PROTECTING HEIRS WITH DISABILITIES
More and more Americans find themselves with long-term responsibility for adults with disabilities or diminished capacity. These might be dependents who had special needs from birth, or they might be elderly relatives suffering from Alzheimer’s or other mentally disabling conditions.
Indeed, these days, many estate plans consider the deceased’s parents as well as their children.
You must, of course, create plans which will ensure that the right people maintain control of both the property and the “persons” of disabled dependents. This is true whether the person is mentally capable of handling their own finances or merely suffers from a serious physical disability.
In all cases, the financial issues related to caring for disabled dependents are complex, and must be handled by an experienced attorney. (See Mistake #8 for more about planning for your own disability.)
For example, even a very modest inheritance may threaten the continuation of certain needs-based public assistance benefits, with potentially catastrophic results. Your attorney must know, for example, that SSDI (Social Security Disability Income) allows for the inheritance of monies without any problem. But SSI (Supplemental Security Income) does not, because it is a needs-based benefit.
In short, you and your attorney must not simply give someone with a disability $100,000 without doing some serious homework. First, they may not be able to handle that money properly. But second, you may actually be doing them harm.
A good estate attorney can structure a “special needs trust” or a “supplemental needs trust” to help a disabled beneficiary, depending on the state in which the beneficiary resides—not the state in which you reside. The state is crucial, as laws vary. When properly constructed, such a trust will not be “owned” by the beneficiary, and hence will not threaten their benefits, but can still pay them a supplemental income, administered by a trustee.
In such situations, the supplemental income can usually be used only for needs other than food, clothing, and shelter. If it is used for food, clothing or shelter, it can reduce the monthly benefit check amount.
THE ROLE OF THE TRUST PROTECTOR
Any time you are providing for a beneficiary with disabilities, I think it’s vital to include a “trust protector” in your estate plan. This role can be played by anyone, though most often, it’s played by a legal professional or law firm.
The idea of the trust protector came from the English. It became a popular part of American law during the 1990s, because it solved a vital problem in estate planning: what if your trust must be changed after your death?
In many cases, it would be completely inappropriate for either the beneficiary or the trustee to be given the power to make such changes. Indeed, most trusts are written so they are irrevocable and unamendable following the grantor’s (creator’s) death. In most states, modification of an irrevocable trust requires a court order.
But guess what? Under current law, a trust protector can be named within the trust document to modify some of the terms, even of an irrevocable trust. Trust protectors have become a common feature of many trusts created by up-to-date attorneys.
What may trigger the intervention of a trust protector?
First, someone involved must step forward and request that the trust protector take action. The trust protector is not omniscient and will not be checking in from time to time. But someone, such as a guardian, may see, for example, that a beneficiary who is disabled or has special needs will be moving to another state with very different laws and public benefits systems. This guardian may ask the trust protector to amend the trust to take into account the new system. In another case, a trustee will realize that he or she can no longer serve, and appeal to the trust protector to name a new trustee. Or, important tax changes must be made to account for new tax laws.
If a trust protector has been named in the trust, it is as simple for the trust protector to make these limited technical changes as it is for a mechanic to adjust a piece of machinery by turning a screw. Without a trust protector in place, everyone has to go to court. The power of the trust protector does not extend to major changes, such as changing the beneficiary to an inheritance.
One major function of a trust protector is to remove a bad trustee. A beneficiary may complain to the trust protector that a trustee has become dangerously irresponsible and then appeal to the protector for a change of trustee. Without a trust protector in place, such a change may easily require a year to complete through the courts.
PLANNING FOR CHANGE
Trust and probate law goes through major shifts pretty much every year. Sometimes every day. In fact, each new probate case published in the State Court of Appeals or State Supreme Court could potentially affect probate law.
As discussed elsewhere, an “irrevocable trust” will be absolutely necessary to create certain legal mechanisms (see for example the case of Kevin, in Mistake #6). But, if a trust has been written in stone as irrevocable and unamendable, it’s very expensive and time consuming to change it if you don’t have a trust protector. The trustee or beneficiary will have to go through a lengthy court proceeding, which is exactly what you wanted to avoid by creating an estate plan in the first place.
It’s very common in our practice to see adult disabled children relocate to another state when their parents die. Relatives often live across the country, or the right kind of facility may be available only across state lines. In such cases, we have to look at modifying a special needs or supplemental needs trust. Courts are a hassle. When you use a Trust Protector it takes the place of a court and saves time, minimizes hassles and saves money. We’re talking about a couple hundred dollars instead of $10,000 or more to modify the terms of the trust. Without a trust protector, the trustee may have to go to court to modify the trust, which is a big hassle and costs money and time. With a trust protector, the result is no court, no wasted money, and no wasted time.
Make sure to discuss the possible need for a trust protector with your attorney. We’ll learn about the trust protector’s role in Mistake #6: Letting Third Parties Take Advantage of Your Beneficiaries.
LOOKING AHEAD TO CONSEQUENCES
In this chapter, we’ve seen how a living trust can function twenty, thirty, fifty years or more after your death. Indeed, your living trust truly has a life of its own, and may survive well beyond the second or third generation.
Some states have laws which say, in essence, “A trust can’t go on forever.” In other states, a trust can literally continue in perpetuity—in fact, it can continue so long that the language in the trust may become obsolete. Grammar may have significantly evolved since it was first written.
But, we’ve also seen how trusts, no matter how well intentioned, can have both negative and positive impacts for your heirs as their mechanisms play out through the years. In the next chapter, we’ll look at more ways to protect your legacy—and how you can make sure your estate plan always does more good than harm.