Planning for Disabled Children

The public is not generally aware of the number of children among the general population who could be considered disabled. In 1973, the U.S. Congress passed Public Law 94-142, the Education for All Handicapped Children Act, subsequently retitled the Individuals With Disabilities Education Act. This Act was intended to require school districts to provide a free and appropriate public education to all children who are defined under the Act as being "handicapped". At the time the Act was passed, it was estimated that there were over eight million children in the US who met the definition contained in the Act, over half of whom received no educational services at all. Congress required that school districts collect data to confirm the numbers of children and types of disabilities in their service populations. The national incidence of children who experience disabilities sufficiently severe to warrant specialized educational intervention is currently twelve percent of the total school age population.

The right to an appropriate education at public expense is guaranteed to all children with disabilities, regardless of their family's income, assets and resources. However, careful planning is necessary to preserve eligibility for most of the other publicly funded disability related programs, during the child's minority and especially as the child reaches the age of majority (usually age 18).

Basic Will Planning by Parents
The use of a carefully drafted will is essential in preparing an estate plan for families in which there are children who have disabilities. One must attempt to maintain the child's eligibility for the basic government services, both to maximize the resources available to meet the child's needs and to ensure access to the public service delivery system. This must be done with a recognition that those basic government services are not going to be adequate to meet all the child's needs.

In almost all cases, parents, grandparents, and other relatives should consider making arrangements to the effect that the family member who is disabled does not own or receive legal title to the parents' or relatives' money, real estate or other assets, whether transferred by will, inheritance or gift. This may be good advice even if the child is "legally competent" and only experiences physical or sensory disability. Nor should the disabled individual be designated as a direct beneficiary of any life insurance or retirement programs.

A basic will is the cornerstone of the planning activity. Each family should consult an attorney with training in estate planning who is also aware of the need to provide special planning for a family member who experiences a disability. That planning will need to consider personal, financial, federal estate tax planning, and state inheritance tax issues relevant to the state in which the family resides. Planning for disability is less state-specific because the most important benefit programs for individuals with disabilities are federal in origin. The majority of disability related programs are based upon Federal statutes, such as the Social Security Act, the Developmental Disabilities Act, Vocational Rehabilitation legislation, the Individuals With Disabilities Education Act, and the Americans With Disabilities Act. Many of these laws include implicit or explicit pre-emption provisions of inconsistent state laws, or supersede state provisions through federal funding requirements.

As part of the basic estate plan, the son or daughter who is disabled should be specifically acknowledged in the Will and excluded from any direct inheritance. The exclusion should be explicit. A will could state "I expressly leave nothing to my child, JOHN DOE, except my love and affection, knowing he will be adequately provided for otherwise." Most commonly, on the death of one parent/spouse, their assets will pass either directly or through a tax plan to the surviving spouse. Upon the death of a surviving spouse, the most effective plan will include the use of a "testamentary" special needs trust for the benefit of the disabled child. For single parents, or for other family members, the bequest to a special needs trust ("SNT") occurs immediately on that person's death.

This information must not be used for legal or tax advice. Visitors to this web site must consult with their own legal or tax advisor for specific tax advice. This information is excerpted from Northwestern Mutual's Advanced Planning Library web site.