How do we protect the interestss of our special needs son after we have died?

My husband and I are creating a Living Revocable Trust for ourselves at this time and have learned that we need to deal with the special needs of our son separately from that. We would like to leave what we have to him for his care but want to make sure in doing so that he does not lose any of the Government benefits he now receives. He is total care, functioning on a level of a 6 to 9 month old. He is at home with us and we do all of his daily cares. He is covered through BC/BS and Medicaid. What do we need to see this through?

Asked on October 22, 2011 under Estate Planning, Minnesota


M.T.G., Member, New York Bar / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

What you need to do is to seek help from an attorney familiar with creating what is known as a special needs trust for your son. Also sometimes called a supplemental needs trust, this form of a trust makes it possible to appoint a trustee to hold property for the benefit of your disabled child after you are gone and without disqualifying him from benefits received from government programs such as Social Security and Medicaid.  It has to be termed properly:  Irrevocable Special Needs Trust f/b/o Your Child's Name and please make sure that you appoint a trustee that you can rely on.  This way his governmental benefits will pay for his daily necessities and the trust can pay for anything over and above that.  Good luck to you.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.