Frequently Asked Questions Regarding Children With Special Needs

Can I leave an inheritance to a special needs child?

This is generally not a good idea. Making an outright bequest to a special needs child may cause the child to lose government benefits. The child may not have a guardian or other person to help him or her handle the money. Usually when a parent wants a child to receive some of their assets they set up a special needs trust under the terms of a will or they set up a supplementary needs trust during the course of their lifetime. These trusts help the children receive benefits from the parent while maintaining the generous government benefits available to them. Trustees are appointed in both special needs trusts and supplemental needs trusts. These trustees see to it the special needs child can utilize the income and to some extent the principal of the assets left to them by their parents in an appropriate manner.

Who needs a special needs trust or supplemental needs trust?

Special needs and supplemental needs trusts are created for the purpose of providing supplementary income to children and adults who have disabilities. The purpose of these trusts is to provide additional resources for the disabled or special person over and above what they receive from a variety of government types of benefits.

Specials needs trusts refer to a trust that is set up for a special person who has assets. Supplemental needs trusts are usually set up for special persons with disabilities by someone else. The person setting the trust up is usually a parent or other loved one. These trusts must comply with government requirements so the income beneficiary of the trust is able to keep his or her government benefits.

How can the funds in a special needs trust be utilized?

The trustee of a special needs trust can buy food for the special needs person. In addition, rent and/or mortgage payments can be paid. Purchases can be made by the trustee to enhance the life of the special person. These purchases can include televisions, cell phones, computers, and cars. Certain types of vacations can be paid for through these trusts.

There are very special rules and conditions which must be met when utilizing the trust assets and trust income. These rules are complicated. An elder care attorney should be consulted before making any distribution from a special needs trust.

What are the government benefits available for children and adults with special needs?

Disabled individuals can apply for Social Security Income (SSI). The Social Security Administration (SSA) underwrites these benefits for individuals who are disabled, blind and/or elderly. It provides them with a guaranteed minimum income for their living expenses. This type of benefit is based on the individual’s financial circumstances. These individuals do not have had to have paid into the Social Security System to receive Social Security Income benefits. The second type of governmental benefits available to special needs children and adults is Medicaid. Medicaid is a program which pays for medical and healthcare expenses.

Do special needs adults require guardianships?

Yes. The age of majority in the State of New York is 18. When a child reaches this age, an adult loses the ability to make decisions for that child. Once a child reaches age 18, it is necessary for a parent or other loved one to bring a guardianship proceeding under Article 17a of the Surrogate’s Court Procedure Act. It is recommended this proceeding be brought six months prior to the child reaching age 18 by an experienced elder law attorney. Once being appointed guardian the parent will be able to continue making decisions for their now adult offspring.

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