Special Needs Trust?

[Anonymous]

We used Antonoplos & Associates in DC, they did a fantastic job. Make sure you use an attorney, not just specialized in estate law, but knows special needs trust.

And make sure you follow the advice of your attorney, not this board.

[Anonymous]

check if the attorney you're planning to use is a member of the Special Needs Alliance. You want this person to be an expert on SNTs, not just a regular trusts and estates lawyer who does this occasionally.

[Anonymous]

fOR THE POSTER ON THINGS TO CONSIDER BEFORE AGE 18

These are some things to consider for a teen/young adult with a possible wide range of disabilities. Only some aspects might apply or even none. Our daughter has a moderate disability and will always need some direct oversight so this is where I am coming from:

A- Official testing and designation of a disability if appropriate as an Intellectual Disability which must be identified by age 18 or a Developmental Disability which must be identified by age 22 - WHY

- To ensure that one will qualify for any future government financial benefits, adult services and most importantly Medicaid Waiver funding stream for life for adult services.
- This can be done by testing from age 6 on.
- Think of it as an insurance policy: If DS or DD comes along with early intervention therapies, special education supports/services and maturation over time as well as other just family and community supports over time, then it may well not be needed. However, if there is any possibility that one with a disability - including as ASD - might do well within the family and later even college structure, BUT then may need additional supports and services to live independently, you want to have that option.
- In most states including Maryland and Virginia the Waiting Lists are years if not decades for a Medicaid Waiver (one that offers full range of services) so again do not worry about having to make a decision too quickly.


B- Transfer of Assets by Age 13 or as soon as possible - WHY would be sure not to have any "countable assets" in a child/teens name over the amount of $2,000 because that is the legal limit to qualify for Supplemental Security Income and for Medicaid coverage.

- For SSI, one can "spend down" the funds in the teen's name and keep receipts.
- For Medicaid, there is a five-year "Look Back" period on any traceable transfer of assets - meaning closing down a bank account, selling stock that had been in a child's name, selling or transferring real estate.
- Keeping any countable asset under $2,000 just makes life a whole lot simpler. If there are assets that one can't help having as a irrevocable trust from grandparents, court award for damages, or divorce support agreement, then you need to consult a very experienced lawyer on what to do.

C- At age 18 you want to establish eligibility for Medicaid - WHY?

- Medicaid can be used as a primary health insurance, secondary health insurance or not at all at the time.
- However, Medicaid Eligibility must be in place in order to be able to accept a Medicaid Waiver and one usually has only 60 days to establish eligibility if one has not already done so. The disability part may be easy, BUT if there are financial assets above $2,000 rule, one might not be able to get things in place within that window.
- Medicaid can be a back-up if the breadwinner on the family policy should lose a job or health insurance become so expensive.

D- [b]Student Earned Income Exclusion - Work Incentive in Place for Ages 18-22

- This work incentive includes high school, post high program, community colllege, vocational program or college for individuals who meet the disability criteria.
- It enables one to not have to deal with any offset in SSI monthly cash benefits if working through a school program, part-time or even full-time as during the usmmers. Look it up the amount monthly and yearly are so high hardly any student would reach it.
- SSI at this time is $733 a month tax free or $8,796 per year or $34,184 over four years so it is significant and for some families may be the only cash one will receive to give them somewhat of a buffer for when public education ends and they are responsible for a young adult's daily life. (This reality is for more for those with a moderate or significant disability).

a- This amount is sometimes reduced by one-third in evaluating whether the young adult will be paying "a fair share" of basic family expenses during this time, but still it is still about $22,800 rounded.
b- Parents need to remember that if Ds or DD is paying into family expenses, maybe very important to save what the family no longer has to spend for "future expenses" which could well involve the disabled adult child in the future. Remember these are family funds that were not needed for these regular expenses. I realize this may not apply to all family situations.
c- Possible options for future funding might be:
(1) Doing financial and legal planning or updating with wills, powers of attorney, health care directives, and Special Needs Trust etc.
(2) Paying for a job coach or specialized items which might help one get and keep a job.
(3) Having funds to help one get established in independent living.
(4) Covering the cost of any special medical devices which Medicaid or Medicare may not cover in the future.
(5) Helping to fund one's post high school education


E- [b]Guardianship (Full or Limited) before age 18 if it is an aspect of planning should be taken care of as much easier to obtain. versus Conservatorship[b]

- Guardianship is control of the person - having legal right to help in decision making to protect and support the person. It can be defined to what areas of life if limited such as over health care, financial matters, personal decision making in terms of marriage, contracts etc.
- Conservatorship is control of the assets of the person, not the person. It can be useful if the individual with the disability has assets which one can't handle and might be taken advantage of.
- NOTE: There are alternatives to both that may well be appropriate given the individual's ability.
- Also just because a lawyer does estate law, he/she may not know the ins and outs of a Special Needs Trust. If you go to the trouble to set up, maybe have two levels for names for each item as things happen in people' lives.
- On getting financial advice, you want to see only a fee for the consultation service and not a fee-based financial advisor who is "selling" stocks or other services.

I hope this gives you a starting point.

[Anonymous]

I used Antonoplos & Associates as well. My sons former special education advocate (before she passed the bar and became an attorney), now works for them. Her firm did a stellar job!