Helping You Protect Your Loved One’s Future

If you have a child or other family member with special needs, you might worry about their safety and quality of life when you’re no longer here to take care of them. While leaving them money in a traditional will or trust might provide the financial resources they’ll need, it could jeopardize their eligibility for government programs that pay for health care and other necessities. This is why special needs estate planning is essential to protect your child’s future.

At West & West, Greer & Estorga, we’ve spent years serving families in need of estate planning guidance in Texas. You can count on us to use our extensive research and experience to solve the unique challenges that often come with estate planning for children with disabilities. If you want to learn about the resources available to you and your family, contact our San Antonio law firm today.

What Does the Texas Special Needs Planning Process Involve?

Special needs planning is estate planning for families that must consider the unique concerns of someone with physical or mental disabilities. One such concern is their reliance on needs-based government programs that have strict limits on income and assets. So, if your special needs family member relies on Supplemental Security Income, Medicaid, or other government programs, special needs estate planning is recommended to ensure your financial support doesn’t cause them to lose these resources.

When you meet with our special needs planning lawyers, you’ll learn about some ways to protect your child’s future as you create an estate plan. Some of the most common legal options to consider include:

  • Special needs trust
  • Legal guardianship
  • Power of attorney
  • ABLE account

A skilled estate planning lawyer can review these and other helpful tools with you to determine the ones that best suit the needs of your family. If you’re ready to learn how to protect a family member with a serious mental illness or physical disability, contact our San Antonio law firm today.

What Is a Special Needs Trust?

One of the most common special needs planning resources for families to use is a special needs trust. This is a legal tool that can hold the assets that you want your special needs child to inherit. The assets in the special needs trust won’t be considered countable assets or income for purposes of qualifying for needs-based disability benefits. This means your child can continue to receive benefits from Medicaid and Supplemental Security Income even after you fund a special needs trust for them.

Such government benefits are meant to cover the beneficiary’s medical care, food, housing, and other basic needs, but there’s rarely much left to pay for anything else. This is why many families choose to fund special needs trusts for children with disabilities, ensuring they can cover any extra expenses that improve their quality of life.

The assets in a special needs trust can pay for a variety of supplemental items, such as:

  • Transportation, whether by personal vehicle, bus, or rideshare service
  • Education, including tuition, books, and tutoring
  • Any health care costs not covered by Medicaid, such as therapy and dental work
  • Technology, including computers, televisions, phones, and tablets
  • Travel
  • Entertainment, including movies and concerts
  • Recreational activities, such as sports and clubs
  • Household furnishings

If you want your child to be able to afford these expenses while still qualifying for government benefits, a special needs trust may be appealing. Before you establish one, you’ll need to choose the type of special needs trust that suits your circumstances. The two types to choose from are third-party and first-party trusts, with the main difference being who funds them.

With a third-party special needs trust, the parents or other family members of the disabled person are responsible for funding the trust. You can open this type of special needs trust now and allow other relatives to contribute to it over time, or you can use your last will to request that one be established for your child when you pass away. Either way, this flexible tool is the most popular kind of special needs trust.

A first-party special needs trust is funded by the disabled person rather than their family. In most cases, they get the money from either an inheritance or a personal injury lawsuit settlement. While this type of special needs trust lets the disabled person protect assets without losing government benefits, there is a rule that any money left in it upon their death must be paid to the government as reimbursement for Medicaid benefits. This isn’t the case for third-party special needs trusts.

If you need help establishing a special needs trust as part of your Texas estate plan, contact our law firm for legal assistance. We can review your situation to determine which type of trust would meet your needs as you look for the most effective way to protect your disabled child in the future.

Should You Establish a Special Needs Guardianship?

Another special needs planning tool in Texas is a guardianship. This legal process involves appointing a trusted person to make decisions for a disabled adult who is unable to make their own decisions. So, if you’re worried that your child will make unsafe decisions for themselves once they turn 18 and you lose the legal authority to decide on their behalf, you should speak with a lawyer about establishing a guardianship.

Legal guardianship can be a very powerful aid for protecting someone who cannot make or communicate their decisions, may be vulnerable to exploitation by others, or cannot adequately manage their own finances or health care. That being said, the Texas court system does not take this legal process lightly since it requires the removal of certain rights, such as the ability for an adult to make their own decisions in a variety of areas.

For this reason, you will have to prove that establishing a guardianship is in your child’s best interests. You may also have to prove that other special needs options, such as a power of attorney or special needs trust, won’t be sufficient to protect your child like a guardianship would.

There are different types of guardianships, depending on what areas of life your special needs child will need help managing as an adult. They include:

  • Guardian of the person: This type of guardian has the authority to make decisions regarding medical care, housing, the daily routine, and anything else that affects quality of life
  • Guardian of the estate: This person has the authority to manage the disabled adult’s financial matters, property, income, and assets, meaning they can pay bills and manage investments on behalf of your disabled loved one
  • Guardian of the person and estate: You can request that the same legal guardian manage both the finances and personal care of your disabled family member
  • Temporary guardian: A temporary guardian may be appointed in an emergency, such as if the disabled adult is suddenly without anyone to assist with managing care, and may be vulnerable to making unsafe decisions on their own

If you’re unsure whether you need a guardianship as part of your estate plan to protect assets and relatives, it’s time to talk to a well-educated advocate familiar with the unique challenges faced by the special needs community. Contact our San Antonio law firm to discuss the legal tools your family would benefit from when you create your estate plan.

Are You Ready to Call a Special Needs Planning Lawyer in Texas?

At West & West, Greer & Estorga, we understand how overwhelming it can feel to plan for the future, especially when you need to protect a loved one with physical or mental disabilities. You deserve to feel confident that your child will be well cared for when you’re no longer here, and we want to give you that peace of mind through our estate planning services.

Our team has extensive knowledge of Medicaid, Social Security benefits, and other programs that may affect how our clients plan for the future. If you want to get started on an estate plan that takes every member of your family into account, call our law firm at 210-598-6482 to schedule a consultation.