This section is not intended to replace the role of a knowledgeable estates and trust attorney experienced in future care planning – for you will, in fact, need an attorney. This guide is designed to provide you with the knowledge you will need to work with an attorney.
One of the most comprehensive and informative documents on financial and legal planning is PLANNING FOR THE FUTURE, A GUIDE FOR FAMILIES AND FRIENDS OF PEOPLE WITH DEVELOPMENTAL DISABILITIES, 2006, 6th Edition, New York State Developmental Disabilities Planning Council (DDPC). Much of what follows is excerpted from that book (40).
The purposes of financial and legal planning as outlined in the DDPC book are:
- To give the person with disabilities an opportunity to receive some tangible assets (financial and personal property) during his/her lifetime to allow him or her a better quality of life,
- To assist that person in maintaining needs based benefits; i.e., Supplemental Security Income (SSI) or Medicaid
- To insure that persons enjoy quality of life by receiving appropriate support and services
- To give people with developmental disabilities control over where they live, how long they live there, with whom they live and who assists them in their daily lives.
By taking such action, you will be enhancing your overall Transition Plan. Using the services of a lawyer specializing in planning for children and adults with special needs to protect your assets and assist you in qualifying for various government benefits is a useful and important component of a strong Transition Plan. These lawyers are referred to as “special needs planning attorneys.”
Even if your child or young adult were to rely solely on State and Federal government benefits– and to do so you would have to qualify with a very low income—and will still need to develop a financial plan to supplement the government benefits. There are a number of key legal and financial features you can build into your family member’s personal and financial future care plans to ensure her/his well-being. Many people do not realize that if you do not have substantial assets, you can still make choices about how your available resources can best supplement whatever government benefits are available.
The Financial-Legal Team
To assist you in transition legal and financial planning you will need a lawyer (special needs planning attorney) who is thoroughly familiar with trust and estate planning in general, government benefits, and the specialized needs of people with disabilities. You may also need a financial planner or insurance agent who is familiar with financial planning, an accountant who is familiar with the family’s financial matters; a Trustee and possibly a guardian (if needed).
The role of an attorney is to advise you of the laws affecting you and your family and how to best plan for the future. This will include creating strategies for planning to further a public-private partnership in which your funds supplement public benefit programs. Your attorney will advise you about the choice of trustees, fiduciaries, executors, and guardians and any legal problems that may arise from implementing the plan.
How to Find an Experienced Special Needs Planning Attorney
There are many ways to go about identifying a lawyer who can help you and one you can afford. One course of action is to ask your primary care physician—your medical home physician or care coordinator—and individuals in the hospital you know well or in the community where you live. Local lawyers are most likely to have the most informed view of need and services in your community.
For a wider referral base, you may also contact the New York State Bar Association Lawyer Referral and Information Service at 800-342-3661, or by email.
From the NY State Bar Association web site: What is the cost?
“If you are referred to an attorney through the lawyer referral service, the attorney will provide you with a half-hour consultation for a small fee. (Free consultations are given for personal injury, social security, medical malpractice, veteran’s and military law, unemployment or workers’ compensation.) During your visit with the attorney, you and the attorney will discuss your matter and decide what further action to take, if any. There is no obligation for you to hire the attorney, nor is there any obligation on the part of the attorney to take your case. If the attorney agrees to represent you, the attorney will charge you at his or her regular rates.
If you can’t afford to pay a lawyer, there may be a legal services association that can help. Visit lawhelp.org/ny for further information.”
You can also contact: Academy of Special Needs Planners, which is a national network of qualified attorneys who have demonstrated a commitment to assisting those with special needs and their families.