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 2: No Long-Term Plan

Can you rely on your other children to support your special needs child?  Perhaps, if they are financially secure and it is for a brief time.  But this is not a long term- solution that will protect your special needs child if something happens to you.

Similarly, leaving an “enhanced” inheritance share with the intent of having one of your children provide for their sibling is not a wise choice.

We often tell our clients that this is a plan that “works if it works.” Even the most well- intentioned and trustworthy of siblings have their own lives and financial concerns. There are many potential problems they may face in their lives, and that may risk their ability to support your special needs child. What if the child you leave the "enhanced" share has creditor problems or a divorce settlement? What if they become incapacitated or die while your special needs child is still living?  Can you count on their spouse or heirs to support your special needs child? There are many scenarios where the "enhanced" share you left for a sibling to use for your special needs child would be significantly diminished or lost altogether.

Brothers and sisters of a child with special needs often feel a great responsibility for their sibling, and have felt so all of their lives. When you provide clear instructions and , a helpful structure by way of a Special Needs Trust, you lessen the burden on all of your children, and you support a loving and involved relationship among them. A Special Needs Trust gives your other children the tools they need to provide for their special needs sibling.