Three Essential Documents for Parents of Children with Special Needs

For many families, a proper estate plan consists of the preparation of a Will, Advance Directive (Living Will and Health Care Power of Attorney) and a General Durable Power of Attorney.  Various trusts can be employed as well to achieve goals such as the avoidance of probate and minimization of death taxes.  Parents who have children with special needs must do more though.

When planning for children with special needs, a family needs to insure that the personal, medical and financial needs are met.  Although there are some children who work through their disabilities to live and work independently, most need significant support.  As such, three essential documents should be explored:

Special Needs Trust

A special needs trust meets two goals.  First, if properly drafted, it preserves a child’s eligibility for public benefits such as SSI and Medicaid.  Second, it can protect the child from exploitation.  To make sure this document is effective, a trustee should be carefully selected.  Based on the complexity of public benefits laws, strong consideration should be given to the use of a corporate trustee that specializes in the administration of these trusts.

Guardianship Nomination

A parent’s Will should include a guardianship nomination any minor children.  However, when a child turns 18 years of age, he or she is considered to be an adult by law regardless of the severity of his or her disabilities.  If a child is high functioning mentally, he or she should execute a living will and power of attorney of their own.  However, if they are unable to do so, a guardianship nomination clause should be included in a parent’s Will.  This allows for appointment of a competent individual to manage the personal, medical and financial affairs of  a child with disabilities when his or her parents are deceased.   Although the nomination is not binding upon a probate court, it is considered persuasive and is often accepted.

Letter of Intent

We live in a world where children with disabilities are often pigeon holed by the term “disabled”.  It is imperative that they are evaluated and treated based on their individual strengths and limitations, and not as part of a stereotype.  A Letter of Intent is a non-binding document that captures vital information about a child for future caregivers, guardians and trustees. It can include information about his or her child’s routines, preferences, medical history and  allergies among other areas. Parents have gathered a lifetimes worth of information about their children information that will be invaluable to their future caregivers. Thus, this document should be prepared and kept with one’s other estate planning documents.


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