At Dine Elder Law, our Estate and Special Needs Planning attorneys can give you the guidance to select the type of advanced planning documents that best suits your needs and the needs of your loved ones.
Our attorneys are aware of the challenges that you may face later in life, including the distribution of your estate to heirs and assistance with financial and healthcare decision-making. Effective estate planning can reduce the anxiety that families and couples may feel in securing their financial future and arranging the distribution of their property.
Important Estate Planning Documents in Florida
As a Florida firm with experience in the state’s laws that govern estates, we will recommend that you have the following documents as part of your estate plan.
A Will or Living Trust
In Florida, you must have a will or trust that states your intention for how your property will be distributed after death. Without one of these documents, the distribution will be made according to state statutes, which may not reflect your true wishes or protect your heirs.
Durable Power of Attorney for Finances
For elderly clients we may recommend a durable power of attorney that names a trusted individual to make financial decisions on your behalf. This could be necessary if for some reason you become incapacitated or unable to make financial decisions, and this will give you the peace of mind that your finances will be managed correctly.
Living Will and Designation of a Health Care Surrogate
These two documents will be drafted by our firm to ensure that your health care decisions will be made according to your values and preferences.
Considerations for a Loved One with Special Needs
Special consideration must be given to families with disabled minor or adult children when crafting an estate plan. A special needs trust (also called a supplemental needs trust), is used to hold assets for the benefit of someone in your family with disabilities, without affecting their eligibility for important public benefits like Medicaid or Supplemental Security Income.
With a special needs trust, the assets held by the trust are not “counted” for the purpose of qualifying an individual with disabilities for government programs, so long as certain rules are followed. One of the important rules for all types of special needs trusts is that the trustee can only use the funds to supplement the government benefits the beneficiary is receiving, rather than replace the government benefits. This means that the trustee cannot use the funds to pay for the support and maintenance of the beneficiary such as food, rent, electricity, water, etc.
There are three types of special needs trusts that may be available to you:
1) A self-settled (or first-party) special needs trust
2) A third-party special needs trust, and
3) A pooled trust
Each of these trusts has its own set of rules, advantages and disadvantages which are discussed in more detail below. There are several important factors for you to consider when creating any type of special needs trust, such as who should be the trustee, directions for disbursements to the beneficiary and what assets should be placed in the trust.
Self-Settled Special Needs Trust
A self-settled/first-party special needs trust is established by the beneficiary’s own funds. Your disabled family member must be under the age of 65 and disabled, and the trustee can only use the funds for their benefit while he or she is living. When the beneficiary dies the assets remaining in the trust are used to reimburse the state for the cost of medical care. Florida has specific rules about what disbursements can be made from the special needs trust, and failure to adhere to these rules could disqualify your family member from receiving important government benefits like Medicaid.
A self-settled special needs trust is often used when your disabled family member with special needs comes into assets because of an inheritance or accident settlement. For example, if they are receiving Supplemental Security Income, they are only allowed to have $2,000 or less in assets. If that person receives an inheritance or property settlement from an accident, they could lose those benefits unless a self-settled special needs trust is established. If the beneficiary lacks capacity (use hyperlink here to guardianship page), a court will need to approve the special needs trust.
A pooled trust is similar to the self-settled special needs trust in that the funds remaining in the trust when your family member dies are used to reimburse the government for medical care during their lifetime, except that a portion of those funds is provided to the non-profit organization who is responsible for managing the trust.
It is called a pooled trust because a non-profit organization establishes a large trust for the beneficiaries to “pool” their resources for investment advantages, but separate accounts are maintained for each beneficiary.
Third-Party Special Needs Trust
A third-party special needs trust is usually used by parents and family members to provide assistance to a person with special needs. Similar to a self-settled special needs trust, the third party special needs trust protects your family member’s access to government benefits. However, the third-party special needs trust has a distinct advantage because there is no “reimbursement” provision to the government.
One of the requirements of the third-party special needs trust is that the trustee has the sole discretion to make trust disbursements and your family member cannot make demands for funds. Unfortunately, a third-party special needs trust is not a viable option for your family if the inheritance was not initially directed to the special needs trust, or your family member received a property settlement from a personal injury case.
We encourage you contact our Estate Planning and Special Needs lawyers at Dine Law. Special consideration must be given to families with disabled minor or adult children when crafting an estate plan. The special needs trust attorneys at Dine Law can assess your access to public benefits and assets available for transfer to a trust, provide guidance regarding your specific estate planning needs and piece together a plan for your peace of mind.