What is a will?
Your will is a summary of instructions and decisions about issues that arise after your death.

What should be included in my will if I have a family member with a disability?
Your will should clearly state who is to take guardianship over your family member if guardianship is necessary. Your will should include provisions necessary to avoid excessive taxes. You should also state how you would like assets left to your family member with a disability.

What are the problems associated with assets left to my family member with a disability?
Inheritances over $2,000 will make your family member ineligible for government-funded supports. Your family member will have to use the money for their daily living needs, and will not be able to use the money in the way you intended such as to improve their quality of life, buy assistive technology, and visit relatives.

If a will is not in place, assets will be divided between your living relatives when you die. Your family member with special needs may receive assets that make him or her ineligible for funding. The creation of a will is vital to the future well-being of your family member.

Choosing to disinherit your family member with special needs, with hopes of a sibling or other family member providing for his or her care has high risks. The funds may not be used or divided as you intended. Future deaths or divorce may result in the money exiting your family, leaving your family member with a disability with nothing.

How can I leave assets to my family member with a disability?
One of the best ways to ensure proper provisions for your family member with a disability is to create a Supplemental Needs Trust.

How do I create a will?
The will must be a written document, and must be drafted under “sound mind”. Two or three witnesses who do not have any interest in the estate must sign the will. Contact an attorney to help you draft your will. Different states have different laws; make sure your attorney is familiar with the laws in the state in which you reside, as well as the state in which your family member with a disability resides.

Planning for the future is important for everyone, but for families of people with developmental disabilities, planning is essential.

What is a Supplemental Needs Trust?
A Supplemental Needs Trust (sometimes called a Special Needs Trust) is a legal document that provides a way for you to place a gift or inheritance into a fund rather than give it directly to your family member. This fund can be used to improve quality of life and avoid the loss of benefits.

Should I create a Supplemental Needs Trust for my family member with a disability?
Some government benefits such as SSI and Medicaid are given based on income and assets. If a person receiving this type of government funding directly receives money or other assets through a gift or inheritance, these benefits can be lost. When this occurs, the person must spend the assets until they are below the asset limit and then re-apply for benefits. Because people with developmental disabilities often have high medical and housing expenses, the additional money is spent very quickly.

A gift paid to a supplemental needs trust rather than an individual can avoid the loss of benefits. The gift can then be used for assistive technology that insurance does not cover, personal needs, recreation, and other resources that improve the person’s quality of life.

How do I create a Supplemental Needs Trust?
Work with an estate-planning attorney, and appoint someone you know and trust as trustee. You may serve as trustee of your family member’s finances, but in the event of your death, the trustee will begin managing and supervising the finances. You can provide detailed instructions to direct your trustees’ activities, which legally must be followed.

What is a Pooled Trust?
In a pooled trust the resources of many beneficiaries are combined and managed by a non-profit association. Unlike individual disability trusts, which may be created only for those under age 65, pooled trusts may be for beneficiaries of any age and may be created by the beneficiary herself. In addition, at the beneficiary’s death the state does not have to be repaid for its Medicaid expenses on her behalf as long as the funds are retained in the trust for the benefit of other disabled beneficiaries.

Should I create a Pooled Trust for my family member with a disability?
Some government benefits such as SSI and Medicaid are given based on income and assets. If a person receiving this type of government funding directly receives money or other assets through a gift or inheritance, these benefits can be lost. When this occurs, the person must spend the assets until they are below the asset limit and then re-apply for benefits. Because people with developmental disabilities often have high medical and housing expenses, the additional money is spent very quickly.

A gift put into a pooled trust rather than given to an individual can avoid the loss of benefits. The gift can then be used for assistive technology that insurance does not cover, personal needs, recreation, and other resources that improve the person’s quality of life.

How do I create a Pooled Trust?
Work with an estate-planning attorney, and appoint someone you know and trust as trustee. You may serve as trustee of your family member’s finances, but in the event of your death, the trustee will begin managing and supervising the finances. You can provide detailed instructions to direct your trustees’ activities, which legally must be followed.

What is guardianship?
Guardianship is the legal power to direct and control another person’s life.

Types of guardianship:

• A guardian of the person can generally make personal decisions such as where a person will live, what types of health care a person will receive, and where the person will go to school or work.
• A guardian of the property determines how a person’s money is invested and spent.
• Full guardianship includes the powers and responsibilities of decision making over both personal and property matters. This is the most restrictive type of guardianship.
• Limited guardianship only allows the guardian authority in specifically defined matters.
• Temporary guardianship is granted to give authority to handle a specific matter. Once the matter is resolved, guardianship is removed.

When does an adult with a disability need a guardian?
At age 18, people with developmental disabilities are adults, and receive all the rights and responsibilities associated with adult status. An adult may need a guardian when a decision must be made related to a person’s assets or well-being, and the person is unable to make the decision for himself or herself. Guardianship may be an option if all other alternatives have been explored—it should always be the last option. Adults should receive the most effective, but the least intrusive form of support, assistance, or protection when they are unable to care for themselves or their assets.

How do I apply for guardianship?
To obtain guardianship of an adult, contact an attorney who will prepare a petition for the civil domestic court of Prince George’s County. The petition must state why the petitioner is seeking guardianship, the relationship between the petitioner and the person with a disability, and what kinds of decisions the petitioner wants to make. The petition must also include written statements from two physicians that describe the person’s disability. The petition must be given to the civil domestic court. The court will then assign representation for the adult with a disability. After hearing all evidence, a judge will rule on whether the individual, in fact, needs guardianship and, if so, will establish what form of guardianship. Contact the Prince George’s County Civil Domestic Court at 301-952-3322.

What is public guardianship?
If a guardian is necessary and no family member or friend is willing to take on the responsibility, the court will appoint a public guardian. Information about the Adult Public Guardianship Program in the state of Maryland can be found at http://www.dhr.state.md.us/how/srvadult/guardian.htm.

What are the responsibilities of a guardian?
The guardian must make decisions that are in the best interest of the person with a disability. The guardian must also keep records of all actions taken in his or her role as a guardian. After guardianship is established, annual reports must be filed documenting decisions made and spending of funds.