Trusts For Persons With Special Needs
If you would like to leave any portion of your estate to a person who is physically or mentally disabled or who requires assistance with the management of his or her affairs, you should consider the inclusion of specific trust provisions for the benefit of such person in your Will. If you do not include trust provisions for the person with special needs, he or she may not be capable of managing the inheritance. Furthermore, if the person has a court-appointed guardian, the inheritance will be subject to the guardianship restrictions imposed by the court. Even if the person does not have a court-appointed guardian, it may be necessary to have a guardian appointed to receive the inheritance if the person is incapable of managing his or her own affairs.

In the case of a court-appointed guardian, the court will control the inheritance through the appointment of a guardian who is subject to the numerous restrictions imposed by the court. Every expense must be documented, audited and approved by the court. The guardian must file regular accountings and post a bond with the court. The use of the property for the benefit of the person with special needs may also be restricted by the court. Establishing the guardianship is a relatively simple process, but once it is in place the court will stay involved and the guardianship will continue until the beneficiary dies or until he or she regains the ability to manage his or her own affairs.

You can avoid the problems and restrictions imposed by a court guardianship by including trust provisions for the person with special needs in your Will. Such a trust also allows you to provide for the care and support of beneficiary even if a guardianship is unnecessary. It may also be possible to establish a trust which does not render the beneficiary ineligible for certain public benefits.

To establish a trust for a person with special needs, you will be required to designate someone as a trustee who will hold and manage the person's inheritance for them free of court supervision. No annual accountings are required to be filed with the court and a guardian does not have to be appointed by the court to hold and manage the inheritance. Furthermore, you can provide specific instructions for the trustee's management and distribution of the property to or for the benefit of the person with special needs.