Special needs planning is complex and requires the assistance of a knowledgeable attorney to avoid pitfalls.
Special needs planning is imperative for anyone who has a disability regardless of when or how the disability arose. It is always best to plan before a crisis arises but there are strategies to consider even if the planning is not in place. Special needs planning is fact specific and may include a 529A account (ABLE Account), pooled trust (D4C Trust), first party supplemental needs trust (D4A Trust, Payback Trust, Self Settled Trust), third party special needs trust and a review of beneficiary designations.
Planning may also include guardianship or conservatorship proceedings, nomination of substitute guardians, a life care plan, and a letter of intent in which you describe your vision of the future for your disabled loved one.
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Special Needs Law
Self Settled Trust
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Established in 2014, the Achieving a Better Life Experience (ABLE) Act is a federal law that allows the creation of ABLE Accounts in recognition of the high costs of living with a disability. These tax advantaged savings accounts for the disabled make it possible for them to save and invest money without impacting disability benefits, including Supplemental Security Income (SSI) and Medicaid. With an ABLE account, individuals with disabilities can deposit up to $15,000 per year to be used towards education, transportation, housing, employment, and personal support services.
Guardianship vs. Conservatorship
A guardianship is the designation of an individual (guardian) who makes decisions regarding medical care and living arrangements when a person loses the cognitive ability to make sound decisions on their own, such as with dementia and Alzheimer’s. In an ideal situation, the afflicted individual helps with the selection of a guardian prior to the progression of their disease. In the absence of a designated guardian, the court may choose a guardian.
A conservatorship is the designation of an individual (conservator) who makes decisions regarding the afflicted individual’s property and financial affairs – in other words, a conservator of the estate. A conservatorship is established by the court when a person is deemed no longer fit to handle their own personal affairs and finances, with the conservator accepting the obligation to manage, protect, preserve, and dispose of the estate in accordance with the law and the best interests of the individual. The conservator is obligated to use the individual’s assets to cover the care and needs of the individual, or any person for whom they are legally responsible.
If an individual designates separate people to serve in the roles of guardian and conservator, the conservator ultimately has control since the guardian needs conservator approval for medical and living expenses.