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Taking charge of our life

Updated on February 19, 2015

Making the most of legal tools

We can all avoid the prospects of a guardianship or conservatorship by plotting our own course. This seems to be the wave of our lives, taking charge and being knowledgeable of the new legal and medical world we have built. Not that long ago, we looked at our future and decided to meet the challenge head-on. The last three articles have gone in to detail regarding the ramifications of these two legal paths as they may pertain to an individual.

One of the unforeseeable scenarios we may have not thought of is where this applies to our children. As we are the largest (numerically) populations in history, we are also the population/generation with the greatest number of offspring having either physical or mental disabilities, leaving them unable to handle their own affairs. And whereas when we were first having children in the 1960’s, the medical prognosis was very limited at best; we are now aware that our medical science has lead the way in solving medical mysteries and providing for a longer life span than was predicted. We have provided for lengthy, productive lives for those with Down’s syndrome, Muscular Dystrophy, Spina Bifida and many more. Mental Illness seems to be our current challenge. For the purposes of this article Mental Illness diagnoses are any medical issues having to do with the brain. And this is because scientists are just now beginning to understand the inner workings of this organ.

Our knowledge of trusts has been to this point surround Guardianship and Conservatorships. We have spent years trying to put our disabled children in an environment of being productive and self-sufficient. However, without us there to oversee that they are in good stead and not being taken advantage of what will happen.

Today our society has developed a plan for the safe housing and day-to-day living of our most needy. These are ‘group homes’ where a number of the disabled with like disabling conditions live together with the amount of oversight necessary to keep them safe and also to build their self-esteem.

What about their legal and financial safeguarding? Every family takes on this task in a different way. Some will allow the state to be the oversight, some will want a family member to be the oversight and some will want a legal advocate to be the oversight. This is where the laws for those 18 to 65 differ in some cases. If we have three children and we leave our estate to our children in three equal amounts, the disabled child can be financially discriminated against. This is because an adult child with a disability in the majority of cases is provided with state and/or federal aid specifically driven by the lack of ability to provide for their own needs financially. If the inheritance is transferred directly to the child many times this excess of financial wealth will mean the state or federal benefit can not be obtained while the disabled person is over income limit.

Another legal tool has been developed for disabled people in the age range of 18 to 65. There are of course some guides that must be adhered too. The document is called a Special Needs Trust (SNT) and if the inheritance is transferred to this legal instrument instead of directly to the disabled person, there is some protection for the disabled person. In many cases with the SNT in place the money will be spent in the exact same way we has parents would spend it if we were able. The SNT enables the disabled to have a better quality of life in many instances.

Next week we will discuss some of the quality of life issues that can be met with a SNT.

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