Michelle C. Berk, Esquire Explains
"Special Needs Planning"

Jim:Special needs planning is an area of the law that requires a lot of attention as missteps can prove costly if mistakes are made in the planning process. Can you give us a general overview of this are of the law?

Michelle:There are special needs trust that can either be drafted as part of a parent’s or other relative’s Will and it is essential that this be done in advance to prevent a child from being disqualified from benefits they need. There are also other types of special needs trusts that can be prepared, depending on the nature of the assets that will be received and these are usually needed to prevent costly mistakes resulting in loss of settlement proceeds or an inheritance for example that could otherwise be preserved to pay for extraordinary expenditures not covered by public benefits that a disabled child may be entitled to receive and access.

Jim:What are the most common ways that attorneys help families in this area? What types of training or qualifications should attorneys have who work in this area?

Michelle:Attorneys can determine what type of Will and /or Trust or planning should be done, depending on the needs and assets and income and type of benefits are needed. They can also apply for the benefits such as Social Security and others and apply for other private or public insurance benefits that may be available, and then engage in planning to make sure they can be obtained and maintained. A good background in this type of law is important although there are not any special certifications for attorneys to practice in this area. There are attorneys such as myself that are members of the National Organization of Social Security Claimants Representatives, or practice primarily in the field of Special Education law that would be helpful to families.

Jim:What other professionals do attorneys most often work with when developing a Special Needs Care Plan?

Michelle:A Certified Financial Planner is an essential advisor to the family of special needs children and adults. There are also Care Planners who can evaluate and develop a care plan and determine what funds are needed to implement it. There are various Special Needs Trusts, such as Pooled Trusts that we work with.

Jim:What should families do to prepare for a meeting with an attorney to discuss special needs planning?

Michelle:They should know exactly what type of benefits are needed or already being received by bringing all correspondence and documents that indicate this from Social Security or prescription assistance programs etc. to the meeting. The attorney can be authorized by the family to contact Social Security and learn and explore what benefits are available if there is some uncertainty about this. As with all planning, it is essential that the attorney know what the assets and income are and the long term care needs and wishes will be discussed and explored. First and second choices of responsible individuals to serve as agents and/or trustees should also be reviewed and the attorney can guide the family in the selection of whomever would serve in the best interest of the individual. This is similar to the preparation and discussion that occurs with your attorney when you write a Will or POA document, or need to prepare for long term care planning or care.

Jim:Do you have any resources you would suggest families consult to learn more about special needs planning?

Michelle:Once again, that invaluable Montgomery County Elder Law Handbook deals with disability and options for care. Also various resources such as ARC are on the internet and provide invaluable information and assistance.