Special Needs Trusts

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Planning Ahead for the New Year

While 2020 has seemed like the never-ending year, it is, in fact, drawing to a close. In the midst of planning for a drastically different looking holiday, many folks will have some year-end tax business, including making charitable donations, contributing to SEP IRAs or putting money into 529 college plans. Others will begin dreaming ahead to New Year’s resolutions—retooling exercise plans that were centered on group classes or promising to finish up quarantine house projects.

Tackling your estate planning covers both bases—it’s a smart, forward-thinking financial decision and a “resolution” that you can actually knock out with just a few straightforward steps. This winter, resolve to build an estate plan that works for you, gives you peace of mind and takes at least one thing off your already-busy plate.

Why you need an estate plan
Many people are under the misconception that estate planning is just for the very wealthy. Others think it’s only necessary as you age, ignoring that uncomfortable truth that no one knows when they may become incapacitated or pass away. The truth is, estate planning is for anyone over the age of eighteen, but especially people who own assets, including bank accounts or real property, anyone with children and anyone who wants a say in their potential medical care.

What’s included in an estate plan?
While it’s possible to create DIY, one-size-fits-all estate plans, doing so doesn’t make much sense. That’s because every family is different and every family’s financial situation is different. For the parents of special needs children, for example, an estate plan that doesn’t take public benefits into account could be financially disastrous. Well-crafted estate plans will often include:

      • A last will and testament. This document names your executor and lays out how you want your estate to be handled after you die. If you plan to leave some of your assets to charity, you do so here. The parents of minor kids will also name a guardian should they both die.
      • Advance medical directive and living will. This will allow a person of your choosing to make medical decisions for you if you’re unable. You may also detail your wishes regarding end-of-life or life-sustaining care.
      • Financial power of attorney: Again, if you’re unable, a person of your choosing will be able to help pay your bills, sell assets and handle other financial matters.

    Additionally, families with a special needs child may include a revocable trust to protect that child’s future.

    Why creating an estate plan should be a 2021 goal
    According to the American Bar Association, 55 percent of Americans die without an estate plan, creating expensive problems for their survivors. It’s easy to put off, especially since it may seem not only uncomfortable but also time consuming or daunting.

    Usually, however, it’s only working up the will (pun intended!) to make the first call that’s the challenge. After that, an estate attorney can help guide you through the rest of the process. There will be some things you’ll need to answer yourself, like how you envision end-of-life care, or who you want to raise your children if you pass away while they’re young. But don’t let uncertainty or discomfort stop you from going through the process. It’s possible (and recommended!) to revisit estate plans as financial situations change, kids grow up and values shift.

    Estate planning can protect your minor child, your special needs child, your surviving spouse (or healthy spouse if you’re ill) and your financial assets. It also saves your family from having to make challenging decisions on your behalf and from dealing with issues created without proper estate planning.

    This season, make it a priority to get an estate plan in place, or update your plan if it’s been a long time since you drafted it. We promise it will be easier than running a half marathon, doing a Marie Kondo on your home or giving up carbs.

    Speak With an Atlanta Estate Planning Lawyer

    Planning is more important than ever right now. At Nadler Biernath, we have experience handling all aspects of estate planning, special needs law and elder law. Call us today at 770-999-9799 to schedule your initial consultation to discuss how we can help your loved ones.

By | 2020-11-13T21:22:18+00:00 November 13th, 2020|Estate Plan, Special Needs Trusts|0 Comments

Disability Advocates Push to Make Voting Safe and Accessible in 2020

During the early stages of the pandemic, many voters with special needs experienced new problems when attempting to cast their ballots in the spring primaries. Inaccessible polling places, concerns over contracting the virus and issues with receiving or completing mail-in ballots kept some individuals from exercising their right to vote.

Disability advocates at the national and local level have long pushed for more reliable protections for voters. But now, with a major federal election approaching and continued complications due to the pandemic, advocates are working hard to educate individuals with disabilities about their rights and options in 2020.

What are your voting rights as an individual with a disability?
In Georgia, individuals with physical or mental special needs have the right to vote. Individuals who are under legal guardianship maintain that right, provided that their guardianship order does not specifically remove the right to vote.

While the Georgia registration deadline for the Nov. 3 election has passed, an eligible voter must be 18 by Election Day, have no felony arrest record and be a U.S. citizen. Georgia law states that “mental incompetence” is a disqualifier to registration. However, because the law does not define mental incompetence, this provision does not bar anyone with a disability from registering and voting.

Georgians with special needs also have the right:

    • To vote with assistance, receiving help from the person of their choosing (with limited exceptions)
    • To use an assistive voting device
    • To access a voting unit that allows for sitting or wheelchair use
    • To vote without reading or writing tests
    • To physically access their polling place or an alternative location in their precinct

Preparing to vote in person
If you choose to vote in person this year, voting early is likely the way to go. All polling places are required to be fully accessible. The workers there should understand how to assist you.

Poll workers looking to ensure their location is accessible can find a list from the Justice Department of temporary fixes for common access problems.

You’ll need a photo ID, like a driver’s license, voter ID card or U.S. passport.

Georgia early voting runs from Monday, Oct. 12 to Friday, Oct. 30. You can check the Secretary of State’s site for locations and hours. DeKalb County and Fulton County, for example, have multiple early voting locations with varying hours and weekend availability.

You can also use Georgia’s My Voter Page to determine your polling place if you choose to vote on Election Day, Nov. 3.

Preparing to vote with a mail-in ballot
This year, voting by mail-in ballot has taken off as individuals avoid the potential Covid exposure of in-person locations. As of early October, a quarter million ballots had already been returned in Georgia. Anyone can request a mail-in ballot, and you may do so online or by sending in an application.

After placing a request, you can verify that your application was accepted, but keep in mind that the closer Election Day gets, the harder it will be to receive your mail-in ballot and return it on time. You’ll likely want to have an alternative in-person voting plan.

If you’ve received your ballot, you can return it either by mail (be sure to affix correct postage) or by hand-delivering it to a dropbox in your registered county. The box must be in your registered county for your vote to count. If you choose to vote by mail, your ballot must be postmarked by Tuesday, Nov. 3 and received by Friday, making it important to get it in the mail early.

While there are likely to be some gains for the special needs community with the increased availability of absentee voting, mail-in ballots don’t work for everyone. Disability advocates across the country have sued their state boards of elections, arguing that mail-in paper ballots make voting privately and independently impossible for some voters, especially those with visual impairments.

The American Civil Liberties Union is pushing for electronic absentee ballot options that allow voters to use screen readers, digital magnifiers or text-to-speech software to complete their ballots. The ballots are then printed and mailed or dropped off.

However you choose to vote this year, remember that a disability does not have to prevent you from being able to exercise your right to vote.

Speak With an Atlanta Special Needs Lawyer

If you’re the parent or loved one of an individual with special needs, you’ll want help protecting his or her future. Call Nadler Biernath today at 770-999-9799 to schedule your initial consultation to discuss how we can help your loved ones.

By | 2020-10-22T14:45:29+00:00 October 21st, 2020|Estate Plan, Special Needs Trusts|0 Comments

How to Apply for Benefits as a Grandparent

How to Apply for Benefits as a Grandparent

If you’re a grandparent raising a child, it can be challenging to handle the extra expense. Even if you’re still working or are financially comfortable, the costs of education, medical care, food, clothing and college savings can be a lot to absorb. And if you’re on a fixed income, it may seem difficult to continue to meet your own needs and provide for the child, or children, you love.

In Georgia, more than 100,000 grandparents are the heads of households raising grandkids. Of these, more than 57 percent work, nearly 24 percent live in poverty and almost 27 percent have a disability. Fortunately, there are numerous benefits available for grandfamilies, depending on work history and financial need.

SSDI Benefits for Grandkids
For individuals with Social Security Disability Insurance (SSDI) benefits, grandchildren may be eligible for auxiliary benefits. To receive auxiliary benefits:

  • Kids must be under 18 and living with a grandparent before turning 18
  • Their parents must be deceased or disabled
  • The children must have received at least half of their financial support from their grandparent in the year before the grandparent became eligible for SSDI (or have been living with the grandparent from birth if they are under a year old)

If the grandparent has legally adopted the grandchild, then the child must be unmarried and under the age of 18.

For grandparents with special needs grandkids, auxiliary SSDI benefits may continue past age 18 if the child is considered disabled as became so before age 22.

Social Security survivor’s benefits may also be an option to grandchildren whose parents have passed away.

Public Benefits Available to Grandparents
In addition to SSDI auxiliary benefits, grandparents may qualify for other public benefits based on need. These include:

  • Medicaid for kids
  • State Children’s Health Insurance Program (CHIP)
  • Child Care and Parent Services (CAPS)

Many grandfamilies also use Temporary Assistance for Needy Families (TANF) to help cover some of the costs of raising a child. Assistance may come monthly or provide short-term help (allowing a grandparent to buy a new car seat or pay a bill).

Child-only TANF grants take the child’s income into account (usually child support payments or SSI payments. The national average for child-only TANF grants is about $8 per day. Family grants require the grandparents meeting Georgia income requirements and are only available for a limited period.

With so many potential programs available, all with their own requirements, it can be a challenge to determine what resources are available. It’s especially challenging when the grandchild has special needs and has his or her own benefits eligibility requirements and options. Some organizations focus specifically on this need: Project GRANDD (Grandparents Raising and Nurturing Dependents with Disabilities) helps with referrals, case management and support groups.

Speak With an Atlanta Elder Law Attorney

At Nadler Biernath, we know it can be tricky to work out benefits eligibility. We have experience handling all aspects of elder law and special needs law, positioning us to help you support your grandchildren. Call us today at 770-999-9799 to schedule your initial consultation to discuss how we can help your loved ones.

By | 2020-09-15T17:32:51+00:00 September 15th, 2020|Estate Plan, Special Needs Trusts|0 Comments

How to Utilize your Special Needs Trust and Maximize Retirement Benefits Under the SECURE Act

You’ve probably heard of the new Setting Every Community Up for Retirement Enhancement (SECURE) Act, signed into law late last year. The act created some major changes for anyone with long-term retirement savings, including those who may wish to leave their accounts to beneficiaries with special needs.

Until the act became law Jan. 1, 2020, most beneficiaries of retirement accounts could “stretch” the distributions over their lifetimes. This, of course, led to a lower tax liability year to year, allowing the beneficiary to avoid big withdrawals and grow the inheritance in the tax-deferred account.

The SECURE Act eliminated this stretch provision for most beneficiaries, requiring them to withdraw the assets within 10 years. Fortunately, however, beneficiaries who are disabled or chronically ill are still allowed to stretch distributions over their lifetimes, making this an important consideration for anyone planning for a loved one with special needs.

Using Your Trust to Maximize Retirement Accounts under the SECURE Act
In response to these changes, considering how to designate beneficiaries of retirement accounts is more important than ever. A properly drafted special needs trust can be designated as a beneficiary of a retirement account. Having a special needs trust designated as a beneficiary of a retirement account helps to ensure beneficiaries receive the maximum benefits allowed under the law.

With a properly drafted special needs trust, beneficiaries who meet the conditions for exemption may:

  • Stretch retirement account distributions over their lifetime
  • Still be eligible for public benefits, including Medicaid and Supplemental
  • Security income
  • See any potential issues handled by a care manager or advocate
  • Have bequeathed assets protected from creditors

What next steps should you take?
If you have a special needs beneficiary and a tax-deferred retirement account, you should review your beneficiary designations and it may be time to set up a consult with a special needs attorney to revisit your plans. The new SECURE Act substantially changes the way retirement accounts are distributed, and utilizing a special needs trust can help ensure your beneficiary receives the greatest value from your retirement funds, while also helping to maintain benefits eligibility. In some cases, existing trusts and estate plans may need to be modified to reflect the new law’s changes.

Speak With an Atlanta Special Needs Lawyer

If you’re the parent or loved one of an individual with special needs, you’ll want help protecting his or her financial future. At Nadler Biernath, we have experience creating and funding trusts. Call us today at 770-999-9799 to schedule your initial consultation to discuss how we can help your loved ones.

By | 2020-08-26T19:23:09+00:00 August 26th, 2020|Special Needs Trusts|0 Comments

Is a Guardian Legally Responsible for the Acts of a Ward?

Is a Guardian Legally Responsible for the Acts of a Ward?

When parents or other loved ones decide to seek guardianship and conservatorship, they do so because their family member cannot make critical decisions alone. Guardianship and conservatorship, which may both be held by the same person, allow the loved one to manage the ward’s health and safety and the ward’s finances, respectively. 

But guardianship is also about facilitating as much independence as possible—allowing the special needs individual to fully participate in decision-making within a safe, protected framework. 

Sometimes, of course, a ward leaves the boundaries of that framework, making decisions independently or under the influence of others that are not healthy, wise or legal. If the ward commits a crime or has an accident is the guardian liable? 

Guardianship and Liability

When choosing to seek guardianship, some families worry about their own legal or financial liability. Perhaps the potential ward has a history of violence or reckless behavior. The truth is, some guardians have great difficulty in effectively managing their ward. 

Because of this, guardians are not legally or financially liable for their wards’ actions in most cases. Provided the guardians are fulfilling their role in good faith, the structures of guardianship protect them. 

Conservators must also act in good faith when managing their ward’s assets and property. A conservator may be held responsible for a ward’s financial losses only if the conservator directly violates his or her fiduciary duty. While most families will combine the two roles into one, designating a single person as guardian/conservator, this doesn’t have to be the case. If finances are a source of conflict, or if the guardian does not feel comfortable handling them, a third party may be selected as conservator. 

Considering whether to file for guardianship and/or conservatorship is a big decision with many factors. In most cases, concern for personal liability doesn’t need to be a significant consideration. 

Speak With an Atlanta Guardianship Lawyer

At Nadler Biernath, we know the decision to seek guardianship can be a challenging one. We have experience handling all aspects of estate planning, special needs law and elder care law. Call us today at 770-999-9799 to schedule your initial consultation to discuss how we can help your loved ones.

By | 2020-07-21T19:48:50+00:00 July 21st, 2020|Special Needs Trusts|0 Comments

Does Georgia Have Assisted Decision-Making?

Does Georgia Have Assisted Decision-Making?

We often hear from clients who are curious about assisted decision-making, sometimes also called supported decision-making. In fact, one of our most frequently asked questions is whether Georgia has a supported decision-making policy on the books. Families want to learn more about this newer development in special needs law, find out what sets it apart from guardianship and determine if it could be a fit for their loved one.

What is supported decision-making?

The idea of supported decision-making began garnering U.S. interest in the early 2000s, but it wasn’t until 2015 that a state passed a supported decision-making bill. Today, Texas, Indiana, North Dakota, Nevada, Rhode Island, Delaware, Alaska, Wisconsin and the District of Columbia have supported decision-making laws in place. Georgia, however, does not have a supported decision-making law. 

Supported decision-making is meant to offer some legal structure to the more informal arrangements people with special needs often make in order to manage finances, medical decisions and other areas of life. It is more flexible than guardianship, and it assumes that the individual with special needs has the capacity to make decisions with assistance. 

With supported decision-making, the individual with special needs chooses supporters from family members, friends or professionals. These supporters then help the individual process decisions and communicate them accurately. Supportive tasks might include taking notes during a medical appointment, talking over key decisions or helping handle financial matters. Where it’s law, supported decision-making allows financial and medical professionals to discuss or share information where appropriate. 

How is it different from guardianship?

Of course, there are some criticisms of supported decision-making. The main concern is that supporters could potentially take advantage of the special needs individual. Another is that it has the potential to create an overly burdensome system in place of a more informal arrangement.

Supported decision-making is quite different from guardianship. With guardianship, a court-appointment guardian manages the ward’s healthcare and medical decisions, housing and food. (A conservator, often the same person as the guardian, manages finances, earnings and property.) While the guardian is expected to respect the ward’s rights and wishes, he or she makes the final decision on the ward’s behalf.  

Supported decision-making presumes that the special needs individual is able to make decisions with help. The individual is also able to select multiple supporters to cover different areas (say, medical questions and financial issues). New supporters can be added. A monitor can also be put in place to supervise the process and pick up on any potential mismanagement or abuse. 

Because these laws are still relatively new, we’ll likely continue to learn more about the ways in which supported decision-making helps special needs individuals or potentially leaves them vulnerable. 

It’s important to remember that Georgia does not have a legal structure for supported decision making and take that into account as you are planning for the future. We’re always happy to discuss the options Georgia has in place to find the fit that’s right for your loved one. 

Speak With an Atlanta Special Needs Lawyer

If you’re the parent or loved one of an individual with special needs, you’ll want help protecting his or her interests. At Nadler Biernath, we have experience seeking guardianship when it’s necessary. Call us today at 770-999-9799 to schedule your initial consultation to discuss how we can help.

By | 2020-07-21T19:53:10+00:00 July 20th, 2020|Special Needs Trusts|0 Comments

What Can Go in a Trust?

For the parents of a special needs child, ensuring lifetime comfort and care can seem like a bit of a financial catch-22. In order to qualify for government benefits, including Medicaid, the special needs individual can have only limited income and assets. But the government benefits alone don’t provide enough to live on comfortably. 

That’s where a special needs trust comes in, helping cover not only medical expenses and caregiving costs, but also travel, education, entertainment, pet care as well as many other things things that can maintain and enhance the quality of life for a special needs individual. 

Special needs trusts, however, have no value until they’ve been funded. And deciding how to fund the trust is a challenge of its own—one that requires professional guidance to avoid errors or even disastrous financial missteps.  

How Do You Fund a Special Needs Trust?

Parents of a special needs individual will likely open a third-party trust. However, it’s worth noting that if the special needs individual has independent assets, including any personal injury settlements, those will need to go into a first-party special needs trust. 

With a third-party trust, the entire family can help out. In fact, it’s important that grandparents, aunts, uncles and other relatives and friends understand that major gifts and inheritances should go in the trust, not directly to the special needs individual.

When funding a third-party special needs trust, parents, other family members and friends can include:

  • Checking, savings, money market, and investment accounts. If you also hold CDs, check with your financial institution to be sure they can be retitled to the trust without penalty prior to maturity. 
  • Retirement accounts.  While you can’t transfer the ownership of an IRA or 401(k) while the owner is alive, the account owner can name the trust as the beneficiary. And with the recent changes to distribution rules for inherited IRAs under the SECURE Act of 2019, a trust for a child with special needs may be the most tax-efficient possible beneficiary for a retirement account. 
  • Real estate. The family home is often a place of familiarity and security for a family with a special needs child, as well as a major investment. If the property is sold or rented, proceeds benefit the trust. If the special needs child passes away before siblings or other beneficiaries, the property can be transferred from the trust. If you plan to continue housing a special needs child in the family home, be sure that there are also enough funds in the trust for upkeep of the property. 
  • Insurance. Life insurance payouts can benefit a special needs trust, providing lasting income for a beneficiary. It helps to be savvy with policies, however. Some families choose survivorship policies, which are often more cost-effective as they only begin payments after the death of both members of a married couple.  

How to Plan

It takes careful consideration and individualized focus to set up and fund a special needs trust properly. Even then, families can expect to regularly update and adjust their funding plan as their investment profile changes over the years. A special needs lawyer can help establish a trust and provide regular feedback, as well as connect clients to trusted financial planners for advice on how much to put aside.

Speak With an Atlanta Special Needs Lawyer

If you’re the parent or loved one of an individual with special needs, you’ll want help protecting his or her financial future. At Nadler Biernath, we have experience creating and funding trusts. Call us today at 770-999-9799 to schedule your initial consultation to discuss how we can help your loved ones.