If you are the parent or sibling of a loved one with special needs, you know the importance of making sure they’re protected and able to enjoy the best possible quality of life. These crucial and meaningful goals should also be considered as part of your estate plan.
A writing from the Special Needs Alliance sums it up effectively:
While planning considerations for such a child will vary depending upon the child’s age, competency, and other family considerations, the goal is always the same: parents want their estates utilized to enhance and enrich the life of their special needs child while maintaining the child’s enrollment in essential public benefits programs.
Let’s explore some of the important considerations to discuss with your estate planning attorney as you seek to provide for your loved one who has special needs, including guardianships, conservatorships, and specialized trusts:
Guardianships and Conservatorships
If your child currently has a guardianship or conservatorship in place, it is important to review those arrangements. In particular, if you are currently serving in the role of guardian or conservator to a person with special needs, it is important to plan ahead, and take steps to ensure that someone of your choosing will be in a position to succeed you when you are unable to serve.
A guardianship may be established when an individual cannot make or communicate informed general care decisions for themselves. In such circumstances, a guardian would act as a substitute decision maker for the individual (known as the “ward.”)
Broadly speaking, a guardian is responsible for providing for the general well-being and care of their ward. Depending on the specific needs of the ward, a guardian’s powers can be quite broad or fairly limited. Michigan law is designed to “encourage the development of maximum self-reliance and independence in the individual,” and allows for guardianships to be closely tailored to each individual’s unique situation.
Generally. depending on the powers granted by the court, a guardian is responsible for the individual’s care and comfort, including providing suitable food, clothing, and shelter; applying for and obtaining services on their behalf; and authorizing or refusing medical treatments.
As Michigan’s Handbook for Guardians of Adults explains, if you are currently serving as guardian for your child of any age, “you may in your will nominate a successor guardian,” who would “take over the guardianship when you die.” This may also be accomplished through another writing signed by the parent and attested by at least two witnesses.The individual in question or another interested person would have the opportunity to object to the appointment of the successor guardian in court.
A conservator is appointed by the court to manage a protected individual’s estate and finances. Conservatorships are established when an individual can no longer effectively manage his or her own property and financial decisions, generally due to conditions including “mental illness, mental deficiency, physical illness or disability, chronic use of drugs, chronic intoxication, confinement, detention by a foreign power, or disappearance.” For a conservator to be appointed, the court must also find that
the individual has property that will be wasted or dissipated unless proper management is provided, or money is needed for the individual’s support, care, and welfare or for those entitled to the individual’s support, and that protection is necessary to obtain or provide money.
Whereas a guardian is broadly responsible for making medical, housing, and other personal decisions about the person, the conservator is responsible for the care and preservation of all the individual’s assets and property. The same individual can be appointed to serve as guardian and conservator, or these roles can be delegated to two different parties.
Conservatorships are important to consider as you begin the process of estate planning. Generally speaking, “a parent of the protected individual or a person nominated by the will of a deceased parent” has high priority to be appointed as conservator if necessary, behind only
- A conservator, guardian of property, or similar fiduciary appointed or recognized by the appropriate court of another jurisdiction in which the protected individual resides
- An individual or corporation nominated by the protected individual if he or she is 14 years of age or older and of sufficient mental capacity to make an intelligent choice, including a nomination made in a durable power of attorney.
- The protected individual’s spouse
- An adult child of the protected individual
Whether you are considering who to appoint as a successor guardian or conservator, or you are considering whether creating a guardianship or conservatorship will be necessary when you are no longer around, it is important to get guidance and insights from an experienced local probate attorney.
Guardianship and conservatorship matters are highly emotional, and the rules surrounding these proceedings can be confusing and difficult to parse. There are many steps that one has to take — and it is unwise to go into them without an intelligent and experienced lawyer at your side, fighting for your rights and the well-being of others.
Supplemental (Special) Needs Trust
A trust is a written agreement created by a settlor or grantor, which names an individual who is responsible for managing property transferred into the trust as directed by the trust agreement. Trusts are frequently used in Michigan to supplement estate plans, and can help avoid lengthy probate issues. With that said, it is important to note that there are several different types of trusts that suit different needs — including providing for your loved ones with special needs.
To help illustrate this, let’s consider a (fictional) married couple, Al and Michelle. Al and Michelle have a disabled child, Larry, who is receiving government benefits.
Unaware of the interaction between inheritance and government benefits, Al and Michelle create a simple will that distributes their assets equally among their two children, Larry and his brother Ronald. Michelle and Al eventually pass away within days of each other.
A subject of the probate process, Larry, now without his parents to care for him, receives a letter from the State of Michigan. Without compassion for his situation, the letter reads that the state will be making a claim against his inheritance for the past governmental benefits he had received.
This situation is more common than you might think — and could likely have been avoided with a supplemental (special) needs trust established for Larry’s benefit.
A supplemental (special) needs trust is designed to help your future beneficiaries who happen to be physically, mentally, or developmentally disabled and who are receiving — or are likely to receive — government benefits, such as Supplemental Security Income (SSI).
The structure of a special needs trust helps provide for the continuing care and maintaining quality of life for your loved ones with a disability, while increasing the probability that an inheritance will not disrupt their government benefits.
It is imperative that you create the trust and not leave it to your heirs to do so. These specialized trust structures can be set up through a revocable living trust while you are still alive, or incorporated into your will as an irrevocable testamentary trust.
Trusts are a popular estate planning tool, but it is often essential to receive guidance from an experienced, skillful, and knowledgeable attorney in order to ensure that they are properly established and maintained. You should not hesitate in contacting a professional and shrewd trust attorney, who can help you to assess your estate, find the right type of trust for your needs and goals, and gain a better understanding of the benefits that might result from establishing a trust — particularly if you have a loved one who receives or is likely to receive government benefits in the future.
Keep the Discussion Going with Michigan’s Probate Attorneys
Interested in learning more about the ins and outs of guardianships, conservatorships, and trusts in Michigan? Ready to start making plans for your future, tailored to the specifics of your unique circumstances?
Our skilled law firm is here and ready to assist with all of your estate planning and probate needs, including all of the specialized steps you may wish to consider to provide for and protect your loved ones who happen to be physically, mentally, or developmentally disabled.
If you require further legal advice or if you are looking for representation as you move forward with your estate planning goals, don’t hesitate to call our Southfield, Michigan office at (833) 469-4897 to set up your initial consultation. You may also click here to get in touch online.
At the Law Office of Dean E. Patrick, PLLC, we will work hard to accomplish your goals, while handling your matter with professionalism and expertise. Mr. Patrick can help you navigate through all the legalities and formalities, so that you can rest assured that you and your loved ones will be taken care of, whatever life brings.
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