Estate Planning Considerations for the Disabled

Everyone needs a

• Durable Power of Attorney
• Power of Attorney for Health Care;
• Living Will (also called an Advanced Medical Directive); and a
• Will.

And this certainly goes for disabled persons as well. However, a disabled person (or his or her parent or guardian) also needs to think about the unique factors that affect a disabled or special needs person.

The key thing is to be sure that assets are not passed to the disabled person (often a son or daughter) that could result in disqualifying him or her from government assistance -- like Supplemental Security Income (SSI) and/or medicaid. The best way to do that is by using a Special or Supplemental Needs Trust (for the third party -- like a parent). These trusts should have provisions that allow certain kinds of support to be provided, but not support that would disqualify the disabled person from SSI and/or medicaid. The trust language needs to comply with the "safe harbor" Congress created for SSI/Medicaid purposes. Be sure to read the articles linked to above for more information.

Obviously this is complex stuff and we definitely recommend you hire a good estate planning or trust attorney to advise you and prepare the necessary trust documents.

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