Elmer McDuffy: Tooele Utah Probate Lawyer

If you have special needs child who needs to be looked after you are gone, speak to an experienced Tooele Utah probate lawyer. There are ways you can ensure that your estate is put to proper use for the benefit of your special needs child. An experienced Tooele Utah probate lawyer can explain your options. Under Utah law, you have many options including a will, a trust and other estate planning devices.

Estate planning is something that we think about and plan to do but unfortunately may leave to the last minute. There are multiple stories of adult children still living at home with parents who die suddenly or become disabled. Sometimes they have never written a last will and testament or nominated guardians—no arrangements have been made for an adult child who is unable to care for herself. Sometimes this is because of financial concerns or just too many day-to-day details to deal with. We don’t expect to die, and we may hope to survive a child with disabilities.

To be honest, it is morbid and scary to think about it. Realistically, it is like leaving an adult with special needs unprotected from a multitude of harms. Lack of planning will make an already difficult situation much more painful for your adult child.

Wills and trusts generally are financial instruments that also nominate representatives for your children. Those documents are very important, but they need to be supplemented with other documents. It is also important for representatives and caregivers to have a good understanding of your adult child’s special needs, day to day, medical history, family history, and other details that are not covered by estate-planning documents. This is true regardless of how independent she will be. The trustee, for example, will need to understand medical costs and other information in order to budget funds and distributions for her in a prudent way. The reality is that estate-planning documents can’t possibly contain all the necessary information and the important history to provide for her care. In fact, it isn’t a good idea to put personal information in a will or trust that might be filed at the court and available publicly. What does that mean in terms of how to care for a child or adult child? If the named guardian or caregiver has not been around the child, he or she may not have a clue about who the child is as a person—or what her special needs are. This person may not have the answers to important questions such as:

• What is the general health of the person? Is special medical care needed? Allergies?

• Who are her medical providers and dentist? Where are they located? How often does she need to visit them?

• What kinds of foods does she eat? This would include what she will tolerate as well as any food allergies.

• What kind of assistance does she require?

• What kind of lifestyle is she most comfortable with?

• What is her weekly schedule?

• Who are her friends and significant people in her life? How do I reach them?

• Is there a funeral trust for the adult child with your family arrangements or elsewhere?

The idea of supplementing estate-planning documents is to answer questions about your adult child that may not be obvious from those documents. Your adult child may be able to function fairly independently, but you still may monitor certain things fairly closely during your lifetime; and these things might not be obvious to others. She may have trouble communicating small needs for assistance. She may be embarrassed or depressed from grief of your absence. Whatever the situation, having a supplemental file will make a big difference in assuring things go better for her after you are no longer able to monitor her care and protection.

Representative to act for your estate and for your children

Utah has its own rules about guardians (someone who acts for another person). But you will need to check with an experienced Tooele Utah probate lawyer to know more about the laws.

Guardian of the Estate

A conservator manages financial matters but cannot make medical decisions or life decisions. For example, a conservator may obtain health insurance but doesn’t have the authority to consent to treatment. He or she may sign a lease on an apartment and pay the bills out of the person’s funds.
Some adults with disabilities need a conservator to help with financial matters, but do not require a guardian. Others require both. Still others are able to pay their own bills and generally manage their own funds with help from a family member or accountant, without the need of a court-appointed conservator.

Trustee

If parents or grandparents leave a bequest to a child who is unable to manage her own financial affairs—or for some reason can’t receive larger amounts of assets—they may put it in a testamentary (contained in a will) trust or some form of living trust. In the will or trust, the trustor (person owning the property—parents, grandparents, etc.) appoints the trustee to manage those funds. It is a different role than a conservator because trustees are not appointed to manage the person’s entire estate, only specific conditions contained in the trust. A conservator, on the other hand, manages a person’s personal funds including government benefits outside the trust. There are many types of special needs trusts. You will need to get legal advice about the type of trust that is appropriate in your case. For example, perhaps your adult child receives Supplemental Security Income, Medicaid, and other governmental benefits. There are generally limits to the amount of assets, including cash savings and property, a person can have and still receive services. For example, for Medicaid, a person can’t have more than $2,000 in cash and assets. Usually, a home and car are excluded from that limit. A special needs trust can receive the assets and coordinate with regulations to provide only monies and care not covered by the governmental programs. This will protect the eligibility for services. If she works and lives independently, but gets reduced rent or food stamps, this can be affected by change in assets or income from an inheritance as well. A trust could provide supplemental needs without jeopardizing the benefits. If she is in a residential facility funded by Medicaid or other government funding, she may only be allowed to keep a very small monthly allowance out of her SSI or other income and must contribute the balance as her share. The difference will be picked up by the government funding. However, there may be specific services and items that are not covered by Medicaid such as the following:

• Certain medical treatments and medications. For example, if the doctor prescribes a medication that is not covered by insurance, it is possible that the trust could pay for it, if the trust is written to provide for that.

• Specialized clothing. Generally, clothing must come out of the small monthly allowance. If she requires a lot of clothes because of incontinency or behavior that destroys her clothes, the trust could provide extra clothing.

• Certain medical equipment that is not covered by Medicaid or other insurance.

• Furniture and other personal needs not provided for by Medicaid and/or too expensive to be purchased out of the allowance.

• Some types of educational or vocational training.

• Vacations and recreation. The trust can provide things that are not covered by the funding source and will not make a person ineligible for services. This could include the cost of having a staff person accompany the person on vacation, even though the camp or other vacation is paid for through a government program.

Other Considerations

You may want to request provisions in your estate-planning documents that are not necessary in other people’s documents.

There will be things that your adult child needs that may not be clear to the nominated representative and are not covered by funding outside a trust. A note to the nominated representative or a provision in the trust would warn of this need.

If there are siblings, you will need to think through taking care of your adult child with special needs while still being fair to your other children or grandchildren. The more you think through the issues before visiting your attorney, the fewer “billable hours” you will run up. You will still want to discuss the issues with your attorney, but you’ll have a basic idea of what you want to accomplish beforehand.

There may be someone in your circle of friends and family whom you specifically do not want to serve as guardian, conservator, or trustee. Maybe decisions he or she has made about the care of his or her own children or the way he or she has managed funds concerns you, and you wouldn’t be comfortable with this person’s abilities to make prudent decisions for your adult child. Tell your attorney and ask how to document that. Your attorney may want you to write a letter to that effect and have it notarized. Thus, your wishes will be known when you are not available to state them.

In trying to ascertain what you want included in your estate-planning documents, also consider things that are important for your nominee to understand about care and support to your adult child. Perhaps the nominated guardian will not actually have your child living in his or her home but still needs to have a thorough understanding of care requirements to be able to advocate for her.

Estate planning should be a top priority for everyone. Not just for the rich and famous. You are never too young or too old for estate planning. Remember death can come anytime. Never assume that your estate will be automatically used for the benefit of your special needs child once you are gone. The State of Utah has its own plan on what to do with your estate after you are gone. That’s why you need to speak to an experienced Tooele Utah probate lawyer and make a will or some other estate planning device. If you have an estate planning device, the State of Utah will not touch your estate and will allow your estate to devolve according to your estate planning devices.

A will is an estate planning device that you can use to ensure that your properties pass on to your near and dear ones after your death. In your will you must name a person as an executor of your will. The executor of your will must file for probate. Probate is a legal process whereby the will is submitted to court and the court verifies the authenticity of the will and whether it is a legally valid will. Once the will is probated the properties will be transferred to the persons named in the will. Before you make your will, consult with an experienced Tooele Utah probate lawyer. Every will must pass through probate. Minor mistakes in the will can prove costly. Do not try to save money by using a fill in the blanks form. No two persons are alike. What may suit one person may not necessarily suit you.
When an application for probate is filed in the probate court in Utah, the will can be challenged by people who feel they have been left out of the will. This is another reason why you should have your will made by an experienced Tooele Utah probate lawyer. A will drafted by an experienced Tooele Utah probate lawyer will successfully deal with the challenge and pass though probate.

If you are the executor of a will, speak to an experienced Tooele Utah probate lawyer once the testator has passed away. As the executor it is your responsibility to file for probate. Probate is a complex process and is best left to the expert – an experienced Tooele Utah probate lawyer. The lawyer will file the probate application and ensure that the will passes through probate. In case some challenges the will during probate, the lawyer will deal with the challenge.