Special Needs Planning Attorney Walnut Creek

Special Needs Trust Lawyer

When planning for the security of a loved one with special needs, there are several estate planning tools that will ensure they are properly cared for.

 

The first is the Special Needs Trust. As a Special Needs Planning Attorney in Contra Costa County, I have helped many families secure the future of their child, spouse, or parent with disabilities. For family members who are actively involved in their loved ones care, a Special Needs Trust is an essential part of ensuring the individual will continue to receive the support and care they need when you are no longer able to provide it. For developmentally disabled individuals over the age of 18, a limited conservatorship may also be necessary.

Special Needs Trust

Setting up a plan to care for the needs of a child, spouse, or parent can be a difficult and emotional undertaking. I work with you to ensure you feel comfortable with each part of the process, and fully understand all of your options as a caregiver. While an estate plan is beneficial for most families in general, a family caring for a child or adult with disabilities needs a specialized estate plan that includes a Special Needs Trust. A Special Needs Trust is set up for the benefit of the disabled individual. The Trust provides supplemental care that is not covered by government benefits. When set up by an experienced special needs planning attorney, eligibility for public benefits is preserved, and well being is maximized.

As a Walnut Creek special needs planning attorney, I advise clients to set up a Special Needs trust as early as possible, because the trust can be funded immediately upon its creation.

As a special needs attorney in Contra Costa County, I have significant experience setting up Special Needs Trusts for children, spouses, and parents with disabilities, and can guide you through the process.

Why an Estate Plan is essential for the Child with Special Needs 

In addition to a Special Needs Trust, a proper estate plan will also address the care giving, advocacy, living situation, and other issues that may arise for the child or individual with a disability. When an estate plan is put in place for a child, parents often gain peace of mind knowing that something productive has been accomplished that will enhance and preserve their child's life when they are not able to do so themselves.

Designing an Estate Plan for children with disabilities can involve several challenges, including:

  • How to keep public benefits while still leaving additional funds for the child
  • How to ensure the funds you leave are well managed
  • How to limit the burden of care on your other children, and if necessary distribute that burden evenly
  • How to fairly distribute your estate between your other children and the disabled child
  • How to ensure enough money is left to meet the needs of your disabled child

It is often the case that parents leave their estate to their children who do not have disabilities, and exclude the disabled child because they are unable to manage the funds themselves. From my experience, I would highly discourage this. For one, public benefits programs often do not provide adequate care and need to be supplemented from other sources. More importantly, both public benefits programs and individual circumstances change over time. What’s working today, may not work tomorrow. Other resources need to be available, just in case. Third, relying on one’s other children to take care of their siblings places an undue burden on them and can strain relations between them. It can become unclear if inherited money is to be used for the disabled child, or by the children who are not disabled. In addition If one sibling sets money aside for the disabled sibling, and another child does not, resentments can build that may split the family.  

The best answer to many of these issues is the Special Needs Trust.  The Special Needs trust fulfills two main functions:  The first is to manage funds for an individual who may not be able to do so herself/himself due to disability.  The second function is to preserve the beneficiary’s eligibility for public benefits- whether they are Medi-Cal, Supplemental Security Income (SSI), public housing, or other program. These two functions of the Special Needs trust come into play in a a variety of scenarios, including basic planning for a disabled child by parents, one who is disabled coming in to an inheritance or winning a personal injury claim, or a spouse who is planning for the needs of a disabled spouse.

There are many intricacies in planning for the secure future of your family member with special needs. While the process can appear daunting the key is recognizing that you need to plan, and the best time to start is right now. 

Limited Conservatorships

A Limited Conservatorship is a special type of conservatorship for individuals with developmental disabilities. A conservatorship is a legal proceeding in which a judge appoints an individual who is deemed responsible (called the conservator) to assist or manage the care of another individual (called the conservatee). In the case of a limited conservatorship, the conservator is appointed by a judge to assist the developmentally disabled person in managing their own care. The goal of the courts is to empower the disabled individual to "develop maximum independence and self reliance," while implementing a legal means by which they can be assisted when necessary.

A judge will grant powers to the conservator based on the individual situation, limited only to what the disabled person cannot do by themselves. A special needs planning attorney can assist you in determining what is needed in your particular situation, and what the judge will reasonably grant. As an attorney who frequently appears before the judges in Contra Costa County and Alameda County, I am very familiar with the judges and exactly how they like things done in order for their approval to be granted.

Once all the proper paperwork, evidence, and legal documents are complete and filed with the court, a hearing date is set with the court. After the judge has heard your case, they will decide what powers are to be granted to the conservator. The limited conservator may ask the judge for the following 7 powers:

  1. Fix the conservatee's residence or dwelling
  2. Access the conservatee's confidential records or paper
  3. Consent or withhold consent to marriage on behalf of the conservatee
  4. Enter into contracts on behalf of the conservatee
  5.  Give or withhold medical consent on behalf of the conservatee
  6. Select the conservatee's social and sexual contacts and relationships
  7.  Make decisions to educate the conservatee

Successfully obtaining a limited conservatorship involves many legal intricacies. An attorney who specializes in Special Needs Planning and has significant experience with Conservatorships can assist you in making the process as smooth and effective as possible.