One of the prime motivating factors for estate planning is, of course, the love and concern we have for our heirs. We hope that by leaving an inheritance, our loved ones will, perhaps, have an easier time of it. Consider for a moment, however, families that have members with special needs, like mental retardation or other disabilities. Estate planning to help such a person is like no other type of planning–and it is vitally important that it be done correctly or the results could be disastrous.

Special Needs Planning is designed to guarantee that the person with the disability will have a friend, advocate and protector of his or her legal rights who insures that his or her government benefits are never altered, diminished or destroyed.

Think about this: if you were to die leaving an outright bequest to a beneficiary with a disability, or no planning at all for the person with the disability, any benefits left to that person becomes, in reality, a gift to the government! The person loses his or her benefits and medical coverage while spending down your well-intentioned bequest. You have made the government, instead of your loved one, your heir. Unfortunately, this knowledge has led many parents, grandparents and other family members to disinherit the person with the disability in order to avoid this.

The alternative to the harsh reality is the Special Needs Trust (SNT). The SNT is the ONLY reliable method to make sure that your inheritance and gifts benefit the person with the disability. The purpose of the SNT is to keep your assets in a form that will make them available to your loved one, but will not disqualify him or her from benefits for which s/he might be eligible.

A properly drafted SNT will specify that the money is not to replace those benefits, but to supplement them. The SNT may be used for extra medical care and personal items (such as televisions, computers, vacations, companionship, advocates) or any other product or service which may enhance your loved one’s quality of life, but is not provided by other sources.

While government agencies recognize SNT’s, they have imposed strict rules on them. That is why it is essential that you consult not just an estate planning attorney, but one experienced in SNT’s and current benefits.

Finally, if you are a primary caregiver for the person with special needs, another essential document is a Letter of Guidance. Such a document helps to ease your loved one’s transitions by giving future caregivers the information that they need about him or her. A Letter of Guidance is based on the fact that no one knows the person that you have cared for better than you. It contains information that describes the individual’s history, current status and, most important, your wishes, hopes and dreams for him or her. A complete Letter of Guidance would address family history, religion, leisure/recreation preferences, psychosocial housing or day programs, daily living skills, medical and treatment history, education, daily routine, and a detailed list of the persons values, habits, likes and dislikes.