By Jessica A. Merkel
October 12, 2020
In recognition of October as National Special Needs Law Month, Elder Law Attorney Jessica Merkel presents this two part series addressing what special needs planning really is. Today, in Part One, Jessica focuses on the legal planning for an individual with special needs. Stay tuned for Part Two which will focus on legal planning steps that parents or guardians may take to provide for, and protect, their loved one with special needs.
My name is Attorney Jessica Merkel. In recognition of October being Special Needs Law Month, our Elder Law and Special Needs Team wanted to talk about what special needs law planning really is. In order to do this, we decided it would be best to break our discussion into a two part series.
The first part focuses on the legal planning for an individual with special needs. While the second part will focus on the legal planning that parents, and other family members may partake in to provide for, and protect, their family member with special needs.
So, let’s get started. Most importantly, when we’re discussing any legal planning for an individual with special needs, we must consider the protection, safety, and well-being of that person. Are they able to make their own decisions? If so, do they normally make good, or bad, decisions? Does the individual have the ability to recognize and appreciate the nature and consequences of their choices? These are sometimes very difficult questions to answer. And the answers can help form the decisions that we get to when we hit that fork in the road of whether it’s appropriate to execute power of attorney documents or if we need to petition the court for a guardianship.
But, why is that? Well, primarily because a guardianship is a court-supervised process where an individual’s decision making rights are removed. In most cases, a guardianship is viewed as a last resort and executing power of attorney documents is much preferred if the individual with special needs has the capacity to do so. Other than protecting the well-being of the individual with special needs, that individual may also be eligible to receive public or governmental benefits. Some of the public benefits might also be called means-tested benefits. If a public benefit is means tested, then we have to look at the individual’s means. This will help us to see if they qualify for the benefits.
So, what do we mean by means, in this context? Well, this means income, assets, and resources of the individual with special needs. Often the income assets and resources have to be very modest, which really means very low, for that individual to be eligible to receive the public benefits. Means-tested public benefits include Supplementary Security Income (or SSI), Medicaid (also called medical assistance or Title 19) – they provide health coverage, Section 8 housing, food stamps.
There are many planning opportunities available to individuals with special needs who may not be currently eligible for means-tested public benefits. Planning options include things like special needs trusts, pooled trusts like WisPACT, or like Navigators, ABLE accounts, and there’s other options as well.
Ruder Ware’s elder law and special needs team devotes our time and energies to serving our clients in ways that are most meaningful and helpful to them. If you have questions about special needs law, or are interested in learning more about what options are available for you or a member of your family, please feel free to call us. We’re here to help.
The content in the following blog posts is based upon the state of the law at the time of its original publication. As legal developments change quickly, the content in these blog posts may not remain accurate as laws change over time. None of the information contained in these publications is intended as legal advice or opinion relative to specific matters, facts, situations, or issues. You should not act upon the information in these blog posts without discussing your specific situation with legal counsel.
© 2023 Ruder Ware, L.L.S.C. Accurate reproduction with acknowledgment granted. All rights reserved.