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Absent the assistance of an experienced Fort Lauderdale special needs trust attorney, your dependents with special needs will be at the mercy of the state to ascertain their eligibility for public assistance benefits as well as their entitlement to your estate. 
If you have a child – minor or adult – who is physically or mentally impaired and therefore cannot earn an income and be self-sufficient, it is in their best interest for you to establish for them a special needs trust. This ensures they will receive Supplemental Security Income (SSI), SSDI, Medicaid, Medicare and other support programs when you die and are no longer able to provide daily care and support.
It is imperative to discuss these elements with a South Florida estate attorney because the reality is, if you – with the best of intentions – leave your child with more than a certain amount of assets, either in your will or through a trust – you might inadvertently disqualify him or her from eligibility to receive public benefits. If you have a substantial estate to allow your special needs child or loved one to live comfortably – and also cover medically necessary treatment – this may result in your child ending up in a difficult situation. As our Fort Lauderdale probate litigation attorneys can explain, even a relatively small inheritance from you could result in your adult child becoming ineligible to receive government benefits that may otherwise better cover their needs.
Protecting Your Child With Special Needs With a Special Needs Trust
Concerns regarding the well-being of a child or dependent with special needs are valid, and our Fort Lauderdale estate attorneys can help. Generally we recommend establishing a Florida Special Needs Trust. This is also sometimes referred to as a Supplemental Needs Trust.
This is a form of irrevocable trust providing for both supplemental care as well as life-enhancing services and equipment beyond what the government generally provides. It can also sometimes be established as a revocable trust. They aren’t considered “countable assets,” so they won’t bar a person’s eligibility for the type of needs-based government services that will consider one’s assets. These would include SSI as well as Medicaid, subsidized housing and vocational rehabilitation.
Types of Special Needs Trusts in Florida
If you established a special needs trust prior to 2016, note that there is a new federal law – the Special Needs Trust Fairness Act – wherein Congress decided that a beneficiary of SSI (someone under 65 and defined as “disabled” per the Social Security Act) can set up a special needs trust for themselves. So you may want to revisit this if your plan was mapped out prior to 2016. It can also be established through a parent, grandparent or legal guardian.
Your Fort Lauderdale special needs trust attorney can explain in greater detail (this article should not be construed as legal advice), but with that in mind, there are two basic types of special needs trusts. These include:
Third-party special needs trust. This is a type of special needs trust that is usually established by a family member of the beneficiary of that trust. It allows the transfer of assets to the trustee. The goal is to allow transfer of assets without disqualifying the recipient from need-based government aid. This is spelled out in F.S. 732.2025(8).
First-party special needs trust. This is typically established when a person has his or her own assets (unlike a child) such as an inheritance, divorce settlement, etc.
Both are designed to allow the individual not to jeopardize the “supplemental needs” that are not covered by government benefits. Because there are fine-line differences between the two, it’s imperative to consult with an experienced Fort Lauderdale special needs trust attorney. Ideally this would be done at the time the trust is established, but it should also be done promptly if there is any dispute as to the distribution of these assets.
Call Fort Lauderdale Probate Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.
Additional Resources:
Implications of the Cures Act for Special Needs Trusts, Aug. 2, 2017, CMS
More Blog Entries:
Fort Lauderdale Probate Lawyers: Time Window to Contest Florida Will is VERY Short, Feb. 22, 2019, Fort Lauderdale Special Needs Trust Attorney Blog
