Families with special needs children must exercise extra care in making their estate plans. This is true whether their special needs child is still a minor or now an adult, and particularly so when the child is – or in the foreseeable future will be — receiving needs-based public benefits such as SSI or Medicaid. While planning considerations for such a child will vary depending upon the child’s age, competency, and other family considerations, the goal is always the same: parents want their estates utilized to enhance and enrich the life of their special needs child while maintaining the child’s enrollment in essential public benefits programs. These goals can be met through the use of a properly prepared special needs trust.
The essence of all special needs estate planning is to ensure that the portion of the parents’ estate which passes to their special needs child at the time of their death is not considered an “available asset,” as defined by public benefit agencies. Parents must be mindful of both income and principal, as too much monthly income, as well as too much “cash,” can negatively impact their child’s future eligibility for benefits.
Purpose
Special needs planning works to preserve public benefits for the disabled child while supplementing and enhancing the quality of the child’s life. This type of planning is useful for many different purposes, including
- lifetime money management for the benefit of the disabled child;
- protecting the child’s eligibility for public benefits; and
- ensuring a pool of funds available for future use in the event public funding should cease or be restricted.
Planning Options
The options available to families in making an estate plan for a special needs child who is receiving needs-based public benefits include the following:
- Disinherit the child. This is the simplest option, but it does nothing to accomplish the purpose of enriching the life of the special needs child.
- Give the estate to the brothers and sisters. At the parents’ death the entirety of the estate is distributed to the child’s siblings, with the understanding that they will “take care of” their disabled brother or sister. There are inherent risks with such an approach, including claims by the siblings’ creditors, bankruptcy, divorce, mismanagement of funds, etc.
- Leave an inheritance to the disabled child. The outcome of this planning option will be the almost certain negative impact on the child’s continued eligibility for publicly funded benefits. In the worst case scenario, the child may be rendered ineligible for SSI and Medicaid. The key benefit is Medicaid, as this program represents the child’s ability to access not only essential health care but many other public assistance programs.
- Leave an inheritance in a Special Needs Trust. This last option is preferred by most families in their efforts to provide and ensure a positive outcome for a special needs child. By using a properly drafted – and properly administered – Special Needs Trust, the child will continue to qualify for public assistance programs that would otherwise be unavailable to the child, especially the “means tested” programs that require the child to meet strict financial eligibility criteria. A Special Needs Trust works because the assets held in the trust are not “available” to the child. Under no circumstances can the special needs child force the trustee to make trust money available to the child.
Get started with a Texas Special Needs Trust Attorney today.
Need a name of a Medicaid Attorney in Bexar County.
Dear Mr. Shea, My landlady is disabled and is currently in a type of residential/hospice setting and not expected to live more than a few months. Her daughter has asked me for some info about the Miller Trust. My landlady owns a home which I currently rent from her for $600 per month plus utilities. I am also disabled under SSA guidelines and I cannot afford to move. My landlady’s expenses for her care exceed her income substantially and her children currently have to pay the difference. Will a Miller Trust for her SSA retirement, annuity and my rent payments give her protections under the Miller Trust provisions? Her family is considering selling the home to me if I can afford it on my SSA disability check. Any help would be greatly appreciated. Many thanks. Chris
My mom has no property of anything of value. She does have retirement income (civil service $1302 and military reserves $545) and divorce property income (her 1/2 of my dad’s military retirement check $727.50) and her social security check is $117 per month. Can her divorce settlement be excluded from the eligibility? If so, I think she could qualify for Texas Medicaid benefits for nursing home.
I have her in a private non-licensed facility and she desperately wants a better place. She has stage IV colon cancer that has spread to her liver and lungs. She is currently under Hospice care.
Please advise.
Maggie
My son Joseph M. suffered a stroke on June 26, 2009 and all indicati;ons are that he is headed for long term care in a month or two is 30k gross short term care stops in Dec. then long term kicks in at about athe same rate. I don’t see how a Miller Trust can help since he is single. He is totally incapacitated and improving slowing – going home with him would be most difficult. Social Sec. is determining his disablity staus which should come athrough in a month or so…is reducing his income through legal means possible to qualify him for Medicaid?-
A Miller Trust can work if the Medicaid applicant is single or married. The key issue is if the Medicaid applicant receives too much income to be eligible for Medicaid benefits.
Every asset and source of income that is available to the Medicaid applicant is considered available. From the perspective of Medicaid eligibility, if an applicant’s income exceeds the limit the fastest way to fix it is with a Miller Trust which can be completed within a couple weeks generally. With income from a divorce, a long term option may be to modify it through the divorce court, but that will probably take longer and may cost more.
A Miller Trust does not “protect” assets or income. It is a tool to re-characterize income so that it is within the strict eligibility limits. A Miller Trust in no way increases the income or assets that a Medicaid recipient can keep, its only purpose is to restructure a person’s income to fit within the eligibility standards.
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am looking for the DOWNLOAD of the application form! Where is it?
The Medicaid application can be downloaded on the following page as described above: http://texastitle19.com/texas-medicaid-application/