Florida Elder Law Blog - A blog by Elder Law Associates, South Florida's premier elder law attorneys, who handle elder law, medicaid planning, guardianships and much, much more.
Caring for a child or loved one with special needs carries
certain challenges that many cannot understand, and yet
too many of us are confronted by these challenges on a
daily basis. A Special Needs Planning Attorney can assist
you with Medicaid Planning, planning for your loved
one with special needs trusts and comprehensive estate
planning. A Special Needs Planning Attorney recognizes
that caregivers typically do not add up the cost of support
and caring for an individual with a disability. Caregivers
provide many services “naturally” and willingly to loved
ones to help enhance their quality of life. These services
might include any one or more of the following:
- Advocate
- Social service coordinator
- Companion
- Guardianship
- Job coach
- Chauffeur
- Personal care attendant
- Money manager
- Recreation director
If you become unable to provide these services or die
without planning for the continuation of these services,
your loved one’s quality of life may suffer.
An experienced Special Needs Planning Attorney will:
- Establish comprehensive care plans organized so that monies for your loved one with special needs will not be at risk from estate taxes or the long-term care costs of caregivers
- Assist with applying for SSI benefits for a person with disabilities
- Apply and qualify for Medicaid for a person with disabilities
- Provide for a person with special needs in your Will
- Apply for Guardianship
- Set up a Special Needs Trust
- Set up a Supplemental Needs Trust
- Assist in the creation of a Letter of Intent
- Inform you of the estate planning options available to you
- Assist families with long term care planning for loved ones with special needs
What is a Special Needs Trust?
A special needs trust (usually funded with the assets
of the disabled individual) or a supplemental needs
trust (usually funded with the assets of a third party,
such as the parents of a disabled individual) makes it
possible to appoint a trustee to hold property for the
benefi t of your disabled child after you’re gone. A special
needs trust provides for the needs of a disabled person
without disqualifying him/her from government benefi ts
programs such as Social Security and Medicaid.
Why Can’t I Leave My Assets to Other Family Members?
While it might seem like a good idea simply to leave a
certain amount of money to your disabled child’s sibling
or other close relative, with the understanding that the
money will be spent on the disabled child, this approach
is not the best strategy and often produces negative
consequences. For example, any one or more of the
following can occur by leaving your assets to another
family member:
- The money can become subject to judgments, divorce settlements or bankruptcy decrees against the relative
- The disabled person has no legal right to force the relative to use the money to benefit the disabled person
- The relative to whom the money is left may be taxed at a higher income tax rate than the disabled child or a trust
- Should the relative die before the disabled child, the money would go to the relative’s heirs and not the disabled child
A special needs trust avoids these potential problems
without putting an emotional strain on family relations.
Monthly SSI benefi ts can be spent on food and shelter.
The special needs trust money can be used to pay for
additional items that will enhance the quality of life of
your disabled child. Such things might include:
- Summer camp
- Lessons
- Educational expenses
- Airline tickets for travel
- Electronic video games
- Vitamins and grooming supplies
- Funeral and burial expenses
Preparing a Letter of Intent
One way to set forth what your intentions are for your
disabled child’s future is to sign a “Letter of Intent.” This
letter can be given to the trustee of the special needs trust
at the time of your death. This document gives family
members and others the benefi t of your knowledge
about your child’s capabilities, needs and interests. Once
completed, you can update the letter as necessary should
the child’s needs change or should your goals for your
child change.
A typical letter of intent will include:
- Biographical information
- Financial details
- Medical history and needs
- Social contacts
- Any negative infl uences you would like to guard against
- Personality traits
- Skills, hobbies and physical abilities
- Goals your child is working toward
While the challenges facing your disabled loved one are
daunting, they can be even more so if you are not around
to attend to his or her needs. However, with a little
forethought and planning, you can make your disabled
child’s future potentially much brighter.
Howard S. Krooks, JD, CELA, CAP is a partner of Elder LawAssociates PA, which has offi ces in Boca Raton, Aventura,Weston and West Palm Beach. He is admitted to practicelaw in Florida and New York, where he serves as Of Counselto Amoruso & Amoruso LLP in Westchester County. Hisprofessional practice is devoted to elder law and trust andestate matters, including representing seniors and personswith special needs and their families in connection with assetpreservation planning, supplemental needs trusts, Medicaid,planning for disability, guardianship, wills and trusts.Mr. Krooks is certified as an Elder Law Attorney by theNational Elder Law Foundation and is a member of theCouncil for Advanced Practitioners of the National Academyof Elder Law Attorneys (NAELA).He is an active member of the Special Needs Planning andElder Law community on the local, state and national level.Mr. Krooks currently serves on the NAELA Board of Directorsand is an offi cer of NAELA (Secretary). As a member of theJoint Public Policy Task Force of The Florida Bar Elder LawSection and the Academy of Florida Elder Law Attorneys,Mr. Krooks works to protect the rights of the state’s mostvulnerable citizens. He recently was invited to join a specialsub-task force to review policies of The Florida Department ofChildren and Families (DCF) that may not be in compliancewith federal law. The special task force will also determinewhether DCF policies have followed proper rule-makingprocedures.Labels: Florida Estate Planning, Florida Guardianship, Florida Special Needs Trust
Individuals with Disabilities Education Act, the nation's special education students are entitled to a "free and appropriate public education."
Schools have argued that the law says parents of special education students must give public special education programs a chance before seeking reimbursement for private school tuition.
But advocacy groups and parents of some special education students contend that forcing them to try public schools first could force children, especially poor ones, to spend time in an undesirable situation before getting the help they need.
Justice John Paul Stevens said in his majority opinion that the federal Individuals with Disabilities Education Act requires a school district to pay for private special ed services if the public school does not have appropriate services.
"We conclude that IDEA authorizes reimbursement for the cost of special education services when a school district fails to provide a FAPE [Free Appropriate Public Education] and the private-school placement is appropriate, regardless of whether the child previously received special education or related services through the public school," Stevens said.
In the case before the Supreme Court, the family of a teenage Oregon boy diagnosed with attention deficit hyperactivity disorder - who was identified only as T.A. - sued the school district, saying the school did not properly address the student's learning problems. The family is seeking reimbursement for the student's tuition, which cost $5,200 a month. The family paid a total of $65,000 in private tuition.
In its appeal, the Forest Grove School District said students should be forced to at least give public special education programs a try before seeking reimbursement for private tuition. If not, parents would bypass public schools and go directly to private school - and then ask for reimbursement from school systems already burdened by ever-increasing costs.
The court's decision does not require reimbursement, but Stevens said school officials "must consider all relevant factors, including the notice provided by parents and the school district's opportunities for evaluating the child, in determining whether reimbursement for some or all of the cost of the child's private school education is warranted."
Justice David Souter, Antonin Scalia and Clarence Thomas dissented.
"Given the burden of private school placement, it makes good sense to require parents to try to devise a satisfactory alternative within the public schools," Souter said in the dissent.
This is the court's second attempt at resolving this issue. The high court split 4-4 on a similar case from New York City two years ago. Justice Anthony Kennedy recused himself in the New York case but was among those who ruled on the Oregon case.
Nationwide, the number of special education students placed in private schools at public expense has not changed significantly over the last two decades, Justice Department lawyers said, citing statistics from the U.S. Department of Education. Just under 67,000 pupils were in private placements in 2007 - just 1.1 percent of the country's nearly 6 million special education students.
Labels: Florida Guardianship, Florida Special Needs Trust
