Estate Planning Week, Part Four: Disabled Beneficiaries and Testators

October 24, 2019

When estate planning for disabled beneficiaries and testators, it’s a unique situation. Do you have a loved one with disabilities? You should know the options available to help you make the best decision for you and your loved one.

Options for Estate Planning for Disabled Beneficiaries and Testators

Special Needs Trust

Oftentimes, disabled persons are receiving some type of financial aid or assistance through government programs. In some cases, these programs have income limitations in order to qualify. An inheritance or personal injury settlement could negatively affect a disabled person’s ability to qualify for government benefits. A special needs trust provides an option for you to transfer wealth to your loved one with disability. This type of trust does not affect his/her eligibility for much-needed assistance. By utilizing proper planning, a special needs trust is an effective tool that can greatly increase the quality of life for a disabled person and avoid losing government benefits.

Guardianship and Conservatorship

The legal system offers a proceeding for families seeking to gain guardianship and/or conservatorship over an incapacitated individual. You can seek a conservatorship or guardianship of a minor where their parents are deceased or unable to care for them. You can also seek an adult guardianship or conservatorship in cases where an adult is or becomes incapacitated and unable to make their own decisions or care for themselves. Under a guardianship, a person is appointed by the court to serve as the decision-maker. The court-appointed guardian performs duties on behalf of the incapacitated or minor person and reports their actions to the court on an annual basis. Under a conservatorship, the court appoints a person, who may be the same person as the guardian, to care for the finances of an incapacitated person. If you have a loved one who is a disabled adult, you should seek the advice of an experienced guardianship attorney or conservatorship attorney to guide you through the process of conservatorship and legal guardianship in Nebraska.

Powers of Attorney

There are two kinds of powers of attorney – power of attorney for healthcare and power of attorney for finances. A person, called a “principal,” executes a power of attorney and nominates an agent. The agent can then make decisions for the principal when they can no longer make decisions for themselves. To be effective, you must complete the power of attorney while the principal is still competent. For example, a power of attorney for healthcare or finances is important to complete prior to that person developing dementia or suffering a stroke. In many cases, you can avoid guardianship/conservatorship proceedings by having an appropriate power of attorney executed.

Powers of attorney for healthcare and finances can help prevent the need for a guardianship or conservatorship. Married persons will often nominate their spouse as their first choice for agent. It is important for couples to discuss who the alternative person will be in the event the spouse is unable to serve as the agent.

Estate planning is more than just passing wealth. It includes all of the things that help protect you and your loved ones in unique circumstances. Have a proper estate plan in place to help persons with disabilities with government benefits and to make sure their basic needs are met. It is important to contact an experienced estate planning lawyer to help with estate planning for disabled beneficiaries and testators.

This article should not be construed as legal advice. Situations are different and it’s impossible to provide legal advice for every situation without knowing the individual facts. 


If you need help with an Omaha area case, contact Hightower Reff Law today and come visit with one of the estate planning attorneys at the Omaha office. 


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