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We have always emphasized to our clients the importance of doing their own estate planning before it is too late. At Littman Krooks LLP, we often hear from children who are concerned that their parents may not have an estate plan in place. The children are worried that if something happens to one or both parents, the children will not be equipped to assist their parents, and many times the children have no idea where the parents stand financially. Understandably, these subjects may be hard for children to discuss with their parents. The children do not want to appear greedy, and the parents may fear loss of control or independence. How can you approach your parents about these issues?
First, you should get your own house in order; make sure that you have executed your own will, durable power of attorney, health care proxy and living will. After you finish your own estate planning, it will be a lot easier for you to approach your parents about doing their estate planning. Perhaps you could mention to your parents that you have just recently taken care of these matters and inquire as to whether they have done the same. For many, the goal is to balance the desire to maintain control with the need to plan properly. It is critical to not wait until an emergency strikes to start planning. It might not be wise to first ask your parents if they have done a will; this approach may reinforce any impression of greediness on your part, and it could scare away those parents who don’t want to think about their own mortality. Focus instead on the durable power of attorney and medical decisions for them if they cannot make decisions for themselves. You can give the example of a temporary disability that may require someone to help pay the bills or make medical decisions.
If your parents already have a plan in place, then see if they will let you know where they keep their documents. If you can, ask to review their documents and ask for the name of their attorney. The attorney may not be able to talk with you at that point in time, but you will know where to turn in case of an emergency. If your parents do not have a plan in place, then you should suggest that they make an appointment with an attorney who specializes in elder law or estate planning. Your parents may ask you to schedule an appointment for them, but you need to be aware that the parents, not the children, will be the clients of the attorney. You will also want to know where your parents keep other important documents such as safe deposit box keys, birth certificates, passports, deeds, insurance policies, investment and bank statements, tax returns, Social Security numbers, and medical insurance cards and information.
If your parents do not want to share this information with you, then ask them to prepare a list and let you know where the list can be found in case of an emergency. Nobody likes to think about their own mortality or infirmity. However, you and your loved ones can make things a lot easier for your family by taking the time to plan in advance.
All parents of children with disabilities worry about the day when they will no longer be able to care for them. While many parents have figured out ways to make life more comfortable for a child with disabilities while they are around, thinking about a time when they can no longer be personally responsible for their child’s well-being can be stressful.
Many parents believe that they can continue to care for their child with special needs by leaving money to a relative. This seems like a good idea because a relative knows the child personally and parents think they can trust them to care for their children. However, relatives are not legally bound to spend the money left to them on the child. In addition to this, the money can be taken from the appointed relative by a number of different parties, including creditors. Also, the money may be lost in a divorce settlement.
Many parents also make the mistake of leaving money to one of their children who does not have a disability, expecting this child to care for the one with special needs. However, this may be a bad idea because it also does not legally bind the child to use this money to care for the sibling with the disability. Also, doing so can pose undue stress on the sibling. If he or she already has to deal with the pain of losing parents, it may be too difficult for the sibling to deal with the added responsibility of caring for a child with special needs.
Rather than entrusting money directly to a relative or sibling, parents should consider forming a Special Needs Trust. Doing so will ensure that the child will be well taken care of and that the money devoted to this cause will not be taken by any other source and must be used for the purpose for which it was intended. Establishing a Special Needs Trust for a child with a disability is the best way to ensure the quality of his or her care in the future.
Federal regulations enacted under the Individuals with Disabilities Education Act require schools to develop individualized education programs (IEP) for children who are classified as students with disabilities.
Parents or guardians are required to be a part of the team that drafts the child’s IEP, along with at least one special education teacher, one regular education teacher, a member of the school’s administration, and someone with advanced knowledge of understanding learning evaluation results, often times the school’s psychologist. The law requires parents to play a role in the IEP process because parents generally have in-depth knowledge of their child’s strengths and weaknesses.
Often, parents are unsure of what to expect when told that they are to be a part of their child’s education plans. Many parents do not have formal education training and have not been part of an IEP process before. There are several things that parents should understand before beginning the IEP drafting process:
Parents have rights when it comes to their child’s IEP. The law requires that school districts must make “significant” efforts to ensure that a parent attends all IEP meetings. The meeting must be scheduled in a timely manner and must take place at a location that both parties (typically, the school district and the parent) agree upon. Parents who cannot attend have the option of participating remotely. Parents have the right to be as active in the IEP drafting process as they so choose, and can request changes to the plan if they desire.
Parents should come to the meeting prepared. It is best to organize a list of questions and concerns beforehand. It is also wise to prepare to answer specific questions that the rest of the IEP team may have, such as what challenges the child has and how the family believes the child’s needs can be met. Many parents choose to obtain copies of the school’s paperwork several days in advance to review it before the meeting. It may also be beneficial to provide the school with paperwork before the meeting as well, including a list of goals and concerns.
At the meeting, it is best to phrase things in the most positive way possible. The IEP is designed with a child’s challenges in mind to help him or her succeed – success is the primary goal. Parents should try to work collaboratively with the rest of the IEP team, but should voice their concern and ask questions. While everyone in the room is ultimately trying to help the child, parents are an important part of the team. It is also important to remember that the child may act differently in educational settings than at home.
There are a few options for parents who want to learn more about the IEP process. A wide variety of IEP information is available at the U.S. Department of Education website at ed.gov. Parents of children who have been diagnosed with specific learning disabilities can find more information at respective organization’s websites. Law firms concentrating on special education advocacy and special needs planning are also a good resource to assist parents needing aid with the IEP process.
To read more, visit www.littmankrooks.com/
Parents of children with disabilities are often unsure of where to turn for financial and health care assistance for their children. There are several options available, each with its own qualifications.
Supplemental Security Income, or SSI, provides monthly payments for children with disabilities who are under 18 who meet the government’s definition of disability, and who have little or no income and resources. The amount of SSI that the child will receive varies by state. To qualify, the household’s total income and resources must be below a certain amount, and the child cannot earn more than a certain dollar amount each month.
Social Security Disability Insurance, also known as SSDI, provides benefits to disabled or blind persons who are “insured” by workers contributions to the Social Security trust fund. These contributions are based on the individual’s earnings or the earnings of the spouse or parent according to the Federal Insurance Contributions Act (FICA). Title II of the Social Security Act authorizes SSDI benefits. Dependents of those insured under SSDI may also be eligible for these benefits.
Medicaid can provide access to health care to children with disabilities. Some states will approve a child for Medicaid if he or she is already receiving SSI. Other states require a separate application process. However, SSI is not a prerequisite for Medicaid.
Families with slightly higher incomes may qualify for State Children’s Health Insurance Program (S-CHIP), which covers a wide variety of health care needs. S-CHIP is a good alternative for families who do not meet the requirements for Medicaid, but who cannot afford to pay for private insurance.
There may be other financial and health care assistance options available depending on your state. If you are a parent who would like more information about financial and health care options, contact an experienced special needs planning attorney.
If you have a child with special needs, you should talk to extended family members who may be intending to make a gift or bequest. Extended family members may have your child’s best interests at heart, but they may be unaware that the money they leave to your child could jeopardize eligibility for government benefits. For example, while grandparents may wish to leave part of their estate to a grandchild with special needs, receipt of such funds could disqualify the child for Medicaid, SSI, and other government programs that are key to the child’s quality of life. Any gifts or bequests intended for the child should be made to a supplemental needs trust.
Family members should be made aware of the rules that govern the assets of a child with special needs, and they should make their estate planning decisions accordingly. Referring them to a special needs attorney can help your family members do the right thing in the right way.
A supplemental needs trust is an important tool that can be used to make sure a child with special needs has access to the services and care he or she requires. Establishing a supplemental needs trust as a part of an overall financial plan is one step in providing a solid base of lifetime support. Once a child turns 18, his or her income will be used to determine eligibility for public benefits such as Medicaid and Supplemental Security Income (SSI). Earning too much will lead to the loss of these important benefits. However, funds paid into a supplemental needs trust will not be counted as income and, therefore, will allow an individual with special needs to retain public benefits.
There are rules governing what the funds paid from a supplemental needs trust may be used for. Supplemental needs trusts are meant to “supplement” necessary income, to pay for “luxuries” that Medicaid or SSI does not cover. Therefore, if funds from the trust are used regularly to purchase necessities, such as groceries or housing, those funds may count as income. Certain items should not be paid for from a supplemental needs trust if the beneficiary is receiving SSI. These include:
• Cash given directly to the beneficiary
• Food, including groceries and eating out if it is done on a regular basis
• Housing expenses, such as rent, mortgage, or property taxes
• Homeowners or renters insurance, if it is required by the mortgage or rental community
• Utilities and utility connection charges
Some of these payments may only cause a partial reduction in SSI benefits. Individuals wishing to use funds from a supplemental needs trust for any “necessary” expenditures should consult a special needs planning attorney about their specific situations. Seeking advice will help a trustee determine whether the benefits of making payments from the trust are worth the loss of SSI income.
To learn more, visit littmankrooks.com.
An important consideration for parents of a maturing special needs child is housing. Families will need to do significant research into their options to make sure their child is properly cared for when he or she can no longer live at home. If the child will require a group home or some other form or supportive housing, asking the right questions can help the transition go as smoothly as possible. Some of these questions include:
• What is the reputation of the provider with residents and with neighbors?
• Will the provider allow you to meet any of the other residents to see if the atmosphere is right for your child?
• Does the provider have “house rules” and other measures that may be in place to ensure residents will be good neighbors?
• What community safety measures are in place?
• What are the amenities? Are there common areas that will be available?
• Is there a plan to address grievances among residents?
Planning for housing for a child with special needs is a critical step in ensuring his or her future safety and happiness. Start planning early to make sure that all your questions are answered.