Trust important part of life care plan for special needs loved one

By Andrew Zashin*

If you have a loved one with special needs, a trust could be a very important part of his or her life care plan. Generally speaking, a trust is created when someone manages property – usually money or real estate – for another person.

We often think of trusts as estate planning tools to conserve wealth for future generations. In the case of a special needs trust, the beneficiary or the person for whom the trust is created, is someone who is disabled or mentally ill and who lacks the capacity to manage his or her own finances.

This type of trust is intended to provide ongoing financial support for the beneficiary’s specific medical and lifestyle needs. And, it provides you with assurance that your loved one will be cared for when you are no longer able to do it yourself.

The definition of special needs is rather broad. Not only can a special needs trust help with medical and health care services and products, but it can be used for daily living needs such an accessible vehicle, modified communication devices or appropriate living arrangements like an assisted living or skilled nursing facility.

This money can fund recreational activities, hobbies and activities, or vocational activities, training and education for the beneficiary. It can be used toward professional services such as claims processing, attorneys, and accountants that may be hired to act on behalf of the beneficiary. Trust funds can even be used to provide for respite care for a caregiver.

The trustee typically will be a family member such as a parent or a sibling. But, if no appropriate family member is available, a third party can be appointed by a court. The trustee is tasked with smartly managing the funds or other assets, balancing the immediate needs and wants of the beneficiary against expectations that the funds will be used frugally so as to be available to provide for the beneficiary as long as possible. After all, the trust will generally continue on until either the beneficiary dies or the funds are exhausted.

Funding of the trust will vary widely, based on the available assets and the particular needs of the beneficiary. There is no minimum requirement for a special needs trust, and it can be funded with thousands of dollars, or millions. Generally, the funds will come from family assets, lawsuit proceeds, life insurance policies on the lives of the beneficiary’s parents, inheritances, etc.

Often, a prospective beneficiary qualifies for means-tested government assistance, i.e. assistance that is based on a recipient’s lack of resources, such as Supplemental Security Income, Medicaid, subsidized housing and the like. Special needs trusts are especially useful in those cases; with proper planning, the trust can subsidize expenses for a beneficiary without jeopardizing access to other benefits.

If you are looking to create a special needs trust for a loved one, it is imperative to get the right team behind you. A special needs trust is not something to do once and never look at again. Instead, you will want to work with a competent estate-planning attorney, and possibly a financial planner, to make sure the trust will continue to accomplish your goals for your loved one well into the future.

This article originally appeared as a column for the Cleveland Jewish News.

2023-11-10T13:38:12-05:00December 13th, 2017|Estate Planning, Life Care Planning, Special Needs, Trusts|

Life care planning – think of where to live, too

By Andrew Zashin*

This article originally appeared as a column for the Cleveland Jewish News.

When we think about life care planning, we think about many aspects of aging. Obviously, financial planning is important. A retirement plan will help to ensure income into the future. A will can ensure that your estate is passed to your heirs in the way you want it to be and a living will can ensure that your family and medical providers know and honor your wishes on dicey topics such as life supporting measures.

We think about insurance policies to provide for our loved ones. We think about our health. But living arrangements sometimes aren’t considered until someone else is faced with making the decision for us. In this area, we can plan better.

Our population is aging. Birth rates have declined even as medical advances have increased the average life expectancy. The U.S. Department of Health and Human Services estimates that around 15 percent of the population is over age 65. That number is expected to increase to about 22 percent by 2040.

Unsurprisingly, options for elder care are increasing and improving as a result. Even as prior generations thought about individuals either living at home or going into a “rest home,” thankfully the options are now much broader and can be tailored to meet the care needs of the individual.

At its most basic, elder care can be divided into two major categories: skilled care and custodial care. Skilled care is provided by trained and licensed medical personnel. Custodial care involves assistance with normal living activities such as dressing and bathing, and sometimes household tasks such as food preparation and laundry. Both types of care may be used either at the individual’s home, or in a nursing, assisted living, rehabilitation or other facility.

Home care can include one or more skilled professionals, providing a wide array of medical assistance. However, most often it involves little to no medical training requirements. A home health care provider may check an individual’s vitals and assist with in-home medical equipment and much more, but most of the provided help consists of personal care and help with errands, transportation to doctor appointments, administration of already prescribed medications and the like.

Adult day care options can be helpful to keep a loved one with family while allowing a primary caregiver to work outside the home during the day. Adult day care options typically include meals and a wide range of activities. Medical services often include a variety of therapies, and are often as robust as a nursing home facility.

Of course, live-in options can range anywhere from independent living facilities (that may provide security, transportation and recreational opportunities, but no care) to assisted living arrangements (that provide assistance with daily living tasks, recreational activities, as well as some basic health services), to facilities that offer 24/7 care, depending on how independent the individual may be. More recently, a range of continuing care communities have developed, allowing individuals to remain in a single location even as health and autonomy declines.

The options are varied. The problem is that we talk little about them until they become a necessity. But maybe these conversations should happen earlier. Whether we are talking with our parents about what they want for their golden years, or talking with our children about what we want for ours, communication and planning is important. Cases quickly can become very time consuming, expensive and contentious when loved ones disagree on a course of care. Doing as much of your life care planning as possible and encouraging your loved ones to do the same will go a long way toward preventing family arguments and allowing everyone to keep the focus on living the best life possible.

*Andrew Zashin writes about law for the Cleveland Jewish News. He is a co-managing partner with Zashin & Rich, with offices in Cleveland and Columbus.

2023-11-10T13:38:13-05:00December 15th, 2016|Elder Care, Life Care Planning, Wills / Living Wills|

Living will, health care power of attorney key documents

By Andrew Zashin*

This article originally appeared as a column for the Cleveland Jewish News.

The health care power of attorney and living will are two of the most important documents you could have in your life care plan. The former names a trusted loved one who would make medical decisions on your behalf in the event you were no longer able to make your own decisions. The latter specifies your wishes on a number of end stage issues, including palliative care and resuscitation.

A health care power of attorney document gives you wide flexibility to specify what powers you do and do not want your proxy, or “agent,” to have. For example, you can specify whether or not your agent can consent to disclosure of your confidential health information, to select and admit you to any medical or health care facility, or to complete a do not resuscitate order on your behalf. Of course, in a true emergency situation know that you will receive care, and health care personnel are able to see that you get treatment irrespective of the existence of this document. But this document does allow you to give your agent all or some authority to make the same health care decisions that you could.

Keep in mind that your agent won’t actually be able to make these decisions for you unless and until you should become incapacitated and cannot make decisions on your own behalf. When selecting your agent the most important consideration is whether you feel that you can trust him or her, not only make sound decisions on your behalf, but to make those decisions in keeping with your faith and values. And, of course, it is extremely important that you make your agent aware of your wishes.

The second important document in your life care plan – aside, of course, from an actual will – is a living will. A living will specifies whether you would or would not like certain types of life-saving efforts. For example, you can state that CPR is acceptable, but artificially supplied nutrition or hydration is not. A living will document does not remove health care providers’ responsibility to provide care to make you more comfortable. But, instead, it deals directly with the sort of life supporting care that would be intended to postpone death.

Both health care power of attorney and living will forms are widely available online and from health care providers. You will want to be certain that you’ve selected an Ohio-specific form as certain formalities must be observed. The commonly available form – which was prepared as a joint effort of the Ohio Bar Association and a number of medical associations – combines both documents into one, and was specifically created to meet all requirements, no attorney necessary.

*Andrew Zashin writes about law for the Cleveland Jewish News. He is a co-managing partner with Zashin & Rich, with offices in Cleveland and Columbus.

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