4 Ways to Protect Your Special Needs Child

04/18/2017 by Michele R.J. Allinotte

The month of April kicks off with World Autism Awareness day on April 2nd. April is also World Autism Awareness Month, which is a month to promote awareness and understanding of Autism Spectrum Disorder. You may have seen articles circulating on social media, and the Light it Up Blue campaign. As a mother of a child on the spectrum, I have been sharing information all month long.

One of the ways in which my personal experience assists me in my work as a lawyer is when I meet with parents of special needs children. I have many clients who have children of varying ages with special needs, and therefore who have more complicated issues to consider when making major life decisions. While every parent wonders what will happen to their children when they are gone, parents of children with special needs need to ensure that their child is financially provided for, and sometimes is physically cared for as well, depending on the severity of the disability.

Generally speaking, there are four things that parents of special needs children need to do as part of their estate plan, and also as part of the life-long plan of care for their child:

1 – Name Legal Guardians

Naming legal guardians ensures that someone the parents trust is legally in place to raise the child in the event that something happens to mom or dad (or both).

Caring for a child with exceptionalities can be challenging. Parents will want to choose someone who will love and care for the child in their absence. The parents will also want to choose someone who will strive to give their child the opportunities and quality of life he or she deserves.

Any parent’s wishes about a child’s legal guardian must be legally documented. Guardians should be aware of what their duties would be if both parents passed away. As well, both mom and dad and the guardians need to be aware that this guardianship is only in place as long as the child is under 18. Once the child is a legal adult, other legal mechanisms would need to be in place (see #3).

2 – Set Up a Special Needs Trust

In Ontario, special needs trusts are commonly referred to as “Henson Trusts”. This trust is a discretionary trust that can ensure a child’s financial needs are met as both a child and an adult, without jeopardizing their eligibility for government assistance.

The government benefits for children and adults with disabilities are limited and usually do not cover all the costs of daily living and extra expenses necessary to improve the child’s quality of life.

If parents left a special needs child an inheritance outright, that would mean that any benefits (including access to services and housing) would be lost.

Instead, parents of special needs children should set up a Henson Trust to “hold” the inheritance for the child, without actually putting the assets in the child’s name. The assets in the trust would be administered by a trustee of the parent’s choosing and according to the rules set forth in the estate plan.

Sometimes my clients have children who are very young, and they are unsure how, if at all, their disability might impact on their ability to live independently as an adult. Since we don’t have a crystal ball to tell us the future, we can craft the trust in such a way that the trustee would have the discretion to collapse it if the child’s needs as an adult did not require the trust. Drafting a trust in a will is complex, and a lawyer well-versed in trusts and in the requirements of a special needs child throughout their lifetime is needed.

3 – Prepare for a Special Needs Child to Turn 18

Once a child turns 18, they are no longer a child in the eyes of the law. They are an adult whose parents can no longer make decisions for them. Parents lose the ability to manage their child’s affairs (medically and financially) when the child turns 18.

Parents need a court order granting them the power to make decisions for their child, both medically and financially. The other alternative in some cases is for the child to execute a Power of Attorney for Property and a Power of Attorney for Personal Care.

Depending on how I came into the picture, the child may need their own lawyer in such cases. There also needs to be a determination of whether or not the child has capacity to execute a Power of Attorney. As a lawyer attempting to determine if my client is able to execute these documents, I have had to have several visits to learn how to communicate effectively with the client, and I have obtained medical opinions to confirm my client is able to instruct me.

And, in circumstances that are difficult for any parent, the parents of the special needs child may need to let him or her go and make their own life decisions. Special needs doesn’t always equal lack of capacity to manage one’s affairs.

4- Build the Right Support Team

Though many individuals with special needs can live a full life as an adult with limited assistance, this is not the case for all. Many children with more significant special needs will never be able to live fully independently.

For these children, the parents may be lifelong caregivers for their child. However, no parent is invincible. At some point, the parents may be unable to continue to care for their child due to disability, illness or even death.

In these circumstances, it is important that the right people are in place to support and care for the child. The members of the team could include the chosen guardians, a trusted medical professional, an estate planning lawyer, a financial advisor and dedicated family and friends. Parents of special needs children need to make sure to keep these team members informed about their wishes and their role in the event they are called upon to help.

If you want to speak with Michele about planning for your special needs child, call her office at 613-933-7720 and mention this article to receive a free Peace of Mind Planning Session (a $500 value).

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