Most every parent does what they can to ensure their child will someday live a happy, independent, and fulfilling life. However, some families face extraordinary challenges. Children with special needs, for instance, do not always have the same opportunities as their peers. Even with unlimited love and support, they may be dependent on government assistance and public benefits programs to meet their most basic needs.

While it may be difficult to imagine a world where you can longer provide for your child, it is often a matter of practical necessity. The Law Firm of Kavesh, Minor & Otis, Inc. could help you create an estate plan to ensure your child has the support and compassion they need and deserve. Estate planning for a child with special needs | California Estate Planning Lawyer

The Basics of a Special Needs Estate Plan

Every estate plan should contain these essential safeguards:

A last will and testament

A last will and testament is a legal document that serves several critical purposes, including inheritance. Without a will, your estate will be subject to California’s intestacy statutes. These statutes do not always protect the best interests of children with special needs and could make succession significantly more difficult.

Guardianship arrangements

When writing your will, you may also nominate a guardian for a minor child or dependent adult. A guardian should be a trusted friend, family member, or other associate who is both ready and capable of providing care to a child with special needs.   

Advance directives

Once your child turns 18, they should also create advance directives delegating powers of attorney to a trusted agent. This agent could be a parent, another relative, or a lawyer. Designations such as the health care power of attorney, or the durable power of attorney, ensure that your child’s needs are met even if their condition deteriorates or they are ever injured in an accident.

While a will, guardianship arrangement, and advance directives can help protect your child in the event of a parent’s death, they will not necessarily provide the resources that a child needs to live independently.

Special Needs Trusts in California

Both California and the federal government have made additional provisions for children with special needs, including the option to establish different types of special needs trusts. Every type of special needs trust is different, but most make it easier to provide for a child with special needs without risking their eligibility for public benefits.

Types of Special Needs Trusts

A first-party special needs trust

A first-party special needs trust can be funded by a person with special needs so long as they are under the age of 65. These trusts can be funded through inheritance, personal savings, or disability benefits.

A third-party special needs trust

A third-party special needs trust can be funded by a parent or other relative to benefit a child or an adult with special needs. These trusts can be conditioned to pay any remaining assets to other beneficiaries.

A pooled trust

A pooled trust is a type of community trust that is managed by a non-profit organization.

While special needs trusts and pooled trusts should not affect a child’s eligibility for government benefits, their terms should always be reviewed and approved by an experienced estate planning attorney.

Philip J. Kavesh
Nationally recognized attorney helping clients with customized estate planning guidance for over 40 years.
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