For most parents, child support terminates upon the child finishing college or becoming legally emancipated. Disabled children, however, typically need support for the rest of their lives. In addition to child support, there must be a plan for how the child will be supported after the death of one or both parents. In most families, the children would directly inherit from their parent's estate, but this is problematic for disabled children who are receiving benefits such as SSI and Medicaid. The income threshold for these programs is extremely low, so any asset that is gifted to a participant could cause him or her to be disqualified for benefits.
The way that families typically get around this issue is through the establishment of a special needs trust. Since the assets will be going into a trust, as opposed to your loved one, they can not be counted towards his or her income. Your loved one will not be able to access the funds, but an appointed trustee will use the funds to pay for goods and services such as rent, groceries, home furnishings, medical bills and recreational activities.
While a special needs trust has many benefits, there are some downsides that require careful examination. First, you and the other parent would need to agree on the terms of the trust, and how this effects the current child support order. For example, would the child support be paid directly into the trust? If you are the receiving parent, this could effect your ability to make decisions for your child if someone else is appointed as the trustee. There's also the need to agree on a trustee; this can be challenging for two former spouses or partners. If you can't agree on a trustee, you can ask the court to appoint a guardian ad litem, but once again, that's something you would both have to agree on.
If parents are not in agreement to have child support paid into a trust, the court would need to decide for them. As a general rule, it is very difficult to win a case for child support being paid to anyone else besides the primary custodian. You would need to show a compelling change in circumstance to warrant such a change, but in the case of a special needs trust, you would also need to show how the trust would be in the child's best interests. This sounds easy in theory, but it would require proving that the trust would be better for the child than paying support directly to the primary custodian. Furthermore, the child may need to be represented by a guardian ad litem, since this is an entity that would directly effect his or her future. Because of the complexities involved, it is critical that you speak to an experienced family law attorney about your rights and legal options. For more information on establishing a special needs trust, please speak with the attorneys of Villani & DeLuca, P.C.
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