We meet a number of families each year that have already met with a planner in an attempt to design a special needs plan. The plans are put together with the best of intentions in hopes of providing ongoing care for their loved one with special needs. Unfortunately, many of these plans are incorrectly designed and fall short of providing the desired outcome. The most common errors we see are often related to the drafting of a special needs trust. We’ll outline below three of the most common mistakes we encounter when working with reviewing these trusts.
Having a special needs trust drafted by an attorney that does not specialize in special needs law
[1]Each week we review a number of special needs trusts given to us by parents simply looking to confirm that what they have works. The family has done exactly what they thought they needed in that they have created a trust in order to provide ongoing care for their loved one with special needs should they no longer able to provide it. The problem is that many of these documents are put into place without the parents truly understanding what they are signing.
We’ve seen documents that do not successfully preserve access to benefits like social security, often the primary goal of the trust. We have encountered documents that make the state (Medicaid) the named beneficiary of any assets remaining after the child’s life in cases when it is not necessary. At times we have even seen documents that ultimately disinherit a child with special needs without the parents even aware of the fact.
If you aren’t certain that your legal documents are designed as you intended or worse, you aren’t sure exactly what they contain, please get them reviewed by an attorney that specializes in this type of planning. It never hurts to get a second opinion and provide yourself the sense of security of knowing that you have a well-drafted, effective set of legal documents to protect your family.
Failing to direct assets towards the family trust
In the event that you have a well-drafted special needs trust your work may not be done. If the attorney or advisor you worked with hasn’t walked you through how to title all of your various assets and you haven’t moved most of your assets into the trust when appropriate, or directed them to the trust through a beneficiary designation or transfer on death designation when appropriate, you aren’t done.
This is not an easy task, which is exactly why so many families walk into our office without having it done. There are a lot of reasons why 
[2]the titling work may not have been done. It is possible the advisor didn’t want to take on the responsibility. Maybe you weren’t sure how to title an asset such as your house in the trust? Or maybe you had every intention of updating your beneficiary designations, but just forgot or ran out of time? Regardless, you must finish what you started. If the attorney or advisor that helped you with the trust hasn’t helped you finish the job, it is your responsibility to find someone who can.
Naming a guardian or trustee in your legal documents without notifying them first
[3]I cannot think of a more important job that a parent can ask of someone than asking them to take on the responsibility of providing ongoing care for their child with special needs. I know that parents don’t take lightly the selection of this person, so why wouldn’t they make every attempt to prepare this person for that role?
Not only do parents often not fully prepare the named guardians or trustees for what their job might entail through the use of a Continuity of Care Plan or a Letter of Intent, but at times we encounter parents that haven’t even notified the person named in their legal documents for these roles! Before you name anyone for the role of trustee or guardian you must inform this person of your intention, provide them an opportunity to ask questions and make an educated decision and then do your best to provide them the education necessary to do the job that you would expect of them.
Helpful Articles
- Tax Planning for Parents of Children with Autism [4]
- Special Needs Planning: What is a Special Needs Trust? [5]
- Special Needs (or Supplemental Needs) Trusts 101 [6]
- Able Account or Special Needs Trust: How to Decide? [7]
- Able Accounts and Taxes: What Special Needs Families Need to Know [8]
- “Instruction Manual” for Your Child with Special Needs [9]
- ABLE Accounts: 10 Things You Should Know [10]
- Guardianship: A Basic Understanding for Parents [11]
- Handling Your Child’s Diagnosis: Six Things Parents Should Do For Themselves [12]
- A Special Need Planning Timeline: 9 Steps to a Sound Family Plan [13]
- Plan Early for Your Child’s Long-Term Security [14]
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This post originally appeared on our January/February 2011 Magazine [16]