When estate planning for families that have an individual with special needs, one of the primary concerns is preserving government benefits for that individual. The family needs to ensure that the individual with special needs does not inherit property that could make them ineligible for government benefits that they would normally qualify for. With the exception of a few exclusions, any property valuing over $2,000 could potentially disqualify them. Often times, in order to prevent this from happening, families will choose to create a special needs trust. Any inheritance the individual with special needs receives would be placed into the trust, and would not be counted as assets for the purposes of qualifying for government benefits. Those wanting to leave assets to an individual with special needs should make sure that those assets will be placed in the special needs trust as a part of the estate planning process. If the individual with special needs has been appointed a guardian, it will also be important to consider who the successor guardian should be.
We are always striving to give an individual with special needs as much control over managing their estate as possible, but it always depends on the particular circumstances. How much control they can be granted would depend on whether they have the capacity to sign a Will and/or Power of Attorney. In South Carolina, the capacity to sign a Will is lower than the capacity necessary to sign a contract. They must be sound of mind and at least 18 years old. Additionally, they must have a general understanding of their estate assets, and they must know to whom they would like to leave their property. This is a pretty low standard compared to the standard in order to complete a Power of Attorney. To execute a Power of Attorney, one must have contractual capacity, which is the ability to understand the terms of the contract in a meaningful way, at the time the contract is executed. They must also be able to understand the nature, scope, and effect of the contract. There are a lot of factors that contribute to managing an estate for an individual with special needs, but it is most important to make sure that they are being protected in the process.