Maryland Special Needs Planning Attorney
Parents and other loved ones of children or other individuals with special needs or disabilities have special planning considerations. They want to ensure that the special needs individual is provided for after their passing, but also want to ensure that eligibility for various governmental benefits is preserved. This type of planning is most often done by structuring a third-party special needs trust to receive an inheritance (or can be funded prior to death). The important distinction with using a third-party special needs trust for this type of planning is that any funds remaining in the trust upon the special needs individual’s death can be distributed in whatever manner desired by the individual who established the trust (such as to other children and grandchildren or to charities, etc.).
Unfortunately, this type of planning is not always done and there are many times where a special needs or disabled individual, who is receiving governmental benefits, directly comes into an inheritance or a lump-sum distribution from a lawsuit or other unplanned event. In order to maintain eligibility for governmental benefits in these cases, it may often be necessary to establish a first-party special needs trust (generally under 42 U.S.C. § 1396p (D)(4)(A) or (D)(4)(C)). Fortunately, these types of trusts will enable the retention of eligibility for governmental benefits, but will generally result in a payback of any funds remaining in the trust upon the beneficiary’s death to a State for any Medical Assistance (Medicaid) benefits expended on the beneficiary’s behalf.
Joe Mathis has advised many individuals who have loved ones with special needs or other disabilities over the years and has done planning for the establishment and administration of many third-party and first-party special needs trusts. Please contact us to discuss this type of planning in more detail.
Guardianships For Special Needs Or Disabled Individuals
In Maryland, when a child is under the age of eighteen, the child’s parents act as the natural guardians (with the ability to make decisions regarding the child’s health care, schooling, and various other personal decisions). However, once a child attains the age of eighteen, the parent loses these rights. For children without any special needs or disabilities this is fine. However, upon a special needs or disabled individual attaining the age of eighteen, if such individual is unable to make health care or personal decisions, then generally it is a good idea for a guardianship to be considered.
A guardianship may also be needed for an adult who later becomes disabled (due to a sudden accident or gradual onset of a disability). In Maryland, there are two types of guardianships: (1) guardianship of the person and (2) guardianship of the property. A guardianship of the person can be sought when, due to disability, an individual lacks sufficient understanding or capacity to make or communicate responsible personal or health care decisions and a guardianship of the property can be sought when, due to disability, an individual lacks sufficient understanding or capacity to make or communicate responsible decisions regarding one’s property or finances. Both types of guardianship can be sought together if necessary.
The guardianship process in Maryland involves instituting a court proceeding with the local Circuit Court. A guardian is usually then appointed following a court hearing. There are a number of important matters that should be considered when determining if filing for a guardianship is the best course of action. There may be less restrictive alternatives as well.
Joe Mathis frequently handles the filing and administration of guardianships of the person and property throughout Maryland. Please contact us to discuss this further.
