A Special Needs Trust is a way to protect the assets of a special needs person and avoid being disqualified for public funding and benefits. Most ALTCS and Social Security government programs require that participants are low income and have little money. Funds in the trust can be used to enhance their quality of life. Family members can leave money to the Trust and not worry about affecting the eligibility for benefits.
When a Special Needs Person becomes 18 years of age, his or her parents do not have legal authority to help their loved one with everyday life and financial decision making. Like any adult, this person is on their own legally and financially. For example, during minority, the parents take care of all special needs planning, particularly in regards to education, with involvement in processes such as development of Individual Education Plans (IEPs).
Family members typically must step up and become surrogate decision-makers. A common way in which this is accomplished is through guardianship and conservatorship. While guardianship and conservatorship allows the appointed person to legally make decisions on behalf of a special needs person, it has a number of drawbacks including:
1. It eliminates the right of the special needs person to make decisions for themselves. A long standing principle in this field is to impose the least restrictive requirements possible;
2. It is a public (court process) record of developmental disability that travels with that person forever (potential stigmatization);
3. It is an expensive (attorneys, legal costs) and time consuming process.
Unfortunately guardianships and conservatorships are sometimes necessary, often because of a lack of planning. For families who exercise the foresight to plan, there are alternatives to guardianships and conservatorships, such as Special Needs Trusts and Powers of Attorney, which can serve to eliminate the concerns enumerated above and pave the way for an enhanced quality of life.
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