Estate Planning Tips
By Jonathan Bell

Sitting down with an attorney to draft a will or trust will require each of us to consider a world in which, bluntly put, we no longer exist. That brings certain wistfulness even if you are ultimately responsible only for yourself and the distribution of your property because your children are grown and self sufficient, and your parents are deceased or the responsibility for their care has been assumed by others. But once your planning has been completed, you’ll feel the peace of mind of knowing that you have disposed of your property in a way that appropriately benefits those who will survive you and, if you are charitably inclined, the broader community.

Confronting the hard questions
But what if you are one of the many people with one or more family members who are less than fully capable of taking care of themselves, especially if you have assumed a special responsibility for them? Under these circumstances, the estate planning process creates a far greater degree of anxiety and stress. The idea of your death takes on a special kind of meaning because in this case the fear you feel is not for your own unknown future, but rather for that of the surviving dependent relative. What will happen to him or her? How will he or she be treated by those who succeed you as protector or care provider? When you are no longer there, will there be sufficient resources to provide a decent quality of life for your spouse, child or parent with diminished capacity? How much closure can one feel in connection with a “death well-planned” when questions such as these must necessarily remain at least partially unresolved?

The most difficult part of the estate planning process for those in this situation may well be getting past the denial we use to protect ourselves from the future’s most frightening realities. You must confront, however daunting, the situation your dependent relative may end up facing regardless of whether you are still present to help. Will your child’s condition ever permit him or her to be self sufficient, regardless of how many special schools or other training programs he or she may attend? How likely is it that the mild cognitive impairment you now see in your spouse or parent will eventually become a full-blown dementia? The daunting answers to such questions can often generate paralysis.

Two estate planning steps to take
But once you are ready to consider your relative’s situation honestly, and have done your best to plan with your professionals for the needed residential care or other facility, there are steps that an estate planner, who possesses the necessary expertise, can also take to help you. First, and most importantly, your attorney can draft your planning documents to create a “special needs trust” that qualifies as such under the law of your state. This type of trust will ensure that your relative will qualify for State and Federal benefits and maintain his or her eligibility even though your estate plan will provide additional assistance above and beyond those benefits available under the local law. The rules for maintaining eligibility are under constant scrutiny and budgetary pressures and therefore are changed relatively often, especially by State legislatures. As a result, it is important to have your attorney review your estate plan often if it incorporates a “special needs trust.”

The second important function your estate planner can perform will be to keep up-to-date the appointment of the trustee for your incapacitated relative, and to make sure that you have named either a number of successors or created a process for selecting those successors. As frightening as it is for you to contemplate a future for your dependent loved one that does not include your own caring presence, think how frightening it would be for him or her to have to rely on the “kindness” of a total stranger for their well-being.

These two critical steps — protecting the assets you set aside for your relative from the State’s claims for reimbursement and ensuring that the people with whom you and your relative will be most comfortable are in charge of his or her care — are not panaceas, but perhaps they can begin to give you a little more peace of mind about your relative’s future.

Jonathan R. Bell is a partner at Duane Morris LLP. He is a fellow of the American College of Trust and Estate Counsel. A graduate of Yale College and Harvard Law School, Bell has been practicing as an estate planner for more than 30 years. You can reach him at jrbell@duanemorris.com