Estate planning is usually the last thing on our minds, especially if we’re young and healthy. Unfortunately, tragedy can strike us at any moment. Accidents and healthcare emergencies can emerge often out of nowhere. In the midst of a global pandemic, this is all the more relevant.

Many people have never heard of an estate plan or don’t understand how it differs from a will. An estate plan includes a will — but that’s not where it ends. It’s a guide to distributing all your assets and protecting your family in case you pass away or become incapacitated. In addition to a will, you should also determine:

• An advance directive laying out your end-of-life wishes
• Your power of attorney, both for medical and financial purposes
• Trust funds to leave behind for your loved ones
• Life insurance after your death

As a Houston estate probate lawyer, I’ve witnessed the consequences of failing to plan — which often burden a deceased person’s family. Regardless of what stage of life you’re in, here’s why planning your estate is a wise choice.

Why You Need an Estate Plan

The consequences of not having an estate plan can be far-reaching for your family members and loved ones. Lacking an estate plan can lead to an unwanted distribution of your assets and disputes among family members.

Estate Plans Protect Your End-of-Life Wishes

In the case that you become incapacitated without an estate plan, several things can happen. If you’re in a coma or otherwise unable to make decisions, the state will choose who makes health care decisions for you. Your family will often be the ones responsible for making the heavy decision of whether to keep up with life support costs.

Estate Plans Implement Your Wishes After You Pass

If you don’t settle your wishes in legally enforceable writing and documentation, the state of Texas is free to decide what happens to your estate. Your assets don’t go to the government, but the law does decide who gets a piece of your estate and how much they receive. Without any sort of legal plan in Texas, your estate will primarily go to your spouse and surviving children. With no spouse or children, it goes to any surviving parents.

Estate Plans Prevent Legal Disputes Among Loved Ones

Arguments and legal battles among loved ones are a common occurrence. Fights often ensue over who gets a piece of your money, belongings, and assets. Relatives can even sue your estate if they feel entitled to an inheritance they didn’t receive. Such disputes end in tension and can even end up breaking your family apart.

The last thing you want to be worried about is how your family will fare financially after your passing. With an estate plan, you can give your loved ones one less thing to worry about in the wake of your passing.

Texas Laws on Estate Planning

The state of Texas has its own laws surrounding estate planning. In Texas, there is no state estate or inheritance tax, but there is still a federal tax for highly-valued estates. Without these taxes, the complications of the estate planning process are greatly reduced. Texas also does not require probate for estates that are valued at less than $75,000.

Furthermore, it is important to keep in mind that Texas recognizes common-law spouses, as well as adoptive and illegitimate kids as having equal inheritance rights with legally married spouses and legitimate children.

These are a few of the nuances of how Texas estate law can impact your estate plan. Understanding how estate planning works in the state of Texas and Houston is very important in helping ensure that your plan is foolproof.

The Benefits of Estate Planning

A person’s estate plan is not just beneficial for them, but also for their family. Planning for the future is a way to ensure that the family is going to be protected even after unexpected events happen. The benefits of having a comprehensive estate plan include the ability to avoid probate, provide for your family, protect your assets, prepare for incapacitation and ensure your loved ones are cared for.

Planning for your estate ensures that you and your loved ones are well taken care of. Estate planning lawyer Whitney L. Thompson has the knowledge and experience to assist you in drafting a legal and comprehensive estate plan.

Get in Touch with an Estate Probate Lawyer Today

Whether you need to create an estate plan or update it, I can help. Contact us today so we can discuss your goals and come up with a solution for your estate plan.

Via https://www.wthompsonlaw.com/why-you-need-an-estate-plan/

Government oversight of long-term care facilities is deeply problematic, according to a recent New York Times report. Inspection of rehabilitation facilities is inadequate, and we, the public, had best not rely on reporting inspection results. Speak with an experienced Houston estate planning attorney before you make any decisions.

If your loved one needs more care than can be provided at home and trying to find a facility, be sure to do your due diligence. Visit the facility, talk to doctors, get references, and do everything you can to gather your data in deciding whether you would feel comfortable placing your elder there.

You may have seen the rating system provided by the Centers For Medicare and Medicaid Services (CMS). CMS awards stars to healthcare facilities on “Care Compare.”

The stars are intended to help you make informed decisions. The more stars, the better the facility is supposed to be. However, the website also advises that in addition “to reviewing the information here, you should talk to your doctor, social worker, or other health care providers when choosing a provider.”

That is for sure. The New York Times report, published on December 10, 2021, is titled “How Nursing Homes’ Worst Offenses Are Hidden From the Public.” The report documents how federal and state investigators failed to record some severe nursing-home infractions – including abuse, neglect, over-medication, and endangerment of residents. If violations were cited, and even if they were upheld in a secret appeals process where only unopposed nursing homes are permitted to make their case, the stars on the “Care Compare” site did not reflect the proven violations. Some facilities with serious violations retained their glowing reviews regardless.

The “Care Compare” star ratings are highly consequential to the nursing homes’ balance sheets. As the Times reports, there is a link between the number of stars awarded to a facility and the facility’s profits. In other words, the public relies on the stars, but visitors to the site have no way of knowing whether the stars do reflect the state of affairs at the facility.

New legislation may help. The Nursing Home Improvement and Accountability Act was introduced in August 2021 by Senate Finance Committee Chair Ron Wyden (D-OR) and several other Democrats. Wyden’s bill aims to improve the quality of care and the oversight system for those facilities receiving government funds. The bill is in the first stage of the legislative process at writing.

Of course, given a choice, most people would rather stay at home if possible.  That option, too, however, is plagued with problems. Government money available for in-home care is presently stretched very thin. Thousands of elders are on waiting lists to receive funds through various programs. Care workers are among the lowest-paid in the nation. The standard of care inevitably suffers.

The “Build Back Better” package, currently proposed by the Biden administration, has been slashed during negotiations in Congress. However, the current funds under discussion, $150 billion for elder care, would be a significant first step toward improving the outlook for so many who need support and health care at home.

Congress is also considering extending a tax-relief provision that is presently contained in the covid-stimulus package, the American Rescue Plan, which passed in March 2021. The ARP provision permits tax deductions of $4,000.00 in care expenses per dependent for low- and middle-income families.

Nursing Home Abuse in Texas

Texas Nursing Homes must adhere to certain standards of care under the Texas Administrative Code. Residents of nursing homes have the right to receive the necessary care and services to ensure they live a high-quality life. This includes their social, mental, and physical well-being.

Every resident should also have a care plan that outlines their needs for housing, medication, social services, equipment, and other necessities. Other standards of care are also required by Texas law. These include not giving residents any unnecessary drugs, keeping the medication error rate under 5%, providing a safe environment, and preventing bedsores.

Nursing home neglect is when nursing homes fail to meet their obligations. Nursing home abuse, on the other hand, is the willful infliction or causing of physical, mental, and emotional pain. It may include sexual, emotional, or physical abuse. Texas law permits nursing home residents and their family members to hold nursing homes responsible for neglect or abuse.

Some help for home care has already arrived with the ARP tax relief, and more may become. But if your elder needs more-intensive care in a facility, caveat emptor – and contact your representatives in Congress. The nursing-home improvement bill has a long way to go before it becomes law. Please contact  a Medicaid planning attorney from our Houston office at 281-214-0173 or the Bay City office at 979-318-5079 today and schedule an appointment to discuss how we can help you with your legal matters.

Via https://www.wthompsonlaw.com/the-importance-of-keeping-an-eye-on-nursing-homes-and-rehab-facilities/

In its simplest form, estate planning requires careful consideration. When you are the parent of a child with special needs, it’s even more critical that you make the right choices when planning for your family’s future. One of those choices is whether to set up a special needs trust. Before you make any decisions, speak with a qualified Houston estate planning lawyer.

The decision is an important one if you want to continue supporting your child with special needs after they become a legal adult. Here are three reasons you should consider creating such a trust.

1. You Want Your Child to Continue Receiving Benefits

Many adults with special needs rely upon public benefits such as Supplemental Security Income (SSI) and Medicaid. If you want to continue to support your child with special needs after they turn 18 without jeopardizing their benefits, a special needs trust can help ensure that they continue receiving them. If you were to simply give them money to live on, they would have to report that as income, which could put them over the income limits for their benefits.

When you set up a trust instead, you can protect those benefits. Because the trust holds the assets that you fund it with—whether it is property or money—your child does not actually own those assets. As the beneficiary of the trust, the income that they receive will not affect their benefits. However, the income that your child receives from the trust must be supplemental. As an estate planning tool, though, a special needs trust is a great way to provide your adult child with a higher quality of life.

2. You Want to Ensure the Funds Are Used Only as Intended

Leaving an inheritance to a child without the protection of a trust allows for abuse to occur. You might think that you leave your estate to a trusted relative with the stipulation that it be used for the benefit of your child. But too many times, this type of arrangement leads to bad decision-making and betrayal. Without the protection of a trust, the estate you leave behind is subject to misuse and can be seized for outstanding debts.

If you want to ensure that the funds you leave behind are used how you intend them to be used, creating and funding a trust might be right for your situation.

3. A Special Needs Trust Allows Others to Contribute

By establishing a trust now, you can multiply the amount of support that your child with special needs can receive in the future. How? By encouraging others, such as grandparents, to contribute to the trust. Anyone who wants to help can give up to $15,000 per year without incurring the gift tax.

What is a Special Needs Trust?

A special needs trust, as defined by Texas law is one that allows someone with disabilities to set aside money for their care. The special needs trust allows an individual with a disability to still be entitled to all government benefits.

A designation of guardianship should also be considered when planning for special needs trusts. A temporary guardian can be designated depending on the location of the successor guardian. Temporary guardians can take care of the child while the permanent guardian is in place. Temporary health care agents may be needed in the event that the parent needs someone else to transport the child to the hospital. HIPAA authorizations are required for disabled children. They allow for access to medical records if needed.

Special needs trusts are specifically created to provide money for beneficiaries. It doesn’t really matter what the amount is. They are eligible for benefits regardless of the amount. We tell our clients that even if you have one million dollars invested in a trust for special needs, your child can still receive government benefits – provided that the planning is done properly.

Two methods can be used to fund a special needs trust. When we establish a trust for special needs, the parents usually open a savings account and deposit small amounts each year. A special needs trust can be funded by beneficiary designation. A beneficiary designation is a way for parents to leave a specific amount to their child, such as a gift to the special needs trust trustee.

Wondering Whether a Special Needs Trust Is Right for You?

The decisions you make regarding your estate plan can have consequences in the future. Want to make sure that you are making the best, most educated choice that you can so that your child with special needs can enjoy the quality of life that you want for them? I’d love to talk to you. Contact The Law Office of Whitney L. Thompson today so we can discuss how to approach your estate plan.

Via https://www.wthompsonlaw.com/3-reasons-to-you-should-consider-a-special-needs-trust/

Medicaid and inheritances can be tricky affairs, and mistakes can cost a lot of money. When a person is drawing Medicaid benefits and inherits money or property, that inheritance jeopardizes the benefits. The inheritance must be handled carefully to minimize expensive penalties. What “careful” means, though, can be misunderstood without the necessary expertise.

The Right Steps for Handling Inheritance

The first and best idea is to call experienced elder law attorneys like us. (An even better idea is to call us well before any inheritance becomes a “problem.” The sooner you call us, the more money we can likely protect for you.)

An Ohio attorney was recently suspended partly because he mishandled this Medicaid-inheritance issue. The mistaken advice was that to protect the benefits, the person who stood to inherit should “disclaim” or “renounce” the inheritance – in other words, give it away to someone else.

Medicaid Rules and Inheritance Context

That advice would have been OK in the tax context. It was not OK in the Medicaid context. The Medicaid rules count inheritances regardless of whether the recipient keeps them or passes them on to someone else. The bad result, in such cases, is that the person receiving Medicaid would be charged just as if he or she had taken the money, even if he or she gave it away, and the person’s benefits would be docked accordingly. This can be a very expensive misstep.

The better result would be to consult us immediately. We can advise you on the necessary techniques to split the inheritance between the recipient and somebody else, like a child. If the right strategies are used, Medicaid would count the inheritance to an extent, but not as much as it would have if the recipient had simply given away the whole sum.

An even better result would be if the person leaving the inheritance had consulted us first. We know how to structure that person’s financial arrangements, to protect the people to whom the person wants to leave his or her legacy.

Elder law is a law unto itself. We know that complicated area of the law well and we have helped many people successfully meet the challenges it poses. Please contact our Houston office at 281-214-0173 or the Bay City office at 979-318-5079 today and schedule an appointment to discuss how we can help you with your legal matters.

Via https://www.wthompsonlaw.com/medicaid-and-inheritances-planning-ahead-is-essential/

If you want to receive federal assistance through Medicaid for nursing home care, assisted living, in-home care, or adult foster care, you must meet the income and asset requirements. Due to these rules, many candidates donate their resources and money to qualify. An individual’s financial transactions are reviewed by the Medicaid administering agency during a look-back period before their application is accepted. If a transaction violates the look-back rules, the applicant will be penalized by losing Medicaid eligibility for a period of time. The period of time could be months or even years.

Forty-nine of the fifty states have a look-back period of five years (or sixty months). The exception is California, with a thirty-month look-back period. This period of Medicaid ineligibility is a penalty period with no maximum. To determine the penalty period, Medicaid takes the dollar amount of assets transferred and divides it by the daily private patient rate of nursing home care or the average monthly private patient rate.

There are certain look-back exceptions and exemptions, particularly for families in difficult situations. These are very often confusing options and often difficult to implement without the expertise of a Medicaid planning attorney. Certain common mistakes and violations can occur.

Gifts – The federal government’s annual gift tax exclusion amount per recipient is $16,000 in 2022 via the estate and gift tax exemption. However, Medicaid does not consider this transaction exempt from its look-back period. Even birthday gifts or other special occasions like holidays or weddings may result in a Medicaid penalty. Gifting rules change state by state, making things even more complex.

Lack of Documentation – If you transact an asset and receive a value equal to the fair market value without proper documentation, you may violate the rules of the look-back period. This situation is particularly relevant for assets with a government record like boats, motorcycles, or vehicles because of their registration requirements.

Irrevocable Trusts – Many individuals incorrectly assume that an irrevocable trust (sometimes inaccurately called a Medicaid Qualifying Trust) is automatically exempt from the look-back period. Creating an irrevocable trust during the look-back period is considered a gift and a countable asset. Irrevocable trusts created before the look-back period are not countable assets.

Because Medicaid is a federal and state program, look-back rules vary by state. Even the penalty divisor amount varies by state because the average cost of nursing home care varies. Some states calculate using a monthly average penalty divisor, while others use a daily average penalty divisor. In New York, the rules governing asset transfer under fair market value do not include home care, sometimes called community care. Instead, they only apply regarding nursing home care. Pennsylvania will permit an individual to gift $500 per month without violating the Medicaid look-back period. Understanding the nuances and differences between states and Medicaid rules is crucial to successful planning.

Strategies to avoid violating Medicaid look-back rules and avoiding penalties can help families keep some of their assets while still qualifying for Medicaid. A Medicaid planning attorney can help you identify which strategy is best to implement in your circumstance. These strategies can be extremely complex and require professional help. It is easy to have a loved one disqualified, but very difficult to rectify the problem.

Caregiver Agreements – Also referred to as Life Care Agreements, Elder Care Contracts, or Long-term Care Personal Support Services Agreements, the formal agreements permit compensation to the caregiver, spending down assets for services without violating the look-back period. These contracts between a caregiving relative, friend, or older adult permit a senior to receive necessary care that Medicaid does not cover while also providing the caregiver with needed compensation. This contract requires the services of an attorney to ensure its careful drafting.

Medicaid Exempt Annuities – This annuity type is common to avoid violating the Medicaid look-back period. An annuity is a lump sum payment in cash by an individual in return for a monthly payment for the duration of that person’s life or a set number of years. These annuities are Medicaid compliant because they turn assets into income, lowering the assets of the Medicaid candidate below the Medicaid eligibility limit. Some annuities qualify, while others do not, be certain to choose the right product if the goal is Medicaid qualification.

Irrevocable Funeral Trusts – This trust type sets aside a specific amount of money (within state limits) for the sole purpose of funerary and burial costs. This trust helps applicants spend down excess assets without violating the Medicaid look-back period.

Undue Hardship Waiver – Filing an undue hardship waiver request occurs when individuals violate the Medicaid look-back period, but it renders them without basic needs like shelter and food. It is difficult to receive this waiver as there must be an effort to exhaust all avenues of asset recovery, including legal options.

Recuperation of Assets – If previously transferred assets during the look-back period can be recovered, the previous penalty established can be reconsidered. Some states will review all assets transferred to all people. Partial recovery of said assets may shorten the penalty period in some states but not in others. Though the returned assets will put an applicant over the Medicaid asset limit, these assets can then pay for long-term care as the applicant reapplies.

The surest way to avoid violating a look-back period infraction and qualify for Medicaid is to consult a qualified Medicaid planning attorney before you gift or transfer any assets. If a violation has already occurred, a qualified attorney can also offer assistance to rectify what has gone wrong. The best option to avoid the Medicaid penalty period is to plan proactively.

Please contact our Houston office at 281-214-0173 or the Bay City office at 979-318-5079 today and schedule an appointment to discuss how we can help you with your legal matters.

Via https://www.wthompsonlaw.com/medicaid-penalty-period-avoidance/

Those who have loved ones with disabilities and wish to save money tax-free often create special needs trusts (SNTs) to supplement their loved one’s unique needs and quality of life while continuing to qualify for public assistance. With the ABLE Act (Achieving a Better Life Experience) of 2014, disabled individuals now have a second means of building assets while at the same time not jeopardizing federally funded programs such as Medicaid and Supplemental Security Income (SSI) or Social Security Disability Income (SSDI).

Differences Between ABLE Accounts and Special Needs Trusts

Which financial strategy is better? The answer is, it depends. There are some significant differences between them regarding saving and spending rules. ABLE accounts and special needs trusts have different annual saving limitations. Depending on your circumstances, you might use both financial products. However, only one ABLE account is permissible for each disabled individual.

While an ABLE account is easier to set up and manage, its primary disadvantage is contribution limits. The total annual contribution possible by a participating account funder is $16,000. Each state has an ABLE limit ranging from $235,000 to $500,000. Persons with disabilities who receive SSI are also subject to additional limitations. A special needs trust has no monetary limits; however, it is more complex to set up and manage. Some families set up an ABLE account for everyday expenditures and maintain an SNT for larger purchases.

Similarities Between ABLE Accounts and Special Needs Trusts

An ABLE account has some similarities to an SNT as both are tax-advantaged savings vehicles for individuals with disabilities before the age of 26. The beneficiary, family, and friends can all contribute to the account, and neither an ABLE account nor SNT affects public benefits eligibility. For the beneficiary, funds within both financial products grow and distribute tax-free.

But, an ABLE account has more purchase options than an SNT. Qualified Disability Expenses (QDEs) include:

• Housing
• Transportation
• Food
• Education
• Employment training and support
• Health prevention and wellness
• Assistive technology and personal support services
• Financial management and administrative services
• ABLE account expenses for oversight and monitoring
• Legal fees
• Funeral and burial
• And more

In contrast, an SNT design is to pay for “extras” to make life more comfortable. Extras may include:

• Home furnishings
• Assistive technology
• Therapies Medicaid doesn’t cover
• Pets
• Entertainment
• Vacations
• Etc.

This narrower range of permitted expenses is why families will often establish both financial vehicles.

Accessing Funds, Taxes, and Expenses

Money in an ABLE account is easy to access. Many programs offer a debit card linked to the account so you can pay for items directly. In an SNT, the trustee needs to make the funds available to the beneficiary. This oversight by a trustee ensures the beneficiary must get permission before using a credit or debit card to purchase items or obtain cash that may not qualify for the SNT rules. A newer option for an SNT is a True Link debit card, a trustee-managed prepaid card. Still, purchases must not disqualify the beneficiary from government benefits programs.

The person with disabilities conducts ABLE account ownership and management. Since the money in an ABLE account is tax-free, management is quite simple. However, they must ensure their expenditures qualify as a QDE. The trustee of the SNT is responsible for following the trust guidelines, keeping records of expenses, and producing tax information annually as the trust grantor pays taxes. When the person who owns an ABLE account dies, the money left is likely to be used for state Medicaid agency services reimbursement. A special needs trust is created with other people’s money (parent, grandparent), and as a third-party trust does not have to repay Medicaid after the beneficiary dies.

Every family has different circumstances and needs. A disability planning attorney can explain the varied purposes of an ABLE account or SNT and how they can benefit your loved one. It may be that both financial products suit your planning needs to protect a loved one with a disability.

We hope you found this article helpful. Please contact our Houston office at 281-214-0173 or the Bay City office at 979-318-5079 today and schedule an appointment to discuss how we can help you with your legal matters.

Via https://www.wthompsonlaw.com/special-needs-trusts-and-able-accounts/

Divorce can prove to be a contentious time for you and your former spouse. Dividing assets can lead to heated disagreements. If you have children, you need to figure out custody arrangements, which could heighten the tension even further. Co-parenting during divorce can prove frustrating, but here are a few tips to make it work for you and your children.

#1: Let your children know about the divorce.

The first step in co-parenting during divorce is always to communicate with your children about what is happening. While you may fear their disappointment or sadness, it is often better to have this discussion earlier rather than later so your kids know what to expect.

You may choose to have this discussion with both spouses present. In this case, both of you will be able to affirm that you love them and will continue to love them. Affirm that the divorce is not their fault, and be sure to explain that the relationship with each parent will continue.

Respond to any concerns and questions they may have. This is a difficult time for everyone involved, and your children may be understandably confused or worried. Younger kids may ask the same questions repeatedly—this is their way of creating a sense of security. Be patient and be sure to keep your answers consistent.

#2: Never vent to your children about your spouse.

While it may seem frustrating, do your best to keep things cordial between you and your spouse. When co-parenting during divorce, treat each other with respect, especially in front of your kids. Leave them out of any heated discussions or arguments, and try not to argue in front of them.

Your kids should also not witness you expressing any damaging remarks about your spouse, either intentionally or unintentionally. If you need to vent, call someone you trust to express your feelings. Be sure that your kids are not within listening distance.

If you need to, approach every interaction with your spouse as though it were a business meeting. Speak to them with respect and neutrality—as though they were a colleague.

#3: Maintain as much stability as possible.

One part of your children’s world will be changing significantly. Depending on the details of the divorce, your children may be moving, changing schools, and trying to form new friendships. Their relationships with extended family may change as well.

If you are able to, keep your children’s support systems stable by allowing them to maintain their school, friends, and family ties. If these changes cannot be avoided, give your kids enough time in advance to learn about and cope with these shifts. Do not wait until the last possible moment to tell them.

When your divorce is fully implemented, you and your kids will likely need to adjust to new routines. But life will eventually seem normal again.

How will a judge decide if you are able to co-parent?

No matter how much you hate your soon-to-be ex-spouse or husband, a judge will not consider your feelings toward him or her. Instead, the judge will look at your relationship as a way to better raise your child. Now the question is: How will the judge see you and your ex as a team in raising a kid together?

The judge will likely view you and your spouse more favorably if you are able to prove that you can talk weekly on the phone about the activities of the children and changes in your work schedule which affect drop-off/pick-up time.

Is it possible for you and your ex to work together in order to make the best decision for your child’s interests? Are you willing and able to take the time to talk to your ex-spouse about the things that are affecting the child’s life? The judge will likely view you and your spouse more favorably if your spouse reports that both of you are talking weekly on the phone about child-related activities and changes in your work schedule.

Your ex-spouse should be aware that you are interested in keeping them informed about changes to a child’s lifestyle or routine. Your ex-spouse should be informed if your child has had problems with certain foods or a reaction to sunscreen. These issues are not only detrimental to your child but can also be disrespectful to the child. If you are taking time off from work to attend a school function or a doctor’s appointment, it is important that you inform the other parent immediately. It is possible to cause great animosity towards your partner if you do not notify them.

Arrange For a Divorce or Mediation

While your children will need time to adapt and cope with their feelings, the way you handle your divorce can help ease their pain or worsen it altogether—in the short- and long-run. If you need help going about your divorce in a healthy manner that benefits both you and your children, call Whitney Thompson, Esq. at (979) 318-5079 today.

Via https://www.wthompsonlaw.com/co-parenting-during-divorce-how-to-work-together-for-your-children/

Special needs children present a unique challenge for estate planning. Optimizing your estate to use, enhance, and enrich assets for your special needs child while maintaining their enrollment in public benefits programs requires careful planning. An estate planning attorney can prepare a special needs trust to accomplish these and other goals you have for your child.

(New) Estate planning presents unique challenges for families with special needs children. In maximizing your estate’s potential for use, enhancement, and enrichment while maintaining your special needs child’s enrollment in public benefits programs, careful planning is necessary. To accomplish these and other goals for your child, a special needs trust can be prepared by an estate planning attorney.

A special needs trust can meet strict financial eligibility rules for means-tested assistance programs because the assets held in the trust are not directly available to the child. A trustee provides benefits to the child via the trust. Parents select this trustee with great care because they will act as the child’s money manager, ensuring proper financial supervision after the parents die. A letter of intent is also a powerful tool to guide the trustee to make decisions that best benefit the child’s unique needs.

In most cases, your special needs child will benefit by selecting a non-family member who is independent to act as your special needs trustee. The range of options includes:

• A parent, sibling, or another relative, which can be risky,
• An estate planning attorney,
• A financial institution or a trust company,
• A non-profit organization, particularly one with special needs experience, or
• Co-trustees, such as a trust company, acting in conjunction with a family member.

Each option has advantages and disadvantages that require close counsel with your estate planning attorney or financial advisor before selecting your trustee.

The creation of your special needs trust can happen while you are living or at the time of your death. A last will and testament can incorporate creating the trust, known as a testamentary trust. Parents often set up the trust while alive, known as a living trust (inter vivos trust). The living trust has advantages, including the avoidance of probate, the permission for other family members to make trust contributions (usually grandparents), and the opportunity for a co-trustee to experience what it is like to administer the trust.

Whether or not your trust is revocable or irrevocable affects tax consequences. Generally, you’ll want to choose a revocable trust if the goal is to maintain maximum control over the trust and income tax considerations aren’t a concern. Establish an irrevocable trust when there are concerns regarding income tax consequences, particularly if the trust funds exceed one million dollars. In this instance, both federal estate and gift taxes may apply to the trust.

While there is much to consider and decide, the crucial step to providing for your special needs child is to make it legal. Verbally telling your family how to care for your child is insufficient. In the absence of a will, testamentary trust, or living trust, the state in which you live will determine the outcomes of your estate’s distribution. This situation is not a viable option for a special needs child or any of your children.

Receiving proper legal guidance to implement your estate plan using appropriate trusts is crucial to maintaining a healthy lifestyle for your special needs child. Do not attempt to craft these legal documents on your own, use existing forms, or copy some internet template. Each special needs child requires careful considerations that are unique to them and the challenges they face moving forward. With so much at stake, a qualified estate planning attorney with expertise in special needs planning will best suit your wishes and the child’s needs. Protecting public benefits such as Supplemental Security Income (SSI) and Medicaid and establishing a special needs trust through your estate planning can best achieve these goals.

We hope you found this article helpful. Please contact our Houston office at 281-214-0173 or the Bay City office at 979-318-5079 today and schedule an appointment to discuss how we can help you with your legal matters.

Via https://www.wthompsonlaw.com/financial-planning-for-special-needs-children/

When a child becomes an adult at age 18, they gain the right to make decisions about their life, their finances, and their health. In some cases, however, obtaining a special needs guardianship as their parent or caregiver is necessary for their well-being. Such a guardianship can control some or all of the legal decision making power for the adult ward.

As a family law attorney whose office handles guardianship and estate planning, I wanted to discuss this topic to help others understand how it works. If you think you may need to become a legal guardian for an adult with disabilities in the future or need to make that decision now, here are some considerations to think about.

Does My Child Need a Special Needs Guardianship?

The first thing to decide is whether the person in question needs a guardian. It’s important to understand that a diagnosis of mental illness or cognitive disability does not automatically mean that someone needs another person to make decisions for them. There are two types of guardianship: guardianship of the person and guardianship of the estate. Guardianship of the person is when someone needs help making decisions about their living situation, healthcare, and other personal matters. Guardianship of the estate pertains to financial and legal matters, such as paying bills or hiring an attorney.

Most courts consider special needs guardianship a last resort and attempt to find alternatives that grant the individual some power to make their own decisions about their life. A limited guardianship granted by the courts only allows a guardian to make certain decisions.

Alternatives to Special Needs Guardianship

Guardianship of an adult with cognitive disabilities or mental illness is not always the best option. Fortunately, you can choose one of the many alternatives to special needs guardianship that exist and even combine them in whatever way that best serves the interest of the person being cared for. Alternatives to guardianship include:

• Creating a special needs trust
• Appointing a durable power of attorney
• Appointing a financial representative
• Hiring assisted living services

To figure out the option that is best for your situation, it’s critical to consult with a professional such as an attorney.

How to Get a Special Needs Guardianship through the Courts

Obtaining a guardianship through the courts begins with a petition. The petition includes information about the person such as a description of their disability, their relationship to the proposed guardian, and the reasons that the courts should grant the guardianship.

The next step of the process is a hearing before a judge. During the hearing, the petitioner must prove that a guardianship is necessary, that no other alternatives are sufficient, that the petitioner is capable of carrying out the duties of a guardian, and that no one else has a better claim to become the person’s guardian (for instance, a parent or another close relative).

How does Guardianship work for an adult with special needs?

Texas’ guardianship process is administered by the probate court. It’s used to protect incapacitated or vulnerable adults (and minors in some cases) from abuse, neglect, and other difficulties that could arise if they have to make difficult decisions about their lives and finances.

When you apply for guardianship, you are asking the court to:

1. Remove the legal rights of the incapacitated or the ward;
2. Give the legal rights of the ward to another adult, the guardian.

Texas law defines legal incapacitation as a person who is unable to work because of a serious medical or mental condition and if they are unable to:

• Provide for their basic needs (i.e. Shelter, food, and clothing
• They should take care of their physical and financial well-being.

Although guardianships may be necessary in cases where the person cannot manage their own affairs because of a disability or illness, they are clearly different from incapacity. Paraplegia or any other form of disability does not automatically make a person legally incapacitated.

A person can be incapacitated if they are unable to take care of their financial and physical needs. If a person is only partially incapacitated (e.g. when they can care for themselves but are unable to manage their estate and finances), guardianship rights may be limited.

When you seek guardianship, it is essential to first understand the abilities and needs of your child and how they are seen by law.

As you can see, obtaining a special needs guardianship can be a complicated matter. It is best to consult with an attorney to make a plan for how to approach guardianship. If you have any questions about special needs guardianship or its alternatives, please don’t hesitate to contact me.

Via https://www.wthompsonlaw.com/special-needs-guardianship-a-short-guide-for-parents/

As a Matagorda County attorney, I hear about it all the time. The holidays can be a difficult time for children whose parents are divorced or separated. No matter how co-parents schedule their time with their child—for example, splitting time on Christmas or one parent taking Christmas Eve and the other Christmas day—the holidays can be a confusing time.

Want to make it easier on your child this holiday season? These tips might help.

Do Not Make Them Feel Like They Are to Blame

If you do not get to spend time with your child on a holiday like Christmas, it’s perfectly fine to feel sad. But you should think of your child’s feelings before sharing that information with them. Telling them that you are sad that you won’t get to see them on the holiday won’t change the situation for the better. In fact, it could make your kid feel as though they are to blame for your sadness.

Instead, focus on the positives. Tell them you are excited to spend time with them on an upcoming day. Ask them if they are excited about their presents. Tell them to have a great holiday. The things you say could affect how they view the holiday for years to come.

Allow Them to Talk about Their Other Parent Freely

If your kid wants to talk about your ex-spouse, it’s critical that you try to make them feel like you want to hear what they have to say, even if you really don’t. Avoid facial expressions and comments that make your child feel bad about sharing what they do with their other parent. Regardless of your divorce, you and your ex-spouse are both a huge part of your child’s life.

Alternatively, do not use your child as a way to get more information about your ex-spouse by asking them questions about their time together. Only if your child wants to be forthcoming about their time with their other parent should you ask them.

No Negative Talk about the Other Parent

You should make this a habit for the rest of the year, too. Negative talk about the other parent, no matter how discreet you think you are being, can have an adverse effect on your relationship with your child. Before you and the rest of the family get together, be sure to have a talk with them about not being negative toward your ex-spouse.

Reduce Their Stress When Dropping Them at Their Other Parent’s House

The holidays can be a stressful time, but it is imperative that you take measures to reduce your child’s stress when you take them to their other parent’s house. For example, if something about the exchange changes, let your child know ahead of time. If you have to change the time or place or your ex-spouse needs to change things, communicate to your child that you and their other parent have agreed that a different time or place is best for everyone.

It’s important to keep your child’s point of view in mind when making decisions. By taking on their perspective, you can avoid creating new stresses in their life.

What can I do if my visitation is denied by another parent?

Although family and friends may urge you to call the police, law enforcement will often insist that visitation denials be treated as a civil matter. Police officers are more likely to stay away from a situation where a dispute escalates to a criminal case.

Police officers can read court orders depending on their department and attempt to help the parties. However, the policy is a civil matter so the police cannot enforce it.

A parent can choose from two options to resolve the issue:

1. A qualified family lawyer can assist a parent in filing a Petition for Habeas Corpus. The other parent must appear with the child if the writ of Habeas Corpus is granted. The parent can also request a Writ to Attachment, which directs the child’s delivery/return.

2. A parent may file a Motion for Enforcement if the child is withheld by the parent on more than one occasion.

What is considered a denial of visitation?

Children thrive when parents can collaborate in a flexible, cooperative manner to create a schedule. Parents should work together to meet each child’s needs. Parents may not know how to enforce visitation rights if this happens.

You will need to present a pattern of denials in order to have your visitation orders enforced.

Talk to an Experienced Matagorda County Attorney

If you need to speak with an attorney who practices family law, don’t hesitate to reach out to me. I am here to help.

Via https://www.wthompsonlaw.com/navigating-holidays-when-co-parenting-after-divorce/