While day-to-day obligations can certainly get in the way, at some point as a parent of a child with special needs you will need to create a special needs trust to shelter and manage whatever you may leave the child. This is the only safe way to make sure that the funds you leave are protected and well managed and that the child, who by then is probably an adult, can continue to qualify for vital public benefits.
Here are some of the questions you will need to consider in guiding their attorney to create the trust:
The short answer to this question is, yes. In addition to providing assistance with the cost of nursing home care, MassHealth provides some assistance with the cost of care at home or otherwise referred to as "in the community." However, the assistance is supplemental as opposed to the comprehensive coverage for nursing home care and there are a variety of different programs available, so you will need to the choose the one that best fits your parents’ needs. A few of the programs available are the Personal Care Attendant, Adult Foster Care, and Community Choices.
I was recently consulted by the trustee of a special needs trust who was wondering how she could use the trust to distribute money to the beneficiary, who is her niece. Any regular distributions would cause an increase in the niece's rent in subsidized housing. The problem is the language of the trust which requires that
payments will not render Jane Doe ineligible for any benefits of cash, medical, housing, or other forms of assistance which Jane Doe receives or may receive as a result of any disability, handicap or needs from any state or federal government or governmental agency, from any charitable source, or from any private insurance company or other organization that may provide payments, housing, services or assistance to disabled, handicapped or needy persons and, furthermore, that such payments will not, in the Trustees' judgment, cause a reduction in any such benefits that Jane Doe receives.
The law deems us to be of full legal capacity when we reach age 18, unless we’re incapacitated for some reason other than insufficient age. And we’re presumed to be competent until a court decides otherwise. So what should parents do when they have a special needs child who is about to turn 18? As with most things, there is no hard and fast rule or simple answer.
The story of a Massachusetts attorney who received a three-month suspension for failing to fulfill his duties as co-trustee of a special needs trust should serve as a cautionary tale for any attorney (or anyone else for that matter) asked to step into this role. The attorney was only two years out of law school when in 2003 a client asked him to become the independent co-trustee of a special needs trust for the benefit of the client’s son.