Need advice on how to best set up a trust for a disabled adult child and protect our assets (which are not large) to be able to provide as much as possible for the child. Both parents elderly.
You have a somewhat complex planning need which will require advice from an attorney skilled in Special Needs Planning as well as Elder Law and Estate Planning. This could be one attorney, but you must make sure he or she is knowledgeable in all three areas mentioned above. A special needs trust can be drafted to preserve Social Security and Medicaid benefits that a disabled individual is receiving. However, the trustee of that trust must be educated and guided as to how to make disbursements for the child's benefit that do not impact his or her SS and Medicaid. Your own planning needs for long term care must also factor into how and when a trust is implemented. Your local bar association should be able to identify attorneys skilled in those areas if you cannot find one yourself through internet searches.
An elder law attorney may focus on Medicare, Medicaid, assisted living and nursing home abuse
An estate planning lawyer may make an estate plan for any adult of legal age from say 20 years old, on.
I understand your confusion. There are many areas of overlap between an elder law attorney and an estate planning attorney. An elder law attorney typically deals with Medicare, Medicaid, Social Security, Veteran's Benefits, nursing home abuse, as well as planning for incapacity through powers of attorney, living wills and advanced healthcare directives. On the other hand, an estate planning attorney creates schemes for the distribution of assets upon death, reduction of death taxes, and protection of the assets, while providing for the use and benefit of a person's wealth during lifetime.
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Many elder law attorneys also practice estate planning and/or estate administration, but the main area of their planning is usually Medicaid and Medicare planning among other areas of law. Estate planners, on the other hand, deal with clients of all ages who wish to plan their estate distribution and may include tax planning and avoidance and various types of trusts. I suggest you look for an attorney who is very familiar with trust planning rather than worrying about the "label" the attorney may have, since they likely need a Special Needs Trust, which has specific requirements to be valid, and not every estate planning or elder law attorney will be comfortable with this type of trust. Ask the attorney specifically if they are familiar with it and whether they have prepared these types of trusts before. It doesn't matter how old the clients are--it matters what their needs are. Good luck!
Elder law is a specialty subset of estate planning. It is defined by the American Bar Association’s Standing Committee on Specialization as a holistic approach to the practice of law, akin to trusts and estates, which includes:
1. Health and personal care planning (advance directives and powers of attorney)
2. Pre-mortem planning (wills, trusts, powers of attorney, etc.)
3. Fiduciary representation (executors, trustees, attorneys-in-fact, etc.)
4. Legal capacity issues (guardianships and conservatorships)
5. Public benefit counseling (Medicaid, SSI, VA, etc.)
6. Special needs counseling (special and supplemental needs trusts, housing, employment, etc.)
7. Insurance advice (life, disability, long-term care, medigap, etc.)
8. Housing issues (HUD, assistance with independent living, nursing home and residency rights, etc.)
9. Taxes (income, estate, and gift)
10 . Litigation and advocacy (contested guardianships, elder abuse, nursing home torts, will contests)
By the nature of their work elder law attorneys regularly deal with diminished capacity clients. If I were to make a quick distinction between traditional estate planners and elder law attorneys I would say that estate planners are worried about taxes and distributions of wealth while elder law attorneys also look at the long term care plans of their clients and how the cost of such plans will be paid while preserving as much wealth as possible.
Responses provided on Avvo are for general informational purposes only, based upon the limited information that is provided, and do not constitute legal advice. As such you should consult with your own attorney for specific advice. No attorney/client relationship exists with Kelly S. Davis unless set forth in a written engagement letter. The Wyoming State Bar does not certify any attorney as a specialist or expert. Anyone considering a lawyer should independently investigate the lawyer's credentials and ability, and not rely upon advertisements or self-proclaimed expertise.
An "estate planning attorney" usually refers to an attorney who primarily counsels clients on general estate planning and death tax matters and prepares documents (i.e. Wills, trusts, powers of attorney, living wills) to accomplish a client's objectives. An elder law attorney usually does the same thing but also handles matters related to qualification for governmental benefits, primarily for older individuals (i.e. Medicaid or medical assistance). When looking for an attorney to assist you with the matter described, it is important that the attorney is familiar with drafting supplemental needs trusts and the issues related to planning for a disabled beneficiary.
The information provided is for general informational purposes only and is not intended to be legal advice. Being general in nature, the information provided may not apply to your specific factual and/or legal set of circumstances. No attorney-client relationship is formed nor should any such relationship be implied. The information provided is not intended to be a substitute for the advice of an attorney, especially an attorney licensed in your jurisdiction. If you require legal advice, please consult with a competent attorney licensed to practice in your jurisdiction.
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