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BY BERNARD A. KROOKS, CERTIFIED ELDER LAW ATTORNEY

SPECIAL CONTRIBUTOR: JOEL KROOKS, ESQ.

Planning for the care of a child with special needs is a complex process that depends on many factors. Federal and state laws and policies, funding availability, income levels, and your child’s physical needs are all factors that go into creating the most effective and efficient caregiving plan for your child. However, special needs planning is not without common pitfalls that parents and other caregivers should seek to avoid. Here are some common mistakes people make when planning for their special needs children.

1. Leaving assets directly to your child with special needs

Parents commonly draft wills that leave their assets directly to their children, including any children with special needs. However, children with special needs often are heavily reliant on government programs such as Medicaid and SSI. Medicaid and SSI have strict resource limits for eligibility. As a result, receipt of significant property or a lump-sum inheritance can be catastrophic for Medicaid recipients. Instead, parents should funnel inheritances for children with special needs into a third-party supplemental needs trust to protect their eligibility for public benefits.

2. Failing to Obtain Guardianship – or Obtaining Guardianship When Unnecessary

Guardianship may be necessary when a child with special needs turns 18 and becomes a legal adult. If the child is unable to make financial or medical decisions for themselves, guardianship may be appropriate to allow a parent to continue to make important decisions on the child’s behalf. However, in many cases, children with special needs can participate in the decision-making process or make decisions for themselves with the support of a parent or other caregiver. In that instance, guardianship may be unnecessary.

3. Failing to Obtain Advance Directives

If children with special needs have the legal capacity to do so, they can execute a health care proxy and a power of attorney. In these legal documents, the children can designate their parents, caregivers, or other trusted adults to make decisions if they become incapacitated and unable to do so. Executing these important legal documents can help avoid the need for guardianship in the event of the child’s future incapacity.

4. Waiting Too Long to Make Plans or Decisions

All too often, parents put off long-term planning, both for themselves and their children with special needs, as unnecessary. They may assume that another child will care for their sibling with special needs or be unwilling to confront their own mortality. Whatever the case may be, waiting too long can lead to rushed decision-making during crises, which is typically not the best way to make decisions. Poor planning can also lead to the need for more expensive and time-consuming actions, such as filing for legal guardianship, when parents could have achieved the same objective by getting guardianship promptly when a child turned 18 or avoiding it altogether by having the child execute advance directives.

5. Waiting Too Long to find Housing

Securing appropriate housing for an individual with special needs is often one of the most challenging aspects of long-term planning, yet many families delay exploring available options until a crisis occurs. Housing opportunities such as supportive living arrangements, group homes, supervised apartments, or community-based residential programs frequently have lengthy waiting lists and limited availability. As a result, postponing housing discussions can significantly reduce a family’s options and may lead to placements that are not well suited to the individual’s needs or preferences.

Families should begin evaluating housing alternatives well in advance, taking into consideration the individual’s level of independence, social needs, medical requirements, and desired quality of life. Early planning also allows parents and caregivers to become familiar with available programs, funding sources, and eligibility requirements while gradually preparing the individual for a successful transition to a new living environment.

Bernard A. Krooks, Esq., is a founding partner of Littman Krooks LLP. He was named 2021 “Lawyer of the Year” by Best Lawyers in America® for excellence in Elder Law and has been honored as one of the “Best Lawyers” in America since 2008. He was elected to the Estate Planning Hall of Fame by the National Association of Estate Planners & Councils (NAEPC). Krooks is past Chair of the Elder Law Committee of the American College of Trust and Estate Counsel (ACTEC). Mr. Krooks may be reached at (914-684-2100) or by visiting the firm’s website at www.littmankrooks.com.