Estate Planning Week, Part Four: Disabled Persons

October 24, 2019

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If your loved one is a person with disabilities, you are in a unique Estate Planning position.  It is important to know the options available to you to help make the best decision for you and your loved one.

Special Needs Trust

Often times, 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. When a disabled person receives an excess of assets, such as an inheritance or personal injury settlement, this could negatively affect their ability to qualify for government benefits. A Special Needs Trust provides an option for you to transfer wealth to your loved one with disability without affecting 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. Guardianships and/or conservatorships can be sought over minors, where their parents are deceased or unable to care for them, or 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 to serve as the decision maker by the court.  The guardian appointed by the court 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,which 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 attorney to guide you through the guardianship and conservatorship process in Nebraska.

Powers of Attorney

There are two kinds of Powers of Attorney – Power of Attorney for healthcare and Power of Attorney for finances. If a person, called a “Principal”, executes a Power of Attorney nominating an agent, the agent is able to make decisions for the Principal when they are no longer able to make decisions for themselves.  To be effective, the Power of Attorney must be completed 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, by having an appropriate power of attorney executed, guardianship/conservatorship proceedings can be avoided.

Powers of Attorney for healthcare and finances can help prevent the need for a guardianship or conservatorship. Often married persons will 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.  Persons with disabilities must have a proper Estate Plan to help with government benefits and to make sure their basic needs are met.  It is important to contact an experienced attorney to help with Estate Planning for Disabled Persons.


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 attorneys at the Omaha office.