Dive into ABLE accounts and special needs trusts

Posted on December 3, 2021 by Parker Counsel

We frequently get asked by families whether an ABLE account or a special needs trust is best for them. The short answer is a typical lawyer answer: it depends. The medium answer is that they serve different purposes and its not a matter of choosing one or the other, its about choosing the best vehicle for specific purposes, and in the end, most families should have both an ABLE and a special needs trust.

They both serve as a place where money can be accumulated for a person with a disability without interfering with eligibility for SSI and Medicaid benefits. Past that commonality, there are significant differences.

Ownership

An ABLE account can be owned and even managed by the person with the disability, if they otherwise have the ability. The disabled individual can make his or her own decisions and use a debit card or checks to pay for items.

A special needs trust must be managed by a trustee, who makes all the decisions about investment and use of the money in the trust. The person with the disability, or a guardian or caretaker, can propose expenditures from the trust, but the trustee makes the final decision and handles the purchase.

Holdings

An ABLE account has both yearly and lifetime deposit limits, at least for purposes of excluding assets from consideration for SSI and Medicaid eligibility. Up to $15,000 per year (approximate, this amount is tied to an index so will vary slightly year to year) may be deposited without impacting SSI or Medicaid eligibility. A maximum of $100,000 total can be held in the ABLE account without impacting SSI or Medicaid eligibility. The yearly deposit limit is far below what a person might typically receive from a parent upon the parent’s death, when property, retirement accounts and life insurance are all figured in. An ABLE account can hold only cash, as well, so if a child is left property other than cash it could not be shielded by the ABLE account. Money can be contributed by any person.

A special needs trust has no limit on the amount that can be contributed to it at any time, nor a maximum value overall. A special needs trust can also hold any type of property, including a house, car, or other non-cash assets (with the exception of a pooled trust, which is not discussed in this article). Like the ABLE account, money can be contributed by any person, but if the disabled person will be a contributor then the trust itself must have some special provisions.

Number of accounts

A person may have only one ABLE account. It is not possible to get around the contribution limits by opening multiple accounts, as only one account is legal permitted.

A person may have any number of special needs trusts naming them as beneficiary. Each parent and each individual grandparent could set up their own special needs trust for a person if they so chose, giving them the ability to choose the trustee and terms of their own liking.

Read more on ABLE accounts and special needs trusts:

ABLE Account Q&A,

4 Things to know about ABLE Accounts,

How NOT to use special needs trust money,

Does your child need a special needs trust to get Medicaid?,

The basics of special needs trusts

A special needs law firm can help you figure out what you need for your child, and how to put all the planning pieces together.

If you have questions about preparing for your own special needs child’s future, Parker Counsel Legal Services a call or shoot us an email. legal@parkercounsel.com or 833-733-2668

A wonderful home looks different for everyone, even those who require a little help

Posted on May 28, 2021 by Parker Counsel

A large part of special needs planning involves thinking about the living situation your child will be in when they become an adult. Many families never really think about it and simply continue on with their now adult child living at home in pretty much the same way they have been all along, but without the structure of school. Other families struggle to come to terms with the fact that their child has needs the family can no longer handle on their own. And other families prepare elaborate, detailed plans for what they see as an ideal living situation, if only it existed.

There is no such thing as an objectively good or bad choice for your child’s home. The safety and happiness of your child are prime considerations, but what makes your child safe and happy may not look at all like what makes another person’s child safe or happy.

Your child’s adult living situation will depend on a number of things:

their physical and other needs
the family’s resources
the needs of other family members
your child’s wishes
available options
and an infinite number of other factors

Even between two people with the same diagnosis, the “best” living situation for each of them will vary just as it does among you and your own friends. While you may long for a rural cottage home, your best friend from high school might be living in a highrise condo in the city. Our children with special needs are no different – there is no one right answer for how they should be living once they reach adulthood.

Here are some examples of what clients of ours have done:

A family of a child with physical disabilities laid out a plan to modify their home and find caregivers so that the child could live with them as long as possible and still have mobility and room for equipment.
A family of a child with severe behavioral issues found that an outside residential care setting provided the best solution for their child and family.
A family with an adult child made plans to purchase adjoining homes so that they could maintain close contact while supporting semi-independent living.
A family with an adult child that was able to articulate her own goals for herself helped her find a group home that had the support she needed but met her goal of having her “own place.”
A family whose child had intensive medical needs determined that a nursing home setting near their family home provided the best care while allowing lots of family contact.
A family with a special needs child built an apartment above their garage for the child to live in with some amount of privacy, while joining the family for meals and socializing.
A family with aging parents focused on finding a variety of support people to provide both physical and supervisory supports to their adult special needs child so that the parents could phase out of direct care giving.

Some choices are obvious and easy, and other children’s needs present very real challenges in figuring out adult housing. Remember that nothing need be permanent – if you try something and it’s not a great fit, try something else. Housing and adult support looks different for everyone. Setting your adult child up in a home that is not with family is not right for everyone, but it is right for a lot of people and should always be at least considered. The reality is that most children with special needs will outlive their parents, and so will be in housing without family at some point in their lives. Finding that housing and preparing them for it while the parents are still alive and able to be involved may be a kindness both to the adult child and also to the rest of the family.

Once you have an idea of what you want your child’s future home to look like, talk to a special needs law firm who can help you figure out how to set it up and finance it.

While home may look different for everyone, good planning is always needed to pull off the goal. When you’re ready to start, call or email Parker Counsel Legal Services for a quick consultation on how we might be able to help. legal@parkercounsel.com or 833-RED-BOOT (833-733-2668)

Safeguard your loved ones by reviewing old beneficiary designations

Posted on April 23, 2021 by Parker Counsel

Stick this chore under the heading “As adult as adulting can get.” You’re doing great at adulting if you have a retirement plan, life insurance, investments accounts, bank accounts, and the like. Checking the beneficiaries periodically is part of the package, though, so if you haven’t done it in a few years, it’s time.

Circumstances change, and even if you think you know who you named as beneficiaries, you’d be surprised how many folks check and find out its someone they forgot they had named, or thought they had already changed. If your retirement plans (401(k)s, 403(b)s, or IRAs, etc) are held or managed through your employer, they can probably help you find your designations. If they can’t find your designations, contact the company (or agency, if it is a state sponsored plan) and ask.

While your plans will go to your probate estate if there are no beneficiary designations or if they cannot be located, this is a more cumbersome and expensive process than having a beneficiary designation. There can also be unfavorable tax implications if the account passes through a probate estate, so it is worth the time to make sure you have and update beneficiaries. And while you’re at it, make sure you get a copy of the designation page to keep with your will so that your representative will have an easier time taking care of things.

Life insurance polices may also need to have beneficiaries updated periodically. A payout to a named beneficiary is typically much faster than having a policy distributed through your estate.

And finally, call your banks and check for beneficiary designations on all your accounts. It is fairly common for the paperwork provided upon opening an account to include a question about beneficiaries, and many people don’t even remember that they did this when opening their accounts. So take a look and make any updates needed.

A special needs law firm can help you identify areas of your planning that might jeopardize your overall plan for your child.

If you need to do estate planning, or update a plan you did a while ago, we can help. To find out more, contact Parker Counsel Legal Services at 833-RED-BOOT (833-733-2668) or legal@parkercounsel.com

Five quick ideas to alleviate fear of the unknown and improve your estate plan

Posted on April 22, 2021 by Parker Counsel

You may be sick of the word “unprecedented,” (I know we are!) but the truth is this year has been like no other. If you haven’t before, you probably have been confronted with the reality that our lives and all the safeguards we have gathered around us are fragile and impermanent. Knowing how much our special needs kids depend on us will make you either freeze with fear or go into high gear trying to prepare for every contingency. If, like so many of our recent clients, this past year has caused you to think more than usual about making sure your “affairs” are in order, we have some suggestions for things to be thinking about.

If you have an estate plan, get it out and look it over. Make sure it still fits your family’s needs.
If it took you a while to find your estate plan, pick a good place to keep it from now on and let your trusted family members know where you keep it. Make a note in your calendar for a year from now to go look at it again, and tell yourself in that calendar entry where it is.
Touch base with the people you have named as executor, trustee, agents in your powers of attorney, and any backup people you have named. Ask if they have any questions about what their duties are and what they should do when you pass. Your older and adult children especially want to know what you have planned – read one sibling’s perspective here.
If you haven’t done your estate plan yet, take some time to think about what you want to do. We’ve posted some light hearted articles analyzing how famous movie deaths have been affected by estate planning choices. Seeing how estate planning can have consequences for your family might get your planning juices going. Batman, Cinderella, Ghost, Harry Potter
Compile or update the non-legal information about your special needs child. If you suddenly come down with a severe fever and have to isolate and can’t communicate, will your child’s substitute caretakers have easy access to information about emergency numbers, medication, and daily care? Create a binder or accessible computer file with the information that will be needed quickly in a pinch.

Although estate planning may seem overwhelming, the attorneys at Parker Counsel Legal Services, a special needs law firm, can guide you through the process and provide ideas drawn from real life to help you put a plan in place and help you keep it up to date with your own changing circumstances. We’re here when you need us.

Peace.

You’re Forgetting Someone Important

Posted on February 25, 2021 by Parker Counsel

Special needs planning when your child has siblings

(This guest post was written by Cassidy Parker Knight, the adult daughter of one of our attorneys. )

If you’re a parent of a child with special needs, you’ve probably spent some time wondering about what your child’s future will look like once you’re not around to take care of them anymore – maybe a lot of time, and maybe more worrying than wondering. Where will they live? What money will support them? Who will take care of them?

“the reason you’re worried is because you won’t be around, but the reason your other kids worry is because they will be around.”

You may not realize it, but if you have other kids who aren’t disabled, they’ve thought about it too. Of course, the reason you’re worried is because you won’t be around, but the reason your other kids worry is because they will be around. They may worry that you plan on your disabled child living with them and they don’t want that, or they may worry that any financial burden will fall to them, and wonder what happens if they can’t afford it. If they’re older, they may worry that there is no plan, and that it will be all on them to figure out after you’re gone.

I think I was in middle school the first time the thought occurred to me that someday, my parents would be gone and it would just be me left to care for my brothers. It’s overwhelming, at just 12, to start worrying not only about your parents dying someday, but all the lifelong responsibilities that will come with those deaths. And the older your kids get, the more aware they’ll become of what those responsibilities entail. I’ve spoken to siblings who made decisions about college, their profession, where they live, and whether they start families all based on their future responsibilities for their siblings.

For a parent, it must be overwhelming to think about planning a future for your child that you won’t be a part of. It can be easy to think that you’re shielding your other kids from that worry, but in reality, the opposite is true. Your disabled child’s adult siblings are your biggest allies, and filling them in on any estate planning you’ve done or wishes for the future you have will also be a kindness to them. It can also help you both to spot problems with the plan while you still have a chance to make your voice heard—for instance, if you want your child with special needs to live with your abled child and you learn that your abled child doesn’t want that, it’s probably important to you that you have a say in the alternative.

In all the conversations I’ve had with other siblings though, the most common worry I hear about the future is not about the responsibility or having to take care of their sibling—it’s about the uncertainty. If you have the estate planning under control, fill your child in, especially if they’re not really a child anymore. Let them know what roles they should and shouldn’t expect to play, and give them an opportunity to tell you whether that fits the role they want to play. Most importantly though, there should be a plan. If that part hasn’t been done yet, starting that process would really be the greatest kindness you could do all of your children.

If you are concerned about your special needs child’s sibling, and want to be sure your plan for your special needs child works for their siblings as well, call Parker Counsel Legal Services at 833-733-2668 or email to set up a short information call to see how our special needs law firm can help you.

Special needs planning blueprint

Posted on August 12, 2019 by Parker Counsel

This checklist keeps you organized as you work through creating a plan to care for your child with special needs in the future. Broken into sections that track the Four Keys System we use with our clients, this Blueprint will let you dive in wherever you can without missing items you need to come back to.

Myth vs Attorney

Posted on June 17, 2019 by Pamela

As a special needs parent myself, I regularly tell our clients that getting connected to parent support groups is almost a necessity to get through life with a special needs child. Traditional sources of parenting wisdom and tips, like grandparents, the mommy group at the playground, and even the many many many parenting books at Barnes and Noble simply aren’t going to have the information we need for our differently abled and differently developing children. Special needs parent groups are a lifesaver.

But there are certain types of information that should still come from professionals. I frequently see bits of info regarding benefits and legal issues passed around in these groups that is just plain wrong. Much of it is ultimately harmless, but a lot of things I see can actually result in the loss of benefits and opportunities if the information is taken as true.

For example, recently this myth has been making the rounds: that individuals with disablities can only open an ABLE account if they are receicving SSI benefits. This is not true. You do not have to be receiving benefits in order to qualify for an ABLE account. And this is only the latest in a string of myths I see passed around about programs and benefits for kids and adults with special needs.

[The ABLE National Resource Center has a webinar coming up this Thursday, June 20, to bust that and some other myths about ABLE accounts.
https://zoom.us/webinar/register/WN_XBFVQO0TQBOyYT1iDCjOxg ]

Just as you must go to a doctor for a reliable medical diagnosis, you must go to experts for other types of reliable information. An attorney who deals with special needs issues is one great source, and our office is always willing to answer questions – the easiest way to get a question to us is by email legal@parkercounsel.com but you can also call and leave a message. We will get back to you. We are here to help as best we can.

Make sure you have accurate information about what help your child is entitled to and make sure you have accurate information about how to get those benefits.

Parker Counsel Legal Services provides estate planning, guardianship, special needs trusts, and other services to families who have children with developmental disabilities in Texas, Massachusetts, New Hampshire, and New Jersey. legal@parkercounsel.com 833-RED-BOOT (833-733-2668) or schedule a short information call at calendly.

Does your child need a special needs trust to get Medicaid?

Posted on April 24, 2019 by Pamela

Children with developmental disabilities – cerebral palsy, Down Syndrome, autism, and any other condition that began in childhood – who are not able to work and support themselves are probably going to be able to get social security benefits and Medicaid (called MassHealth in Massachusetts) when they turn 18 years of age. In some cases, they can receive these benefits before 18, but in almost every case they can do so after 18. Social security provides a limited cash payment to persons with a disability who have very low or no income and assets. Even if a child with a disability continues to live at home with parents after they turn 18, if they have little or no income and little or no other resources like savings, they will probably be eligible for supplemental security income (SSI) and Medicaid.

SSI cash benefits are pretty low (currently $770 a month, with some states adding a little bit more), so it’s important to have a way to supplement the limited spending power of that SSI money. While parents are alive, they can buy “extras,” like computers, videos, vacations, even additional therapy or vocational training not covered by insurance. But when the parents die, an inheritance to a child receives SSI and Medicaid will almost always cause them to lose those benefits. People with developmental disabilities who are receiving, or will probably receive in the future, SSI and Medicaid benefits, should never be left an inheritance or be named as a life insurance or pension beneficiary because it will jeopardize their benefits.

That’s where the special needs trust comes in. If a parent or grandparent puts money into this very special type of trust, that money can be used to supplement the government benefits while keeping those benefits in place. A New Jersey special needs trust, a Massachusetts special needs trust, a New Hampshire special needs trust, even a Texas special needs trust, all work the same way to let parents, grandparents, and anyone else who wants to leave money to improve the quality of life of a person with a disability give them money without causing any problem to their government benefits.

So back to the original question: Do you need a special needs trust in order for your adult child to get Medicaid? There are two parts to the answer. First, you may need a special needs trust to get Medicaid at age 18 if the child already has significant assets in their own name. Those assets can be moved to a special needs trust so that the adult child meets the very low asset threshold for eligibility.

The second part of the answer is that even if the adult child initially qualifies for Medicaid without a trust, they will probably need a special needs trust in order to keep those benefits when their parents die. The trust can receive an inheritance, life insurance proceeds, or even pensions, and that money can be used to enhance the quality of life of the adult child without causing them to lose their Medicaid or SSI benefits.

Parker Counsel Legal Services serves families in Central Texas, Western Massachusetts, Northern New Jersey, and the New Hampshire Seacoast with special needs estate planning, special needs trusts, and guardianships. Contact us for a consultation at 833-RED-BOOT (833-733-2668) or legal@parkercounsel.com or schedule a short information call at calendly.

How to ask for help from family and friends

Posted on March 4, 2019 by Pamela

Give people permission to be involved

Finding and nurturing people who will help your adult child have a safe and fulfilling life is an important part of a parent’s planning for when the parent is not around. Involved and interested family and friends can be the difference between a vulnerable life and a great life. But getting people to be involved isn’t always as easy as it seems. It involves more than simply letting people know you have a child with special needs.

If you want the people who know your child to be involved, you need to focus on your communication with them so that they have an understanding of your child’s life and so they understand that they are welcome to be part of it in many different ways.

Here are a few ways to boost your contact and draw people in so that they want to help:

Incorporate More Emotion Into Your Updates

The human brain is more engaged by storytelling than logical facts. There are a few reasons for this, but the bottom line is that emotion plays a big part in decision making. When you tell people what’s going on with your child, talk like a parent. Let people hear when you are proud, scared, frustrated, excited or whatever about your child’s situation, and do your best to convey whatever emotions your child may be having about what is going on in their life. Rather than a big yearly report about where your child is living and what medical events have occurred over the prior year, pick out a few interesting stories to tell throughout the year.

Emotions activate the part of the brain that makes us feel as if we are part of something, even if we are not physically present. The more we feel that we are already part of something, the easier it is for us to actually take an action.

Your family and friends will feel less hesitation to visit or offer suggestions or help for your child when they feel like they are part of the circle.

2. Make Clear Requests for Help

Some family and friends may wind up hearing your stories about your child with no real expectation of doing anything other than kind of generally keeping up with the family. In many cases, even if they have a strong interest in the well being of your child, they may not know that there are things they can easily do to be an active part of your child’s life. Making clear and specific requests for action will encourage them to take a step toward less passive interest.

Requests can be as low key as asking people to send your child birthday cards, all the way up to more time consuming projects like taking your child to a movie or making calls to find a dentist that will work with your child. You don’t want to overwhelm people into feeling personally responsible for your child if they don’t have the time or inclination for that, but you don’t want to skip over smaller things that many people would be happy to do if they only knew they could.

Ultimately, you are trying to convey to people that they are welcome to be part of your child’s life in whatever way they choose. You will have chosen people who will play legally sanctioned roles for your child when you, the parent are gone, but don’t forget to let everyone else know that they can choose to be involved as much or as little as they want.

3. Use Pictures

Picture sharing is so easy now that there is no excuse for failing to share pictures often with your family and friends. Pictures not only contribute to the emotional aspect of your communication, they often stimulate ideas in the minds of your audience – for example, a picture of your child in their room might prompt someone to suggest new drapes that match some preference or interest your child has.

The Power of Community

The more people who are paying attention to what is going on with your child, the better off your child will be. Everyone’s life is better when they have friends around. But also important for a person who may not be able to advocate for themselves, the more people who are watching and paying attention to the care your child receives, the less likely any serious problem will develop. Parents may not be there till the end of their child’s life, but parents can protect their child till the end of the child’s life with smart planning.

Creating an engaged community of people around your adult with special needs

Posted on February 4, 2019 by Pamela

One of the four key planning areas for parents who have a child that will always need assistance with their care is to create a community of caregivers. For many of these, that means a guardian for personal care and a trustee for money management, but those should not be the only people in your child’s life. Think of all the different things you as a parent do for your child – you feed and bathe and shelter them, of course, and you make sure they have health insurance and medical care, but you also do things like the following:

search out activities to do
buy clothes and toys and personal items
decide (or help) on clothing and hair styles
keep an eye out for new resources
notice how caregivers and therapists treat your child and make changes if there are problems
keep track of how your child feels and acts so you’ll know if a doctor’s appointment is needed
keep company with your child and interact or play with them

. . . and this is only a very short list of the things parents do for their children, and that, depending on your own child, you may continue to do into adulthood.

When you think about the community of people you want to build around your child, these are the kinds of things that your community will be doing for your child. Some people may visit and play, some will be more task oriented, and some may never see your child in person but will be on the lookout for resources and ideas for others to use. You don’t need a large group of people who can be the full time caretaker, you need a group of people who all contribute to your child’s life in a variety of ways.

Here are some tips on creating your community:

Ask people if they would like to stay in touch with you and your child. Many people who have worked with your child develop a fondness and would be delighted to keep up with your child in the future. If you welcome them into the group and give them a way to stay in touch, you may be surprised at how fast your child’s community grows.
Update everyone regularly, and include both major events and little day-to-day details. Make sure to share lots of pictures. Staying in touch isn’t about giving a quarterly report, its’ about keeping the group informed about your child’s life, which may include big life or medical events, but also includes things like going to the store to buy clothes, or having a great day watching movies at home, or even being sad that grandma’s visit was over. Little details will keep people informed of how your child lives and what they enjoy or think about. Our family uses a Facebook group for this, which makes it really easy to share pictures, but you can do email groups, or periodic mail, or any other communication technique that you like.
Give people specific permission to be involved in your child’d life and to communicate with the people who are with your child the most. You want everyone to know that not only is it ok for them to contact you, but that you really really want them to contact you if they have an idea or a thought or suggestion. Make sure people know that even if they are not the “official” legal caretaker, their participation is welcome and invited.
Ask for help sometimes. Be sure to ask for help in a range of ways. Give people ideas about what to do to help – even if its’ as simple as asking for birthday cards be mailed to your child. If you’re trying to come up with activities your child might like, ask the group for ideas. If you want someone to come by and visit your child if they’ve been stuck at home for a while due to an illness, ask. If you’re having trouble finding a new therapist that takes Medicaid, ask if anyone would be willing to make some phone calls. In other words, let people know what you or your child would like them to do, and most of the time people will happily jump in to do it.

The more people who know your child and are around in their life, especially as your child grows older and the parents begin to transition out of day to day caretaking, the better off your child will be, and the more at peace you will be that your child will stay safe and happy.

Category: Special Needs Planning