Is Your Disabled Child Protected After You Die?
By Rick Law, Elder Law Attorney and senior advocate at the multi-generation law firm of Law Elder Law in West suburban Aurora, IL. Serving seniors and their families in Western Chicagoland . What do you do if you’re an elderly parent still caring for a disabled child who can’t care for him or herself? Last week I wrote about “empty nesters” who have never really had an empty nest. These are parents of children with disabilities such as autism, cerebral palsy, hearing loss, mental retardation, vision impairment, muscular dystrophy, genetic and chromosomal disorders, Down’s syndrome, and fetal alcohol syndrome, to name just a few. Some disabilities are apparent at birth, and others are caused by accidents or manifest themselves as mental illness later in life, but the end result is the same: The child is being cared for by a loving parent who worries about who will provide care for that child once the parent is gone. The most common advice of the attorney who does not practice in the area of special needs trust planning (or what we prefer to call Tender Loving Care (TLC) Trusts) has been for the parent to disinherit the child. Disinherit means to make sure you leave that disabled child with absolutely no allocation of money directly. This gives the simplistic idea that one should just leave extra money to one of the other children who will provide care for the disabled child and money management. Even in the best of families, this is usually a disastrous idea for the following reasons:
- It’s extremely difficult for an individual who receives extra money not to commingle that money with their own, and eventually treat it as their own. That money would become available in the event that the healthy child becomes divorced or is otherwise subject to loss to a creditor.
- In many families the dynamic is such that the healthy children have some anger or resentment toward the disabled child because that sibling got more attention. Thus, healthy children may not want the role of caregiver and banker for their disabled sibling.
- And most unfairly, leaving money to one child for disbursement to another child puts a target on the back of the healthy child, in that all complaints and concerns about money will be directed to that individual.