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Special Needs Estate Planning How Pennsylvania Families Can Hit a Bulls Eye.

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By Linda M. Anderson, JD, LL.M. CELA

Estate planning for our special needs family’s extends way beyond planning the ordinary goals of minimizing taxes and properly distributing assets. For our special needs families, the goal is to build air tight safety net for the special needs beneficiary that essentially replaces a parent’s caregiver role with a carefully selected guardian who then works with a trustees who expertly invests assets, manage taxes and distributions, and navigating public benefits. This team does all that plus take care of a special needs person family member who may be grieving the loss of a parent. It is imperative that these estate plans hit a bull’s eye when prepared AND executed.

Special Needs Planning Options

Your special needs planning attorney will sit down with you and discuss all your options for a special need’s child receiving needs-based public benefits. Some of these options include:

Disinheriting your child, although this method does nothing to help your loved one;
Distribute your estate to the siblings with the understanding they will take care of their sister or brother; however, this method is not without risk in that a sibling may predecease a disabled sibling, or have creditor or marital issues that jeopardize their resources;
Leave an outright inheritance outright, which may jeopardize important public benefits including Medicaid which serves as health insurance; or
Establish a Third-Party Supplemental Needs Trust. This is the preferred option and for our purposes we will refer to it as a Special Needs Trust.

A Special Needs Trust will have many typical elements of a trust that will include choice of trustees, instructions on who distributions should be made while the special needs beneficiary is alive. Most importantly, upon the death of the special need’s beneficiary, there is absolutely NO requirement for any repayment to Medicaid unlike the requirements for a First-Party Supplemental Needs Trust. These other types of trusts are used in litigation or other contexts to also maintain public benefits. So, it can be confusing as to whether these “payback” requirements are needed.

For many families, their largest assets include qualified retirement accounts, under the recent legislation referred to as the SECURE Act, there is a sophisticated analysis and drafting exercise to be completed by your estate planning attorney to ensure the proper selection of assets, creation of beneficiary designations and coordination of assets funding for the Special Needs Trust.

Most importantly, the estate planning process must include an honest and open conversation as to the care planning for the special needs beneficiary after parents die. Many times, parents have assumptions as to who will assume the burden of worry as guardians or trustees. With proper planning and documentation, family members who are willing to act in these important roles, can be reassured that they will be supported with proper documentation and trusted advisors who can

Contact a Pennsylvania Special Needs Planning Attorney

To learn more about special needs planning options, contact the special needs life planning attorneys at Anderson Elder Law. Attorney Linda Anderson is one of only four attorneys in Pennsylvania who are members of the Special Needs Alliance, and the only such attorney in Eastern Pennsylvania. She is also a member of ACTEC. In addition to extensive experience with special needs planning, Linda is also very familiar with networks, non-legal resources, and other types of aid available to those with disabilities. Call our office today at 610-566-4700 or email info@andersonelderlaw.com to schedule an initial consultation.

Understandably, most parents are confused by the available options and what is needed to secure a stable financial future. If you need assistance, it’s crucial to speak with a West Chester special needs planning attorney.

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