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Special Needs Trusts

How to help someone who has a physical or mental disability

If you have a dependent or beneficiary with a physical or mental disability, you may be very concerned about providing for this person's well-being after your death. However, leaving an outright inheritance may not be the best way to provide for his or her financial security. There are certain government benefits available to the disabled, and an outright gift might disqualify your loved one from receiving those benefits. In order to set up your estate plan so that the person retains eligibility for the benefits, you need a special needs trust.

Most government benefits have strict limits regarding assets the recipient may possess. The limits are set very low. If you were to leave assets outright to someone, it is likely he or she would immediately be rendered ineligible for the government benefits. Yet, important special equipment or necessary programs can be expensive and could quickly use up whatever inheritance you leave. Your beneficiary could end up on government benefits anyway, without that special nest egg you wanted him or her to have.

However, with a properly drafted special needs trust, the person may receive the government benefits and still enjoy the inheritance you want to provide. It is essential that the trust clearly states that it may be used only to provide benefits that are above and beyond the benefits the person receives from any government agency. No part of the trust can be used to duplicate public assistance benefits of any county, state, federal, or other governmental agency, but it may be used to supplement these benefits. For example, the trust might provide the means for the person to acquire some special medical equipment (that the government benefits will not provide), to have dental work done, to buy clothes, or to put a down payment on a house. It can also be used to supplement the government funds provided to pay for attendant care.

You will appoint a trustee who will control the trust. The trustee will make purchases from the trust for the benefit of your beneficiary, as the trustee in his or her discretion deems advisable. The trustee will also be responsible for helping the person apply for and receive benefits from all available public resources, including Supplemental Security Income (SSI), Medi-Cal, Federal Social Security Disability Insurance (SSDI), and the appropriate regional center for the developmentally disabled. The trust can be drafted so that it lasts for the person's lifetime, or until it is determined that the person is able to manage on his or her own.

A special needs trust can be used to assist a child or any other person currently supported by you who may need government benefits after your death. The special needs trust works equally well for a parent, sibling, or friend. The trust can be drafted as part of a living trust or can be inserted into a will.

It is imperative that an experienced attorney draft the trust, because a small mistake may render your beneficiary ineligible for government benefits. The law changes frequently, and the trust language must comply with the current regulations.

Attorney Deborah A. Malkin has practiced law in Santa Cruz, California since 1988. She specializes in wills, trusts, and other forms of estate planning, as well as probate matters. Deborah A. Malkin is a Certified Legal Specialist in Estate Planning, Trusts & Probate, certified by the Board of Legal Specialization of the State of California.

Deborah A. Malkin
Attorney at Law

2425 Porter Street, Suite 3
Soquel, CA 95073

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