7 Costly Mistakes



The common denominator in all of these issues is this question: “How can I get the right legal advice regarding special needs matters?” The fact is, any attorney in California can call themselves a “special needs attorney,” or “elder law attorney” regardless of their experience. Forms are available to any attorney or paralegal for “special needs trusts.” The skill is not in the tool, it’s in the person using it. You need to be able to trust the skill level of your attorney. At a minimum, they should have an excellent understanding of Public Benefits Law to adequately advise you on the type of Special Needs Trust and clauses to use in your individual situation. In California, there are two types of certified specializations that are relevant in this area: 1) Certified Elder Law Attorneys (CELAs), who have Public Benefits Law as the core of their specialization, and 2) Certified Legal Specialists, Estate Planning Trusts and Probate (CLS-EP). While anyone can hold themselves out as a “special needs attorney” or as doing “special needs trusts,” only those who have undergone rigorous evaluation and testing can call themselves either of these. Regardless of whether or not your “special needs attorney” has either of these specializations, you should ask them direct questions about the length of their experience in this area, and what percentage of their practice is devoted to special needs planning.

MISTAKE 1: Disinheriting The Child

Many families who have children with special needs rely on SSI, Medi-Cal (Medicaid) or other government benefits to provide food, clothing and shelter. You want your child to continue to have access to these important benefits after your death. You may have been advised to disinherit your special needs child, the very child who most needs your help, in order to protect that child’s benefits. But these benefits rarely provide more than basic subsistence. Disinheriting your child is no solution, and totally unnecessary. How will you help your child after you are incapacitated or gone? If your child requires governmental assistance to meet their basic needs, you should consider establishing a Special Needs Trust.

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