The Importance of Legal Planning for Children with Brain Injuries

AdobeStock_383457688-300x200March is Brain Injury Awareness Month, and according to the Brain Injury Alliance, there are currently over 5 million Americans living with brain injuries, a number that increases by about 5,000 injuries per day.

So for us, it’s a perfect time to raise awareness of the impact that brain injuries can have on individuals and families.

An acquired brain injury (ABI) or traumatic brain injury (TBI) can drastically change the lives of not only the individual with the injury, but also their loved ones. And when the person with the injury is a minor child, the whole family faces unexpected challenges and uncertainty. 

First Steps to Planning for Your Child’s Best Future

AdobeStock_91311274-300x225Legal planning isn’t usually the first thing that comes to mind when a family is first confronted with the life-changing reality of a newly acquired brain injury. However, it’s critically important for parents to be proactive about taking steps to secure their child’s future by carefully planning for long-term care and financial needs. 

Creating a supplemental needs trust (also known as a special needs trust) is one of the most important parts of legal planning in response to a brain injury. This type of trust helps ensure your child has access to the resources and support they need all throughout their life, no matter what happens.

While setting up a special needs trust can feel like a daunting task if you’re unfamiliar with the process, there are some basic initial steps parents can take to get started on the right path:

    • Consult with an attorney who focuses on special needs planning: Regardless of your personal legal experience, it’s crucial to work with an experienced attorney who has specific knowledge, training and experience in special needs planning. The right attorney will not only help you understand and navigate the legal and financial implications of a special needs trust, they will also help you create a tailored plan that meets the unique needs of your child and your whole family.
    • Identify potential income sources: To supplement your special needs trust, you may want to explore additional sources of income that will help ensure your child’s long-term safety and wellbeing. Options may include government benefits such as Supplemental Security Income (SSI) and Medicaid, as well as private disability insurance. Again, a special needs planning attorney can help you identify and assess various options so that you can make the most strategic choices for your specific situation.
    • Consider guardianship: Depending on your child’s age and level of functioning, you may want to consider establishing a legal guardianship to make decisions on behalf of the child. Establishing guardianship is often a necessary part of protecting the health and safety of individuals with intellectual disabilities such as those related to a brain injury. Guardianship can be established once the individual turns 18, and it can be all encompassing (plenary) or limited, depending on the need.

The Importance of Timing and Ongoing Management when Establishing a Special Needs Trust for a Child with a Brain Injury

There are some timing issues to consider when setting up a special needs trust. And there are also some scenarios in which personal or external changes can affect a special needs trust.  For example: 

    • Your child’s age: A special needs trust can be established at any time, but there can be advantages to creating a trust sooner rather than later. Establishing a trust early gives your child the opportunity to benefit from the trust assets over a longer period of time. This approach can provide greater financial security and independence in the long term.
    • The size of a settlement or award: If your child is the recipient of a personal injury settlement or award, the size of the settlement can make a difference when creating a special needs trust. For instance, if the settlement is large, there may be greater urgency to create the trust in order to protect the child’s eligibility for means-tested government benefits like Medicaid and SSI. 
    • Changes in eligibility criteria: Eligibility criteria for government benefits like Medicaid and SSI can change over time, so it’s important to stay on top of those programs. Working with an attorney who is experienced in special needs planning can help ensure that the trust is structured to protect your child’s eligibility for benefits.
    • Changing family circumstances: Your family’s circumstances may also change over time, so it’s important to review and update a special needs trust regularly. This due diligence helps ensure that the trust continues to meet your child’s needs as they grow and develop. 

Resources for Families of Children with Brain Injuries

There are a number of different government and private organizations that provide direct and indirect support to families dealing with brain injuries. Some of these organizations can be sources of financial aid, others focus on advocacy and research.

Each of the following resources is worth investigating, and a qualified attorney can help determine how best to take advantage of the services they offer. 

The Federal Social Security Administration provides information on SSI (Supplemental Security Income) and other disability benefits that may be available to children with brain injuries.

Medicaid is a key source of healthcare and long-term care funding for people with disabilities.

The National Disability Institute provides resources and training on financial planning and asset building for people with disabilities.

The United States Brain Injury Alliance is a national organization that advocates for individuals with brain injuries and their families, provides resources and support, and promotes prevention and research.

There are no words that can adequately explain all the ways in which having a child with a brain injury changes a family forever. Dealing with all of the legal and financial considerations that come with caring for a child with special needs can be overwhelming. 

Know that our attorneys have in-depth experience helping families navigate this difficult journey. Please don’t hesitate to contact us by email or call (860) 236-7673 for more information about special needs trusts and how we can assist you in planning for your child’s future. 

Related Posts:

Understanding the Differences Between Guardianships and Conservatorships

Special Needs Planning: Choosing a Trustee with a Network

10 Things You Must Ask When Choosing a Trustee for a Special Needs Trust

5 Ways to Plan for Your Child With Special Needs

What is the Difference Between a Special Needs Trust and a Supplemental Needs Trust?

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