How do I prepare for my special needs child to become a legal adult?
While many children with special needs go on to live independent lives as adults, some will remain financially and practically dependent on assistance. For many adults with special needs, this means remaining eligible for state and federal assistance programs such as Medicaid, Supplemental Security Income (SSI), and public housing assistance. Regardless of your child’s abilities, the law will consider your child to be a financially independent adult when evaluating eligibility for these programs. To ensure that your child remains eligible for assistance, be sure to consult with your financial advisor and your estate planning attorney.
How does the law define “special needs?”
Each state may define “special needs” slightly differently; however, the Americans with Disabilities Act (ADA), a federal law, uses the term “disability” when defining special needs in 42 US Code §12102. Under the Ada, a disability is defined as any of the following:
• A physical or mental impairment that substantially limits one or more major life activities of such individual.
• A record of such an impairment.
• Being regarded as having such an impairment.
Why is it important to name a Guardian for a minor child with special needs?
Every parent of a minor child should appoint a Guardian for their child; however, when your child has special needs the importance of appointing a Guardian increases. A Guardian can be appointed in your Last Will and Testament. In fact, naming a Guardian in your Will is the only formal opportunity you have to let a judge know who you would choose to care for your child if a Guardian is needed. Given the unique needs of a child with special needs, you undoubtedly want to know who will step in and care for your child if you are unable to do so yourself.
What happens when your special needs child turns 18?
Turning 18 is a major milestone, and for children with special needs, it comes with added considerations. At this point, the law begins to treat your child as a legal adult—regardless of their ability to live independently. This shift can affect eligibility for key support programs like Medicaid, Supplemental Security Income (SSI), and housing assistance.
Even if your child continues to rely on you financially or physically, these programs may assess their needs differently after they reach adulthood. To help maintain their benefits and plan for the future, it’s important to work with an experienced estate planning attorney and a financial advisor who understands special needs planning.
What is a pooled special needs trust?
Another type of trust used in special needs planning is a “pooled” trust. This is a special needs trust (SNT) that is administered by a non-profit entity. Like all SNTs, the purpose of a pooled trust is to allow an individual with special needs to remain eligible for state and federal assistance programs. The primary difference between a first-party SNT and a pooled SNT is that with a pooled trust the non-profit agency “pools” all the participant’s funds allowing for broader and (hopefully) more profitable investment opportunities. Although the funds are pooled, each participant has his/her own account.
What is an ABLE Account?
An ABLE Account offers a tax-advantaged way to provide financial assistance to an adult with special needs without impacting the beneficiary’s eligibility for much-needed assistance programs. The funds held in an ABLE Account can be spent on qualified disability expenses (QDEs) such as transportation, assistive technology, health and wellness, and employment support. One advantage to creating an ABLE Account is that withdrawals are not taxed if the funds are used for a QDE. Moreover, the account can grow tax-free up to $100,000 without the account assets being considered when determining eligibility for SSI, Medicaid, and other assistance programs.
Who is eligible for an ABLE Account?
To be eligible for an ABLE Account you must have a disability with an age of onset of disability before you turn 26 years of age. If you already receive SSI and/or SSDI benefits you are automatically eligible to establish an ABLE account. Otherwise, you must meet Social Security’s definition and criteria regarding functional limitations and receive a letter of disability certification.
Why should I establish a special needs trust?
Once a child with special needs reaches adulthood, eligibility for important assistance programs such as Medicaid and Supplemental Security Income (SSI) will be based, in part, on the applicant’s income and assets. Making direct gifts to an adult with special needs, therefore, can inadvertently cause a loss of benefits. A special needs trust, however, allows you to make gifts to a beneficiary with special needs without jeopardizing eligibility for assistance. In addition, while an ABLE Account requires the age of disability to have occurred prior to the beneficiary turning 26, SNTs have no such age restriction.
What is the difference between a self-settled and a third-party special needs trust?
A first-party, or self-settled, special needs trust is established using assets owned by the person with special needs but must be established by the parent, grandparent, or guardian of the person with special needs or by a court. A self-settled special needs trust is most frequently needed when a disabled individual receives a lump sum of money, such as the result of a settlement for injuries in a personal injury accident. A third-party special needs trust is established by a third-party using assets of the third party for the benefit of a person with special needs. This type of special needs trust is most often established by a parent, or other family member, for the benefit of a child with special needs.
Who can contribute to an ABLE Account or a SNT?
Anyone, including the beneficiary, can contribute to an ABLE Account or a SNT. A beneficiary can contribute income to an ABLE Account through the Able to Work program.
How are special needs trusts taxed?
Contributions to an ABLE Account are made using post-taxed dollars and are not tax deductible for purposes of federal taxes. Some states, however, allow for state income tax deductions for contributions made to an ABLE account. The income earned by an ABLE Account, however, is not taxed. A self-settled SNT is a grantor trust. As such, trust income is attributed to the beneficiary regardless of whether it is distributed and must be reported on the beneficiary’s tax return. A third-party SNT is a non-grantor trust for tax purposes. Consequently, income retained by the trust will be taxed to the trust and only income distributed to, or used on behalf of, the beneficiary is taxed to the beneficiary.
Are there dollar limits that apply to funding a SNT or ABLE account? 7
Contributions to an ABLE Account are limited to the current yearly exclusion limit which, as of 2023, is $17,000 per year. If the beneficiary is working, the ABLE to Work rules allow the beneficiary to contribute up to an additional $13,590 (as of 2023). Amounts held in an ABLE Account up to $100,000 are not included when determining eligibility for assistance programs such as SSI. If the account exceeds $100,000, SSI benefits will be suspended, and the excess funds will be considered as countable assets for other assistance programs such as Medicaid. In addition, the maximum ABLE Account limit in North Carolina is $450,000 (as of 2023). While the yearly exclusion limit applies to special needs trusts, there is no limit to the value of a SNT.
Can I have multiple ABLE Accounts or Special Needs Trusts?
You may only have one ABLE account; however, you can be the beneficiary of multiple Special Needs Trusts.
What is the purpose of a Letter of intent?
A Letter of Intent, also referred to as a “Memorandum of Intent,” is an optional companion document to a Special Needs Trust. A Letter of Intent is where you will include important information that your Trustee should know about your child, such as your child’s abilities, routines, likes, and dislikes, and any interests they may have. You may also choose to include medical history, religious beliefs, and background information on your child’s upbringing. While a Letter of Intent is not a legally binding document, it can be a very valuable addition to an SNT because it provides guidance to the Trustee while administering the trust.