A substantial portion of our practice involves helping parents plan for an unclear future for their child with special needs.
- What sorts of resources will be there when I’m not?
- Who will take care of my child when I can’t?
- Will my child need Guardianship or Powers of Attorney?
- Do I need to create a Special Needs Trust?
- Will my child qualify for SSI and Medicaid?
- Will my child NEED SSI and Medicaid?
All extremely common questions that most parents have when they are just starting their special needs planning.
Do I Need to Create a Special Needs Trust?
Children who have special needs is a much larger segment of the population than children who need special needs trusts. You may be thinking, “but don’t all special needs kids need a special needs trust?” No, not necessarily.
Special Needs Trusts are vitally important for children who 1) Are currently eligible, or will likely be eligible in the future, for public means-tested benefits like SSI and Medicaid, and 2) need to preserve those public means-tested benefits in the event of an inheritance from parents or other loved ones. If one or both of those elements are missing, a Special Needs Trust may not be a good planning strategy for your family. But, just because the Special Needs Trust may not be the right strategy, doesn’t mean your family doesn’t need additional planning.
Discretionary Support Trusts
Even if a child is not legally disabled, according to SSA regulations, they may not be capable of managing their own financial affairs. Putting someone else in control of supporting the child’s needs with inherited assets can be a crucial part of your special needs planning strategy.
Many children with I/DD, for example, may never qualify for SSI and Medicaid, but will never likely be able to take care of themselves without help. In this case, we use what’s called a Discretionary Support Trust, also known as an Asset Protection Trust, to provide for supplemental support to the child, likely until the child passes away, without the additional regulatory restrictions of a Special Needs Trust. This trust allows a trustee to hold assets for the child’s benefit, but also allows degrees of flexibility that Special Needs Trusts would never allow – like payments for health care needs, and direct (yet small) distributions to the beneficiary for discretionary spending (if appropriate).
While Special Needs Trusts are still incredibly useful, they’re not right for everyone. Discretionary Support Trusts may the right choice based on your specific needs.
Author Bio
Paul Yokabitus
Founder & Estate Planning Lawyer
Paul Yokabitus is the founder of Cary Estate Planning, where he helps North Carolina families protect what matters most through wills, trusts, probate, and special needs planning. Known for his “planning, not paperwork” approach, Paul turns complex legal concepts into clear, practical strategies so clients feel informed and confident at every step. He has been recognized as a Business North Carolina Legal Elite attorney and a Super Lawyers Rising Star, and was named to the Triangle Business Journal’s 40 Under 40. A graduate of Campbell University School of Law, Paul lives in the Triangle with his wife, Alix, and their two sons.
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How We Help North Carolina Families
Paul and his team at Cary Estate Planning are fully committed to creating a personalized experience to develop thorough and comprehensive estate plans. They value their clients and go above and beyond to make sure that no details are missed. I would highly recommend Paul to anyone looking to create an estate plan.
I was referred to Paul by my Real Estate Attorney and I could not say enough about how exceptional the client service has been from everyone I spoke to. The communication is prompt and I feel like they really took the time to answer all my questions and set things up exactly as I wanted, but also recommended things to make it easier on my family down the line.
After attending one of Paul’s estate planning seminars, my husband and I knew we wanted Paul to assist us with our estate planning. His honest, professional approach to this necessary part of life put us at ease with the process. We will continue to recommend Paul and Cary Estate Planning.
We had a great experience working with Paul Yokabitus and the team at Cary Estate Planning to set up our Will and Estate Plan. The process was clear and easy, and in the age of COVID, our signing session was very well done, easy, and safe.
The Cary Estate Planning team will make sure that you have the information you need to be confident in your estate planning decisions. I learned so much from videos, a one-on-one in-person consultation, the website, emails, and a newsletter mailed the old fashioned way. The fee is very reasonable given the importance of estate planning. No matter the size or number of your assets, don’t procrastinate like I did!
Paul is a masterful attorney. He’s very good at taking your intentions and defining that into a durable Trust and Will. Best of all he is as simple and plain-spoken as you like. Or as fast as intellectual as you may be. It’s all about your your speed and your desired outcomes. Would strongly recommend this firm.
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Attorney Offices in Cary, Raleigh, and Chapel Hill
Capability to meet virtually to help all NC residents
