Q: My child has specials needs. How do I ensure that she is legally protected in the event that something happens to my spouse and me? Kari – Glendale

A: You should definitely consider establishing an estate plan. Individuals put off estate planning because they think they don’t own enough assets or they’re not old enough. However, having assets is not the only reason to have an estate plan and there is no “right” age to start thinking about it. Illness and accidents happen to people of all ages, so it is important to have it done. This is especially true when you have children with special needs. When you have a trust, you choose who inherits and you choose the age that they inherit. If something happened to both you and your spouse and you don’t have estate documents, the State of Arizona distributes your estate pursuant to state laws and recipients receive inheritance once they reach age 18.

In your situation, if your child inherits, upon receiving the inheritance she is at risk of losing her government financial assistance as well as her healthcare assistance because the government views the inheritance as though “she can take care of herself.” When you have a child with special needs, your trust can include language that still provides your child with an inheritance. However, instead of an outright distribution, your trustee manages and uses the funds to pay for supplemental needs that the government assistance does not provide. This way, your child does not jeopardize his or her government assistance.

In addition, your estate plan should include guardian nominations. In the event something happens to you and your spouse, you want to ensure that people you know and trust step in to raise your children. You should consider who in your life would be able to handle caring for your child and how she would adapt to a new living arrangement.

Also, many people do not realize that when their child turns 18 (regardless of their special needs condition or not) they are adults and the law treats them as such. Your ability to assist them with finances and healthcare decisions becomes limited without the appropriate legal documents. Your child can sign contracts (like for a cell phone or credit card) and will be held to the terms of those contracts – even if she does not understand what she signed! There is a way to avoid this. Your child could sign a power of attorney, giving you the power to handle her finances and make healthcare decisions in the event that she needs your assistance. If your child’s situation is more severe and she does not comprehend the significance of the power of attorney, you may want to consider obtaining a guardianship and/or conservatorship over her to make her health and well-being decisions and manage her finances.

Making sure that you have the proper documents in place protects your assets and, most importantly, it ensures that your children are protected if the unexpected occurs.

Rachel Zaslow, Esq. and Natalie Boocher, Esq. are associate attorneys with the Mahoney Law Office, PLLC, an estate planning and probate law firm located in Goodyear and Glendale (Arrowhead). They can be reached at (623) 518-3513; [email protected]; [email protected] Visit www.MahoneyLawOffice.net for more information.

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