If you have a minor or adult child with special needs, financial concerns are likely top of mind. Often, family members or close friends want to help you by gifting to your child or leaving an inheritance to them. Though this generosity may be appreciated, there can be unintended side effects of gifting outright to someone who has special needs.
Outright gifts can affect your child’s eligibility for some government benefits if they are 18 or older. This is important to keep in mind because frequently an adult with special needs cannot earn enough income working to meet their own basic living expenses. Medicaid and Supplemental Security Income (SSI) are needs-based government programs designed to cover costs related to food, shelter, and medical care. These benefits can be valuable by alleviating some of the financial burden that falls on you as the parent. In turn, they allow you to focus your own financial planning around supporting your child with supplemental expenses not covered by these benefits, saving for your retirement or your future long-term care costs, or providing for your other children.
Outright gifting also raises concerns about who will manage the assets that are given to the individual and how they will be protected from fraudulent attempts or creditor situations. There are planning strategies that can help with these areas. These strategies cover two categories: those gifts or inheritances that have already been completed, and future gifts and inheritances.
Completed Gifts and Inheritances
With completed gifts and inheritances, different considerations apply depending on whether your child is a minor or an adult. If you have a minor child who has received gifts or inheritances in their name, the money might be held in a Uniform Gift to Minors Act (UGMA) account or Uniform Transfer to Minors Act (UTMA) account. Any money deposited into a UTMA is an irrevocable gift, which means, even though you’re the parent, you cannot simply transfer the assets into your own account. Instead, the strategy to consider is using these accounts to cover expenses before your child reaches the age of majority. The idea is to allow them to benefit from this money now, while it is shielded from the Medicaid and SSI asset tests. In order to qualify or to continue to qualify for these government benefits when your child reaches age 18, they typically cannot own more than $2,000 in assets.
If your child received a larger windfall that will not be spent down in time, or if they are already close to adulthood, you may want to consider a “self-settled” special needs trust. This is a trust that is set up by a parent or grandparent where the child is the beneficiary. This trust is funded using your child’s own assets. An attorney can help you decide which type of self-settled special needs trust is best. There will be specific language written into the trust document that limits the use of the trust to those expenses not covered by government benefits. If there are any remaining assets in the trust after the life of the beneficiary, the money will first pay back the expenses covered by Medicaid before being disbursed to the remainder beneficiaries.
Future Gifts and Inheritances
For those gifts or inheritances that have not yet been completed, you can plan in advance by establishing a “third party” special needs trust, where your child is the beneficiary. This trust is funded using assets that are not owned by your child. Like the self-settled trust described above, the attorney who is helping establish the third-party trust should include specific language limiting the use of the money to supplement, not replace, income provided by SSI or Medicaid. Unlike the self-settled trust, any money that remains in the trust will not be used to repay Medicaid. Other remainder beneficiaries are named to receive the leftover assets.
The assets in both trusts will be protected against creditors should an issue arise with your child in the future. There will also be a trustee named who will oversee the money. This function protects your child if they are unable to manage their own finances or if they are susceptible to fraudulent phone or email attempts to obtain money.
You will likely name yourself as the trustee so that you can manage the investments and make withdrawals to cover your child’s supplemental expenses. Keep in mind that any payments from the trust should be made for the benefit of your child only and should be paid directly to the service provider.
You will also name a successor trustee to step in, if something were to happen to you. This person should be familiar with your child and have no conflicts of interest with the money. The person should be financially competent and agree to serve when the time comes. You may also want to consider a professional or corporate trustee as a co-trustee. This trustee can act as the investment manager of the assets or take over the administrative tasks surrounding the trust and help with the coordination of SSI and Medicaid benefits. Having a corporate trustee can provide some relief to the other trustee who may have other responsibilities to focus on. An alternative option is to name a “trust protector” who can advise the trustee on issues around investments and government benefits. The trust protector will not have any legal authority over the trust but can provide support when needed.
Finally, the trust should be accompanied by a Letter of Intent, written by you. This is not a legal document, but it outlines, in specific detail, your wishes for your child when you pass away. This document will be helpful for your successor trustee and other family members who will be supporting your child.
There are many complexities surrounding special needs trusts and special needs planning in general. Be sure to seek guidance from professionals who have expertise in this area
To learn more about how we can help at Modera, please contact Mindy Neira.
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