Estate Planning for Family Members with Special Needs

Planning for the future of one’s family after death requires considerable thought about what arrangement would be best for each person individually and the group overall. Certainly, estate plans can take a number of forms, which allows anyone a good amount of flexibility when deciding which alternative to choose. However, this process quickly becomes complicated when a family has a member with special needs due to things like a chronic illness or physical/mental disabilities. Providing for the long term care and financial stability of these individuals presents some challenges and necessitates careful planning to ensure the person does not end up insolvent. These individuals can be more vulnerable to exploitation, so protecting them from those seeking to manipulate or take advantage of their circumstances should be factored into the estate planning process. Further, someone healthy today could have special needs tomorrow, so having an estate plan in place that includes provisions about what to do in the event a person becomes incapacitated is a good idea for everyone.

Durable Powers of Attorney

Durable powers of attorney are the easiest way to deal with a person who suddenly becomes incapacitated. These documents grant authority to an agent to act on that person’s behalf, which can be crucial to managing that person’s financial affairs if something happens to them. A person is considered incapacitated when unable to act to “obtain, administer, and dispose” of real and personal property, business property, income, and the like. The agent’s authority in most powers of attorney terminates when the grantor becomes incapacitated. The exception is when the power of attorney is durable. Thus, executing this type of power of attorney is crucial to the document operating as intended, and is best handled by an experienced estate planning attorney.

Trusts

Trusts are another type of estate planning tool that can protect a person’s assets if he/she is unable to manage them independently. Often, a person with special needs receives some type of government assistance to receive necessary healthcare. Historically, families would disinherit disabled members because the person would lose government benefits if they inherited any property of value. A special needs trust was created to address this situation and specifically¬† allows such an individual to continue to receive government benefits and also inherit assets or acquire money through some other source. Special needs trusts are discretionary, meaning the trustee only releases funds when necessary and not on a predetermined schedule. This trust is meant to supplement government benefits, not replace them.

Guardianships

Finally, appointing a guardian is another option for a person looking to protect themselves or incapacitated family members. Guardians are individuals that have legal authority to manage a person’s affairs. This authority may cover personal matters and/or financial issues, and can be tailored to allow the protected individual to have input in decisions to the extent possible. This alternative may be advisable if no family member is in a position to oversee the person with special needs, but it does involve court oversight, so there will be costs associated with this appointment that must be considered. In addition, there are guardian advocates that oversee individuals with certain developmental disabilities limited in their ability to manage their own affairs. Guardian advocates offer a less restrictive form of guardianship that could be appropriate for those with some capacity to care for themselves.

Talk to a Florida Estate Planning Attorney

If you are thinking about setting up an estate plan, consulting an experienced estate planning attorney will ensure the documents are tailored to your wishes, and properly address the needs of you and your family. The estate planning attorneys at the Tampa law firm Bubley & Bubley, P.A.  will take the time to fully assess your situation and create an estate plan that will last far into the future. Contact us for a free consultation.

Resource:

leg.state.fl.us/STATUTES/index.cfm?App_mode=Display_Statute&Search_String=&URL=0700-0799/0709/Sections/0709.2104.html

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