Parents of children with special needs understandably worry about what will happen when they are gone. If you are a parent in this position, you have probably lost sleep over how your loved one will remain financially secure in your absence, how they will manage essential, basic transactions, who will look out for their healthcare needs, and whether there is anything you can do to mitigate these concerns while you are still living. Fortunately, we can help you plan for all of these situations to get you back to a good night’s sleep.

A robust estate plan designed in consultation with an attorney experienced in special needs planning addresses all of these worries while at once ensuring you avoid costly mistakes. Caring for a child with special needs is a tremendous amount of work but setting them up for their future well-being should not be if you take thoughtful, proactive steps. The following are three ideas to get you started.

1. Institute Advance Directives

Advance directives include financial power of attorney and healthcare proxy documents. These documents allow your child to authorize a trusted loved one to assist in administering their financial and medical affairs. While you are still around, it probably makes sense that you are designated to this role and yet it is important that an additional person be named as a precaution against unforeseen tragedy. As you prepare for your passing, it is important to think about who will take your place and whether a new backup designation is required.

A notable benefit of advance directives is that while they provide your special needs child with the necessary support, they do not deprive them of personal autonomy.

When instituting advanced directives, it is important to consult an experienced attorney as both powers of attorney and medical directives vary in application and scope.

2. Invest in a Special Needs Trust

Many children with special needs either now in the future may require needs-based public benefits such as Supplemental Security Income (SSI) or Medicaid. Leaving your child with a generous inheritance can jeopardize their eligibility for these programs and yet leaving no inheritance at all is hardly a better solution as public benefits only cover the bare minimum. A Special Needs Trust is the answer. By placing the assets you wish to leave your child in such a trust, they maintain access to the funds needed to, say, go on a simple vacation without losing access to essential support.

A Special Needs Trust works by placing inherited assets not in your child’s name but in the name of the trust. A trustee then controls the distribution of these assets to your child based on the criteria you set. This feature carries the additional advantage of providing you some control over how your child manages their finances even after you are gone.

3. Weight the Need for Legal Guardianship

Legal guardianship is often a last resort resource for caring for a child with special needs but may be needed in certain cases. Establishing guardianship is a complex process that strips your child of their autonomy and yet in cases where an individual cannot make safe and informed decisions on their behalf, it is an option worthy of consideration. Due to the matter’s complexity, it is important to seek legal counsel when exploring this idea.

To learn more about the many options available to parents looking to create a plan for their special needs child, do not hesitate to reach out to the Deliberato Law Center either by calling our office at (216) 341-3413 or using the contact form on our website. 


Contact the Estate Planning Attorneys at Deliberato Law Center