Scott Alperin
Experienced Estate Planning & Elder Law Attorney Serving Virginia Beach Area Clients Since 2005.

You have done your best to care for your special needs child their entire life. Sometimes, that has meant fighting for the services they need and the benefits they deserve. Thinking about their life after you are gone is incredibly difficult but absolutely necessary to ensure they are well cared for in your absence. Even if you have trustworthy people in your life who will continue to look out for them, you need to take legal steps now to make sure they will always have access to the government benefits to which they are entitled as well as being able to take advantage of the assets you are leaving behind. A special needs estate plan crafted with the attorneys at Alperin Law can give you the peace of mind you need to enjoy your time with them now, knowing they will be taken care of after you are gone.

Supplemental or Special Needs Trusts in Virginia

The government programs designed to take care of people with disabilities are need-based programs, and recipients must qualify for them by demonstrating financial need. As much as you want to protect your child after you are gone, bequeathing a large amount of money may not be the best way to do it. With advance planning, you can make sure your child will qualify for Medicaid and Supplemental Security Income (SSI) and also be able to have additional needs paid for with the assets you have left for them. Your attorney will help you determine the best method of accomplishing this for you, but options include the following:

Third-Party Special Needs Trust 

With a revocable or irrevocable living trust, you can set aside assets while you are alive and designate a trustee to provide funds from the trust to pay for the needs of the beneficiary after you are gone. This trust can be funded during your lifetime or upon your death and also be used to receive inheritances from others in the name of the person with special needs.  

First-Party Special Needs Trust 

If a disabled individual receives money—such as an inheritance or insurance settlement—the money can be set aside by a parent, guardian, or the court in a first-party special needs trust so that the person does not lose public benefits. Any money remaining in the trust upon the beneficiary’s death must be paid back to the state for reimbursement of Medicaid benefits, so it is often referred to as a “payback trust.”

ABLE Account 

Under the Achieving a Better Life Experience Act of 2014, pre-tax contributions of up to $15,000 a year can be made into a savings account for individuals who became disabled before the age of 26 to pay for disability-related expenses. These assets will not count against SSI and Medicaid eligibility.

Even if you don’t have a dependent with special needs, it might make sense to include special needs planning language in your estate plan in the event that a loved one such as a child, grandchild, or parent qualifies for governmental benefits at some point because of a special need.

Special Needs Planning Contributes to Quality of Life

When you include special needs planning in your trust, you instruct the trustee to distribute assets that will supplement, as opposed to supplanting, government benefits. That being said, there may come a time when it’s in your beneficiary’s best interests to use trust assets, even if disqualification occurs. Having this language in your estate plan means you give the trustee the power to make good decisions at that time.

Funds from a special needs trust typically cannot be used for food or shelter but can pay for other needs, including:

  • Non-covered medical care
  • Rehabilitation and training programs
  • Home health aides
  • Assistive devices
  • Recreation and cultural enrichment
  • Travel
  • Transportation
  • Telephone, television, and internet services
  • Other needs

You want your loved one to continue to be cared for the way you care for them now. Special needs estate planning can do that.

Get The Help You Need From Our Special Needs Planning Attorneys

It’s never too soon to plan for the future needs of a disabled loved one. Contact our special needs planning attorneys to find out how we can help you get the peace of mind you deserve. We serve all communities in Eastern Virginia, including Virginia Beach, Chesapeake, Norfolk, Portsmouth, Suffolk, Newport News, Isle of Wight County, Hampton, and the Eastern Shore.