One of the most anxiety-producing aspects of parenting a child with special needs is the fear that your child will not be financially secure after your death. This is the realm addressed by estate planning attorneys for parents of children with special needs. Why is an estate plan especially meaningful for these parents and their children?
Jubilee Menzies, an estate planning attorney at Laughlin Legal Divorce & Family Law Group in Silicon Valley, is committed to helping parents navigate the legal landscape to safeguard the assets they designate for their children with disabilities. Below, Ms. Menzies answers a number of questions she commonly fields from anxious parents.
Q How is special needs planning in California unique or different from other states?
JUBILEE MENZIES I’m a licensed estate planning attorney in the state of California and proud to practice in a state that offers generous advantages for financial support as well as a number of planning options for individuals with special needs.
One of our most profound advantages is our extraordinary state-sponsored Regional Center System. It’s a robust network of dedicated non-profit agencies across the state that work together to support individuals with intellectual and/or developmental disabilities for as long as they live. It’s remarkable.
Q I’ve been told I need estate planning for a child with disabilities in California. What does that involve?
JUBILEE MENZIES Oftentimes, parents who are looking to protect a child with special needs have to take a holistic view and understand the different ways they can use funds for their child, whether they’re setting up a special needs trust or paying directly for services or access and intend to privately support their child during their lifetime. Those are considerations that need to be fully understood so they can appreciate the consequences of each.
Estate planning for parents who have a child with special needs frequently involves creating a special needs trust. It’s also going to involve conversations about long-term caregivers and succession planning. Sometimes parents will be inclined to ask a sibling of the child to care for them, and in my experience, that’s not always the best person because it’s not always the best way to preserve a sibling relationship. Sometimes it involves looking for professionals to fill some of those roles. So this is complex territory, both practically and legally. And it requires a comprehensive conversation that your attorney can help guide you through.
Q Do I need an advance health care directive attorney in California in addition to a special needs planning attorney in California? Is that a legal specialty?
JUBILEE MENZIES In a word, no. Those are not two distinct areas of law. An advance health care directive in California is a legally binding document in which an individual captures their wishes and desires regarding who they would want to act on their behalf if they were incapacitated and needed someone to make medical decisions, and further, what those decisions would be, what their preferences are for how much treatment to have or not have, whether they would authorize organ donation or not, and it also extends to the disposition of remains after someone passes away. An advanced health care directive is used by a person who has legal capacity to plan ahead for their own care.
If a person with disabilities has legal capacity, they, too, can create an advance health care directive. If, however, they do not have capacity, that planning tool is not available. Instead, an incapacitated individual who reaches the age of majority, 18 years old, would need the court to appoint someone to step in and make decisions on their behalf. This is the conservatorship process.
Commonly, parents of children with disabilities that render them legally incapacitated are the ones who initiate the conservatorship process and seek to be appointed the conservator, or co-conservators where both parents act jointly. We are experienced in helping families put a conservatorship in place where it’s needed and can guide you through the process and the timing to make sure there are no gaps in decision-making or care once a child reaches the age of 18.
Q Does your firm provide special needs estate planning in California?
JUBILEE MENZIES Absolutely. We serve individuals and families of all different types. And many families we serve have someone in their family with special needs, someone they want to make sure will be provided for in a way that will enhance the well-being of that individual. Special needs estate planning is part of the comprehensive services we offer families.
Q As a special needs trust attorney in California, do you offer lifelong planning for a child with disabilities?
JUBILEE MENZIES Yes, but it’s not a set-it-and-forget-it proposition. It’s something that evolves.
We serve individuals and families at various stages in life. We offer a variety of services from foundational estate planning at a flat fee structure, or using an hourly fee structure when helping to resolve a specific estate planning issue that comes up during the course of a divorce, for example. Our clients come back to us at various times in their lives with distinct issues. But just as first-party lifelong planning, which is planning for yourself, is challenging because life is change, third-party lifelong planning can be even more sophisticated because there are two parties – the planner and the beneficiary – whose circumstances may change.
This is why we have a deep conversation and initial evaluation of the needs and goals of our clients and their beneficiaries before creating an estate plan. This is especially important for creating a plan for a parent of a child with special needs that will best meet the family’s needs and accomplish their goals. But things change. So we highly recommend that clients revisit their estate plan if and when the needs of the special needs child shift, or they need to be conserved; you can come back to us to conserve an individual with special needs who is now an adult. Or maybe the beneficiary of the trust passes away and we can help administer that trust for example.
It’s worth mentioning that when there are trustee changes, if you need professionals, we have a strong network of professionals who work as fiduciaries and in other areas of support, too. And we also have good relationships with the Regional Center.
Q What is a special needs trust successor trustee and what qualities should I look for in choosing one for my child?
JUBILEE MENZIES So the trustee is the individual who manages the funds that are the assets in the trust. The trustee complies with the terms of the trust because special needs trusts are highly regulated and serve a fairly narrow purpose. It’s important to have a trustee who understands what the assets in the trust can and cannot be used for on behalf of the individual with disabilities.
So when you’re looking for a successor trustee, oftentimes you’re looking for someone with a certain level of sophistication and understanding of benefits for the individual with special needs, and you’re also looking for someone who will be available for the lifetime of the beneficiary. And so, for example, it’s probably going to be a mismatch to nominate a grandparent to serve as the successor trustee for a grandchild, because the beneficiary grandchild is going to outlive that grandparent nine times out of ten.
Q My spouse and I just separated. Do you do divorce estate planning for families with a special needs child?
JUBILEE MENZIES Yes, I do. There are very specific considerations for estate planning during divorce because there are automatic temporary restraining orders in place when couples are divorcing, so not everything in an estate plan can be changed.
We routinely work with families during divorce where one spouse hires us to create their post-divorce individual estate plan. And in the context of a parent of a child with special needs, we’ll draft a plan that will protect that child.
Q As a special needs trust review attorney, how frequently do you recommend reviewing my child’s trust?
JUBILEE MENZIES Conventional wisdom holds that estate plans should be reviewed every 3 to 5 years. But in the context of a child with special needs, particularly before that child reaches adulthood, I feel that every 2 to 3 years is better. But anytime there’s a change in your life that can impact your child with special needs you should review your plan.
Changes that could impact your child would include:
- If the support needs of your child change drastically
- If there’s a wealth event and you’re looking at significantly changing the amount of funding in a third-party special needs trust for the child
- If there’s a change to your successor trustee, perhaps the trustee you’ve named has passed away or is otherwise unavailable
- If your child is ready for school or there’s an educational shift and you’ll need funding for it
This is why you have a special needs trust – it’s a customized financial tool designed to accommodate, manage, protect and distribute the funds you’ve dedicated to your future and the future of your child..
Q My child is turning 18. Can you help me consider an advance healthcare directive for a special needs child?
JUBILEE MENZIES Yes. So this is where conservatorship enters the picture. If a young person who reaches the age of majority has capacity, they can create their own advance health care directive, and they can make those medical decisions. And they can put their decisions and their wishes into a legally binding document, saying who they want to act on their behalf and what types of medical care they would like to receive, and what types of limitations they may or may not want to put on it, and things like that. So it’s contingent upon the individual having capacity.
The law generally presumes that an individual has capacity. However, when a child has significant disabilities and they’re 18 or older, the parent cannot just step in and make decisions for their now adult child. The parents need to have a court make a legal determination of the capacity of the adult child with disabilities. To that end, the parent(s) will file a Petition for Appointment of Limited Conservator, a formal legal proceeding seeking to be appointed as the conservator(s) of the adult child, and the adult child will be evaluated and a Capacity Declaration will be completed by a psychologist and/or physician, and a Court Investigator will look into the the adult child’s living options, and there will be a separate attorney appointed to protect the child’s best interests. So it’s a process, sometimes a lengthy process taking up to a year, designed to arrive at the very best outcome for that particular adult child with special needs.
And if you are appointed your adult child’s conservator, we can help you navigate the options to put an estate plan in place on behalf of your adult child, which may include filing a petition to obtain court authorization to draft a third-party estate plan on behalf of your adult child. In California, the adult child’s best interests are always at the heart of every legal decision.
Q What’s covered in advance healthcare directives in California?
JUBILEE MENZIES Advance healthcare directives allow you to nominate an individual to act on your behalf and make decisions for you. It allows you to authorize the extent of medical care you would like with specific instructions. It allows you to make known your wishes on organ donation, whether it’s unrestricted organ donation or for specific purposes such as transplant only or educational or research purposes. It also allows you to make known your wishes for the disposition of your remains, whether cremation, burial, eco-friendly alternatives, or whether you want to allow your agent to make that decision.
Sometimes individuals will want no extraordinary measures of care for themselves or don’t want their life to be artificially prolonged. Or they want to allow a period of time for their loved ones to come and say goodbye. Maybe there are members of the family who live abroad and you want to allow them time to travel. People don’t always think about it but it’s something that comes up often especially in regions with a highly mobile population like the Bay Area.
In sum, advance healthcare directives should be as rich in detail, and as individual as its subject. No two alike.
Are you searching for a Special Needs Trust lawyer in California for someone you love?
Laughlin Legal Divorce & Family Law Group is a premier estate planning law firm in the Bay Area with a collection of highly skilled Special Needs Trust attorneys who are trusted throughout California for their ability to understand and secure their clients’ needs and values for a better tomorrow.
Call us at 650.343.3486 to schedule your FREE 20-minute consultation. If you’d prefer, you can email us to set up your appointment. If we miss your call, we will respond promptly and call you back as soon as possible.
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