by Alyson C. Fudge, Esq.
As Elder Law Attorneys, we spend a significant amount of time talking to spouses or adult children about how to best protect and care for an aging loved one. We talk about mental capacity, powers of attorney, legal authority, and of course, money to pay for caregivers and other essentials. However, sometimes the aging person is the caregiver not for a spouse—but for a child or grandchild who has disabilities or other types of special needs. These situations present challenges and concerns which can be easily overlooked until the caregiver (parent or grandparent) is in crisis, and that is the worst possible time to start to plan. Here are some issues which ideally should be discussed with an Elder Law Attorney before a crisis hits the family:
1. Guardianship for the disabled child/grandchild. If your adult child or grandchild is disabled and is unable to make day to day decisions or make major decisions for him or herself without assistance, it is essential that someone have actual legal authority to assist the disabled individual before a crisis occurs. Once a Probate Court appoints a guardian, a new or substitute guardian can always be appointed later to provide a smooth transition if the first guardian (parent or grandparent) becomes ill or incapacitated themselves;
2. If the disabled child/grandchild has physical limitations but possesses mental capacity, it may be possible for Powers of Attorney for both financial matters (including government benefits) and medical issues to be established. This will also provide, through the nomination of alternate agents, for a smooth transition should the primary caregiver be unable to continue providing care as they themselves age or experience their own health problems;
3. Estate Planning is essential. It is typically not a good idea to simply leave money or assets to a disabled child or grandchild in a simple will. That will often disrupt benefits such as SSI or Medicaid, and may even cause the government to send a bill asking to be repaid years’ worth of benefits from the inheritance! As most of us do not wish to voluntarily donate extra money to the government instead of legally leaving it to our family—particularly vulnerable family members—it is absolutely imperative that planning be done while the aging parent/grandparent still possesses the mental capacity to sign the appropriate documents to protect money, the family home or other assets for the benefit of the disabled child/grandchild. There is legal way to accomplish so many of these goals, and it’s called a Special (or Supplemental) Needs Trust. In a rare moment of lucidity about twenty years ago, our US Congress created a way for families to do this precise type of planning. This tool has been used by families across our nation to supplement the government benefits being received by a disabled loved one so that the loved one is safe, protected, provided for and able to live his or her most independent and fulfilling life possible. However, waiting until the crisis is upon us usually closes the door to benefitting from this option.
The reality is that more and more frequently, we are seeing parents or grandparents who are aging themselves whilst simultaneously caring for a disabled child or grandchild. As professionals who want to help families to maximize resources and minimize stress, please help us to help you and your loved ones. Please plan today for peace of mind tomorrow.