Our practice has a strong focus on planning for families who have young special needs beneficiaries. The best time to plan for those beneficiaries is before they turn 18. In our experience, there is a lot of misinformation floating around when it comes to taking care of these vulnerable loved ones. If you have a special needs child who relies on you, we would love to discuss your planning options. Please contact us to set up a consultation.
1. Disinheriting the Child
Many disabled people rely on SSI, Medicaid or other government benefits. You may have been advised to disinherit your disabled child — the child who needs your help most! — to protect that child’s public benefits. But these benefits rarely provide more than subsistence. And this “solution” does not allow you to help your child after you are incapacitated or gone.
When your child requires or is likely to require
governmental assistance to meet their basic needs, you should consider establishing a Special Needs Trust.
2. Ignoring the special needs when creating a trust for the child 
A Trust that is not designed with your child’s special needs in mind will probably render your child ineligible for essential benefits. The Special Needs Trust is designed to promote the disabled person’s comfort and happiness without sacrificing eligibility.
Special needs can include medical and dental expenses, annual independent check-ups, necessary or desirable equipment (such as a specially equipped van), training and education, insurance, transportation, and essential dietary needs.
3. Creating a ”generic” special needs trust that doesn’t fit 
Even some “Special Needs Trusts” are unnecessarily inflexible and generic. Many trusts are not customized to the particular child’s needs. Thus, the child fails to receive the benefits that the parent provided when they were alive.
Another mistake attorneys with special knowledge in this area often see is a “pay-back” provision in the trust rather than allowing the remainder of the trust to go to others upon the special needs child’s death. These “pay-back” provisions are necessary only in certain types of special needs trusts. An attorney who knows the difference can save your family a small fortune.
4. Procrastinating
Because none of us knows when we may die or become incapacitated, it is important to plan for your special needs child early, just as you would for other dependents such as minor children.
Unlike most other beneficiaries, your special needs child may never be able to compensate for your failure to plan. A beneficiary without special needs can obtain more resources as he or she reaches adulthood and can work to meet essential needs. Your special needs child may not have that opportunity.
5. Failing to invite contributions from others to the trust
A key benefit of creating the trust now is that your extended family and friends can make gifts to the trust or remember the trust as they plan their own estates. You can also consider whether making the trust the beneficiary of a life insurance policy makes sense now, while you are healthy and
insurance rates are low.
6. Choosing the wrong trustee
During your life, you can manage the trust. When you and your spouse are no longer able to serve as trustee, you can choose who will serve according to the instructions that you have provided. You may choose a team of advisors. You may choose a professional trustee.
Make sure that whomever you choose is financially savvy, well-organized, and, most important, ethical.
7. Relying on your other children’s money for the special needs child
This may be a temporary solution for a brief time if your other children are financially secure and have money to spare.
However, it is not a solution that will protect your special needs child after you and your spouse are gone. What if your child with the money divorces? His or her spouse may be entitled to half of it and will likely not care for your special needs child.
What if your child with the money dies or becomes incapacitated while your special needs child is still living? Will his or her heirs care for your special needs child?
What if your child with the money loses a lawsuit and has to pay a large judgment or has other significant creditor problems? The court will certainly require your child to turn that money over to the creditor.
If you create a special needs trust, you can protect all of your children. Siblings of a special needs child often feel a great responsibility for that child and have felt so all of their lives. When you provide clear instructions and a helpful structure, you lessen the burden on all your children and you support a loving and involved relationship between them.
8. Failing to protect the special needs child from predators 
An inheritance from parents who fund their child’s special needs trust by a will, rather than by living trust, is in the public record. Predators are particularly attracted to vulnerable beneficiaries, such as the young and disabled. When you plan with trusts, you decide who has access to the information about your children’s inheritance. This protects your child and other family members, who may be serving as trustees.
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