Planning for the care of a child with special needs is a complex process that depends on many factors. Federal and state laws and policies, funding availability, income levels, and your child’s physical needs are all factors that go into creating the most effective and efficient caregiving plan for your child. However, special needs planning is not without common pitfalls that parents and other caregivers should seek to avoid. Here are some common mistakes people make when planning for their special needs children.
1. Leaving assets directly to your child with special needs
Parents commonly draft wills that leave their assets directly to their children, including any children with special needs. However, children with special needs often are heavily reliant on government programs such as Medicaid to provide their healthcare needs. Medicaid has strict income and resource limits for eligibility. As a result, receipt of significant property or a lump-sum inheritance can be catastrophic for Medicaid recipients. Instead, parents should funnel inheritances for children with special needs into special needs trusts or similar vehicles to protect their eligibility for public benefits.
2. Failure to access and maximize all available public benefits
Parents often fail to understand the full range of state and federal government programs and services for which children with special needs may be eligible, or how to maximize those benefits. In many cases, a child’s transition from a minor to an adult can dramatically change their eligibility for those programs. Likewise, whereas some programs are specifically for minor children, others are specifically for adults. Therefore, parents must carefully monitor changes to these programs and requirements as a child ages to determine their suitability and eligibility.
3. Failing to Obtain Guardianship – or Obtaining Guardianship When Unnecessary
Guardianship may be necessary when a child with special needs turns 18 and becomes a legal adult. If the child is unable to make financial or medical decisions for themselves, guardianship may be appropriate to allow a parent to continue to make important decisions on the child’s behalf. However, in many cases, children with special needs can participate in the decision-making process or make decisions for themselves with the support of a parent or other caregiver. In that instance, guardianship may be unnecessary.
4. Failing to Obtain Advance Directives
If children with special needs have the legal capacity to do so, they can execute medical and financial powers of attorney and/or a living will. In these legal documents, the children can designate their parents, caregivers, or other trusted adults to make decisions if they become incapacitated and unable to do so. Executing these important legal documents can help avoid the need for guardianship in the event of the child’s future incapacity.
5. Waiting Too Long to Make Plans or Decisions
All too often, parents put off long-term planning, both for themselves and their children with special needs, as unnecessary. They may assume that another child will care for their sibling with special needs or be unwilling to confront their own mortality. Whatever the case may be, waiting too long can lead to rushed decision-making during crises, which is typically not the best way to make decisions. Poor planning can also lead to the need for more expensive and time-consuming actions, such as filing for legal guardianship, when parents could have achieved the same objective by getting guardianship promptly when a child turned 18 or avoiding it altogether by having the child execute power of attorney documents.
Frequently Asked Questions
What role do special needs trusts play beyond protecting government benefit eligibility?
Special needs trusts not only safeguard Medicaid or SSI eligibility, but they also allow families to designate funds for supplemental needs—such as therapies, education, or recreational activities—that government programs may not cover. A special needs trust can enhance a child’s quality of life without jeopardizing essential benefits.
How can parents prepare for transitions as their child with special needs ages into adulthood?
Beyond guardianship considerations, parents should anticipate changes in housing, employment opportunities, and healthcare coverage. Planning early for vocational training, supported living arrangements, or adult day programs can ease the transition and provide continuity of care as the child’s needs evolve.
What resources are available to help families avoid common planning mistakes?
Families can benefit from consulting professionals such as special needs attorneys, financial planners, and nonprofit advocacy groups. These experts can provide guidance on structuring trusts, navigating benefit programs, and drafting legal documents. Support networks and workshops also offer practical education to help parents make informed decisions.
Contact Us Today to Learn More About Our Legal Services to Help a Child With Special Needs
Rubin Law is the only Illinois law firm to dedicate itself exclusively to providing compassionate legal services for children and adults with special needs. We offer unique legal and future planning techniques to meet your family’s individual needs.
Call us today at 866-TO-RUBIN or email us at email@rubinlaw.com to learn more about the services we can offer you and your family.