You may be thinking that forms for any legal purpose can be economical since hiring an attorney can be costly in many instances. And while for putting together a simple will or for other legal matters where there are not substantial assets or real property this may in fact make sense. However, where complex issues regarding taxation and exposure to significant liability or loss of funds from not adhering to strict state laws are a distinct reality, retaining an attorney to handle your affairs is extremely cost-beneficial and quite simply just easier in the long run
This certainly applies to establishing a special needs trust. To begin with, I am not sure that I have seen any sort of standard special needs trust form on the internet though I am sure they exist. In any case while a form will likely have the standard or boilerplate language required to set up the trust, there may have been additions or modifications to the law since the form was written that are not included in the form. Also, who do go to if you get stuck on a question?
What Can an Attorney Do for Your Special Needs Trust?
In establishing a special needs trust, it needs to conform to the requirements set forth under the Omnibus Budget and Reconciliation Act (OBRA-93) and state that its purpose is to provide supplemental and extra care that is in addition to public benefits.
There is nothing worse than establishing a special needs trust and then seeing any remaining funds be used to reimburse the state for Medicaid expenses when you could have avoided it. Having an estates and trusts attorney draft the appropriate trust and use the required language needed will ensure that the trust’s assets go to the surviving heirs when the disabled individual passes away.
For example, a special needs trust funded by parents or other third parties will not be required to reimburse Medicaid, or one that is funded by a personal injury settlement that a court orders into the trust. Other sources such as will bequests or from insurance proceeds need to be carefully administered to avoid being subject to Medicaid repayment. An estate planning attorney, like me, can also ensure that the trustee fully understands his or her duties regarding expenditures.
I understand the temptation of savings in the short term and the desire to put together your own special needs trust. However, you really should avoid the risks inherent in trying to do legal work for which you have no training and cannot ensure that you are following the current laws that apply to your situation. Most estate planning attorneys are willing to work out some arrangements on our fees, which can go a long way in avoiding mistakes and future regrets.