Legal Strategy

Life planning for individuals with special needs requires careful consideration of various legal issues to protect the individual and the entire family. As part of your Special Needs Master Plan, we’ll help you create a customized Legal Strategy that ensures those protections. We will also work with you on an ongoing basis to ensure your strategy is always up-to-date and appropriate for your needs. Elements of a good special needs legal strategy may include:

Legal Decision-Making Support: individuals with special needs have varying needs in their ability to make decisions. Some need help only in key areas, like financial or health care related decisions. Others need more intensive support. A family’s desire to make sure there is a network of people there to support their loved one can mean looking at various legal vehicles as well. We walk you through these different vehicles, figuring out the best one(s) for your family. They may include:

  • Guardianship and Conservatorship: This legal process grants a responsible individual the authority to make decisions on behalf of a person with special needs, particularly in areas such as healthcare, finances, and daily living. It is crucial to determine the right level of guardianship that respects the autonomy of the individual while ensuring their safety and well-being. It is important to know that someone who is under guardianship is not able to drive or use firearms.
  • Supported Decision-making: This is a legal way to provide support in decision-making to a person with a disability, while the ultimate decision-making authority stays with them. As supported decision-making becomes more widely known, and more resources become available to so that it is more widely accepted in the healthcare and judicial system, we expect to see supported-decision-making more widely adopted.
  • Healthcare Decision-Making: Special needs life planning must include clear directives regarding healthcare decision-making. Advanced healthcare directives, such as durable powers of attorney for healthcare, allow people to designate trusted individuals to make medical decisions on their behalf. This ensures that the person’s preferences and values are respected even when they cannot communicate their wishes. These kinds of issues and considerations are especially important – and often more legally complex – when an individual with special needs is involved.
  • Microboard: a microboard is a legal entity that establishes a board of directors for the benefit of one person. The loved ones establishing the microboard recruit the original members (and typically serve on the board themselves), write the bylaws, establish guidelines, and host annual meetings. All Needs Planning helps with recruitment, training, and hosting annual meetings of microboards. Microboards are a great way to involve family members who live far away but still want to be involved in supporting your special needs family member, siblings who know they will ultimately be responsible for yourspecial needs family member and want additional support, and friends and family looking to have a more active role in supporting your family. We feel so strongly about microboards that we call them “the magic bullet of special needs planning.”
Special Needs Trusts: Creating a special needs trust is a vital step in safeguarding the financial future of individuals with disabilities. These trusts act as a shield between a person and their money, so they can maintain their eligibility for necessary government assistance programs like Medicaid and Supplemental Security Income (SSI). They allow families to set aside funds for the benefit of their loved ones.Properly drafted special needs trusts provide a financial safety net, covering essential expenses and enhancing the individual’s quality of life. It is important to know the type of special needs trust that is right for your family as well.
  • First Party Special Needs Trust:this type of trust is typically established when someone with a disability receives an inheritance or a settlement, child support as an adult, or if they have their own savings and become disabled later in life. A first party special needs trust allows a person to put their own money into the trust for the purpose of maintaining or becoming eligible for necessary government benefits, such as Medicaid waivers, SSI, HUD housing, and more. A first party special needs trust requires a provision that Medicaid and other benefits provided to the special needs person over their lifetime are paid back to the government upon their death.
  • Third Party Special Needs Trust:this type of trust is typically established by loved ones of a person with a disability (which is where the term “third party” comes from – someone other than the special needs person), and funded by someone other than the individual themselves. Families can leave funds to their loved one with special needs in these trusts to provide for their needs when they are no longer here, and can name alternate beneficiaries to the trust when their loved one passes away.
  • Community or Pooled Special Needs Trusts: Pooled SNTs are established and administered by a non-profit association for the benefit of multiple beneficiaries. Pooled SNT programs typically offer trustee services, investment management, and may or may not require the family member to name the non-profit as beneficiary.

Estate Planning: Estate planning is pivotal in special-needs life planning. Families must carefully structure their estate plans to provide for the long-term needs of their loved ones. This involves designating beneficiaries, specifying asset distribution, and considering the impact on government benefits. Attention to detail is crucial to avoid unintended consequences that may adversely affect your loved one’s eligibility for crucial support services. Strategic tax planning is also an important part of estate planning.

Government Benefits and Entitlements: Understanding and navigating the various government benefits available to individuals with special needs is essential. Eligibility criteria, application processes, and ongoing compliance with program requirements must be carefully managed to secure benefits like Medicaid, SSI, and Social Security Disability Insurance. Any changes in financial circumstances or family dynamics should prompt a reassessment of benefit eligibility.

In short, special needs life planning requires a comprehensive Legal Strategy to address the legal considerations associated with guardianship, financial security, estate planning, government benefits, healthcare decision-making, and other issues. When you work with All Needs Planning, you can rest easy knowing that your Special Needs Master Plan includes just such a strategy.