Do You Need A Special Needs Trust For Your Disabled Child? (Episode # 302)

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Well, good afternoon, Michiganers.
It is Tuesday, May twenty first,

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twenty twenty four, and of course
this is Tuesday with Tom, Michigan's only

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weekly internet show where we do answer
your questions about estate planning and a state

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settlement in Michigan. As always,
I'm your host, Tom Doyle, a

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state planning attorney, lifelong Michigan resident, an ambassador for all things good in

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this great state of Michigan. Welcome, Welcome, welcome to today's program.

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Well, it's been a little while
since I was on the air with you.

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I've taken a little bit of time
off in the springtime, just trying

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to enjoy the spring weather that we've
been having. Also, if you are

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a subscriber to our office newsletter,
you would know that we have in the

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meantime now opened a new office in
Grand Rapids is Well. So if you

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have any questions about that office,
simply head on over to the Doyle UPC

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website and you will find information on
the new office. Well, the last

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episode question should you use a professional
trustee? So you're putting a trust together,

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you're wondering should you have a professional
involved as a trustee. I encourage

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you to listen to last week's episode
so that you will be better informed in

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making that decision. Today, going
to change gears a little bit looks like

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it's a topic that maybe I haven't
covered in a podcast, and that is

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do you need a special needs trust
for your disabled child? But please remember

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what I'm about to discuss during the
program is, as always for educational purposes

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only. It is not intended to
be legal advice. You need to work

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with your attorney to determine what is
appropriate for you and your estate plan.

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Do you need a special needs trust
for you or disabled child? Very common

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when Amanda and I are meeting with
clients and they will have a special needs

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child that's going to be somebody who's
already receiving what we would call needs based

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government benefits such as Medicaid or supplemental
Security income. The parents obviously are concerned

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about what options they have to still
leave in a state, if you will,

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for that special needs child, and
yet not interfere with their ability to

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receive those needs based government benefits.
So that's what we're going to talk about

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a little bit today. What sort
of trusts planning might be available to you

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for you consider If that's the circumstance
that you find yourself in, and essentially

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there are going to be two major
types of special needs trust. We're going

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to have what's called a first party
special needs trust or sometimes called a self

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settled trust. That trust is a
trust that's being funded with the child's own

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assets. Perhaps your child has received
an inheritance from somebody else, or maybe

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they receiving a personal injury settlement or
some other sort of windfall. They're disabled,

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they are receiving medicaid and or supplemental
security income because they have the medical

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and the financial qualifications to do that. However, if they receive this personal

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injury settlement or the inheritance, they'll
have too much and that would impact their

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ability to receive those benefits. So
first party special needs trust, where your

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child is going to put their own
money into it, basically allows an individual

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with a disability to protect their assets
while at the same time maintaining eligibility for

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those needs based or means tested government
benefits. If the child is an adult

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and is otherwise competent to do so, they can create or have created for

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them that special needs trust without any
court involvement. However, if the child

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is a minor or a legally incapacitated
adult, then that first party special needs

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trust is going to require probate court
approval. So kind of two different types.

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One is where the child is competent
going to have the special needs trust

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created on their behalf. Second one
is where you're now going to require court

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approval to do that. In either
case, assuming that the court approves it

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or that otherwise the special needs trust
is created and has proved. In that

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case, it does allow assets to
be placed into that trust use to support,

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if you will, or assist in
the support of the child, without

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affecting their eligibility for the means state
tested government benefits. Now something to keep

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in mind, though, upon the
child's death, any remaining funds in that

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first party special needs trust have to
first be used to reimburse Medicaid for all

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the expenses incurred by Medicaid during the
beneficiary or the child's lifetime, So you

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don't have an option under this first
party special needs trust to determine where those

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proceeds are going to go upon your
child's death. The other type of special

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needs trust, though, is what's
called a third party special needs trust.

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That would be a trust for example, that could be created by you as

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the parent, where you're creating the
trust and you are using your assets for

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the benefit of your child, it's
not the child's assets. So the third

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party special needs trust is probably the
most common that we will be dealing with

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when we are assisting in parents putting
together their estate plan. Unfortunately, when

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many parents come to us, they
have been led to believe that the only

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option that they have for assisting a
special needs child, or the only options

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that they would have, are one
to simply disinherit the child, don't leave

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them anything in your state, and
if you don't leave them anything, you're

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not giving them anything that would put
them over the threshold limits that would affect

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their ability. The second option that
many parents are considering when they come to

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see us is they think, well, if I do want to leave something,

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what I really need to do is
I need to leave it to one

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of my other kids and have some
if you will inform an agreement with the

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other children that says, look,
we're not going to leave anything in our

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state to let's say Tommy, our
disabled child, but will leave everything else

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to the other kids with the understanding
that they will take care of Tommy out

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of their proceeds. Now, what's
the risk in that will obviously risk in

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that is, maybe they won't do
what you wanted them to do. Maybe

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you would leave the entire estate and
they would decide that taking care of Tommy

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is too much of a burden for
them or too expensive for them, and

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there would not be a legal requirement
for them to use those proceeds. That

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is when you should really start looking
at considering this third party special needs trust.

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Now, the special needs trust that
we're talking about can actually be part

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of your living trust. When we
get to the distribution provisions in your living

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trust and we say, for example, divide the estate up equally between our

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children, we can then put a
provision in your own trust that would say

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something along these lines. Any distribution
that would otherwise be made for our son

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Tommy will be retained in our trust
pursuant to the terms low which are all

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the special needs provisions inside your trust. So you don't have to prepare or

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have prepared for you a separate,
standalone special needs trust if it's simply your

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interest in using the proceeds from your
state to have the ability to have them

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managed for your special needs child.
Now unlike unlike that first party special needs

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trust, because it's your asset,
not the child's asset, there is no

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requirement that Medicaid has to be paid
back at the time of your child's death.

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That means whatever assets are still remaining
in that special needs trust for your

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child's death can pass to other beneficiaries
or charities or wherever it is you would

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want those proceeds to go. So
using the special needs true trust a basically

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inside your trust allows you to accomplish
your goal of providing additional assistance to your

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child, while at the same time
them not losing in their government benefits,

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and you still having the ability to
determine where any excess proceeds go at the

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time of their death. Now there's
another type though, of a third party

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special needs trust. That's going to
be a standalone trust. It's not going

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to be part of your trust.
It's going to be a totally separate,

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standalone trust. And when do people
do that again, it would be not

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using the child's money, It would
be using whoever is setting up this standalone

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trust. It could be you,
it could be a grandparent, it could

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be somebody else. Essentially where that
standalone third party trust is going to come

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into play is let's say you have
other family members that also want to include

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your special needs child as part of
their estate distribution. So let's say grandparents,

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as an example, look and say, hey, we want to as

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part of our state plan, also
provide some benefits in this case for Tommy,

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so that there will be benefits available. Well, most of the time,

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the grandparents don't want to put that
money in your trust because if they

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put that money in your trust,
you can spend it on something else,

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or maybe answer uncles or whoever.
It happens to be where somebody wants to

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be making funds available, but they
don't want to put them inside your trust

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that already create contains a special needs
trust. That's the time that you're normally

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going to look at somebody creating this
stand alone third party trust. Now,

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again, just like inside your trust, there's going to be Obviously, all

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of these trusts that we're talking about
have limitations on what the trust can be

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used for, because it's by limiting
what the trust can be used for,

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that's maintaining the benefit availability for the
government qualifying for the government benefits. But

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just like that third party trust that's
in your trust. This standalone trust,

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it doesn't have to be irrevocable.
It can be a revocable trust. There's

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certain people that can create that standalone
third party trust and upon the death of

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the beneficiary of the third party trust, the standalone again, proceeds don't have

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to be used to pay Medicaid back. So again kind of quick review child's

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own assets, those go into a
first party special needs trust, your assets

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that you have a parent, or
maybe assets come from other individuals. Then

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you can look at having the third
party special needs trust. Now there's another

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type of trust that's called a pooled
special needs trust. So obviously, in

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having a first party special needs trust
prepared, that's going to require a law

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firm to be involved in preparing that
document for you. In having a special

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needs trust, the third party,
whether it's a standalone or inside your trust,

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is going to require a law firm
to be involved. There is the

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idea of a pooled trust, and
that is where there's going to be a

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nonprofit organization that already exists and there
are a number of them out there,

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and what they do is they pool
the assets of multiple beneficiaries. So you're

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not going and having a lawyer prepared
a trust to create a trust. There's

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already one in existence that's being managed
by this nonprofit organization. They're pooling the

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assets of multiple beneficiaries for investment purposes, while basically they're keeping separate sub accounts

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for each of the beneficiaries as part
of that pooled fund. That's really most

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applicable if you have a child or
beneficiary who have small amounts of assets that

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don't really warrant the amount of money
that perhaps is going to be spent to

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have a either the standalone third party
trust or incorporating as part of your world

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state plan, and they're looking obviously
for professional excuse me, management and oversight

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where that's already being provided to them. There aren't trustee fees that are being

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charged, etc. Now, the
advantage of the pooled special needs trust is

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that upon death of the beneficiary,
again, proceeds in Michigan don't have to

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go to pay Medicaid back. However, they do go to the nonprofit organization.

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Obviously it's a means for continuing the
work that that nonprofit organization is going

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to do. If you're interested in
pooled Special Leeds trust, you can obviously

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do a Google search and you'll find
a number of them in the state of

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Michigan. They might be related to
different conditions that a child might have,

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or they might be more general where
they will manage the proceeds for any otherwise

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qualified special needs child. Now there
is another option out there if you don't

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want to go and have an entire
trust prepared and if the numbers work out

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for you, there is what's called
an able account. And if you already

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have a special needs child, you
might be familiar with that. But essentially

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what the abled account is it's a
tax advantage save an account kind. It's

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basically being treated like a five to
twenty nine plan in the state of Michigan.

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If you're familiar with that, we're
saving money for college expenses, similar

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kind of concept. It's a savings
account that's designed to help individuals with disability

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to plan and save for disability related
expenses. Now, not technically a trust.

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There's not a trustee, there's not
going to be some nonprofit involved,

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it's not requiring court approval, et
cetera. It's simply an account that's being

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set up. Now, the account, there are some restrictions on who can

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actually establish the accounts, and that's
all set forth in the provisions for the

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State of Michigan. But the idea
is putting funds that might be the beneficiaries

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funds that are going into maybe there
are maybe they're continuing to work and some

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of the proceeds from their earnings can
go in there. There are going to

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be certain limitations, and I'm not
going to go into the entire able accounts

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today. I'm going to save that
for a future podcast, but essentially there

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are going to be annual contribution limits, which is essentially whatever is the current

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annual gifting amount that's going to be
the annual limit on how much can be

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put into an ABLED account. That
current limit is eighteen thousand dollars, and

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if you accumulate over one hundred thousand
dollars in the account, that then could

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end up causing reduction in government benefits. So you're going to have annual contribution

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limits, and then you've got this
overall limit that you have to be mindful.

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But the able accounts, if you're
interested and you don't already know about

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it, simply go to Google and
look up am I ABLE all one word

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m I A B L E and
that's going to take you to the link

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of the Michigan Able Account. All
kinds of information that's going to be available

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there for you to determine what you're
going to do with the able account.

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Of course, as always, Amanda
and I would be honored have the opportunity

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to help you protect your loved ones, help you determine what you're looking at

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by way of special needs provisions.
Again, most of the time we can

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simply incorporate that into your own special
needs trust, assuming it's going to be

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your assets, they're going to be
used. We would be happy also to

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help you amend the current plan that
you already have or put together a new

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estate plan, or of course in
settling a loved one's estate. Now you

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have a number of options. One
we have, as we have for a

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couple of years now, the ability
to meet with you at the East Lansing

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office location. We now have the
new Grand Rapids office location on Peninsular Drive

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where we would be able to meet
with you. Of course, we still

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offer virtual consultations and zoom by zoom
or telephone. That's how we can probably

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handle or assist you wherever you are
in the state. Also, remember all

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That information too, is available at
Doyle lopc dot com. So if you're

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interested in any of that, I
encourage you go to Doyle apc dot com,

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where you're going to find information on
how to go about setting up these

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different consultations. Also, remember if
you're simply looking for an individual document,

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maybe all that you need is a
new healthcare power of attorney or perhaps a

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new durable power of attorney. Simply
head on over to doylopc dot com and

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click on the Legal store, and
there you're going to find information on how

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you can order simply individual documents through
our website as well. Well. I

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think that's going to be it for
today show. As always, though,

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if you have a comment about the
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have me discuss, or questions that
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me an email Tom at Tuesday with
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ask your smart speaker to play Tuesday
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of your time with us today and
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an awesome day and an awesome week
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Tom has been brought to you by
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