Special needs trusts – Part 2: Deciding who will prepare it
The first installment on special needs trusts laid out the arguments for creating a SNT. To recap: a special needs trust allows your disabled adult child to collect government benefits while also being provided for by the funds you’ll leave behind after your demise.
Since you are now completely convinced that your family should have a special needs trust, the next step is deciding who will prepare it. Will you do the deed, or an attorney? And if it’s an attorney, which attorney?
Part 1 mentioned the possibility of saving money by preparing your own special needs trust. This option may turn out all right for some people, but be forewarned that SNTs can be very tricky. For instance, laws and regulations may change over time – will you be certain you’re up-to-date? Goofing up the wording or leaving out something crucial can mean the difference between stable comfort and low-income chaos for your adult child after you’re gone.
Nevertheless, if you are a confident do-it-yourselfer, ordering NOLO’s book on special needs trusts could be a good place to start. The 6th edition came out this year. According to NOLO’s website, the book will help you determine whether or not your situation really demands an attorney. If it seems you don’t need a lawyer to create your SNT, the book will guide you through the process.
What if you’re not so confident and don’t have the time? I’ve skimmed through several attorney websites regarding special needs trusts. Here’s a shocker: they all say you need an attorney to create a special needs trust. (You didn’t see that coming, did you?) However, even websites run by nonprofits and organizations such as The Friendship Circle, NAMI, and AARP recommend hiring an attorney for this important task.
But you don’t want to hire just any attorney – you’ll want one with depth of experience and knowledge about SNTs.
When we were starting to look for an attorney, our current financial advisor offered a rare piece of questionable advice, suggesting a local attorney to us because “he’s done plenty of trusts; I’m sure he’ll know about special needs trusts.” Maybe – but it could be like expecting an orthopedic surgeon to do a flawless job on your coronary bypass.
This discussion from NAMI suggests how to evaluate the attorneys you are considering. A lawyer who demonstrates understanding of special needs family dynamics would be a plus. Perhaps best of all would be an attorney who also has a disabled family member. (Hiring such an attorney also fits a broader idea I’ve seen promoted: boosting our special needs community by supporting enterprises run by individuals who face the same challenges we do.)
I’ve noticed that special needs and elder law are often specialties shared in a particular law office. You may want to consider such a law firm if you additionally have legal concerns regarding a senior citizen in your family.
To find a suitable attorney, here are some places you can look:
- Special needs events. The vendors’ booths at conferences might have at least one attorney specializing in these matters. I first learned about SNTs at a resource fair, where Dignity Group was one of the vendors. This organization consults with families at no charge, informing them about lifecare plans, entitlement programs, conservatorships, wills, and trusts. They offer suggestions specific to each family’s situation. An attorney is part of the Dignity Group team and prepares trusts for a reasonable fee.
- Financial planners. If you encounter a special needs financial planner, he or she will probably be able to recommend appropriate attorneys for you. I “met” one such planner online, and later we used his services. He suggested three attorneys in our general area.
- Support groups, or word-of-mouth. My first encounter with the attorney we eventually chose was at a local Learning Disabilities Association meeting, where he gave a presentation. I later learned he had prepared the special needs trusts for the chapter president and treasurer, who had nothing but good things to say about his work. And yes, our attorney has a special needs son.
- The internet. You can use your favorite search engine, or perhaps try a locator application, like this one on the Special Needs Alliance website.
The most suitable lawyer for you may not be close by. Special needs attorneys don’t seem to be as numerous as, say, divorce attorneys. We live in the populous metropolis (that’s fun to say!) of Southern California, yet the closest special needs attorney for us was at least 20 minutes away on the freeway (or an hour’s drive in bad traffic). The office of the attorney we ended up hiring was a 50-minute drive. Thankfully, we only needed to make the trip twice: for the initial consultation, and for the meeting where we reviewed and signed the documents his office had prepared for us. All communication in between was handled by email or snail mail.
Congratulations – you’ve made it to the end of Part 2, without dozing off. Now you know a little bit more about what to look for in a special needs attorney, and where to look for one. Good luck with your search!
[Source of the graphic: www.collablawtexas.com]