What Are The Legal Implications of Failing to Update an Estate Plan for a Special Needs Beneficiary?

Planning for Your Tomorrow, Today

Estate planning is a legal term used to describe the necessity of preparing for the eventualities of growing older, such as death, chronic illness, or incapacitation. Estate planning has many aspects that involve wills, living wills, trusts, and sometimes power of attorney. There are multiple benefits to estate planning, even for those who don’t have many tangible possessions or who may be young. A well-thought-out estate plan is a loving gift to your family members during the difficult period after your passing or your illness.

If you provide care for someone with special needs, it is imperative to discuss your estate plan with your attorney and keep it updated, as there may be legal implications for your loved one if you fail to do so.

At Able & Strong Law, our team cares about your future and the future of your loved ones; especially those who may not be able to care for themselves. We have the experience and compassion to handle each situation like our own. Call 385-334-5024 today to schedule your consultation.

Why Is Estate Planning Important if I Have a Special Needs Beneficiary?

Estate planning benefits everyone, but it is crucial if you care for someone with special needs. If this person depends on you for their care now, they will need you to plan for their future if you can no longer provide that care. While it may seem overwhelming, remember that you are giving your loved ones peace by planning.

Our compassionate lawyers can help you organize and update your plans to ensure your loved one is properly cared for. We understand the complexity of Utah’s laws and the income restrictions placed upon many of those dependent upon government services. We will ensure that your estate is appropriately structured to give your beneficiary the most security. We will keep you and your loved ones safe and secure through every step of the process.

What is a Special Needs Trust?

A Special Needs Trust allows a physically or mentally disabled or chronically ill individual to receive income without impacting their benefits. It is vital to keep your estate plan current as tax and benefit laws change. If you do not keep abreast of all the changes, your plan may not operate as you intend, and your loved one may not benefit from the assets you leave them, or worse – may lose their benefits.

A special needs trust will help cover the comfort needs your loved one might have that are not covered by public assistance. Using a special needs trust ensures your family can benefit the funds without losing their benefits.

How is a Special Needs Trust Managed?

When a trust is established, a trustee is designated to manage it. Simply put, a trustee holds benefits or assets for another individual. Trustees have varied responsibilities, which include: 

• Acting as protector of the grantor’s intent: Making sure that the trust is run correctly, according to the plans and wishes laid out by the grantor, and always in the best interest of the beneficiaries
• Keeping the assets safe: The trustee must always be able to account for the funds and assets within the trust and know who the beneficiaries are and their rights. All trust assets must be kept separated from other assets
• Administration: The trustee must keep thorough records of all transactions and distribute the assets to beneficiaries.
• Reporting: Keep all State and Federal reporting deadlines
• Make critical decisions regarding the assets within the trust
• Invest: If the grantor has indicated that they wish the trustee to adjust investments, it may fall within their purview to do so
• Communicate with the beneficiaries:  The trustee will be the person who is in charge of communicating your wishes for the trust and answering all questions related to the trust’s assets

What Are Items to Consider in an Estate Plan When I Have a Special Needs Beneficiary?

There are some considerations to plan for when you have a family member with special needs. A few things to think about are: 

• Creating informal arrangements for finances. You can ask a friend or hire an accountant, but it’s essential to begin thinking about who can be the potential representative payee for your family member’s social security benefits if you are the current representative payee
• Draft a power of attorney to manage finances. This individual will handle your financial affairs if you lose capacity. Make sure you get a durable power of attorney
•  Create a plan for health care for yourself and your loved one. This includes advanced care directives and DNRs. Your doctors and healthcare providers are good resources for these.
• Review the conservatorship or guardianship for your loved one with special needs. This will be where you will designate someone to care for them upon your death. 
• Determine what arrangements should be made for you upon your death. Your estate planning lawyer can assist you.  

When Should I Call an Estate Planning Attorney in Davis County?

There are few gifts we leave our loved ones that give them true peace of mind after we are gone. No one can ever truly prepare for such an event; it is difficult to think about. Nobody likes to imagine dying or, worse, their loved ones being saddened by the loss. Leaving behind someone with special needs can be even more troubling. We can help. The most loving thing we can do is to discuss these matters ahead of time, both with our families and a qualified estate planning attorney. Able & Strong Law has a friendly and knowledgeable legal team available. Call 385-334-5024 to schedule your consultation.