This article includes considerations parents of college students with special needs must weigh, when planning an estate. These considerations are vital to your child’s welfare and can provide a safeguard for those unpredictable moments.
Why Estate Planning is Uniquely Important for College Students with Special Needs
From the moment your child turns 18 and enters college, they’re exposed to new challenges and responsibilities. In addition to the usual adulthood responsibilities, like managing finances or making medical decisions, students with special needs often need to coordinate accommodations and supportive services. Estate planning can alleviate much of the anxiety surrounding these concerns.
It’s important to note here that a parent cannot create an estate plan for their special needs child. Instead, it is the parent’s job to ensure their child has a plan in place. There are minimum capacities required for a child to create an estate plan. If a child’s needs are great enough that they lack capacity to create an estate plan, having a court appointed conservatorship may be required.
When a child with special needs turns 18, parents lose many of their legal rights to intervene in medical or financial matters. A well-structured Estate Plan empowers you to continue advocating for your child when they most need it. Special Needs Trusts or ABLE Accounts can ensure that your child’s government benefits are not compromised, while powers of attorney can secure your ability to make timely medical and financial decisions on their behalf.
Documents Every College Student with Special Needs Should Have
- Special Needs Trust or ABLE Account: Special Needs Trusts and ABLE Accounts protect your child’s assets without jeopardizing eligibility for government benefits like Medicaid or Supplemental Security Income. Consult an experienced estate planning attorney familiar with special needs planning to determine the best choice for your family.
- Healthcare Power of Attorney (POA) or Living Will: This grants you the legal authority to make medical decisions for your child, a must-have given the unpredictable nature of health emergencies.
- Durable Power of Attorney (POA): Besides healthcare, you may need to manage financial accounts or tuition payments for your child. A Durable POA can enable you to act on their behalf in a variety of financial contexts. It's also important to ensure your child’s school has a copy on file to avoid administrative delays, if you need to act for your child.
- HIPAA Authorization: Necessary for you to have legal access to your child’s medical records and communicate directly with healthcare providers.
- Letter of Intent: Though not a legal document, this letter can guide future caregivers, trustees, or guardians in understanding your child’s needs and preferences.
- FERPA Waiver: The Family Educational Rights and Privacy Act (FERPA) waiver allows you to access your child's educational records, invaluable during emergencies.
- Advance Directives: These legal documents allow your child to express their preferences for end-of-life care, which is particularly important if verbal communication is a challenge for them.
- Conservatorship or Guardianship: In some cases, especially where intellectual or developmental challenges are present, you may need to consider establishing conservatorship or guardianship to retain legal authority over decision-making.
The Last Lesson: Teaching Adulthood
Explaining the importance of estate planning to your college-going child is invaluable. It demonstrates the essence of responsibility and the need to prepare for life’s unpredictabilities. For a young adult with special needs, this is not just a life lesson – it’s a lifeline.
ABOUT THE AUTHOR:
Mitch Mitchell is Products Counsel of Estate Planning at Trust & Will, where he acts as an integral part of the company’s internal legal team. As an experienced estate planning and probate attorney, Mitch brings over a decade of knowledge and real-life experience to Trust & Will’s service offerings. Before joining Trust & Will, Mitch was a lawyer in private practice, where he helped individuals prepare their estate plans and helped families navigate probate after the loss of a loved one. He is a Baylor University School of Law graduate, where he earned a JD. Mitch lives in Houston with his wife and three young children.
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