Estate Planning Hot Topics

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If you are the parent of a child with special needs, you live daily with the very real obstacles and challenges of caring for your child–both emotional and financial. Too many families with special needs children, however, believe that to preserve the all-important government benefits that the child receives, they must disinherit the child and hope that a family member will have the ability and resources to care for the special needs child. But with proper planning, there is no need to disinherit your special needs child!

One of the most distressing questions you may ask yourself is, “Who will care for my child if something happens to me?” Many parents assume a sibling will provide the emotional and financial support for their special needs child. While a sibling or other close family member likely will provide the loving and caring emotional support for the special needs child, expecting that family member to provide the necessary financial support is a heavy burden.

Creating a Special Needs Trust (SNT) is the solution to which many families turn to ensure that their special needs child receives the amount of care and support that the parents envision, even after the parents are gone. The primary goals of a Special Needs Trust are to identify the person or persons to provide loving, emotional support for the special needs child; and to provide financial resources for caring for the child that do not affect the child’s eligibility for the all-important government benefits such as Social Security Supplemental Income (SSI), Medicaid, and housing subsidy benefits.

The Maryland legislature has stated a public policy in the State of Maryland to encourage the use of Special Needs Trusts (also known as Supplemental Needs Trusts) for persons with disabilities to enhance the quality of life and preserve funds that provide for the needs of the individual not met by public benefits.  Maryland code specifically provides that “a trust may be used to assure that trust property is available to provide for the needs of the beneficiary to the extent not provided for by other sources, including public and private benefit programs for which the beneficiary would or might be eligible if the trust did not exist.”  This means that a Special Needs Trust can provide support for the child as long as the support does not cover the same support that is provided by government benefits. So assets from a Special Needs Trust may be used to purchase items that will enhance the child’s quality of life, such as entertainment, family vacations, etc.

The Special Needs Trust in Maryland must be carefully crafted to achieve these goals and to conform to federal guidelines and Maryland requirements.  A properly and carefully crafted Special Needs Trust, however, will allow your child, through the SNT, to receive the benefits of inheritances from you and other loved ones, financial gifts from you and other family members, recover money from a lawsuit, etc., all without jeopardizing the child’s government benefits.  The rules are explicit, however, so be sure to seek the advice of an experienced Maryland attorney.

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