Special Needs Protection

Ensure that your loved one with disabilities is cared for in the future.

Hanover Special Needs Planning Attorneys

Special needs estate planning focuses on providing care for the needs of our loved ones with disabilities after we are gone.

Parents of children with special needs must make careful estate planning choices to coordinate all of their children’s legal, financial, and special care needs – both now and in the future.

We work with you to understand your financial situation your priorities regarding the care of your loved one. We also determine what benefits are available to provide medical, financial, and domestic support to your special needs child.

Special Needs Trusts

Usually receiving an inheritance, lawsuit settlement, or other monies will disqualify a special needs person from their government benefits. Special Needs Trusts are used to enhance the disabled person’s life while still allowing them to receive their public benefits such as Medicaid or SSI. The funds can pay for travel, education, a wheelchair accessible van, entertainment, medical care, and much more.

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There are two main types of special needs trusts:

First Party Trust: Funded with the disabled person’s own assets, also known as a Payback Trust or (d)(4)(A) Trust. While the special needs individual is alive, the trust funds are used to enhance his quality of life. When that person dies, assets remaining in the trust are used to reimburse (payback) the government for the cost of received medical care.

A first party trust is for individuals receiving SSI or Veteran’s Benefits that come into large amounts of money. The trust allows the special needs person to retain benefits while still being able to use his own funds when necessary.

Third Party Trust: Funded with assets from someone other than the disabled person, such as a parent or other family member. Assets held in the third party trust do not affect the special needs person’s eligibility for SSI or other government benefits.

A third party trust can pay for the beneficiary's supplemental needs beyond those covered by their benefits. A third party trust is not required to be “paid back” when the special needs individual dies. Any funds remaining in the trust can pass to other family members, or to charity, without having to reimburse the government.

Even if a trust is properly established and funded, the special needs individual’s public benefits could be reduced or eliminated if the trust funds are used improperly. Given the complexity of this field, you should always consult with an experienced Special Needs Trusts attorney to determine if and what type of Special Needs Trust is needed.

How to take action now

It’s never too late to protect your life’s work. When we sit down with you, we discuss your goals and look into the future to develop a complete plan that protects you for generations to come.

If you have been putting off making a plan, take action now while you are alive and well, before your family is left behind to suffer the consequences.

At Patrick J. Kelleher & Associates, P.C., we assist seniors, special needs individuals, and their families in making the tough but necessary decisions regarding their wishes, goals, and being mindful of future long-term care needs. 

We would be honored to help you and your loved ones. Click here to get started.

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Special Needs FAQs

If you have a child or a loved one with special needs, proper planning is essential. This allows you to ensure appropriate personal supervision, coordination of their benefits, and money management.

If someone you know with special needs receives money from an inheritance, lawsuit, or another source, you will want to set up a Special Needs Trust.

You do not want these funds to affect the benefits they receive from the Social Security Disability (SSI), Medicaid, or housing support (HUD).

This type of Trust would be called a First Party Trust. When you create this Trust, they will still receive their benefits and will have access to the funds for any supplemental needs.

Yes! This type of Trust is called a Third Party Trust.

However, you want to be aware of how and in what way you create this Trust. If you do not make it correctly, it could affect how they receive their benefits from the Social Security Disability (SSI), Medicaid, or housing support (HUD)

Further, if the funds get misused, benefits could be at risk.

Because of the complexity of these types of Trusts, it is always best to join us for a live educational workshop or contact our office.

The main difference between First Party and Third Party Trust is how these trusts are funded.

The First Party Trust is created based on a loved one with special needs (the beneficiary) receiving funds in their own name through inheritance or lawsuit. The Third-Party Trust is funded by someone other than the beneficiary.

Another big difference is what happens to the funds after the beneficiary passes away. In a First Party Trust, the remaining assets in the Trust may be required to go to the government as reimbursement for the cost of received medical care. In a Third Party Trust, the funds can be passed to whoever is chosen by the Trust creator.

Watch my YouTube video “The difference between First Party and Third Party Special Needs Trusts” to learn more.

Most likely. In Massachusetts, once a person turns 18, a person is presumed to be legally capable of being an adult no matter the level of cognitive functioning. Medical privacy laws (HIPAA) also go into effect at 18.

To make educational, financial, and medical decisions for them, you will need to have some legal authority to do so. If you feel that your child will have significant trouble making adult decisions, it is encouraged to seek a guardianship.

However, the guardianship process can be extensive. Therefore, having an attorney assist you with this process would be essential to ensure everything goes smoothly. Contact us to learn more.

Once you decide to get a guardianship and have an attorney representing you, the first step will be to go to the Court and ask permission from a judge.

The Court will need you to have three evaluations completed by clinicians, a licensed social worker, a psychologist, and a physician. These will need to be completed within the past 6 months.

Notice will also need to be sent out that you seek guardianship to your child and other family members.

There also may be additional requirements if your child takes anti-psychotic medication through a Rogers guardianship.

When someone you love is mentally or physically unable to care for themselves and did not complete any estate planning, you can go through the Probate Courts to be appointed as a Conservator. This is the best way to step in and help make decisions on their behalf.

You will need to present a medical certificate from a medical evaluation to the court to show the scope of the conservatorship required to help the person unable to care for themselves.

A hearing will then determine if a conservatorship is warranted and if you qualify as a conservator.

However, these can be heavily scrutinized and a lengthy process, so it is vital to have a qualified legal representation to help you. Contact us to learn more.

Yes, after a conservatorship is granted, you must submit an Inventory to the Court within 90 days of the appointment. This should be a detailed statement of the person’s assets you are helping.

An accounting also needs to be filed annually, and the Court can require a financial plan to be filed. The conservator must keep their assets separate from the assets of the person they are protecting.

Having a proper estate plan in place can help avoid paying a Probate attorney for this and incurring additional legal expenses.

The main difference between a conservatorship and a guardianship is the types of decisions you can make once you are appointed.

Guardianships generally allow an appointed person to make personal and health-related decisions for someone deemed incapacitated or incompetent.

Conservatorships involve an appointed person to make financial and business decisions such as managing bank accounts and assets and paying bills for the protected person.

You can likely avoid probate court and the need for a conservatorship if you or your loved one plan ahead before the incapacitation or incompetency. Several documents can be drafted that will make any future issues in a probate court obsolete. When you have the below documents in place, you can rest assured that your family will not have to worry. They can easily step in and help you with medical and financial decisions if you cannot do so. Please contact us today to get these documents drafted:
  • Power of Attorney
  • Healthcare Proxy
  • Advanced Medical Directives
  • HIPPA authorization
  • Living Will
  • Spoon-fed Directive
  • MOLST/POLST form – Medical/Physician Order Regarding Life-Sustaining Treatment
  • Trust

Watch my YouTube video “What is disability probate?” to learn more.

Failing to properly plan now can lead to heartache havoc pain stress for your loved ones down the road
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