Preparing a comprehensive estate plan to protect a child can be an difficult.  On the one hand, parents should be relieved that they are taking steps to guarantee that their child will be cared for after they are gone.  On the other hand, confronting one’s own mortality and having to decide who will manage the affairs of a child can be stressful.  

Out of all of the decisions that parents have to confront, the choice of a guardian stands out as one of the most challenging.  But you don’t have to dread this decision, especially if they follow these steps:

1. Take Time to Choose, But Don’t Take Too Long

Choosing someone to become the guardian is not a decision that should be made lightly, but this doesn’t mean that the decision should keep you up at night, either.  Start by putting together a list of every potential candidates.  Then go through the list and eliminate anyone who, for whatever reason, doesn’t strike you as an good choice, keep in mind that no one is going to be a perfect because they will never be you.  Take some time to think about each likely candidate. 

The key at this stage of the game is to not get overwhelmed with worry about your choices, especially since you haven’t even asked anyone if they are willing to serve.  One of the biggest obstacles to completing an estate plan is getting so caught up in the decision making process that you stop moving forward.  Don’t let this be you — make your list, start to narrow it down, and then proceed to the next step.  Don’t stop planning.

2. Talk to Your Potential Guardians and Encourage Honesty

After you’ve narrowed your list of potential guardians down to a few names, take each one out for coffee (separately) and ask them if they are willing to serve.  Don’t put people on the spot with statements like, “If you don’t do it, I don’t know what we’ll do.” You don’t want them to agree to make you feel better but then back out later. Encourage each person to be honest with you about his or her questions and concerns.  Don’t look for immediate answers; give your potential guardians time to think about things and get back to you. This is an important commitment and should be carefully considered by both of you. 

This conversation may immediately narrow down your list, as some people may tell you that they absolutely cannot serve.  At the same time, talking face to face with your choices may help you to weed out a few more people.  

3. Make a Decision and Put Your Plan into Action

After speaking with your prospective guardians you may be able to make a decision about who will serve.  But if you still need to think about your choice, keep a few things in mind.  First, you can always change your nomination at a later point, and, in fact, many people do.  For instance, it may make sense for young parents to name their parents or older relatives as guardians but later change their estate plans when the original nominee are older and may have difficulty fulfilling this role.  Likewise, as friends and family move, or have changers in their own circumstances parents may have to update their estate plans.  Nothing is set in stone.  

That said, here are some additional questions to consider if you are having a hard time choosing a guardian:

• Do I want my child to stay in his community and is the guardian willing to move here if s/he doesn’t already live here?
• How does the guardian interact with my child specifically?
• Does the guardian have too much going on in his/her own life to care for a child, especially one with special needs?
• Does the guardian have children, how old are they and can the guardian take on another child?
• How old is the guardian?  Do I have a backup in case s/he can’t serve?
• Does the guardian share my values about things like religion, education and finances?
• if my child has special needs, does the guardian have experience or patience to manage these issues?

Although the decision making process may not be easy, it is a necessary one.  Remember, the worst thing that you can do is to leave guardianship to chance, which is what will happen if you don’t have an estate plan that reflects your wishes.  Once you’ve followed these simple steps and made your decision, put it into effect by meeting with your attorney and drafting the proper documents immediately.  Don’t put it off.

According to the court documents, legendary singer Aretha Franklin did not have a will or trust when she died, despite reportedly having a son, Clarence, with special needs. The lack of an estate plan opens up the intensely private singer’s estate to public scrutiny and unnecessary costs, and means that there are no specific provisions to protect Clarence.

When someone dies without a will – called dying “intestate” — the estate goes through probate and is divided according to state law. Although it is often hard to know where to begin, a trusted estate planner could have helped the Queen of Soul create a trust that would have avoided probate. But perhaps more importantly, that estate plan could established a special needs trust to ensure that Clarence would receive proper care for the rest of his life and preserve any public benefits he may be receiving.

Estate planning is important even if you don’t have Aretha Franklin’s assets, and it’s doubly crucial if you have a child with special needs as she did. It allows you, while you are still living, to ensure that your property will go to the people you want, in the way you want, and to create special protections for your child with special needs before it’s too late. If you don’t want your plan for your loved ones to simply be “I Say a Little Prayer” contact your special needs attorney to begin working on your estate plan now. Its not as hard as you think and you will feel better when its done.

When you die, your debts do not die with you. However, your estate, is usually the first in line to pay any debts you leave behind. Your estate is made up of any money or property left in your name alone or in a trust you have created. If your estate does not have enough money, the debts will often go unpaid unless there is another person listed as a co-signor or co-owner of a secured debt. Co-signors of a particular debt are responsible for that debt ex: credit card debts. Joint owners of property are still responsible for any debts on the joint property ex: real estate or a car. In addition, spouses may be responsible for some debts: particularly medically debts. However, it is rare for your children to have any liability for your debts without co-ownership or co-signing.

Your will or your estate plan will dictate how creditors are paid and how your heirs are protected. Consult with your attorney to determine how your estate can be protected.

Gift certificates can be a convenient and appreciated way to celebrate and mark a special occasion. But until recently, it has been difficult to give gift certificates to individuals with special needs for fear of compromising their SSI, Medicaid or other governmental programs. However, using a Gift of Independence Card, we can now place funds directly into a person’s ABLE Account.   The cards are offered in denominations from $25 to $200. There is no expiration date for redeeming the funds.

ABLE Accounts are a relatively new and growing savings tool for people who experienced disabilities before age 26.  “ABLE” stands for the Achieving a Better Life Experience Act, which Congress enacted in 2014 and patterned after college savings (“529”) accounts.  Funds deposited in ABLE accounts can be used for a wide range of disability related expenses, including expenses related to education, housing, transportation, employment training and support, without compromising most government benefits such as HUD, SSI, or Medicaid.

To learn more about ABLE accounts and whether they are an appropriate option for you or a loved one, contact your special needs planner.

For more information on the Gift of Independence Card click here: http://www.ablenrc.org/news/giving-and-receiving-gift-independence-gift-cards

Everyone is familiar with the high cost of travel and the difficulties of staying in touch with distant family.  But families of people with special needs often face high travel expenses from medical emergencies, unforeseen circumstances or constant care taking.

Whether these expenses can be reimbursed and how depends on the type of special needs trust. If the trust was created as a third-party trust, meaning that it is funded with money from someone other than the trust beneficiary,then family members can typically be reimbursed for these expenses if allowed under the trust.  Stricter rules apply, however, where the trust is set up as a first-party trust, meaning that is funded by the beneficiary’s own money.

Distributions from first-party trusts are subject to the “sole benefit” rule, which is meant to ensure that trust distributions are used solely for the benefit of the trust beneficiary.  Prior to 2012, no distinction existed for family members’ travel expenses between first- and third-party trusts – travel to visit the beneficiary was allowed.  But that August, the Social Security Administration (SSA) revised its Program Operations Manual System (POMS), the guidebook that agency employees follow when determining a person’s Supplemental Security Income eligibility, in a way that appeared to interpret the “sole benefit” rule for first-party trusts to bar reimbursement of family members’ travel expenses.

Following an outcry by disability advocates, the SSA rescinded the change and implemented a compromise in May 2013. Although the compromise retained the general prohibition on reimbursement of travel expenses from first-party trusts, it created two, relatively broad, exceptions.The first exception apples to medical treatment. Specifically, the POMS states that trust distributions are allowed for the “payment of third party travel expenses which are necessary in order for the trust beneficiary to obtain medical treatment.”Second, first-party trusts can reimburse travel expenses where the trust beneficiary who lives in an institution, nursing home, or other long-term care facility or  supported living arrangement, and  if the travel is “for the purposes of ensuring the safety and/or medical well-being of the individual.”

To find out more about whether your trust can reimburse family members’ for travel expenses, determine the type of trust you have and investigate how the above rules apply.  For more information on how your trust works, you are welcome to contact our office and make an appointment to speak with the attorney who can review the specifics of your circumstances.

Note: It is expected that the SSA will soon issue new directives broadening the allowable distributions for such expenses.  We will update our readers if and when this occurs.