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Most of us know folks who are caring for a mentally or physically challenged child. The child often continues living at home with Mom and Dad, who continue their parenting, seeing to their child’s daily needs, even after the child becomes an adult.

Despite the challenges and inconveniences, these parents faithfully carry out their parenting ministry, frequently doing without luxuries, toys, and trips they themselves would love to have or to take. For these folks (God must have a special place in His heart for them), the task of parenting never ends; their “child” never “grows up and leaves home.” As years pass, time takes its toll on the parents; they sense their increasing fragility; they worry about who will provide for their child after they can do it no more.

In most families, it is a fact of life that when Mom and Dad no longer can care for their disabled child, their other children will not be able to take up the slack. Rarely can a brother or sister take in a disabled adult sibling. Mom and Dad realize that some sort of group home or even nursing home may lie ahead for their child. They also know that their child cannot manage an inheritance, and, worse yet, that inheritance might interfere with the child’s being eligible for government programs to pay for care, such as Medicaid.

They can’t stop aging, they can’t cure the disability. So, what can they do to provide care when they no longer can provide it themselves?

This question brings many of these people to see me because of my interest in Elder Law, with its emphasis upon disability planning.

Here are two ideas which folks in this situation have considered. Which one might be right depends upon the situation. However, they both have merits (and some drawbacks) making them worth knowing about.

* Bypass the Child. Historically, the government has been less than friendly toward plans aimed at letting the disabled child own assets, but sheltering those assets from paying for the child’s care and needs. For example, in 1993 Congress changed the Medicaid law, making the use of trusts in such planning more difficult. With this history in mind, and with abundant faith in the goodness of another adult child, some parents simply divide their estates between the “healthy” children, giving one of them a double share with the understanding that the child with the double share morally will consider the extra share to be the disabled child’s share. For example, a wonderful couple I knew who had a disabled adult child divided their estates into five shares, giving one share each to three of their four healthy children and two shares to the fourth healthy child, who understood that his extra share really was for the benefit of his disabled sister. By doing this, his sister had no inheritance to manage and no inheritance which could have made her ineligible for government benefits like Medicaid or Supplemental Security Income.

* Create a Supplemental Needs Trust in Their Wills. When there is no such trusted “healthy” child, or the parents want a more formal structure for the disabled child, they can create a trust in their Wills to receive the disabled child’s inheritance. One of the other children, friend, relative or even a bank may be the trustee (manager) of the trust. In order for the assets in the trust not to interfere with the disabled child’s eligibility for Medicaid, SSI and other government programs which have asset and income limits for eligibility, the trust must be a “Supplemental Needs Trust,” which limits how the assets and income of the trust can be spent, giving the trustee directions to spend the trust funds only for things which supplement, not replace, those things which the government benefits would pay for. To shelter the money in the trust, the trustee must have no duty to spend the trust funds on any specific things which government benefits would otherwise buy. Because the law favors trusts created in a Will, a Supplemental Needs Trust usually is set up as part of the parents’ Wills, rather than being set up while they are alive. By utilizing a Supplemental Needs Trust for the benefit of the disabled child, the parents can let their disabled child enjoy both his inheritance and his government benefits without imposing so much responsibility on another child.

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Gerald W. Townsend is a partner in the Elder law firm of Fluharty & Townsend, Parkersburg. His practice focuses upon meeting the legal needs of seniors in West Virginia, with special emphasis upon protecting the home and life savings from the cost of nursing home care. He can be reached at jtownsend@fntlawoffices.com