Three Essential Documents for Parents of Children with Special Needs

By Rebecca J. Benson

If your child has special needs, a standard estate plan – will, trust, power of attorney, and health care proxy – may not meet your family’s needs.  If your child will not be able to support herself or live independently as an adult, you need to make special provision for her in your estate plan.  Here are three must-have documents:

Special Needs Trust – Instead of leaving your estate directly to a disabled child, the funds should be left in a specially-drafted trust for the child’s benefit.  This will ensure that the funds are properly managed for the child’s lifetime.  And provided that the trust is properly administered, the trust funds will not be “countable,” which helps to preserve your child’s eligibility for public benefits such as SSI and Medicaid (MassHealth).

Guardianship Nomination – Your will should include a guardianship nomination for all of your minor children.  But when your child turns 18, she is considered to be an adult by law, even if her disabilities are very severe.  For more information about what to do when your child turns 18, please see this recent article.  Massachusetts law now permits parents when appropriate to nominate a guardian for their adult disabled children in their wills as well.  Taking the time to select a guardian for your disabled child reduces stress and uncertainty for other family members after your death: the person you nominate as guardian is automatically given preference by the Court. 

Letter of Intent – This is a non-binding document that captures vital information about your child for future caregivers and trustees.  It can include information about your child’s routines, preferences, medical history, allergies, and so on.  As parents, you have gathered a lifetime’s worth of information about your child – information that will be invaluable to your child’s future caregivers.  You can ask your attorney to keep a copy of the Letter of Intent with your other estate planning documents.  

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