Choosing the Right Trustee for a Special Needs Trust is Critical

A Special Needs Trust, sometimes called a “third party” special needs trust, is a legal arrangement designed to benefit a disabled individual with special needs. This trust can be used to protect the assets of a child who faces a disability such as autism. Through this planning vehicle monies can be preserved for your child but are not actually owned by the child.

The purpose is to provide financial support and a plan for individualized care over the course of your child’s lifetime. Perhaps the most important decision regarding a Special Needs Trust, is determining who will be its trustee.

A trustee can be a parent or family member, an independent professional, or even an institution like a bank or a trust company. There’s plenty of legal latitude in this decision. But whoever the trustee, he or she will have near complete discretion about how to make payments and distributions from the trust on behalf of your child.

Choose wisely, because there’s a lot of responsibility you will ultimately be giving to this person.

Ideally, a special needs trustee would have meaningful experience in responsibly managing wealth. This could include managing a trust, including making secure investments, keeping up with different accounts, organizing and preparing tax items, and paying bills.

A trustee should also be knowledgeable about how each distribution might affect an autistic child’s public assistance eligibility. One of the main benefits of a Special Needs Trust is that it shields special needs beneficiaries from income thresholds used to determine whether a person qualifies for government programs and funding.

Even small direct payments to an autistic trust beneficiary, or a meager expenditure on a disallowed item, could disqualify the child from critical public assistance programs designed exactly for them.

Staying abreast of all the legal changes is a tremendous responsibility. You want the trustee you select to work alongside an experienced elder law and special needs planning attorney. Your attorney will be able to help the trustee navigate this changing landscape. Understanding the ins-and-outs of complicated and ever-changing health care, educational, and other important programs is no small task. Such expertise is not common knowledge, and a trustee should be both familiar with these areas and open to working with an attorney who has the knowledge necessary.  

Other things to consider is whether a trustee candidate is reasonably competent to protect special needs trust assets from predators and creditors; if they’re capable of managing financial matters – such as the addition of new assets and income generating investments; and, most importantly, if they understand that their big-picture role is to provide for continuous stability once a special needs child’s primary caregivers are no longer able to take care for them. Discuss with your attorney if you should create the added protection of appointing a trust “protector,” who could have oversight of your selected trustee.

We know how important this decision is for you. Planning for a loved one with special needs is not only a critical task but an emotional one. Let us help answer your questions and share with you the planning you need in Florida. Do not wait to contact our office to schedule an appointment to discuss your special needs planning goals.