Special Needs Planning

At Burroughs Elijah law firm, our attorneys work with special needs beneficiaries and their families to develop legal strategies designed to (1) nominate individuals who can make important financial or health care decisions for disabled persons, and (2) avoid a possible interruption in means-tested benefits, including Supplemental Security Income (SSI) and Medicaid, that may result from an unexpected inheritance or other financial windfall.

In many situations, a disabled individual may be able to nominate an agent to manage finances and/or make medical decisions by executing a General Durable Power of Attorney and/or Health Care Power of Attorney. If the individual lacks legal capacity, it may become necessary for a friend or family member to petition the Probate Court to appoint a Guardian and/or Conservator. Unless a disabled individual lacks capacity or is in serious danger, it is typically preferable to operate under the Power of Attorney to avoid the expense and judicial procedures involved with the Guardianship and/or Conservatorship process through the court system.

Means-tested benefits, including SSI and Medicaid, are often a vital means of support for a disabled individual; however, the beneficiary’s countable assets must remain below $2,000 to maintain eligibility. This limitation makes it challenging for a disabled individual to build a financial safety net and live independently. Fortunately, there are a number of tools available to provide some flexibility for disabled individuals and their families.

ABLE accounts are available in South Carolina and Georgia to help disabled individuals continue gainful employment, maintain an independent lifestyle, and build a financial safety net without forfeiting essential means-tested benefits. The funds inside of an ABLE account grow tax-free and can be used for “qualified disability expenses”, including but not limited to medical expenses and job training.

A Self-Settled Supplemental Needs Trust or Pooled Trust Account may protect a beneficiary who receives a substantial sum of money or inheritance from losing her means-tested benefits. Finally, a friend or family member may transfer funds to a Third Party Supplemental Needs Trust for a disabled individual without jeopardizing her eligibility for Medicaid or SSI. The assets inside of these trusts are non-countable for Medicaid and SSI purposes and remain available to pay for expenses that means-tested benefits don’t usually cover.

It is critical for disabled individuals and their families to consult with a qualified special needs planning attorney who is equipped to advise them on available resources and develop an estate plan best suited to their unique circumstances.