Beyond the Will: Essential Steps in Special Needs Planning for Parents

"Who's going to watch over my child and make sure that things are being done properly, that they have everything they need?"

In this conversation, Bob Mannor, a certified elder law attorney, interviews Michele Fuller, a nationally recognized top special needs attorney, about special needs planning. 

Bob and Michele discuss the importance of collaboration and the need for a comprehensive approach to planning for families with loved ones with special needs. They highlight the role of a special needs trust and the importance of choosing the right trustee. They also emphasize the need for ongoing planning and the involvement of professionals with expertise in government benefits and financial management. Overall, the conversation provides valuable insights into the key considerations and resources for special needs planning.

They also offer advice for professionals working with families in this situation and highlight the importance of engaging the thinking brain and testing processes. The conversation concludes with information and additional resources.

Takeaways

• Special needs planning requires a comprehensive and collaborative approach
• Ongoing planning is necessary to address changing circumstances and laws
• Leaving funds for a special needs child through a standalone trust can protect them from potential disruptions in social security benefits and ensure that the funds are used appropriately.
• Proper planning is crucial to avoid common mistakes, such as disinheriting the special needs child or leaving funds to someone else without proper safeguards.
• Creating a memo of intent that outlines the family's values, wishes, and instructions for care is essential for effective planning.
• Professionals working with families in special needs planning should meet them where they're at, help clarify their struggles, and provide resources and guidance tailored to their specific needs.
• Every family with a disabled or special needs child should consult with a special needs attorney to develop a plan that addresses their specific needs and concerns.

Host: Attorney Bob Mannor
Guest: Attorney Michele Fuller
Executive Producer

Transcript

Attorney Bob Mannor: 0:00

You're listening to Advice from your Advocates, a show where we provide elder law advice to professionals who work with the elderly and their families.

Attorney Michele Fuller: 0:10

Welcome back to Advice from your Advocates. I'm Bob Mannor. I'm a certified elder law attorney in Michigan and we have a special focus in our law practice on families that have a loved one with dementia. Today we're going to be talking to one of my favorite attorneys, and that's Michele Fuller. Michele, welcome.

Attorney Bob Mannor: 0:29

Thank you so much for having me, Bob.

Attorney Michele Fuller: 0:31

So Michele is a friend of mine and one of the well certainly a top attorney in the country when it comes to special needs planning. In fact, parents Magazine has declared her to be a top special needs attorney for the entire country, and they're not the only ones that have realized how special Michele is. In fact, the state of Michigan and the governor, has appointed Michele as a special attorney general. Now, for those of you in Michigan, you certainly know about this, but even if you're outside of Michigan, you've probably heard of the Flint water crisis, where there was a lot of people, and especially children, that were exposed to some chemicals or lead. I think. Was it lead, Michele?

Attorney Bob Mannor: 1:19

Yes, lead poisoning.

Attorney Michele Fuller: 1:20

In their drinking water, and so, of course, there were some settlements based on this and they needed to figure out how to manage those settlements. And so they scoured the state and they said who could be capable of this? And they figured out that Michele was very capable of it. So she's a very special person, a very special attorney. Michele, tell us a little bit about your practice.

Attorney Bob Mannor: 1:41

Well, thanks, bob. It's always a delight to work with you on anything, and so I really wanted to thank you for allowing me to participate in this really awesome podcast. And so my practice is really with a focus on special needs planning, and I've been doing that since I was a baby lawyer working for Patricia Patterson, my favorite professor at University of Detroit Law School, so I've been doing it ever since and that is really the focus of my practice, and I also have a child with special needs, and so that helps to drive my passion. That already existed, but that is really the focus of my part of the practice, and I know that you and I collaborate quite a bit, and the other part of what I do is I administer special needs trust through a nonprofit that I established in 2005 called Advocacy, and so that has a little bit of history, and you and I kind of talked about this.

Attorney Bob Mannor: 2:34

You know to prepare for this, and the purpose of that is basically to fulfill the promise that we make to clients when we're doing planning and what that looks like, and so, as a planner, we get involved in creating the legal structure, and the biggest concern that parents have any parent has is what's going to happen after I'm gone? Who's going to watch over my child and make sure that things are being done properly, that they have everything that they need and they're not just subsistence but they're actually thriving? And so, to be fair, I just took a look around and I was like I just don't like what I see, and so that's where it all started and that's where my career has kind of flourished in that area.

Attorney Michele Fuller: 3:19

You know, it's really interesting the way you talk about that, michelle, because it's so true and a lot of folks they think of lawyers as documents or they think of them as transactional. And a lot of lawyers think of it that way they want to do the documents, they want to get the client in, do the work, get a check and then be done with it. And both you and I have a completely different perspective, that this is about producing results for the families, helping the families through these situations, through these crises, and that is not a one-time event, it's not a transactional event. So I'm glad that you brought that up because it really is a kind of a distinction between your practice and my practice and a lot of what people imagine for lawyers and what a lot of what lawyers think of themselves is it's just a transaction and then we're done with it. Families aren't a transaction. Families go on, life goes on and things change and they need to have the assistance and advocacy I like the name of the company advocacy through the rest of their lives sometimes.

Attorney Bob Mannor: 4:26

Exactly, and I think that's where one of the reasons that you and I get along so well is that we have a similar value, which is that you know you can treat estate planning, or planning that families need, as a transaction, like you said, and the idea is you know, you just call us when you need us, but the families don't know when they need us. They need to maintain an estate plan, and it might be a little surprising, right? You might have to, as families are listening to this. You might have, if you have one. You might have to blow the dust off of the binder that's sitting on a shelf somewhere, and that's fine, unless there's never, you know, no changes in the law, there's no changes in your family or no changes in what you own, and that doesn't apply to anyone that I know.

Attorney Bob Mannor: 5:14

Relationships change, your assets change, how you think about things, change and making sure that things go smoothly, and the best way to do that is to have a relationship with your planning attorney, and so I know that your focus on elder law is usually driven by crisis right, and that's where you excel, for sure, and so this is where you know this isn't just we don't want a crisis, is about crisis prevention, and so having a legally sufficient framework is just a starting point, and so that's one of the things with elder law and special needs planning that it's not just about creating a sufficient legal document, it's about the resources. And where are you at today? Okay, assessing where there's gaps, where there's frustrations, predicting the future right, because there's hoping, and then there's planning.

Attorney Michele Fuller: 6:06

Right.

Attorney Bob Mannor: 6:06

Drives you toward whatever that goal might be, and it might be hard. You have a special needs child that's young. You don't know where they're going to end up. My daughter, for instance, I mean she's fantastic and she's living independently in California. If you had talked to me when she was five, there's no way I could have predicted that she would be where she's at today, and so this is where that relationship is really important.

Attorney Bob Mannor: 6:31

And families don't know. They don't know what they don't know. So finding an elder law attorney and finding a special needs planning attorney first, they don't even know what to call it. So that's the first thing. But a lot of estate planners will say that they do them. So one of the questions for being a good consumer as a family what do you look to? How many do they do a year, or is it less than 10? How do they keep up with changes in the law and how many of they defended right, what additional resources they can bring to the table. And I know that's something that you and I really have in common, where it's that we bring those additional resources in to help eliminate frustrations and give the client the services that they need, where it may not be within our office, but it's about that collaboration to have a complete plan, and so that's just a good starting point as to what they look for, what kind of questions to ask of their estate planner and customization building in that framework.

Attorney Michele Fuller: 7:40

You said a couple things that I want to highlight there because I thought they were really interesting. One was the idea of that the families don't know what they don't know. To be honest, they can't know. It would be shocking if a family knew all the things they needed to know to deal with the law and Social Security and insurance and Medicare and all of the different programs that are out there and dealing with the healthcare system, dealing with the, you know, hopefully avoiding the court system. You know all those things I don't know in both of our practices with special needs and with elder law. I don't know that most lawyers could maneuver the maze that is created for both of these practices.

Attorney Bob Mannor: 8:28

I agree. I mean, if I ran across a client that could do that, I would hire them.

Attorney Michele Fuller: 8:32

Yes, exactly Exactly. The other thing you said that I thought was really important to highlight was defending the work, and that's something that we both are comfortable doing, and a lot of lawyers are happy to do the planning, but they're worried about it or they won't defend it. In other words, if it gets challenged by Social Security, if it gets challenged by the Department of Health and Human Services and they say that something is wrong or that they don't like the wording of something, that you have and I have the capacity to defend our work and pursue it through the appropriate appellate process, and that, I think, is a huge advantage for our clients.

Attorney Bob Mannor: 9:13

Absolutely, and I think that that's where we, in my practice and in yours, get referrals from other professionals that maybe have drafted a trust but they've run into a problem, from other professionals that maybe have drafted a trust but they've run into a problem. And so, as a consumer or as a potential client, I think that's an important question to ask. Is that how many? Not if, but well, maybe that's where you start is have you defended a special needs trust in front of either DHS or social security and, if so, what's your win rate? Right, that's a big deal. So I think that it does take a special skill set.

Attorney Bob Mannor: 9:50

And if you run into a referral where I do get some of those referrals from other attorneys where they're like there's a problem here and we need to get this fixed One is that assessing the problem appropriately. Is this something that's fixable or what's the end game? So what is the client's objective and what's the quickest, most efficient, cost-effective way to get there? And it may not be pursuing an appeal, it might be just fixing the problem, and so sometimes it's just putting that choice in front of the client what are you giving up by going with choice A versus choice B, and what is the cost, and so usually you know, and then what's your recommendation? So it's just like any profession. You know, if you think about this in a medical sense, if you have cancer you don't go to your general practitioner.

Attorney Bob Mannor: 10:39

You go to them when you have a cold or a stomach ache or I've got a sinus infection, but if you have a heart condition, you're going to go to a cardiologist, right, and so it's the same thing you want to go to a specialist. If you have a child that's got challenges, and it's just not. It's not limited to that classic. You know, child in a wheelchair or something like that. It's where you think of a typical diagnosis. It could be someone who's struggling, where they're. Just you know how many kids did we go to school with that? They didn't get properly diagnosed.

Attorney Bob Mannor: 11:14

You see the effect of what they've been struggling with, but not the underlying cause, and so you could see it. Where you've got multiple failed marriages, and so you could see it. Where you've got multiple failed marriages, where you've got money issues, addiction issues, mental health struggles, and so it's not just the classic. You know, child lockdown syndrome, it's a spectrum Right. Have a child that you're concerned with and with their ability to manage money, where they need that additional support and framework, then that also is a special need that gets under that umbrella as well. So do they need additional protection? Are you concerned about it? Then that's something that should be consulted about.

Attorney Michele Fuller: 11:59

I think that's an excellent point, michelle, that really, when it's parents talking about how we're going to leave our money to our children, it doesn't have to be a government defined disability right. There are times where we do want, you know, we might want an entity like Advocacy Inc to help manage that money. You know money and inheritance can hurt somebody. I know that we never. We hardly. Most people don't think about it that way, but if somebody's having addiction issues or they're having other issues or marital issues and we throw a bunch of money at them, it can make their life a lot worse than if it's managed properly, if they're getting the money through an appropriate management of that money. And so that's not necessarily a defined disability according to the government, but it is something that parents might want to think about from the standpoint of saying, okay, we worked really hard for this money, maybe we got it from our parents, things like that. But whatever it is, we want to make sure that this is made for good use and it's not actually going to harm our children.

Attorney Bob Mannor: 13:08

Absolutely, and that's where the choice of trustee is huge. So typically when I draft, you know there's different perspectives on this. There's not one way to do things, certainly, especially when it comes to drafting. But in other words, what do the words look like, what is our governing instrument, what is our contract and the rules that we're creating in this document that we call a trust? And so typically what I like to do is balance a professional trustee with a role for family to be like a super trustee. They make sure that the trustee is doing their job, but they're not responsible for day-to-day activities. So most of the time when we're thinking about trust and who we nominate as trustee now, this is for any kind of trust, right, but most importantly, a special needs trust where the trust is designed to really be created and act for life, not just pay it out over a certain period of time.

Attorney Bob Mannor: 14:08

Think about that child. Most of the time, people are who are they nominating? They're nominating an adult child, like the responsible child, right, which is typically you or me or someone like us, a busy professional, and so are they going to have the time to do? It is first, first and foremost, and the answer is probably not. Secondly, um, you know they're the ones who now, instead of just having a brother or sister relationship, now they're the money manager, they're what's standing between their sibling and a trustee, or in their money, and so do you want them having to take the calls and make hard decisions? And so it's usually better in those circumstances to have an independent trustee who's doesn't have, um, you know, decades of emotional, you know, sibling issues, parent issues Not every family is.

Attorney Bob Mannor: 15:08

You know the Brady family was a blended family right, and they didn't talk about ex-spouses ever on the Brady family, or former or widows or any of that family, additional family structures, and you know it's not unusual to have blended families. And so those are just layers of complications that sometimes can be better handled when you've got an independent trustee where they're making those decisions and handling day-to-day types of administration, government entities and policies that change every quarter or are updated quite frequently, like, for instance, on SSI, social security just eliminated food as an issue, oh, my goodness.

Attorney Bob Mannor: 15:55

Yeah, that's a huge deal. It's being completely, you know, it's being phased in and implemented as of September, so that changes and impacts directly impacts the lives of people who are on SSI benefits. How does a family trustee navigate that and manage that and make sure that they're staying up to date on all of that on top of everything else that they already have to do during their lives manage their career, their own family?

Attorney Michele Fuller: 16:21

they just have no shot and so it's very difficult michelle, I wanted to address that too, because you know part of that people don't always like to think about this part of it, but it's also the money management meaning uh, growing the money potentially, and so we're sometimes expecting someone now that to not only be an expert at government policy, know all of the changes that might occur on any given day with regard to Social Security, medicare, medicaid insurance, health care, decision making, all of these things. But now they have to be a financial expert too, otherwise, you know, sometimes we talk about, oh okay, the cost of a professional trustee. It's often going to be the cost is the cost that's lost by not getting good money management and making sure that the money has an opportunity to grow properly, rather than relying on your child to be an expert at so many different fields, including all of the financial and tax issues that come up with regard to these issues.

Attorney Bob Mannor: 17:29

Exactly, and that's where I don't do that. Personally, I can't do everything Right, but that's where we have money managers for professionals, so you do do it because you manage the people that have that expertise.

Attorney Michele Fuller: 17:43

I want to be clear. That's one of the things I really appreciate about the services that you offer. You have all of these strategic partners so that you have the experts for any field that we need.

Attorney Bob Mannor: 17:54

Absolutely, and that's where you know. I think that's one of the hallmarks of, I think, a good lawyer is that you know your lane and you don't have to have the answer for everything, you just have to know how to get the answer. And that's where you've got like you mentioned strategic partnerships, so that you've got so having a certified financial advisor that has a fiduciary responsibility. So let's talk about that.

Attorney Bob Mannor: 18:18

I think you and I have probably seen the commercial for Fisher Investments that just has stuck with me as being a fiduciary and what that means. And that means that you have to always act in the other person's best interest, and whether you're acting as a power of attorney for somebody, you have a fiduciary duty. That means that you must act in their best interest, not your own personal interest. Whether that's commingling funds, you cannot do that. You can't sell property that benefits you and doesn't act in the best interests of your client or whoever you're acting on their behalf.

Attorney Bob Mannor: 18:54

So fiduciary roles are super important. And you may not realize that when you are appointed to act in that capacity in other words, you're acting as someone's agent under a power of attorney, or a personal representative of their estate or a trustee that is your duty, not as a brother or a sister. You must act in that person's best interest, and that goes for financial advisors. They must have a fiduciary duty. I don't like working with ones that do not, because there's no obligation then they don't have to match. It gives them license then to act in their own best interest, which you know, that's not what we do every day.

Attorney Bob Mannor: 19:40

We have a duty to our clients, and so part of that is making sure that we have good referral partners, and so one of the things that I know is that families will have a, you know, they'll have a relationship with a financial advisor and as part of business management, part of what we do is just an independent assessment Are they really, are they the right fit for the entire bucket of whatever we're supposed to be managing? And so sometimes we'll have it reviewed and we're like, you know, by someone else who's independent and go oh yeah, they're doing a great job, wonderful. Then, of course, our first objective is just to keep that team in place. If they're a known, trusted part of the decision making that a family has assembled, that's great. But what if they're a known, uh, trusted part of the decision-making that a family has assembled, that's, that's great. But what if they're not great? Or maybe they're not great for that purpose? So planning for someone's retirement is different than managing a lifelong special needs trust.

Attorney Bob Mannor: 20:37

Um and so we tend to work with fiduciaries or financial advisors that that is their book of business, that they are familiar with it, particularly if we're looking at court supervised trusts. We want to make sure that the money lasts, that the objective and the goals of the client are, first and foremost, not meaning mom and dad at that point, but the beneficiary of that trust, and so we review these all the time. We meet with people like how many financial advisors do you work with where, once they have the money under management, you never really hear from them again?

Attorney Bob Mannor: 21:13

Right, it's just like you know there's lawyer jokes about. You know you can't Right there's tons but there's. You know we know great professionals that have an excellent commitment to service, that have an excellent commitment to service, and so you know I like how you're talking about collaboration.

Attorney Michele Fuller: 21:29

I do want to clarify some of our early conversation about the lawyers that we work with, and one of the things I really like about our practice both your practice area and mine is that it tends to be very collaborative, and that's some areas of law tend to be very cutthroat and that you don't you know you don't want to help each other, and that's not been my experience in special needs planning and elder law that the bar, the people that take this work seriously, tend to work together. They tend to share information. We tend to look at it as we have a common goal and we're all moving towards that common goal, and I think that's important to acknowledge that you know well. There's certain elder law issues that I'm going to probably either seek counsel from someone else or I might refer it out. That is one of those things where we tend to as a bar group, as a lawyer group, tend to be very collaborative and cooperative as opposed to competitive.

Attorney Bob Mannor: 22:38

I agree. I mean, both of us are the former chairs of the Elder Law and Disability Rights section of the state Bar, and so we've had the benefit of that collaboration and you and I personally collaborate with clients, and because we just look at things differently, where we're really looking out for the client's best interest, and if there's a resource I have, whether it's a case management or financial advisor, any kind of resource that I have that will help you with your client we'll share that information and we have specialty list serves and all kinds of stuff that that we do to make sure that we do that. So you're right, I think that our area of practice is pretty special in that regard is and plus we're lucky, our colleagues are fantastic.

Attorney Michele Fuller: 23:21

So I'll share with. I'll share with our listeners that one of my one of the reasons why I appreciated you being chair of our section of the bar before me was you cleaned it up and so you ran a tight ship. It was the meetings used to go on forever. When you took over, you made sure that we were effective and efficient and we had committees and the work was done efficiently. And then I got to take over, so you cleaned it up before I had to get involved.

Attorney Bob Mannor: 23:49

And I appreciate that. I just got Maria's her reports and the notes from last time and I could see that some of the structure that was put in place about the committee reports and all of that was it was. I think that's how you know you've done a really good job when it stands the test of time.

Attorney Michele Fuller: 24:06

That's it Exactly right. I think most of the reforms and changes that you created definitely continued after you were no longer chair, because we all saw the value and benefit of that. I do want to take a minute and take a step back, because I think well, because I think well. Parents with special needs children often get their own education on law and advocacy, especially when they start going to the schools and they have their IEP meetings and things like that, so they start becoming educated pretty early on. But I want to you know, a lot of the listeners for this podcast are going to be other professionals, social workers, maybe even financial advisors and attorneys, and so I want to go back and take a sort of one-on-one or one-on-one approach on this. So let's just start with explaining what special needs planning is and why it's important for families with loved ones with special needs.

Attorney Bob Mannor: 25:07

I think that what makes it different, or what's different about it, is that part of it is my approach. It's got to be a right fit. So for you, as a professional or a planner, are you the right fit for this family? So?

Attorney Bob Mannor: 25:25

if a family comes to you and they have a recent diagnosis, that's particularly challenging designing a plan that will help alleviate their concerns, which is usually worst case scenario, like they're away for a weekend and something horrible happens, that their children are taken care of. So one of the tools that I can recommend for planners, professionals or even families that are just getting into this and exploring like, oh, what do we need? We don't even know what we need. One is that I know, as you well know, I took a note out of your book, right, and we do what's called the Great Lakes Special Needs Planning Symposium.

Attorney Michele Fuller: 26:08

Yeah, which is great, by the way.

Attorney Bob Mannor: 26:10

Thank you. And so you can look for resources and past recordings of sessions on movingtomasterycom. And so there are some free things on there for consumers, but also for professionals who are really looking for a deeper dive, and I do have families that go to that as well, that want to really dig in and know some of the intricacies of, for instance, public benefits. Right, there's 90 minutes deep dive on SSI and social security and how that works. There's a great drafting 101 for professionals, but sometimes families want to know what to expect and what they should expect from an attorney. So that's a really good foundational way to start. The other is Disability 101. Disability 101 is a national website and you can do a state by state search and it will list all of the resources for a special needs family in that state.

Attorney Bob Mannor: 27:07

And so you know people don't always stay in one state, so if you have a transfer or you're going through a change in your family of any kind which may require a relocation, how do you know?

Attorney Bob Mannor: 27:19

You might know what you've got, where you're at, but how do you know what's ahead? And that is a really good place to start Like, oh, what's available in Florida, what's available in this part of Florida or California, which is, like to me, the gold standard of what's available for public benefits for people with developmental disabilities. And so that's where a good planner and the value of and one of the other things that I know that you and I are both involved in national organizations, and when you're dealing with federal benefits, I think it is super helpful to be part of a national organization because it helps you really collaborate with other professionals in other parts of the country and at least be somewhat aware of how things are different from where you sit normally, and so that is super helpful. But as a starting point, a good special needs planning attorney will not just create a special needs trust that fits where your family is at today, but will also bring in additional resources.

Attorney Bob Mannor: 28:24

Like an IEP advocate right, because you don't know what, you don't know what's next. What are some critical ages that are up ahead and key turning points? So one is really where there's an initial diagnosis. One is where the child is now becoming a legal adult at age 18, or if they continue in school, like for Michigan, we are the only state in the country that educates up to age 26. Most other states end at age 21. And that's extraordinary, and so that's another key planning point is what happens after school is done. Key planning point is when what happens after school is done, and so and putting things together with other resources. Like we have a fantastic ARC for us, lisa Lapine, who I know you know that we went to law school together. She is the director of ARC of Macomb a fantastic and strong ARC where they may not be as strong in other parts of the country.

Attorney Bob Mannor: 29:26

And so, but collaborations and that's where building in resources are tremendous. But from a special needs planning standpoint, there are some key things to look for, and one is are you using a pool trust? And for professionals attorneys it should be a tool in your toolbox and for anybody who wants more information about how and when to use a pool trust. I've written articles about this. I'm happy to shoot some over to you. So there's one that I wrote specifically on using a third party pool trust. Let me back up a little bit. There's a basic question to ask first. Which is, whose money is it? Who are we planning for? Does the person with a disability have money today that needs to be managed and it could happen at any time? Accident, injury or illness can happen at any point in someone's life. So if they're getting money from a lawsuit and that's the only money that they have, great, so we call that, when it belongs to the individual themselves, the money that we're planning for.

Attorney Bob Mannor: 30:33

That's a first-party special needs trust and it comes from contract language party the first part versus party the third part. It's the person's money. So first-party special needs trust. If it's anyone else's money, like estate planning it's mom and dad's money, it's grandma and grandpa's money or crowdfunded money. If the money comes from someone else, anyone other than the beneficiary, then we call that third party money and it requires a third party special needs trust. So whose money is it? First party versus third party?

Attorney Bob Mannor: 31:07

The other aspect is what kind of trust? Now, from a planning standpoint, I look at pooled trusts, which means that it's administered by a nonprofit, that there's one master trust agreement that governs a certain type of individual. So most of the time we're looking at someone with disabilities that's been diagnosed or we have a known struggle, and so Spring Hill Housing Corporation is the nonprofit that I represent that has state that really they can act nationally but they really concentrate more for Michigan claimants or Michigan beneficiaries and they have both a first and a third party pooled special needs trust. So, as a planner, what I look at is are we looking at a family with modest means With especially like, a young family that is just starting out? They don't want to pay $5,000 to $10,000, $15,000 for an estate plan?

Attorney Michele Fuller: 32:08

Right.

Attorney Bob Mannor: 32:09

Way more than they need. They need something that's legally, that's really effective but economical. And so for planners and social workers and anybody that is listening to this really any family of modest means they should be looking at a pool, pool trust for a really quick and simple and effective, cost-effective but incredibly effective on the planning side for that family. But when you're getting into more assets life insurance, blended families, anything like that I really prefer a standalone special needs trust that means it's a custom drafted trust that's tailored to that group of people and where it's really all the rules are about them. So some of the things I really just don't like having a trust with inter-trust so you'll have provisions with in revocable living trust, and I personally don't like that because I administer these trusts. It makes it infinitely harder.

Attorney Bob Mannor: 33:12

Just from what do I name the account? If you think about it, you go well, who's? Who is this about? Who is this for? What do I call it? And then all the rules like how do you change trustees? Is the nominated trustee who you want to administer mom and dad's trust? You know, if you're mom and dad making the plan, is that who you want to act as trustee for the special needs person, and if it's a trust within the trust, it doesn't allow the planner, the lawyer, to really ask questions about that and create a separate framework that's designed to last for the life of the individual, and so that's just a personal preference. There's no wrong way to do it, but wouldn't you?

Attorney Michele Fuller: 33:58

agree that that's probably the most common way. I agree with you. The standalone and we'll talk a little bit more about this the standalone trust, especially for a third-party trust, is going to be much better for so many different reasons, but wouldn't you agree that probably the most common thing that we see is this being drafted as a trust within a trust, or even a trust within a will as a trust?

Attorney Bob Mannor: 34:24

within a trust, or even a trust within a will, a hundred percent. I see that all the time and it's it's very difficult to change, it's very difficult to really. You know, all the default provisions, all the rules about how that money is administered, is designed for who? For the?

Attorney Bob Mannor: 34:42

people creating the trust which is mom and dad, and it doesn't allow for flexibility. So there's a difference between legally sufficient meaning is it going to protect the person from social security benefit disruption? But if that's our only objective, then that's okay, I guess. But really the objective is much bigger. It's about creating a good life and having a document that doesn't require a probate proceeding to change and modify as the person's needs change, and so I find that usually a standalone trust, if it makes sense for that family financially is a worthwhile investment. Financially is a worthwhile investment.

Attorney Michele Fuller: 35:26

I appreciate your descriptions of the different types of trust I think that's so important and I think most folks get real confused about that and your advocacy for pooled trust for those with more modest, less money to be protected. The pooled trust is a great option. It's managed by the right people, by the people that are caring for others in similar situations. It's just a great option. But the standalone trust when it's going to, when there's a little bit more means there, when there's a little bit more money there, one of the big advantages I think of the standalone trust.

Attorney Michele Fuller: 36:04

If you have a special needs child and you have a standalone trust for that special needs child, then you can tell, because one of the things that happens so often is grandma and grandpa are really trying to be really nice and they leave something for that special needs child or brother or sister or aunt or uncle.

Attorney Michele Fuller: 36:22

They are trying to be really nice and they put their special needs child the special needs niece or nephew or brother, sister as a beneficiary of their IRA. Now we've got a big problem and so once you have that standalone trust, you can tell everybody about that standalone trust and you can say, hey, I'm not saying that you should leave anything to our child, but if you happen to do it through this trust, each person doesn't have to create their own standalone trust. We only need the one standalone trust for that child and then anybody can put the money into it through inheritance, through beneficiary designations, things like that. And that's when I think is one of the big advantages of that standalone. I guess you could do that with pooled trust too, but with the standalone trust is that then you can instruct your parents, you know the grandparents, you can instruct the brothers and sisters, the you know aunts and uncles. Hey, if you even, if you're even, if you're going to leave 10 or 20 or $50,000 to them, make sure you do it this way 100%.

Attorney Bob Mannor: 37:22

I think that that's where well-meaning family members will want to do that, and it is very hard to do if you do not have a standalone. And that was an excellent illustration, an example of when it would make sense to make that investment, because it does allow you to do that and invite others that will. You know, you don't have to the letter. We give a sample letter to families and it's if you choose to leave funds to our child, please do it this way. Right, it's, it's super effective that way.

Attorney Bob Mannor: 38:00

And that's one of the biggest things that I see missing is that people don't they don't necessarily want to talk about it, but that highlights some of the biggest mistakes that I see, which is, instead of leaving funds for a person with disabilities, they will leave an extra share to someone else. Or, worst case scenario, they have all their, they need, they don't need any money and they'll just cut them out entirely. And of course, I'm not going to. I don't love that, and the way people can think about it is that you're leaving your most vulnerable beneficiary, your most vulnerable loved one, who cannot make money on their own, even more vulnerable, and so, whether cutting them out entirely or leaving an extra share to somebody else. There's no checks and balances there, so if they want to spend something on their sibling usually it's a sibling they may have the best of intentions, but maybe the person that they're married to is not 100% on board with that.

Attorney Michele Fuller: 39:07

Or they die.

Attorney Bob Mannor: 39:08

Or they die and there's no protection there. Nothing. That or they die or they die and there's no protection there nothing. And so, um, one of the worst examples that I've seen of that is where, um, a woman who had a number of children, um, and several of them, which this can run in families, had a particular diagnosis fragile x and so they all, through fundraising in their community, very strong member of her community was able to fundraise and buy a house for those children. Well, she has a neurotypical child as well and as part of her estate plan, she did a do it yourself deed or that house and she passed away, and so the neurotypical child, the responsible child, now owned that house that all their siblings with disabilities lived in. Well, what couldn't have been predicted is that child filed for bankruptcy.

Attorney Michele Fuller: 40:07

Oh no.

Attorney Bob Mannor: 40:08

You can see where I'm headed there. So I got a call from the bankruptcy attorney saying can you help me, can you help here? And the bankruptcy trustee. They had no option but to go forward and liquidate that house. They were mandated to do so. They couldn't afford, they were not allowed to be compassionate and say, oh my gosh, if we do that, we're going to cause these four people to have to go into institution and they will no longer be able to live together. And so the only other option was to. You know, they thankfully withdrew their bankruptcy to save the house, but that is the dire impact of what could happen without proper planning, especially a do it yourself type of plan.

Attorney Michele Fuller: 40:57

I think that's so important I want to repeat it and I hear it all the time too that folks will come in and they've got a special needs child whether it's a child or an adult, but especially needs, you know child of theirs, and that they've been told by professionals and various types of professionals accountants, financial advisors, attorneys or whatever that they must either disinherit that child or they must just leave the money to somebody else and hope that they'll use that appropriately and that that person won't have any other intervening issues. And it's just not the answer. And it's a shame that that's advice that goes around through professional communities because it is not that hard. In fact there's so much. The cost and the effort associated with setting this up properly is much less than the cost and the effort associated with fixing it once the inevitable problem happens.

Attorney Michele Fuller: 41:57

And that is one of the things that I hear occasionally from parents that say oh, they're really well set, they've got a group home, they've got their disability, they've got their social security. The question I always ask parents in that case are how often do you buy them clothes, how often do you get a McDonald's, how often are you going by and driving them to the doctor, and how often are you doing? Oh, you know, three times a week, seven times a week, whatever it is, and they don't realize that they're supplementing it with their own life and their own money. They're supplementing and you're not going to be here anymore to take care of them and do all these things that you've been doing and buying them jeans and buying them shoes and all those types of things. So, and it's just not that hard uh, comparative to the, the um, the, the possible negatives, to actually spend the time and effort uh to, to set this up properly.

Attorney Bob Mannor: 42:50

So what I hear you saying is that families discount the value of their own efforts and contribution, and I could not support that more. I think that that is 100% accurate. And you think about you know the parent who works and gets paid a salary, and the value of the caregiver at home. 100%, what would it cost to replace those services?

Attorney Bob Mannor: 43:14

And that's what we look at and we try and quantify that by you know insurance. So if you're a young family and you're looking at this, please look into permanent insurance. Please look at making sure that you have adequate resources if something happens to one of you or both of you and this is where, if you have a special needs child, a lot of times parents will let life insurance lapse or fall off as we age and get older, because it's not. You know, that's something that we naturally do. We don't necessarily need after we reach retirement age, but if you have a special needs child, that's something that need never goes away, and we don't know what will happen with social security 20 years from now.

Attorney Bob Mannor: 44:00

We don't know what will happen with Medicaid and a Medicaid budget or the cost of healthcare. All that we know is that it will cost more. Whatever you can buy today, it will take more money to buy that same thing in the future. And so how do we protect that? And life insurance is a huge and I don't get commissions for saying I don't sell financial products but key component, a key tool that we use. That you know, as parents age, it becomes you know, unfortunately, as we're young families, you know you get term insurance right Because it's inexpensive and you get the most that you can qualify for becomes. You know, unfortunately, as we're young families, you know you get term insurance right Cause it's inexpensive and you get the most that you can qualify for. And you know you and I are a similar age and this is about when diagnosis happens Like you could have a cancer scare, you could have something else that comes up in your, in your medical history that makes life insurance really unaffordable. And so, um, I used to do a lot more elder law really unaffordable, and so I used to do a lot more elder law, which I now give over to you and collaborate with your firm on, but protecting your estate through life insurance or long-term disability planning or long-term care products.

Attorney Bob Mannor: 45:04

Those are not the people that come to us for planning and crisis planning. It's completely, you know, starting from stage one is like, okay, what's the legal framework? And two, where are we at today? What are we struggling with? And anything that you are struggling with as a family is something that are you going to pass along that struggle to whoever's going to oversee the care of your loved one? So anything that's a.

Attorney Bob Mannor: 45:30

Those are moving targets and the levels of frustration change, you know, from handling a or dealing with a toddler or a newly diagnosed child all the way up through teenage years, which can be particularly challenging to young adult, to fully fledged adult. Challenges don't go away, they just change, and so how we attack those things and create long-term goals are a big deal. So, moving to mastery, just if you've heard the words memo of intent, those are the instructions that you leave for family or they might be professionals as to what your family values are. It's not just you know a list of doctors and diagnoses, it's also like your values and wishes and hopes and dreams, and what works and what doesn't work, all in a hopefully a legal document, and so there's a free virtual workshop available. That, whether, if you're a consumer, it's available free for you. And so there's a free virtual workshop available that, whether, if you're a consumer, it's available free for you If you are a professional and you're like oh, I'd like to be able to have, you know, give some ideas and framework to my clients on how they should create one or what they need to start with Creating. That memo of intent is available for free.

Attorney Bob Mannor: 46:46

On Moving to Mastery.

Attorney Michele Fuller: 46:48

So repeat that web address again movingtomasterycom or org.

Attorney Bob Mannor: 46:53

Movingtomasterycom com.

Attorney Michele Fuller: 46:55

Okay, movingtomasterycom has some great resources and, as Michelle just kind of outlined there, you actually bring up exactly the next question that I wanted to address, because a lot of our listeners are professionals that work with seniors and a lot of them aren't sure how to address this. If they know that they are working with someone that has a special needs child, that's on disability, on social security, ssi, let's say, a social worker or a financial advisor or an attorney, do you have any advice for them about approaching these topics with families and helping them realize that they might need to get some specific advice rather than, you know, just in crisis mode, if somebody is in a crisis mode, they're not going to be able to necessarily be in a frame of mind where they can plan for the future or think that they can.

Attorney Bob Mannor: 47:59

So one of the things that I would recommend is that you and I belong to Atticus right, and so this is part of Atticus training that you and I have learned about engaging your thinking brain, not your emotional brain. So one of the things as professionals, if families are in crisis, is have them do something like make a list, have them write something out so that, or if you yourself are struggling with something, the best thing that you can do if you're in kind of like an emotional crisis, one of the things you do is just start making a list that engages a different part of your brain and starts you thinking instead of just reacting. And so, as a professional, when you see somebody struggling, getting them to engage that part of their brain and giving them some real resources, like, okay, I'm going to set you up with a professional with an assessment. This is the professional that can help get you over this, either through crisis or to the next stage of their plan.

Attorney Bob Mannor: 48:59

Some of the things that we talk about with families are like you know what is your biggest concern, and it might be. You just meet the families with where they're at and they will let you know what they're struggling with. And these plans can take years. And they do take years because you know, for instance, housing is a huge deal. Is the vision independence, or is it within the family home? And so we talked a lot today about mistakes, and so what I want to talk about, or at least mention, is that the family should have you know, we have fire drills. They should have a fire drill for what happens if something happens to them. Who is on deck, especially if your child has severe disabilities and cannot advocate for themselves.

Attorney Bob Mannor: 49:55

In other words they can't tell you if they're in pain, they can't tell you if they're hungry, they can't tell you if they're hurting or communicate effectively. That's one of the things that we see with kids with autism and other types of disorders is that can they tell you when they need something or will they just kind of keep it to themselves? And so you need a fire drill so that if something happens to you, who's on deck? What happens? Where do they stay and test it? And it might be like wait what you mean? I have to. We have to go out for dinner. Yes, you have to go out for dinner. And how many alarms are setting, right? So we talk about this in a business sense. All the time, you test your processes and procedures by going on vacation, right?

Attorney Bob Mannor: 50:41

So we talked a lot about, you know, taking time off and all of that. A family with special needs must do the same thing, where they must test their processes and test their own assumptions. And this is something that can be very challenging for families. Sometimes, families assume that the best thing for their child is to remain protected in the home, and so then what happens when you're not there?

Attorney Michele Fuller: 51:07

Right.

Attorney Bob Mannor: 51:07

Because someday you won't be.

Attorney Michele Fuller: 51:10

And we don't know when that's going to be. No, you're, you won't be, and we don't know when that's going to be. No, you're going to appreciate this. We're talking about Atticus and emotional thinking versus. You know, thinking things through at a different level and my kids get very tired of me discussing with them and lecturing them about the amygdala versus the prefrontal cortex in the brain, and you know I'll ask them these questions because I've said it so many times Are you speaking out of your amygdala right now, or are you speaking out of your prefrontal cortex? And they don't like it very much. They roll their eyes, but I thought you'd appreciate that.

Attorney Bob Mannor: 51:47

That's a lot of eye rolling, right? Yes.

Attorney Michele Fuller: 51:50

Well, Michelle, this has been great and I really appreciate all of the knowledge that you're able to share with us. What is the best way to get a hold of you and your firm if folks want further contact with you?

Attorney Bob Mannor: 52:04

I would love that. So one is if you already know me, please do an email introduction. I would love that. Introduce me. Shoot over an email with the person's contact information and saying hey, this is a great person for you to collaborate with. I'd really like you to meet them and I think that they're the person to help you.

Attorney Bob Mannor: 52:22

If you don't know me or you just want to check out my website, there's a website form that to fill out for a quick intake and say look, what is the biggest problem that you're confronting? What can we help you with? What is the question that you need answered? That's the most important thing for you today, and then it goes from there. Then we have a whole process about how to get involved with our law firm, but also advocacy. Sntorg is the advocacy website. It's being tweaked and upgraded, and so in the next month or so, you're going to see more information about that. Then, also, moving to mastery is a great resource and, as I said, disability 101, check that out for additional resources in your state, wherever that might be, and thank you so much for having me. It's always good to talk with you, Bob. Well, thanks, Michele, and those are all great resources it's always good to talk with you, Bob.

Attorney Michele Fuller: 53:11

Well, thanks, Michele, and those are all great resources. It's just a wealth of resources when you just go through that so simply. And there was so much content in those websites that you just mentioned. So I encourage everybody to check those out, even if you're just curious and you just wanna get better background information.

Attorney Michele Fuller: 53:30

So I hope you enjoyed this podcast. Remember that you can hear us on Advice From your Advocates on any of the podcast locations we're pretty much everywhere and don't forget to subscribe to Advice From your Advocates so that you know when we have a new topic or a new guest and then you can pick and choose which ones you want to listen to. And you can also find it at our website, which is mannorlawgroup. com, and then there is a podcast page there. So appreciate everybody that's listening and don't forget to subscribe.

Attorney Bob Mannor: 54:18

Thanks for listening. To learn more, visit mannorlawgroup. com.