Over the past 30 years, how Americans see individuals with disabilities has dramatically changed. What started out as “mainstreaming” in public schools for individuals with physical and mental disabilities was pushed forward with organizations calling for the acceptance of the mentally ill. Families who are experiencing the hardship of having a family member with a disability or illness that limits that person’s ability to work and live without assistance are more willing to share their story – and reach out for help.
As we make medical strides, individuals who once did not live past their teens, now outlive their parents. Individuals who did not survive a car crash now also have long lives and may need public assistance. And, as our social service network has recognized this need, families that were once living near insolvency due to the time and money needed to care for their child’s disability or illness, now are much more likely to be able to provide their child with a financial legacy to support the child long after the parents are gone.
Historically, if a client came to an attorney and wanted to ensure that their child with a special need maintained their federal and state disability benefits, the attorney would advise them to disinherit that child. Then it became common to create spendthrift trusts to allow the child access to some funds. Those spendthrift trusts had to be carefully drafted and allowed very limited benefits to individuals with special needs.
Special needs trusts have evolved dramatically in the last 30 years. Though some attorneys will still suggest that a child with disabilities be disinherited, there is no basis for such a recommendation. Other families will state that they have an “understanding” that the typical siblings will care for the special needs sibling. These agreements are not binding, and given the rates of divorce and bankruptcy alone, any such agreement is ill-advised. Moreover, they are unnecessary.
There are multiple options available to provide for the child with special needs during their lifetime, and with good planning, any moneys not used by that child during his or her lifetime can be left to the parents’ remaining heirs.
Drake Law Practice is dedicated to the Intricacies of Special Needs Planning in Ohio, Kentucky, Indiana and Illinois. Contact us today for your complimentary consultation to find out how we can help.