Modern Family Matters

Special Needs Estate Planning: Preserving Your Disabled Child’s Public Benefits and Maintaining Their Quality of Life

June 24, 2020 with Landerholm Family Law Season 1 Episode 5
Modern Family Matters
Special Needs Estate Planning: Preserving Your Disabled Child’s Public Benefits and Maintaining Their Quality of Life
Chapters
Modern Family Matters
Special Needs Estate Planning: Preserving Your Disabled Child’s Public Benefits and Maintaining Their Quality of Life
Jun 24, 2020 Season 1 Episode 5
with Landerholm Family Law

• It’s important that an individual with special needs maintains some level of covered benefits, such as social security or Medicaid, amongst other resources. However, without proper planning it is easy for a family or individual to misstep and lose their benefits. 

• A special-needs individual can generally have up to $2,000 in their name- anything above that and they may lose their eligibility for government benefits. While this is not a lot of money, it’s very possible to maintain and stay under that limit with proper planning.

• The two primary planning options to assist a disabled individual in staying under the $2,000 resource limit are: 1) An ABLE account; and 2) a Special Needs Trust (either first-party or a third-party).

• The two major differences between a first-party special needs trust and a third-party special needs trust is that a first-party trust is always irrevocable, whereas a third-party trust can be either irrevocable or revocable. Additionally, a first-party special needs trust has a “Medicaid payback”, meaning if the individual with the disability passes away, any funds left in the trust would go to Medicaid, whereas this is not the case with a third-party special needs trust.

• Common trust strategies: 
-Create a testamentary trust: a trust that does not become active until the grantors have passed away.
-Create and fund at third-party trust now, however this will be subject to accounting and taxes.
-Create a third-party trust as a “dry” trust, meaning it’s active but there’s nothing in it. This allows family members to include this third-party special needs trust in their own estate plans.
-Create an ABLE account: this is an account that can accumulate $15,000/annually, or $100,000 in total, of funds that will not count against the resource limit or eligibility of the individual with a disability. This account also allows for the special-needs individual to have access to a set amount of funds via a loadable debit card. Unlike first- and third-party special needs trusts, an ABLE account cannot account for assets; it can only account for money. Therefore, it’s a great option to be considered alongside a trust, rather than in place of a trust.

• Create a list of all personal preferences, details, medical notes and contact information, and activity schedules of the special-needs individual for any person who may assume a guardianship role in their life to help ensure sustained quality of life.

Show Notes Transcript

• It’s important that an individual with special needs maintains some level of covered benefits, such as social security or Medicaid, amongst other resources. However, without proper planning it is easy for a family or individual to misstep and lose their benefits. 

• A special-needs individual can generally have up to $2,000 in their name- anything above that and they may lose their eligibility for government benefits. While this is not a lot of money, it’s very possible to maintain and stay under that limit with proper planning.

• The two primary planning options to assist a disabled individual in staying under the $2,000 resource limit are: 1) An ABLE account; and 2) a Special Needs Trust (either first-party or a third-party).

• The two major differences between a first-party special needs trust and a third-party special needs trust is that a first-party trust is always irrevocable, whereas a third-party trust can be either irrevocable or revocable. Additionally, a first-party special needs trust has a “Medicaid payback”, meaning if the individual with the disability passes away, any funds left in the trust would go to Medicaid, whereas this is not the case with a third-party special needs trust.

• Common trust strategies: 
-Create a testamentary trust: a trust that does not become active until the grantors have passed away.
-Create and fund at third-party trust now, however this will be subject to accounting and taxes.
-Create a third-party trust as a “dry” trust, meaning it’s active but there’s nothing in it. This allows family members to include this third-party special needs trust in their own estate plans.
-Create an ABLE account: this is an account that can accumulate $15,000/annually, or $100,000 in total, of funds that will not count against the resource limit or eligibility of the individual with a disability. This account also allows for the special-needs individual to have access to a set amount of funds via a loadable debit card. Unlike first- and third-party special needs trusts, an ABLE account cannot account for assets; it can only account for money. Therefore, it’s a great option to be considered alongside a trust, rather than in place of a trust.

• Create a list of all personal preferences, details, medical notes and contact information, and activity schedules of the special-needs individual for any person who may assume a guardianship role in their life to help ensure sustained quality of life.

Intro:

Welcome to Modern Family Matters, a podcast hosted by Steve Altishin, our Director of Client Partnerships here at Landerholm Family Law. We are devoted to exploring topics within the realm of family law that matter most to you. Our discussions will cover a wide range of both legal and personal issues that accompany family law matters. We strongly believe that life events such as marriages, divorces, re-marriages, births, adoptions, children, growing up, growing older, illnesses and deaths do not dissolve a family. Rather, they provide the opportunity to reconfigure and strengthened family dynamics in healthy and positive ways. With expertise from qualified attorneys and professional guests, we hope that our podcasts will help provide answers, clarity, and guidance for the better tomorrow for you and your family. Without further ado, your host, Steve Altishin.

 

Steve Altishin  1:12  

Hello and welcome to Modern Family Matters, a podcast series sponsored by Landerholm Family Law aimed at addressing the myriad of real-life issues legal, personal, and financial, that touch and affect real life families. My name is Steve Altishin. I'm the Director of Client Partnerships here at Landerholm Family Law, and I'll be your host for these podcasts. Before we start in on today's topic, I want to invite anyone listening to this podcast to visit our website, www.landerholmlaw.com. We have a wide range of articles and resources covering timely family law issues that are important to you as you move forward through your own unique life's journey. 

With that, today we're going to talk about special needs estate planning. Here to join me today is Triston Dallas. Triston is an Associate Attorney with Landerholm Family Law and their resident expert in the field. So Triston, today we're going to talk about special needs estate planning. My first question may seem simplistic, but I get a feeling that it might not be. So I'll ask: what exactly does special needs mean?

 

Triston Dallas  2:25  

Well, hey, Steve, thanks again for having me here. I'm glad to be here on the podcast. Yeah, great question. So probably a better use of words in this situation is just an individual with a disability. So when somebody says special needs, almost all of the time they mean somebody who has a disability. That disability can be a mental disability, such as Down syndrome, autism, Asperger's, that type of thing. It could be a physical disability, such as blindness, or if you're a paraplegic, or you're deaf. Most times when someone's referencing special needs, especially within an estate planning realm, they mean an individual who has a disability that tends to be defined by social security.

 

Steve Altishin  3:13  

Social security disabilities have their own sort of set of needs. And I get that. And it seems like most folks who have common goals, we talked about that before on our Facebook Live, there are these sort of overarching goals that people who set up estate plans have, such as distributing their assets the way they want, taking care of their children, avoiding taxes, things like that. But for families with special needs, are there other goals, other sort of needs that are involved with families with persons who have disabilities? 

 

Triston Dallas  3:53  

Yeah, absolutely. You know, you take into consideration all the things you mentioned, but you also need to look towards almost managing the future and the retirement of an individual with special needs, especially when it's someone like mom or dad. If they're planning on creating a plan, or taking some steps to protect their son or daughter with special needs after they have passed on, there's a lot of steps that need to be taken. But what needs to be considered is "what can the child have?" and "what does the child need?" Even from a financial standpoint, how much will that child need for them to be sustained when mom and dad are no longer here? And that can come from your estate, or it can come from some other options actually as well. You can get kind of creative with that. 

But the important thing with an individual with special needs is more times than not, it is very, very important for them to maintain some level of covered benefits. Social security, Medicaid, Oregon has K plan, a lot of other things. So in order to do that, an individual who has a disability or have special needs has to stay under a resource limit to maintain those benefits. There are steps that a family member or a mom or dad can take for their son or daughter, even early on in the child's life, so that when mom and dad are no longer here, and they want to leave funds back for their son or daughter, they can do so in a way that would not put their son or daughter over the resource limit. So they could continue to maintain those benefits and maintain those government resources, even when mom or dad are no longer here.

 

Steve Altishin  5:28  

So in the benefit protection side, is it just that the person with a disability owns too many things? Or are there income limits they have, things they should be aware of that they think might not even matter? 

 

Triston Dallas  5:47  

Right. So not getting too much into the weeds of things. An individual who has a disability and receiving some level of government benefits can own one home and it can be in their name, but it has to be the home that they reside in. They can own one vehicle. They're actually able to work, that's okay. But the amount that they work will have an effect on how much they receive in government benefits. Most times when people think about resources, they think about money, and they think about bigger assets. Social security pretty much has a list of what counts as an exempt asset or asset that won't count against individuals with special needs for resources. Most of it is like really personal property, you know, you've got Apple TV and a computer, those types of things. But if you have, say, jewelry and cash and investments and those types of things, those are what will count against an individual with special needs as far as the resource limit. So, right now, the quote-end-quote "golden number" is about $2,000. So, two thousand dollars in an individual's name. Anything above that and that individual may lose their government benefits. Obviously $2,000 does not seem like a lot of a lot of money, and it isn't; it's a really low number. But it's actually very possible to kind of maintain and stay under that limit with some proper planning.

 

Steve Altishin  7:22  

That's what it sounds like. It sounds like it's pretty important to keep a tab, especially if we're talking about maybe a child, of things that they have or get. Maybe grandma and grandpa want to give them some money or something. And it sounds like it could be fairly easy to accidentally go over that limit if you're not really paying attention to the rules.

 

Triston Dallas  7:51  

Yeah. In this situation, it definitely takes a village, especially when you have big families. I come from a big family. And we're blessed in that we don't have anybody in our family with special needs, but if somebody in our family did, and we've got multiple sets of grandparents and you know, I'm the youngest of seven kids. And so if one of my siblings wanted to provide money to a niece or nephew who had special needs or whoever, and that wasn't Mom or Dad, kind of everybody has to be a little bit on the same page. Because mom and dad could take all the right steps and set everything up correctly. But if grandma grandpa put in their will that little Johnny is supposed to receive part of their estate directly, then they're going to receive whatever mom or grandma or grandpa leaves for them, and that can also kick them off their benefits, unless they take some quick steps, as soon as they receive their inheritance.

 

Steve Altishin  8:48  

It sounds like a real sort of a balancing act. You really want to strive to improve the quality of life for the person. But on the other hand not going over the benefit threshold. So are there special documents, or other types of legal or formal ways that you can employ to achieve these results of improving the quality of life but not risking losing important benefits?

 

Triston Dallas  9:22  

Yeah, absolutely. A long-term solution is a special needs or supplemental needs trust. And this can be created in two ways. You can have a first party special needs trust, which is used when the individual who has a disability has assets in their possession in their name already. And they need to be able to move those so they can stay within the resource limit and then continue to receive government benefits. So it’s a special needs individual with their own funds or own money put into a trust. Then there's a third-party special needs trust, which comes from, most times, mom and dad who are leaving funds behind for their son or daughter. So it's one person leaving funds behind for another person, so that's where the third person comes in. And those funds can then be used for the benefit of the individual with a disability for their lifetime. The two major differences between the two is that a first-party special needs trust is always irrevocable. A third-party special needs trust can be either irrevocable or revocable. And then the other big portion is that, with a first-party special needs trust, there is a quote-end-quote, "Medicaid payback", which means if something was to happen to the individual with the disability, and they were to pass away, any funds left within the first-party special needs trust would then go back to Medicaid. So this does not happen in the third-party special needs trust.

 

Steve Altishin  10:56  

Just again, not too much in the weeds. For someone who wants to go set up something like that, it seems like there are some things they need to consider. And the first one that comes to my mind is who to name as a trustee to manage those trusts? Obviously, if the parents are alive, and if they already put some money into the trust, they could do it. But if they die, then they're going to have to have someone else do it. So are there considerations there that they should think about?

 

Triston Dallas  11:29  

Yeah, absolutely. Well, let me say this: an individual who is going to be a trustee can be a professional trustee, it could be a family member who's going to act as trustee, and in certain situations it may be appropriate for there to be a pool trust. And that is just a trust that is managed by a specific organization in which they essentially have a bunch of funds for a bunch of different individuals that are pulled together, and every individual has their specific account. 

But an individual, let's say a family member, that you'd want to act as trustee for a third-party special needs trust, this person is going to be very involved in that individual with the disabilities’ life. This is because the funds in that trust can only be used for the disabled person's affairs in their life. And because the individual with a disability can't have more than $2,000 in their name at one time, what with all the different types of expenses that they will incur, whether it be medical,  activities, clothing, whatever it is, that individual who's managing that special needs trust will be very involved in that person's life. So it's always important to consider a person that can handle something like that, or to consider a person that that already has that rapport and connection to that person. A lot of times, if it's a sibling, more times than not they're more than willing to take care of their younger brother or sister in that capacity. If it's a professional trustee, their company reputation is on the line, so they're going to do everything that they can in order to make sure that person is taken care of. So there definitely are options. It really just depends on how you have your plan set up.

 

Steve Altishin  13:24  

Is there a strategy or kind of a thought process on how to fund the trust? Is there an issue, potentially, let's say you name the older child or another child as the trustee, are those funds at risk if something happens to the trustee or to the or to the person with the disability? Is there some sort of protection built into the special needs trust? 

 

Triston Dallas  13:53  

Yeah, good question. So if I understand correctly, with a third-party special needs trust, say mom or dad are the ones who have created it, and let's say they listed their firstborn child as the trustee to take care of the little brother who has a special needs. The trustee is a fiduciary to the trust and the beneficiary being, especially the individual. So that person would have to act essentially in the highest regard or with the most respect in regard to the trust and the individual. 

You can have things in a trust, such as a trust protector, and that is an individual who essentially just makes sure the trustee doesn't flip and make things fall through the cracks. There's a little bit more to it, but that's kind of the easiest way to explain it. But the protection there is, you know, if something happened to mom and dad, that's why the trust is there. While mom and dad are alive they are usually more than willing, and probably have been the entire time, been helping to take care of the individual with special needs. And so they're doing the funding, they're doing the the travel back and forth to all of the appointments, and their activities and what have you. 

So the trust is put in place in order to make sure that there are funds or assets there that can help make sure that individual can continue to do those things. So even if the trustee was to, let's say, the older sibling was like, 'Hey, I can no longer do this'. The trust doesn't dissolve, the trust doesn't go away, it stays in place. And hopefully, they have listed an alternate or successor trustee. And if they haven't, then there are steps that can be taken to put another individual in that role to continue to make sure that that trust is administered.

 

Steve Altishin  15:43  

So let's say parents are considering setting up a special needs trust, which sounds like it's a great idea in a lot of these situations. Are they required then, at that time they set up the trust, to take all their monies, all their assets and put it into the trust? Or can they do that at a later time or after they're dead even?

 

Triston Dallas  16:03  

Yeah, also great question. With third-party special needs trusts, there are a couple of ways you can go about it. 

You can create a trust, like a testamentary trust, which is a trust that does not become active until the grantors have passed away. So let's say mom creates a will, and in that will she lists that little Johnny will receive half of her estate and that anything that goes to him will be put into a special need or supplemental needs trust in order to make sure that he's taken care of when she's passed away. Because like I said before, more than likely mom is probably doing all she can to support the the son or daughter now. 

The other option is you can create a third-party trust now and fund it now. It just means it has to be administered now and trusts are an entity that do require things like accounting and paying taxes and those things. So you could open it now and create it now. Start putting funds in now, but it isn't necessarily needed, especially if you are the main source of support and care for the child. You might as well use your funds that you're using now and then make sure that it's set up in a way to leave them in the trust when you're no longer here. 

The other option, and this works well in a scenario I mentioned before, is a situation with bigger families where you may have a lot of different family members. You can create a third-party trust now, as a dry trust. So it's open, it's quote-end-quote "active", there's nothing in it. But then all the other individuals can set up their estate planning in a way that if they wanted to leave funds behind for that individual with special needs at the time of their passing, they can instead, rather than leave it directly with little Johnny, they can leave it with little Johnny's special needs trust dated XYZ. And that way all the funds will go directly to that trust, and you don't have to worry about that individual receiving those funds directly and then being kicked off of any government benefits that they are on. 

The last thing, though, is from a more short-term perspective. An individual can open what is called an ABLE account. An ABLE account allows funds to be put into a specific type of account where anything in there does not count against the individual with the disability. It doesn't count against their eligibility or resource limit, to a certain extent. So you can put up to $15,000 a year into an ABLE account from any source. So, if mom put $5,000 in, Grandma put $5,000 in and Uncle put $5,000 in, that's perfectly okay because you're at that $15,000 limit. And then aggregate or cumulative, no more than $100,000 can be put in that account. Anything above $15,000 a year or $100,000 total will start to count against that individual and their resource limit. 

There are some tax benefits to using an ABLE account as well. A lot of times it's kind of beneficial for some of the family members to use it. The only difference from the shor- term aspect of an ABLE account and a special needs trust, or one of the differences, is that the ABLE account can only hold on to cash, just money. A special needs trust can hold on to anything. So it could be the car, if mom or dad want to leave their car to that individual. They can leave their home to that individual so they can live in it while they're alive. You have a lot more options there on the special needs trust side. More times than not a solid plan will probably take into consideration both options and figure out what's the best way to use them.

 

Steve Altishin  19:55  

The special needs or supplemental trust has a trustee obviously, you were talking about that, who ultimately makes the decisions on how to spend the funds. And kind of circling back to the definition of disability it can be mental disabilities, but it can also be, like you said, blindness or deafness-- something that a person may be qualified for some benefits and may need some help, but can manage their own accounts in many cases. Does the ABLE account allow for someone like that to actually have access to those funds and to manage it themselves?

 

Triston Dallas  20:46  

Yeah. So the ABLE account can be flexible in the sense that for that individual, it's possible for them to get essentially like a debit card, and it's like a loadable debit card. So let's say Mom wants to put $5,000 into the ABLE account for their son or daughter, and then their son daughter can get a debit card that can be loadable to no more than, let's say, $100. So $100 a day, they have access to the funds to buy food, go watch a movie, hang out their friends, anything like that, without access to everything that's in the ABLE account. And so the ABLE account won't have a trustee specifically, but there are ways to connect the special needs trust to an ABLE account in the sense that you can have the ability to take funds from a special needs trust and put it into an ABLE account so that person has access to funds to spend on their own accord. But of course, especially with individuals who have some type of mental disability and they may not complete grasp the concept of money and spending, you don't want to give them complete access to everything in that ABLE account. And so what's also possible is that someone like Mom or Dad can also be connected and oversee the ABLE account to make sure that it's administered correctly, but also make sure that their son or daughter doesn't completely spend everything that's in there.

 

Steve Altishin  22:09  

Suddenly, a question popped up in my head while you were talking about that. And, at the risk of sounding completely ignorant, I'm going to ask it: on a special needs or supplemental trust, can the beneficiary, the disabled person, be the trustee? 

 

Triston Dallas  22:31  

No, no. And, you know, let's look at the example of a third party special needs trust, and you don't sound ignorant at all. It's a valid question to ask because there are a lot of moving parts here and it definitely seems like a little bit of a game because you're moving money and "hiding it" in a sense to make sure that individual stays on benefits. But no. The reason being is, a third-party special needs trust is completely, let's call it discretionary, in the sense that the trustee themselves have the complete discretion on how and how much money or assets are being provided to the individual with special needs. And that is really important because the individual with special needs cannot compel or demand funds from a special needs trust. If they have the ability to do so, social security or whatever government resource that they're on may they look at that and say, 'well, they have access to this, and they can be using this on their own accord at any given time. So it doesn't really make sense to say that this should be exempt from the resource limit.' And that is an important buffer to have there.

 

Steve Altishin  23:47  

Yeah, that makes total sense. It's a facade then because they still have access.

 

Triston Dallas  23:54  

They do have access in the sense that there's something there as a safety net if they really needed the funds. But it isn't there in the sense that, if it's in a special needs trust, the disabled individual can go to a bank and just pull out all the money from there and spend it. Not possible. And so there's that buffer there to make sure that what's there is used for their benefit, and not just on a whim, based on what the disabled person wants.

 

Steve Altishin  24:29  

Right. On the ABLE account, are there any rules about what the funds can be used for? 

 

Triston Dallas  24:39  

Yeah. Similar to special needs trusts, anything in an ABLE account is supposed to be used only for the individual with a disability. So, Mom or Dad couldn't help set up an ABLE account for their son or daughter and then try to take all that money out so that they can buy a new set of golf clubs. It doesn't really work like that. So anything that's going into an ABLE account needs to be used only for the individual with a disability,

 

Steve Altishin  25:15  

But it's not so restrictive that it has to be used for a disability-related service?

 

Triston Dallas  25:25  

No, not necessarily. It doesn't necessarily just need to be used for somebody that needs a wheelchair, or anything like that. No, that's not necessarily the case. I mean, like I said before, the money in the ABLE account can be used for going to movies, and UBER rides, or buying DVDs or video games, or whatever it is. That's all possible too.

 

Steve Altishin  25:50  

It kind of comes down again to the quality of life component. 

 

Triston Dallas  25:55  

Yeah. The ABLE account started because a gentleman wanted to be able to save for his daughter, potentially for college and other potential things if she was able to do that. And there was no way for doing that without her being essentially "dinged" in regard to her resources and her eligibility. And so, you look at things like a 529 account, which for most families it's a very common thing for parents to invest into when it comes to college savings. But 529 doesn't have the same rules as an ABLE account. An ABLE account can give that flexibility. So, if an individual does have a disability, but college is a possibility, you can save up to the $100,000 limit, and not affect their resources.

 

Steve Altishin  26:44  

Wow. It sounds like a wonderful thing. It kind of does for the disability field what, even though it's not the same, the 529 did for education. It's just a great tool to use in a situation where it's necessary or there's a good reason to use it. 

So, we've got these documents executed and let's say we got them put into place-- you maybe have a supplementary trust, an ABLE account, you've got the legal things you can do to help protect the person with a disability by improving their quality of life and protecting them from losing benefits. So they're all in place, but are there other actions that aren't necessarily legalistic in nature, that people with a family member with a disability can take, especially looking at the quality of life factor, that make an estate plan more than just the documents?

 

Triston Dallas  27:57  

Yeah. And we talked about that on a live stream that we did a couple of weeks ago, that an estate plan is definitely more than just four corners of a couple documents. And it will include concerted efforts taken by family members and individuals who are creating the plan to set things up or put things in a place now that can be used later. 

For example, specifically for an individual with special needs: Mom and Dad are more than likely the complete caretakers of that individual. And they know everything about the individual; all of their doctors, all of the activities that they're in, what they like and don't like, their medication, etc. If something was to happen to Mom or Dad, even though you have a trustee who will look over the funds because you set up a special needs trust, you also need to have something in place, be it a document or something, that has a list of information of everything connected to the actual individual, the actual human being, that's being looked after. So whether they like pb&j sandwiches, whether they need to be "tricked" into taking their medicine,  their doctors, activities that they're in. All that is important to kind of have in a list somewhere so that can be given to an individual who would ever take a guardianship relationship to that individual.

 

Steve Altishin  29:29  

It's like passing down the accumulated knowledge and wisdom that the parents have garnered over their life for this situation, and passing it to the next generation, so to speak. It sounds like a great idea.

 

Triston Dallas  29:51  

Exactly. And most times, an individual who has a disability may have something like a caregiver or personal support worker. So Mom or Dad have probably created some type of information or list for that individual to know as they continue to work with that person with special needs. But if you have family members that may step in at some point, it's just important to have it somewhere so it can be referenced and looked at in the event that someone needs to step in in an emergency.

Another thing to consider is to just look to be involved in the community. Oregon is one of the better states for community relationships with individuals with special needs, whether it's autism, blindness, deafness, Asperger's, Down syndrome, whatever it may be. There are a lot of organizations, especially in Oregon, and the Portland metro area specifically, but all of Oregon, where your son or daughter, or brother or sister, whoever it may be, can be involved in these organizations. And they have so many resources. And those can speak to, and touch, the actual quality of life we mentioned before for the individual. Get them into activities and resources with individuals that are like themselves and dealing with something very similar. They may be able to garner some very lasting relationships with some people who are doing some really great work. So that is also something to consider. 

And then, kind of a long term thing to consider: you may put together the special needs trust, and you may decide, 'hey, I want to make sure that I leave whatever my assets are, or my estate goes to this individual in a special needs trust'. But you also need to consider, 'hey, how much do they really need?' 

And I would say, more times than not, they need more than you think they do. So there are creative ways to go about adding additional funding to a special needs trusts that aren't necessarily expensive. A very common way is people agree to get a permanent life insurance policy where you pay a little bit now, but the minute that you pass away, that policy has a big number, a big amount, that can then be put into a special needs trust for that individual. That ensures you don't have to worry about that individual with special needs trying to sell a home or sell a bunch assets in order to get cash so they can be taken care of, or having the trustee do those things. That's one way to try and fund a special needs trust. And there are definitely organizations out there that will assist people and help with figuring out what that number is if they need to take those steps.

 

Steve Altishin  32:50  

Wow, that sounds like great things to do. You know, you read around on the internet, and there are people talking, advising, and even attorneys and financial planners, about ways to deal with members with disabilities. And they have some ideas I consider kind of odd, such as to just disinherit the special needs child entirely on the theory, I guess, that 'okay now you're absolutely good for benefits'. Or just giving everything outright to a sister or brother of the person and saying 'here, you do it as you see fit'. You know, those things seem fraught with danger.

 

Triston Dallas  33:35  

Yeah, yeah, absolutely. Even the person with the most amount of money, whether it be a celebrity or whoever it is, if you want to private pay for any resource or benefit that a disabled person would want,  you absolutely could if you actually had all that money. But I wouldn't necessarily recommend it just because there are a lot of things that could be really beneficial by being on some of those government benefits. You can still create a special needs trust to make sure the person take care of. So just giving it to them outright, and there's no protection, again, if that individual has that money and they don't grasp the sense of money and what that means and they just go and spend it,  nobody can stop them from spending any of that money.

Giving it to a sibling, I guess the right intentions are there. But if something were to happen, say that sibling has creditors, or let's say for whatever reason, that sibling just has a change of heart and they no longer want to take care of their brother and sister, that money is in their name. There's just nothing really stopping them from no longer taking care of their sibling. And so again, the intentions are there, but there's definitely a danger of other issues.

 

Steve Altishin  34:48  

Oh, I totally get that. This is great information. I should point out that, Landerholm Family Law, we are a full range family law firm, and we see how issues of divorce, custody, child support, even adoption, can pretty drastically affect estate plans. In fact, we talked about that in our last Facebook Live. I imagine this is also a big factor that can affect special needs estate planning.

 

Triston Dallas  35:19  

Yeah, yeah, it can. And I mean, that could be a whole ‘nother podcast in itself. But yeah, there are definitely things to consider if you've got a blended family and you want to be able to take those steps. And whether you do it together or not, you want to be careful about what you're doing and be on the same page about how you're taking care of an individual with special needs.

 

Steve Altishin  35:39  

I like that. That would be a great podcast. Well, I see we're running out of time. Thank you, Triston. This was just really, really great stuff. 

 

Triston Dallas  35:50  

Thank you for having me again. Appreciate it. 

 

Absolutely. You brought a unique expertise insight into this conversation. It's a complex area, and if it's handled correctly, it can be transformative for families, especially special needs members. But, if not, then it can end up pretty disastrous. 

So once again, just want to let everyone know I'm Steve Altishin. This is Modern Family Matters. If you have any family related topics that you'd like us to address, legal or otherwise, or if you're interested in being a guest on our podcast, please feel free to contact me directly at steve@landerholmlaw.com. And with that, I want to thank you, Triston, and I want to thank everyone for listening. Everyone do the best you can. Despite the hyperboles, that's all you can do. See you guys next time. 

 

Outro:

You're listening to Modern Family Matters a legal podcast, focusing on providing real answers and direction for individuals and families as they navigate the growths, changes, and challenges of creating their new family dynamics. Modern Family Matters is sponsored by Landerholm Family Law, serving Oregon and the Pacific Northwest and devoted to providing clients with compassionate and fierce legal advocacy with a firm belief in the importance of upholding the family unit amidst complex transitions. If you are in need of legal counsel or have additional questions about a family law matter important to you, you can visit our Landerholm Family website www.landerholmfamilylaw.com, or call us at (503) 227-0200 to schedule a case evaluation with one of our seasoned attorneys. Modern Family Matters, advocating for your better tomorrow and offering solutions on legal matters, important to the modern family.