received through the public benefit program.  However, please do not disinherit the child with special needs out of fear of these risks.  Rather, plan properly to ensure that his or her quality of life is enhanced.

If you need assistance with a Special Needs Trust or other estate issue, please do not hesitate to contact us online or call (412) 338-1179.

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