Bay Area Special Needs Trusts Attorney
The Need. People with disabilities are arguably the nation's largest minority population. Some treatises claim that as many as 1 in 5 Americans suffer from disabilities, ranging from mild to severe. In many cases, for minor children and adult children with disabilities, parents and grandparents are the only persons interested in the welfare of their disabled children and grandchildren, and are the only ones available to advocate for them. When they are gone, there is no one to insure that these children and grandchildren receive benefits that provide them with comfort and quality of life above and beyond the basic needs provided by public benefits, but without jeopardizing those core public benefits.
Those who are injured and disabled and receive damages to compensate them - often in the form of structured settlements - also require special needs or supplemental needs trusts to insure that they keep in place core public benefits, while insuring that they also receive supplemental benefits from their damages awards.
Laing Law Offices stands ready to advise and represent you concerning special needs trusts and supplemental needs trusts. Contact us to learn more.
Two Kinds of Public Benefits: The two types of public benefits are so-called "needs based" benefits (Supplemental Security Income, or "SSI", and Medi-Cal) and so-called "entitlement" benefits (Social Security Disability Insurance, or "SSDI", and Medicare). Anyone eligible for SSI automatically receives Medi-Cal benefits because of the "categorical linkage" between those programs. Only recipients of "needs based" benefits require a special needs trust to provide additional benefits that are not counted as income or property for purposes of disqualifying a person from continuing to receive these core benefits.
Two Kinds of Special Needs Trusts: The two kinds of special needs trusts are so-called "first party trusts" - trusts funded with the beneficiary's own money, such a settlement from a personal injury case - and "third party trusts", which are trusts funded with the money and property of a parent, grandparent or third person other than the beneficiary. For first party trusts where professional management, investment and tax services are not readily available because of the amount of money that will be placed in the trust, pooled special needs trusts, which must be run by not for profit, tax-exempt corporations, are available. Each pooled special needs trust has its own fee schedule and admission fee that is paid when the beneficiary joins the pooled special needs trust and turns over his assets to the trustees of the trust. A disabled individual may join the pooled trust through his or her agent acting under a properly drafted Durable Power of Attorney, his or her court appointed conservator, or by another person acting under an Order of Court.
Laing Law Offices will assist you with any of the above trusts, and with pooled trust arrangements. Because of our estate planning experience, we can provide our clients with properly drafted durable powers of attorney for beneficiaries who are competent to facilitate first party, pooled trust arrangements. Because of our related practices of family law and estate planning law, we are especially helpful in planning and drafting third party trusts.
Family Law Issues in Special Needs Trusts: The Federal Rules and definitions that govern Special Needs Trusts were drafted without consideration for Community Law concepts that permeate California Family Law. Additionally, we find that it is wise to remember that adult children with disabilities may, nevertheless, possess the legal capacity to marry and divorce, receive child and spousal support, incur child and spousal support obligations, and receive and lose property in marital property divisions or because of transmutations of property from community property to separate property, and vice versa. Each of these events poses a risk to basic Public Benefits. Because of our practice in the area of Family Law and Community Property Law and Transmutations of Property, we at Laing Law Offices will be able to assist you to, in most cases, prevent the inadvertent loss of core Public Benefits because of the conflicts between California Community Property concepts and Federal Law governing Public Benefits.
Common Estate Planning Issues Concerning Special Needs Trusts: Third Party Special Needs Trusts can be drafted in a variety of manners. Inter Vivos Trusts are drafted and typically, minimally funded, while the Third Parties, usually parents and grandparents, are living. These Trusts act as a receptacle for later gifts, including insurance policy proceeds and post-death distributions from parent and grandparent trusts. Frequently Special Needs Trusts are contingent or testamentary trusts contained within an estate planning Trust. However, when one spouse funds a Third party Special Needs Trust for his or her surviving spouse, the Special Needs Trust must be a Testamentary Trust contained in a Will in order to be valid.
Special Needs Trusts and Pooled Special Needs Trusts can provide assurance to families and disabled children, and to disabled victims who receive financial compensation for their injuries. However, in California they require planning to achieve desired results and to harmonize California Family Law, California Estate Planning, and California Community Property concepts with Federal Public Benefit Law and a myriad of California State and local rules, policies and regulations.
Laing Law Offices stands ready to assist you and your loved ones with your Special Needs Trusts. Contact us to discuss your estate planning needs.
LAING LAW OFFICES
100 Larkspur Landing Circle, Suite 110
Larkspur, Ca 94939
T: (415) 461-3133
F: (415) 461-4022
At Laing Law Offices, we serve clients in Larkspur, Corte Madera, San Rafael, Mill Valley, Sausalito, San Francisco, Santa Rosa, Petaluma, Novato, and communities throughout the Bay Area, including those located in Marin County, San Francisco County, Sonoma County, Alameda County, and Contra Costa County, California.
