How Do You Ensure That Funds Are Not Misused In A Trust?
Of course if you are going to be setting up a trust for someone with disabilities or limitations, you want to primarily pick someone that is going to be trustworthy and is going to do the right thing.
It all goes back to the same thought process that if you choose to pick someone and you name a trustee, that person has the responsibility to do the right thing. That is why you are picking them as a trustee and that you are going to trust them and that they are going to do the right thing.
Obviously if they overstep or do something incorrect, there is the possibility that they can be held accountable for any misdeeds that they do, but going into it you would not necessarily be choosing that person if you thought they were not a trustworthy person.
As a fiduciary, there are responsibilities that they do have pursuant to law, and they are not supposed to overstep those responsibilities, because they can be held accountable and can be sued and or removed from that trustee position. But as explained, you would not necessarily pick someone that you would not feel is appropriate or trustworthy to take on that obligation as a trustee.
What Are Some Common Legal Problems and Misconceptions Faced by Families That Have Children That Are Disabled?
Many people and a lot of lawyers are confused about the legal issues that people with disabilities have to address.
I see it often where I have clients that come to see me and they have grown disabled children that are well over 18 years of age and they never filed for a guardianship of that grown child. Mostly, because they just assumed that they have been taking care of that child for their whole life and that they are the person that is able to make decisions for that child, even though they are above the age of eighteen, which is not correct. It is not proper and not legal.
Once that disabled child is over eighteen they should file what is known as an Article 17a, guardianship to be put in place to legally make decisions for that child. Once the Court Order is in place and they are appointed Guardian for that adult child they will legally have the ability to make medical decisions and financial decision for their adult child.
Obviously, any parent of a minor child is able to make medical decisions for that child. However, after the age of eighteen if that minor child is developmentally disabled, and does not have the cognitive abilities to make medical decisions, that person’s mother or father is no longer legally able to make decisions for that child once they have reached the age of eighteen because they are an adult and a Court order appointing a guardian for the disabled person is necessary.
I have situations like that where for many years the parents were not aware of that. Then what might happen is at some point in time, a snag appears, it could be because now that adult child may need some kind of a dental procedure or some kind of a surgical procedure for instance, and written consent is now needed for that procedure. That is how it comes into my office often. Now that parent of that adult child comes to understand that they cannot give that written consent because their child is an adult and because they are disabled that adult can’t give that consent either; the doctor or dentist cannot take the consent from that child with disabilities because they do not have the capacity to do so. Therefore, the procedure can’t be consented to until a Court issues a Guardianship Order to that parent and the guardian can then give that written consent for that medical procedure.
Many times the parents come to me and informs me that they are being told that they need to file for a guardianship of their child. They ask why is that necessary? I am his or her mom or dad, and I have always made medical decisions in the past for my child, I will then have to explain to them that once the child reaches eighteen and is an adult, they can no longer give consent legally anymore, and that that they are required to go through what is known as a 17a guardianship proceeding in order to have the authority legally to make those decisions.
And the other major problem I see as discussed above is that most parents are unaware of how to best leave that disabled child an inheritance without having them lose their Medicaid and or disability payments. Those are the two biggest legal issues that I see often in my practice by parents of children with disabilities.
How Complicated Is It To Set Up A Special Needs Trust?
They are complicated if you go to the wrong lawyer who is not familiar with special needs planning and Medicaid. For the average general practitioner or estate lawyer, if he is not familiar with it, it is very complicated. For someone like me who is well-versed in this practice area it is not complicated, because this is what I do. This is what I do every day all day. For the average person of course it could get a little complicated and confusing, but that is why they need the proper advice from someone like me.
Legal fees are based on the specific legal scenario, but it is something that needs to be done and the cost of not doing the proper planning will far exceed the costs associated with failing to plan or doing the wrong planning if a disabled person loses their government benefits, Medicaid, disability payments or their inheritance. The cost of not doing it is going to be a lot more after the fact to try to correct the problems that were not planned for properly.
The Law Offices Of Michael Camporeale P.C. in New York can help you set up a special needs trust. We also have elderly law attorneys as well as estate planning lawyers who understand how wills and trusts work. Whether you need a special needs lawyer, a Medicaid planning lawyer, an elder law lawyer, an estate planning attorney, or an attorney who can set up a special needs trust, just give us a call. We serve many areas in New York, including Staten Island, New York, Brooklyn, Bronx, White Plains, Garden City, and Melville. Our offices are located in in Staten Island, New York, Brooklyn, Bronx, White Plains, Garden City, and Melville, NY.
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