Choosing a Professional

by Shannon King Nash



Many attorneys claim to do special needs trusts when in fact they simply add a sentence or a few provisions to a regular trust - so finding a specialist is key. But an attorney need not break the bank. A special needs trusts may cost between $1,000 - $2,000, with many attorneys offering payment plans. Of course the cost may vary by state and by complexity of the estate plan.

California, Estate Planning Attorney Diedre Wachbrit suggests asking prospective attorneys the following questions:

1. How did you get into this practice area?
Look for a real commitment to helping folks with special needs.

2. How long are your special needs trusts?
Yes, length does matter. A special needs trust averages 40 pages at a minimum.

3. Do you recommend a stand-alone or a testamentary special needs trust?
An attorney knowledgeable in this area will almost always recommend a stand-alone trust because this allows other family members to contribute in their own estate plans directly to the trust. An inexperienced attorney will probably recommend a testamentary trust (a trust that comes into existence when the parents die) because it's easier for the attorney to draft.

4. Should I disinherit my child?
A knowledgeable attorney should resoundingly tell you no! Some believe that if they disinherit the child and ask a relative or friend to continue the child's care, the child will be eligible for needs-based programs (SSI and Medicaid) and they have accomplished the same thing as a special needs trust. But the best intentions may still leave the autistic child without a consistent quality of life - especially if the relative or friend has financial difficulties, divorces or even worse, dies.

5. How many special needs trusts do I need?
For families with multiple special needs children this is often an issue. A single trust may give more flexibility but separate trusts may be necessary when one child's disability is more severe than the others and that child is likely to drain the funds quickly. Since each family will have unique circumstances, a knowledgeable attorney should be able to walk you through all of the pros and cons.

6. What is a pay-back provision and do I need one?
A pay-back provision provides that the special needs trust will reimburse the state for expenses (i.e., health care costs under Medicaid) after the child's death. These provisions are not required in all special needs trusts and a knowledgeable attorney should know this. In fact, it is primarily necessary where the special needs trust is funded with assets from the child-a common scenario where a special needs trust is formed for a child involved in a personal injury accident. But for children with developmental disabilities, the special needs trust is established with assets from the parents and other family members

7. Will you help us explain this to our family members?
A committed attorney will at least offer a client-friendly article or brochure on how special needs trusts work and how other family members can contribute to it. This ideal attorney will also be available to answer questions from family members and/or their attorneys about coordinating their estate plans with the trust.

8. Once the special needs trust is established, is there anything else we need to do?
A knowledgeable attorney should not only help establish the special needs trusts, but should also give guidance as to when or how often the trust may need to be updated. Whether dealing with a revocable or an irrevocable special needs trust, all newly acquired assets, such as new life insurance policies, should be added to the special needs trust.



Shannon King Nash volunteers her time with several special needs and autism non-profits. Shannon is an attorney, CPA and freelance writer who primarily covers issues relating to autism and developmental disabilities. She is a graduate of the University of Virginia School of Law. Shannon is the author of an upcoming pesonal tax handbook called The Black Tax Guide (http://www.blacktaxguide.com.) Shannon lives in California with her husband Bill, sons Jason and Kyle, and Charlie, her chocolate Labrador Retriever. She may be reached at specialneedscorner@hotmail.com.

"Reprinted with permission from the March-April 2003 issue of the Autism Asperger's Digest, a bimonthly 52 page magazine devoted to autism spectrum disorders. Published by Future Horizons, Inc. For more information: www.autismdigest.com or call 800.489.0727."



December 15, 2004