Estate Planning After Your Special Needs Child Turns 18

Many special needs parents are concerned about what will happen to their children when they turn 18, and what will happen to their children when they pass away. Parents of adults with special needs often still feel anxious about what will happen to their special needs child.

Sometimes, parents assume that they can just leave all of their assets to their children with special needs after they pass away. However, special needs estate planning is much more complicated than that and often requires careful consideration of unique complexities. For example, if your adult child with special needs has Medicaid health insurance or receives Supplement Security Income (SSI) payments from the Social Security Administration, receiving an inheritance could make him or her ineligible for these benefits.

An important first step you can take is to speak with an estate planning lawyer and create an estate plan that will help make sure that your adult child with special needs has all of the assets and resources he or she needs. At Arnold & Smith, PLLC, our Mooresville, Monroe, and Charlotte estate planning lawyers understand how important it is for parents of children with special needs to create comprehensive estate plans.

After reviewing your unique situation, we will use our legal knowledge to advise you on estate planning options that will allow you to make the most of your assets and work to retain any public benefits your special needs child or adult child may have. In many cases, a special needs trust may be utilized to protect your assets and allow your child to remain eligible for those important public benefits. Contact us today to schedule your initial consultation.

Creating a special needs trust may be the right option for your child. These types of trusts hold assets on behalf of individuals with special needs. They are often used for persons with special needs who are unable to make responsible financial decisions. With these trusts, the acting trustee or trustees will manage financial decisions for your child based on the guidance you prescribe within the trust document itself.

A core benefit of a special needs trust is that it allows your child to receive supplemental assets from the trust while keeping their public benefits, such as Medicaid and SSI. In addition to general special needs trusts, there are a number of other mechanisms that may be utilized to allow you to provide for you special needs child.

When you meet with your estate planning lawyer, you will discuss your child’s long-term needs. When deciding how to create an estate plan for a child with special needs, it is crucial to consider your child’s self-sufficiency. The level of assistance your child needs is a significant factor in determining what type of estate plan you need. Consider the following factors when discussing your estate plan:

• Is your child capable of communicating his or her need with a caretaker?
• Does your child need assistance with clothing, feeding, and taking care of other basic personal needs?
• Does your child have a job outside of the home?
• Does your child require around-the-clock care or care in an assisted living facility?
• Is your child able to understand the cause and effect of actions and the consequences of his or her own actions?
• What type of life does your child need or want?
• What types of activities does your child enjoy?

When a child turns 18 and is deemed unable to manage their personal affairs, the courts will appoint a guardian upon the filing of an application for the appointment of a guardian. Under North Carolina law, a guardianship, also known as a conservatorship, occurs when the court appoints a guardian to make certain decisions for another individual. If your child is unable to care for himself for herself, you can petition the court to become the appointed guardian. You can also apply to become the general guardian responsible for the medical, financial, personal, and legal decisions.

To provide a guardian for after you pass, your will can recommend a guardian to the court for your unmarried child who has been deemed incompetent. Thus, it is important that you carefully consider naming a guardian for your child in your last will and testament.

If you have a child with special needs, the attorneys at Arnold & Smith, PLLC can help you create an effective estate plan. Contact us today to schedule your initial consultation.