I’m not a psychologist (although I do need some of those skills in my work as a trust and estates attorney), but I suspect it is human nature to feel, even occasionally, that life has not given you as good a deal as it has given others. For example, my wife and I recently shared that feeling after hearing that we hadn’t bought the winning lottery ticket.
We then talked about someone we know who has a child with a physical disability and learned of the additional challenges that the family faces. I later visited the Courage Center’s website, Courage.org, and was inspired by its mission, its work, and by the remarkable hurdles families of children with disabilities face and overcome.
One area in which these families may need particular guidance is in managing their finances. In addition to their considerable responsibilities during their own lifetimes, parents of disabled children also need to work with a qualified lawyer to best provide for their children after their own deaths. People with disabilities are often eligible to receive benefits from various public sources. Public funds often come with limitations on the assets a disabled beneficiary may have in his or her name and a significant gift may disqualify a recipient of public funds from the important programs that they benefit from on a day-to-day basis.
For example, consider the father who wants to give his single, adult son $100,000 through his will. For the right adult beneficiary, an outright gift is often appropriate. If, however, the son is disabled and receiving medical assistance or certain other types of benefits, the father’s gift may disqualify the son from receiving these benefits. For a beneficiary facing these challenges, a supplemental needs trust might be a better fit. As the name implies, a supplemental needs trust supplements the amounts otherwise available to the recipient of public funds while allowing the recipient to still qualify for the benefits from those programs. As the rules in this area are increasingly complicated, you should consult with an attorney who focuses his or her practice in the area when dealing with these issues.
As if the day-to-day issues and planning for death were not enough, there are a number of significant choices that must be made throughout the disabled person’s lifetime. For example, when children turn 18 – disabled children included – they have all sorts of rights they did not have before. While nearly all parents want to protect their children from making unwise decisions, the challenge is even greater when the child has a cognitive impairment.
For these young people, a parent often needs to seek the appointment by the Court to be the substitute decision-maker for their cognitively impaired child to assure that the child is protected from those that may seek to take advantage of their vulnerability.
In Minnesota, there are two principal categories of substitute decision-makers for adults: guardians and conservators. A guardian is a person or qualified professional organization appointed to take care of someone else (a “ward”). A guardian’s powers are determined by a court of law and generally include most (if not all) of the powers provided under Minnesota law. Some of these powers may include physical custody and medical decision-making. In addition, a guardian may have the duty to provide for the ward’s care and supervise the ward’s actions.
A conservator is a person or qualified professional organization appointed to take care of a protected person’s estate. A conservator’s powers are also determined by a court, as set forth in Minnesota law, and may include applying for assistance for the protected person and approving or withholding approval of contracts. A conservator may also be given the responsibility to have the duty to pay for the protected person’s support and to pay the protected person’s debts (out of the protected person’s estate).
I was once told that you should not have “favorite clients.” I have disregarded that rule and have several. Each is a favorite for a different reason. One client came to mind when writing this column. He is a favorite because no matter what obstacle is before him – and he has had several difficulties with the disabilities that affect his family – he confronts the situation with a positive attitude that is truly infectious. Despite my recent lottery losses, I find myself particularly susceptible to that sort of infection.
Christopher Burns is a trust and estates attorney with Henson & Efron, P.A., in Minneapolis.
