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Divorce Planning for Children with Special Needs


August 5, 2010 (Mclatchy-Tribune News Service.) This is a particular specialty of Lili Vasileff, who not only serves as president of the American Association of Divorce Financial Planners, but who is also the parent of a young adult with special needs.



Indeed, Vasileff founded the nonprofit organization Allie's Dream (www.alliesdream.org) to provide assistance to young adults with disabilities.

According to Vasileff, divorce financial planning that involves a special needs child proceeds depending on whether the child is a minor or approaching adulthood. When the child is a minor, usually there are extraordinary expenses that may include medical attention, school evaluations, and special care such as dietary, therapy, transportation requirements and equipment. Some if not all may be covered by insurance or the educational system, but the out-of-pocket expenses are significant.

"The undercurrent is who actually shepherds that child through the latest and greatest medical and therapeutic interventions?" Vasileff says. "This needs to be addressed during the divorce because the primary custodial parent may be stuck with the heavy lifting – sometimes literally."

For example, the child may need transportation lifts to get in and out of a car, which insurance often does not cover. During the divorce negotiations, parents need to review these issues in detail and determine whether the secondary parent will help pay for those expenses.

Further complicating the matter is how to address those needs during visitation with the noncustodial parent or when one parent moves out of state.

"When you're going through the trauma of divorce, this is a whole other layer," Vasileff says.

Equally important, a special needs trust should be set up using an estate planning attorney and directed by a divorce financial planner. This will protect funds for anything except the child's basic necessities. If the child is eligible for services such as Social Security disability, then a special needs trust will set aside funds for this child's quality of life which are not provided covered by government agencies. This could be used for buying a handicapped van, going on vacation, buying clothes, and so on.

Other important settlement issues are:

If the child is eligible and the family is of modest financial means, there may be state insurance for the family to use. A divorce financial planner can help identify those federal, state and local government resources and then work with the parents to plan for non-covered expenses.

Vasileff recommends creating a special needs living diary so if anything happens to the primary custodial parent, then whoever takes over can easily learn the child's routine. This "map" describes the daily activities and care of the child, the child's likes and dislikes, and detailed behaviors, and it can also be used by the non-custodial parent during visitation.

"Caregivers need something that easily familiarizes them with a child who may not express themselves well," says Vasileff.

According to Vasileff, as that child approaches majority age, one parent (and only one) must be appointed as primary legal guardian of the adult child. Usually at 21, that guardian must apply also for Medicaid or Medicare on behalf of the child as an "adult". It's a lot of bureaucracy, but Vasileff says it's important to be aware of the steps.

The last part of divorce planning for a special needs minor is the legal part.

"The parents need to decide whether they have equal legal access to all records of the child, whether it's school, medical, therapeutic or other records," says Vasileff. "If the primary parent fears there will be interference or conflict, there are reasons not to have joint legal custody. It's important that there be some mechanism formal legal designation to indicate who takes care of this child and what are the wishes for long term care."

Quite a lot of bureaucracy changes once a special needs child achieves majority age and is officially recognized as an adult. A significant financial challenge is health insurance. Many employers have health insurance that will cover dependent children until age 23, but what happens when private insurance no longer covers the special needs child who reaches adulthood with significant and ongoing medical needs?

"The issues become much bigger. You have to think about housing, who will care for them daily," Vasileff says.

Vasileff sees the biggest conflicts arising over these issues.

"One parent will want them to go on state aid and the other parent will want to fund them out of pocket," she says. "Every parent is on their own to plan for their young adult with disabilities. I've seen that be a trigger of divorce as people come to retirement age."

Once these decisions are made, the only remaining major financial issue facing adult children of with special needs is when they inherit or otherwise 'come into' money. There is a finite time period where the child can disclaim any direct inheritances in order to keep state entitlements, aid and financial benefits, including health insurance. It is essential that estate planning is properly executed, so that if by chance, there is a direct inheritance, consideration may be given to disclaiming it within the requisite time period. That disclaimer period is usually around six months, to preserve the status quo.

(C) 2010 Mclatchy-Tribune News Service.. All Rights Reserved

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