Estate Planning for Children with Disabilities

Making an estate plan is not something that anyone looks forward to doing. It is difficult to make difficult decisions about what we want to happen to our property after we die. Parents of children with disabilities have additional apprehensions about making estate plans. These parents are anxious about their disabled child’s future. Parents worry about who will care for their disabled child, where their child will live, what services their child will need, and what can be done to protect their child’s eligibility for needed services.

Parents may believe that when they die, other family members will take care of their child with a disability, despite the fact that they have never discussed this with any other family members. The size of your estate is irrelevant. What is important is that you make plans about how your resources will be used after you die. Lack of planning could have serious negative consequences for a child with a disability – whether it be a young child or an adult child. 

When you meet with your estate planning attorney, you should explain the nature and severity of your child’s disability to the attorney. You should be sure that the attorney understands what your child can do with respect to making decisions about medical care, money, where to live, and other activities which he or she will have to carry on after you die.

Trusts are often very good mechanisms for parents of a child with a disability to use in planning for their child’s financial future. A well-drafted trust can enhance the quality of life of an individual with a disability. Your trustee is legally obligated to follow your instructions. Some parents are intimidated by the thought of having a trust because they think it is too complicated.

Parents sometimes avoid discussing the possibility of establishing a trust because they plan to leave money to their other children whom they believe will use the money to care for the child with a disability. Leaving the money outright to the other children is risky. The other children have no legal obligation to use that money for their sibling with a disability. If the other children die before the child with a disability, or get a divorce, or suffer a bankruptcy, the funds may not be used as intended. A trust can serve various purposes such as paying bills, paying for services that are provided to the child with a disability, and providing goods and services that the government will not supply. A trust can meet changing needs and circumstances.

There are different ways to create a legal trust. A popular trust for people with disabilities is referred to as a “supplemental needs” trust.  It is wise to discuss your options with an attorney and make your choices based on what will best serve your needs and the needs of your disabled child. There may well be options that you were unaware of that may give you and your family members great peace of mind.