A child with special needs deserves a parent’s continued stewardship and guidance, even if the parent becomes incapacitated or passes away, and the following estate planning documents are key to ensuring the child’s security.
(1) A last will and testament.
(2) A general durable power of attorney (“GDPA”). This document designates an agent to act on an individual’s (here, a parent’s) behalf with regard to financial affairs. Parents’ GDPA should allow their agent (designated in the GDPA) to make discretionary non-support distributions to, or for the benefit of, the child with special needs and to establish a special needs trust (SNT) for the child.
(3) A revocable living trust. During a parent’s period of incapacity, the parent’s revocable living trust should contain language that permits the trustee to make discretionary non-support distributions to, or for the benefit of, the child with special needs. Upon the parent’s death, the child’s inheritance should be distributed to a third-party SNT previously established by the parent for the child’s benefit.
Having all of these documents in order will make the transition of care easier for the child and a new caretaker and/or guardian.