The Law Offices of Hoyt & Bryan

by Kevin Fritz

Family members with special needs or disabilities require special care – not only in everyday situations, but also with their future. That’s where special needs planning comes into play, a practice area offered by The Law Offices of Hoyt & Bryan in Oviedo, one of the few firms providing this type of assistance.

Sarah AuMiller is one of three Hoyt & Bryan attorneys who are Florida Bar Board Certified in Elder Law, the umbrella under which special needs planning falls. This type of planning is necessary to protect loved ones with special needs from being denied government benefits to which they may be entitled.

“We are estate planners,” says Sarah, “and special needs planning is a niche area of estate planning.”

She explains that a family member with special needs or disabilities who has more than $2,000 in resources (such as cash, a bank account, or savings bonds) becomes ineligible for government assistance, which is why that individual should not simply be an outright beneficiary. Setting up a trust is the solution to this situation.

“Typically, a parent wants their child to be a beneficiary,” says Sarah. “Parents who call us to assist with planning for their child with disabilities are really creating a plan for themselves, and then we incorporate special needs planning as part of their planning.”

There are two types of trusts to consider: a first-party special needs trust and a third-party special needs trust.

A first-party trust is established with the trust beneficiary’s own money, generally 

gained through a gift, inheritance, or lawsuit. The recipient’s trustee is required to pay back all Medicaid money received throughout the beneficiary’s life upon the death of the beneficiary.

A third-party trust designates the loved one as a beneficiary, avoiding the payback rule since those funds were never legally the beneficiary’s money.

“I am passionate about this planning,” says Sarah. “Having a good special needs plan is important to both ensure a child or adult with special needs continues to receive benefits, but also to protect them from exploitation.”

Those interested in learning more about special needs planning are invited to attend Special People, Special Planning, a complimentary workshop held quarterly by Hoyt & Bryan.