Did you know that in the month of March, National Developmental Disabilities Awareness Month is celebrated? In 1987, President Ronald Reagan issued a public proclamation urging Americans to provide individuals with developmental disabilities “the encouragement and opportunities they need to lead productive lives and to achieve their full potential.” Do you have a disabled loved one? There is no question that your loved one has faced more challenges than most and, as his or her life has continued, you have found these challenges become more complicated as your child becomes an adult. From navigating public benefits to ensuring your loved one has the health care needed on a daily basis to understanding the best way to communicate with your loved one, you know that this is a full time job.
There are many legal considerations you need to make if you are planning for a disabled loved one. It may seem overwhelming, but it is critical that you plan ahead and not wait to complete your Florida estate planning. With the proactive steps you take now, you can help ensure your disabled loved one, at any age, has a secure future, even if there comes a time when you are no longer here.
First, when your disabled loved one reaches the age of majority, there are many changes that can take place surrounding authority. For example, did you know that even if your loved one is barely able to care for him or herself, a parent no longer has the legal rights to make financial or health care decisions once the disabled child is deemed an adult? Without proper Florida estate planning, even someone with a significant developmental, cognitive or mental health disability is legally permitted to make decisions at the age of majority.
How do you begin planning for your disabled loved one’s future? We highly recommend that you work with a qualified and experienced Florida estate planning attorney with a distinct expertise in this area. Your attorney should be specifically helpful for guidance and decision-making. Your attorney will first talk to you about least restrictive alternatives for your disabled loved one. These are processes that do not require the involvement of the Florida court system and, as a result, can be less costly, time consuming, and less public. Your Florida estate planning attorney can talk to you about the lifetime planning documents, such as a durable power of attorney and health care surrogate. Your Florida attorney can also work with you to develop a special needs trust.
What is a special needs trust? A special needs trust can be set up for people with disabilities to ensure that money will be available for a disabled person throughout his or her lifetime. It can be used for a special needs beneficiary, while not interrupting his or her ability to receive public benefits, such as Medicaid or Supplemental Security Income. There are two main types of special needs trusts. A Third-Party Special Needs Trust holds property provided by someone other than the disabled person. For example, a parent can place money into the trust and then determine who the money is given to when the disabled adult child passes away. The second type is called a Self-Settled Special Needs Trust and is designed to hold property belonging to the disabled person. In this type of Florida estate plan, there is almost always a payback provision for the public funds received by the disabled person in life.
We know this article may raise more questions than it answers. The Academy of Florida Elder Law Attorneys (AFELA) is the pre-eminent organization of Florida elder law attorneys providing advocacy, education and action on behalf of seniors and people with disabilities. We encourage you to contact one of our attorneys in your area using our Find a Lawyer website for assistance.