​​You will feel great when you have completed all your legal planning
​to help give your child with a disability a safe and happy future.

 You will feel great when you have all the legal documents in place to protect you and your entire family.
Providing future security for your child with a disability and your family is like assembling a jigsaw puzzle: All the legal pieces (will, trusts, guardianship issues, powers of attorney, and so forth) have to fit together.

Parents often contact me because they want me to draft a special needs trust for their child with a disability so 
  • their child will remain eligible for government benefits;
  • someone they trust can manage their child’s future inheritance;
  • friends and relatives can make gifts to the trust now.
The special needs trust is the most important legal tool to protect your child with a disability. But as important as it is, it is only one piece of your estate planning puzzle. You need other documents to ensure you and your family will be protected. 

Other documents
​that protect your family:

1. Living Trust

In addition to the special needs trust you may need a living trust. A living trust has three primary benefits: 1) Any asset in the living trust avoids probate when you die; and 2)  If you were to become incapacitated, the successor trustee can manage the assets in the trust for you and your family; and 3) You can easily name the living trust as a beneficiary on your financial accounts. 

2. Power of attorney for healthcare

Who do you want to make your health care decisions if you are unable to make them yourself?  The person you name will also be responsible for end-of-life decisions if you are unable to make your own healthcare decisions.

If your child with a disability is over age 18 and does not have a guardian responsible for healthcare decisions, then your child will need a power of attorney for healthcare.

3. Power of attorney for property

The power of attorney for property gives the power to someone to sign your name to transact business for you.  For example, if you were incapacitated, your agent can sign your name to file your income taxes, or sell your car if you can no longer drive, or make a decision about your IRA, or sign a severance contract, or make a retirement plan election. Or, imagine you’re incapacitated. Your spouse needs to sell the home to downsize into a less expensive condo. If your home is held jointly, your spouse needs to be able to legally sign your name.

If your child with a disability is over age 18 and you are not the guardian for your child, your child should sign a power of attorney for property so you can represent your child. Your child will also sign a power of attorney for education.


4. HIPPA authorization

This permits the people you trust to be able to receive confidential medical information about you. For example, if you become incapacitated and your successor trustee needs to take over to manage the assets in your trust, the financial institutions will often require your successor trustee to provide them with a letter from your doctor stating that you are no longer able to manage your financial affairs. Without this HIPPA authorization, the doctor cannot legally release your confidential medical information to the successor trustee to give to the financial institutions.

5. Pour-over will

Even with a living trust, you’ll still have what’s called a “pour-over” will that acts as a backstop to your living trust. For example, let’s say die with a $100 bill in your pocket. The legal issue is “Who owns the $100?”  Your will essentially says “pour” any money that you own individually (without a beneficiary designation or as a joint owner) into your living trust. This way, no assets will accidentally be distributed outright to your child with a disability. 

 It’s also in your will that you name who you want to be the guardian for your children.

6. You may need other documents to protect your family:

• Trusts for your other children,
• Estate tax reduction sub-trusts or an irrevocable life insurance trust,
• Short-term Guardian Designation to legally transfer guardianship power if you go
on a vacation without your child with a disability, need to stay overnight at a hospital, etc.
• Living Will,
• Personal and tangible property memo,
• Tangible property assignment to your trust,
• If you do not become guardian over your adult child with a disability, your adult child with a disability, if mentally
​capable, should have powers of attorney for health care, property, education and a separate HIPPA release.
• Standby Guardian Declaration naming successor guardians,
• Declaration for Mental Health Treatment.

Hi:

My brother Jon didn’t get enough oxygen at birth causing various neurological issues. 

In 1963, Jon got into trouble in our neighborhood.  I won’t go into the details.  Let’s just say one neighbor didn’t understand Jon.

The neighbor filed a legal complaint. Jon was dragged through the “juvenile justice system”  and the judge committed Jon to be placed in Elgin State Hospital. 

Jon was 15 years old.  My other brother, Dave, was 12.  I was 9. 

Sundays after church we (my parents, Dave, and I)  would pile into our green Buick Skylark, drive a couple hours, and visit Jon.

I’ll never forget one Sunday afternoon. We drove up to the hospital's big imposing gates.  It all seemed dark, foreboding, and mysterious to my 9-year-old eyes. As we entered, I peered out at the bars on the windows. There were also a few people just lying beside a tree. 

My parents got out of the car and went inside to check Jon out for the afternoon.  When they returned, Jon got into the back seat with Dave and me. Jon’s grey uniform was so filthy it had an acidic stench that literally making my eyes tear. (Years later I asked my brother Dave if he remembered that smell and to my surprise he said he sure did.)

We drove to a nearby park. The park had grills and picnic tables set amongst big old trees. Dad grilled hotdogs for lunch.  
​
​I don’t know why that Sunday stood apart from all the other Sundays. But, I remember standing by a tree about 30 or 40 feet from the grill -- just looking at my family, thinking to myself that it’s great that my parents are acting like everything is normal - but I know it’s not.


 
​
I learned later in life that my parents were frantically searching for a residential program for Jon. Few existed at the time. I can't recall how long it took, but they found a private out-of-state program for Jon.  And eventually, Jon moved back home. 

Fast forward about 15 years when I was in law school. I was near the top of my class. I planned on joining some “big firm.” But, everything changed when my dad asked me to be a founding Board member of a nonprofit organization he co-founded. 

After dad retired, he wanted to give back to the community. He was worried about Jon’s future so he founded one of the first non-profit organizations in the country trying to help parents solve a vexing problem:  “What will happen to my child with a disability after I die?”  The nonprofit organization would act as an advocate, or a successor guardian, or a corporate trustee for people with disabilities after the parents died.

My experience working beside my father on that Board of Directors changed my career path. When I graduated from law school, instead of joining some big firm I opened my own firm; I wanted to help parents give their child with a disability a safe future. 

Two years later, in 1983, I wrote the first book in the country about estate planning for parents who have a child with a disability.

Thirty-five years later and hundreds of clients later —  I’m still doing the same thing: Helping parents protect their child with a disability. 

Best wishes, 

Mark
​​
 

Other involvements

  • Legal Counsel for Estate Planning for Persons with Disabilities (EPPD).
  • Executive Director of the National Alliance for Research on Schizophrenia and Depression, currently called Brain and Behavior Research Foundation that since 1987 has awarded more than 380 million to fund more than 5,500 grants to 4,500 scientists around the world.
  • U.S. Representative to the International League on Disabilities – legal rights committee.
  • Founding board member of PACT, one of the first private charitable advocacy, guardianship, and trust organizations in the country.
  • I introduced the concept of the Letter of Intent and in 1990 created a Letter of Intent template still used by parents across the country. 
  • Co-author of Planning for the Future: Give Your Child With a Disability the Gift of a Safe and Happy Life (7 later editions and currently out of print).
  • I have spoken about special needs future and legal planning on public TV, to national, state, and local organizations in the disability field, and to parent and school groups. 
  • A wide variety of publications have praised my books including the New York Times, Estate Planning Magazine, Estates, Gifts & Trusts Journal, and Kiplinger’s Personal Finance Magazine.
  • ​Publisher and chief editor of New Ways Magazine, a national publication in the disability field (no longer in print).
  • B.A. Northwestern University, Kent Law School (Magna Cum Laude. American Jurisprudence Awards in Property Law and Federal Civil Procedure. Baker and McKenzie academic scholarship.)

I enjoy

every second with family and friends, hiking, sailing, reading, biochemistry, trail biking, skiing, skating, roller blading, libraries, manual-shift cars, Triumph motorcycles (it"s been a long time since I've owned one), German Shepherd dogs, cats, the Blackhawks!!, historical books by Steven Pressfield, Daniel James Brown, Stefan Zweig, Thucydides, and others, mystery novels by Jack Higgins, David Baldacci, Dick Francis, C.J. Box,  and many others,  Apple products, listening to Ella Fitzgerald, Mel Torme, Annie Lennox, Alicia Keys, Santana, George Straight, Bob Dylan, Richie Havens, Don Henley, Stevie Nicks, Tuba Skinny, countless movies like Great Escape, Dirty Dozen, Guns of Navarone, Bullitt, To Have and Have Not, African Queen, Roman Holiday, It Happened One Night, Woman of the Year,  Silverado, A Knights Tale, any movie with dancing in it, TV shows like Homeland, Foyle's War, Prime Suspect, the Voice, DCI Banks, Line of Duty, So You Think You Can Dance, British platforms AcornTV and Britbox, and lots of other stuff big and small like people with "geeky" pun-filled humor, martial arts, outdoor photography, The Art Institute, The Field Museum, western Michigan, Colorado, New England states, Devil's Lake, Sanibel and Captiva Islands, most any beach. 

SEND A MESSAGE

CONTACT ME

Office: 401 E. Prospect Ave., Suite 106, Mt. Prospect, IL 60056
Phone: (847) 262-3120