How Do I Provide for a Special Needs Child in My Will?

special needs child in my willFor anyone who has a child or dependent with special needs, leaving that child unprotected and unprovided for is a nightmare that can result in many sleepless nights for parents. As parents, the ideal scenario is that we teach our children to be self-sufficient so they can take care of themselves – and maybe even their own children – after we’re gone. But that’s not always possible when your child has special needs and may or may not be able to hold down a job or take care of their day-to-day needs, much less make responsible financial decisions. So you may be thinking, how do I provide for a special needs child in my will?

In Illinois, an individual with special needs is entitled to receive monthly payments in Supplemental Security Income (SSI), assuming they meet the criteria for their asset worth and monthly income, if any. If they have any sort of income, but it is less than what they’d receive in benefits, then their SSI is reduced until the combination of their income and SSI adds up to the total eligible benefit amount.

Of course, relying solely on SSI may not be sufficient to live on, so parents and loved ones have the option of setting up a Special Needs Trust (a.k.a. Supplemental Needs Trust). A Special Needs Trust may allow someone with special needs to accumulate assets or income that exceed the SSI thresholds, while still getting the maximum amount they can in SSI benefits.

Generally, a Special Needs Trust is set up by a parent or other loved one, who then acts as trustee. Banks often also have people on staff who can manage these trusts for you. Once the trust is set up, a bank account can be opened in the name of the trust and any income (aside from SSI), assets and/or gifts from loved ones can be deposited into the trust bank account.

The trustee is responsible for managing those funds and ensuring they are used only for the trust’s beneficiary, not including room and board, which are supposed to be covered by the SSI. The idea behind the trust is to ensure a good quality of life for the beneficiary by providing a source of disposable income to go towards things they don’t necessarily need, but could still benefit from.

When a parent of a child with special needs is planning for their estate, it is generally recommended that, rather than leaving a typical inheritance for their child, they put that inheritance into that child’s Special Needs Trust instead. This can help avoid the risk of the child losing their SSI eligibility.

As with all estate planning, parents are better off setting up a Special Needs Trust for their children as soon as possible in order to avoid leaving their children high and dry if something were to happen to them. Don’t leave it to someone else to set up the trust after you’ve passed away because that can make things much more complicated and more difficult. Instead, be sure to stay on top of things by getting everything in order now to make sure your child has everything they need after you’re gone.

The attorneys at Sherer Law Offices have been providing legal representation for real estate cases, criminal cases, and all types of family law for more than 25 years. Our experienced divorce attorneys will take the time to really listen to your unique situation so that they can plan strategies that can best protect your best interests. 

What is Required for Planning for A Special Needs Child During Divorce?

special needs child during divorceThere are very few things that are harder to deal with when going through a divorce than planning for your children’s future when you have a special needs child. The burden of supporting your child on the day-to-day basis can fall squarely on your shoulders as the parent with the majority of parenting time. The daily living and special moments may test your self-confidence to parent your child alone.

A pending divorce that involves a special needs child brings up unique issues of decision-making, parenting time, and also property division that can become more complex to negotiate. During the process of your divorce, you must consider what your child’s special needs entail and work with your attorney to determine what a day would be like caring for your child, particularly from a financial standpoint.

The State’s child support guidelines don’t normally address the extra expenses that come with a child of special needs, but there are special laws that allow for additional support above and beyond percentages of income. There may be a need for special medical care, therapy services, medical equipment, nutritional needs, and even paid respite care for the parent who has been awarded the majority of parenting time with the child. The uncertainty of the future costs makes it difficult to estimate the related expenses of a special needs child during a divorce.

Legally, the goal is to identify what the child’s best interests are and to understand them. Some examples include:

  • Who will the child live with?
  • What amount of contact will the parents or other parties have with the child?
  • What amount of child support will be paid to the parent who is caring for the child for the majority of the time?
  • Are there going to be transportation issues relating to the parenting schedule?
  • How will the parties share medical expenses and other costs that go above and beyond just daily needs?

The devised parenting plan should spell out all pertinent information and instructions on the special needs child’s care, daily routine, medications, and safety plans. A great staring point would be to look at how much you and your ex agree concerning your child’s disabilities and abilities. Additionally, when putting together a divorce agreement, special attention must be paid to parenting arrangements, estate planning, and the child’s eventual transition into adulthood. Legislation and case law are always evolving in this area and more family attorneys are dealing with an increasing amount of cases involving a special needs child.

In a divorce decree, it is important to discuss with your attorney the unique issues that come up in the child’s transition into adulthood. These may include:

  • Guardianship
  • Recreation
  • Social skills
  • Independent living
  • Custodial care

In most cases, child support and custody (now “parental responsibilities” in Illinois) end at the age of majority, or when they graduates from high school. The Court does, however, have the ability to extend child support beyond high school for students attending college or for children with special needs. Divorcing parents of a child with special needs, particular those who have severe impairments, face the reality of life-long care giving and co-parenting beyond just age 18

When considering spousal maintenance and child support, you need to think about the child’s eligibility for public benefits as a minor and as an adult. It is very important that your family law attorney work with a special needs attorney and an experienced financial advisor to eliminate the possibility of forfeiting the child’s benefits. It is not always known how child support payments made to the custodial parent will affect, negatively or otherwise, government programs like SSI and Medicaid. Support of any kind should be considered to preserve government benefits. It is imperative to consider these issues during the divorce proceedings. Finally, it would be wise to speak with an experienced estate planning attorney, as special needs trusts can be established and both parents can be required to contribute to a trust within a divorce agreement, as well as be ordered to maintain life insurance benefits naming the child’s custodian or trust as the beneficiary.

Managing the care of a special needs child is a full-time job. The effects it can have on the income of the custodial parent should be considered when deciding the amount of maintenance or support. Because caring for your child with special need may extend past the age of majority, you need to have your divorce agreement tailored for the long term. Use special needs trusts in tandem with public benefits. Effectively channel support obligations and tailor parenting plans within the divorce settlement to provide fully and adequately for your special needs child.

Make the system work for you by taking a hard look at what special needs exist and how they are addressed during your divorce. The family law attorneys here at Sherer Law Offices can guide you during this difficult process and give you all the advice you need to make sure that the future of your special needs child is taken care of fully.


Do I Need a Special Needs Trust If I Have a Child With Special Needs or a Disability?

Special-Needs-Trusts-resized-600.jpgParents who care for a child with a physical or mental disability know how much that care can cost.  For this reason, parents need to create a plan to make sure that their child will continue to be properly cared for if both parents pass away.

The government may provide for the basic needs of the child such as food, clothing, housing and health care through Supplemental Security Income (SSI) and Medicaid, but what about extra expenses that would benefit the child’s quality of life? This is where a Supplemental Needs Trust comes in.

What Is a Supplemental Needs Trust?

A Supplemental Needs Trust, (sometimes called a Special Needs Trust) is a legal document that is designed to help a person who has a disability. This Trust is called a “stand alone” document, but it can also be part of a Last Will and Testament.

Supplemental Needs Trusts have been used for many years. They are used to benefit an individual who is under the age of 65 and disabled according to Social Security guidelines. Each Trust is its own “entity” with its own Federal Identification Number issued by the IRS. The Trust is not registered under the parent or child’s social security number.

What Can a Supplemental Needs Trust Be Used For?

According to law, the Trust can be used for “supplemental and extra care over and above what the government provides.” In other words, the Trust provides additional benefits beyond what is covered by government programs for the disabled. For example, if a beneficiary falls into the Medicare “doughnut hole,” a Special Needs Trust will make up for the shortfall.

Why Create a Supplemental Needs Trust Instead of Leaving Cash?

We do not recommend that you plan to leave a large sum of cash for your special needs child in the event of your passing.  If you don’t plan carefully you could jeopardize the ability for your loved one to collect the government benefits to which they are entitled.  Just having cash in the bank will disqualify your loved one from receiving SSI or Medicaid.  To avoid this situation you must set up a Special Needs Trust.  You will also need to choose a trustee to be in charge of the money.  With a trustee in charge, your loved one will not be in control of the money; therefore, SSI and Medicaid officials will ignore the Trust when determining your loved one’s eligibility for benefits.

Be aware that a Supplement Needs Trust is different from other types of family trusts. An experienced lawyer will explain that a general trust would not be appropriate for someone with special needs because it would not address the specific needs of the disabled person.

What Must a Supplemental Needs Trust Say?

At a minimum, the Trust should say that it is for the sole purpose to provide “supplemental and extra care over and above what the government provides.” The Trust must also state that it is NOT intended to be a Basic Support Trust.

When Should I Create a Supplemental Need Trust?

The Trust can be established at any time before the beneficiary’s 65th birthday, but it is best to create the Trust early in a child’s life. A Supplemental Needs Trust is an excellent estate-planning tool that serves as a long-term solution for holding assets to meet the needs of a disabled family member.

Can Any Lawyer Create a Supplemental Needs Trust?

A parent who wants to plan for the maximum benefit of their special needs child is advised to consult a lawyer that specializes in special needs issues. A Trust can be easily “invaded” by the government if the proper language is not used in writing the Trust. A poorly written Trust can cause a loss of benefits and a host of serious legal issues for the beneficiary and the trustee.

Supplemental Needs Trusts can be very complicated. If you are considering setting one up for your loved one, call 618-692-6656 or CONTACT one of the experienced family law attorneys at Sherer Law Offices to schedule a legal consultation today.

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