Lawyers typically consider the detailed tax and distribution planning involved in estates but the human aspect matters at least as much. Estate plans that consider disabled children, especially those who are still minors, can include planning that most parents might not realize. One way to handle this is with a writing separate from the will that is referred to as a “letter of intent.”
After the question who will take care of my son if I die or become disabled? or where will she live and with whom — which are questions of guardianship — come questions about who understands her needs. Are there ways that I can convey that special information that only a parent might know? Even when appointing an individual as trustee for an adult disabled child there is information that can help the trustee make informed decisions when distributing funds.
When I first heard of letters of intent, the idea was so simple and so obvious that I wondered why it is not always universally practiced. Honestly, the idea could even be applied to frail and elderly parents or relatives who are not chronically disabled but are beneficiaries in a Will and need additional assistance. The information does not need to be included in the will.
A letter of intent is, in its simplest form, a statement or letter from someone making a will or trust indicating how he or she wants the funds to be spent and how she wants her beneficiary to be cared for. It can be as limited or as expansive as you want.
Suppose you are the parent of a severely disabled child and want to furnish contact information for all the agencies you deal with to receive services. You can state this in writing first in simple form and then tell your attorney you have such a document when planning your will and estate so it is included in your estate packet. You could state what kind of living arrangements you want your child to have — whether to buy a home in his name, rent, or encourage a group living arrangement. You can name your child’s preferred location and list trusted advisors. You can explain personal information giving the preferences of your child in hobbies, music, entertainment and so on. You can, for example, use a letter of intent to tell your trustee under a supplemental needs trust that you encourage funds for travel and socialization.
A letter of intent when included with a supplemental needs trust needs to make clear that its provisions are not binding on the trustee but are given by way of illustration. Such trusts are intended to supplement and not supplant government benefits and funds cannot be given directly to the disabled person. A carefully worded letter of intent can give by way of example but should not require certain uses.
If you are a parent, attached to a letter of intent could be your child’s Individualized Education Plans (IEP’s) from school, medical background, and observations regarding her needs. You can include information on doctors, medications, medical records and surgeries, the person’s wishes and fears, routines and religious preferences. I even know of one that included preferred stuffed animals and sleeping patterns.
A letter of intent tells the executor and trustee and, if there is a guardian, then the guardian, how the funds should be used and, even beyond money, what goals and needs are involved.
Here are some of the questions you might consider.
• Where Should She Live.
Would she continue to live in the same house or somewhere else? If somewhere else, where? If in the same house, how should bills be paid? Will caretakers be needed?
• How Does He Socialize.
Does your elderly and disabled relative keep to himself or would he welcome company. How much? Are there family members, friends or neighbors who would help?
• Who Are Your Child’s Friends and Support System.
• What Benefits Does Your Child Receive and What Benefits Might She Qualify for After Your Death.
Is your child or parent on Medicaid? An elder law attorney could help you determine whether your disabled child might qualify for Social Security disability on your earnings record after you die. What health insurance do they and would they qualify for?
Keeping all of this in mind is a good start. Get expert advice if you need help.
Janet Colliton, Esq. is a Certified Elder Law Attorney and limits her practice to elder law, retirement, life care, special needs, and estate planning and administration with offices at 790 East Market St., Ste. 250, West Chester, PA 19382, 610-436-6674Call via Mitel , email@example.com. She is a member of the National Academy of Elder Law Attorneys and, with Jeffrey Jones, CSA, co-founder of Life Transition Services, LLC, a service for families with long term care needs. Listen also to Radio Station WCHE 1520 “A Plan Ahead” on Wednesdays at 4:00 pm with Ron Ehman, Real Estate Ron, Broker, Next Home Signature Real Estate.