LIVING WILL, HEALTH CARE POWER OF ATTORNEY & SPECIAL NEEDS TRUST

Living Will & Health Care Power of Attorney
The Health Care Power of Attorney and the Living Will are called advance directives.
A Living Will sets out medical treatments you choose to have, as well as the procedures or treatments you do not want to have in some or all circumstances. A Living Will is instructions for your doctor, while you are still alive. A Living Will does not appoint another person to speak for you. Although there can be overlap between a Living Will  and Health Care Power of Attorney, the focus of a power of attorney  in on who makes the decision; the focus of a living will is on what the decision should be.

A living will is limited to care during terminal illness or permanent unconsciousness, A Health Care Power of Attorney gives another person authority to make health care choices for you. Two witnesses are necessary to the signature of the maker Certain people are not allowed to be a witness to your Health Care Power of Attorney. Because of a possible conflict of interest, your spouse, child, grandchild, brother, sister, parent, possible heir, person benefiting from your will, your doctor, the person you are appointing patient advocate, an employee of your life insurance, health insurance or the medical facility where you are staying, cannot be a valid witness to your Health Care Power of Attorney. There is no express provision in the Michigan statutes requiring that the naming of a health care advocate be notarized. However, there is a requirement that the patient advocate must  sign an acknowledgement before the designation takes effect.

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Special Needs Trusts
Estate planning is about more than just deciding which relative will be responsible for a disabled child when their parents die.
Parents or applicants for SSI may be in for a real shock when they apply for SSI and present their special needs or supplemental needs trust for review by the Social Security Administration. Benefit determination delays, confusion, and incorrect determination decisions are commonplace, until more expertise and experience is gained with the new regulations. While eligibility criteria have tightened considerably, there are still planning opportunities available to families who want to plan for the future of their children with special needs. A basic understanding of the new regulations and state Medicaid law is critical to proper planning.

A special needs trust is intended to provide goods and services exclusive of government benefits.  Properly drafted, the trust should generate income for the special needs child (the beneficiary) without being characterized as an asset of the child for purposes of determining Medicaid and Social Security benefits. The special needs child (the beneficiary) has no right to demand trust distributions-thus the assets of the trust do not count as a resource of the beneficiary for purposes of Medicaid/SSI eligibility.  The terms of a special needs trust should provide detailed and comprehensive provisions that clearly set forth the parents' objectives for trust assets.

The Special Needs Trust allows a parent to provide funds for a disabled child without disrupting the child’s eligibility for government aid. In planning for the Special Needs Individuals, it is very important to remember that this is a very complex legal area and missteps are easy to make. There are two common types of special needs trusts. There are trusts funded with assets from a third person ("third party special needs trust"). And there are trusts funded with the person's own assets ("self-settled special needs trust"). The first party trust is funded using the SN Person's own assets. These trusts are alternatively known as "first party," "self-settled," "Medicaid Payback," or "(d)(4)(A)" trusts. A well drafted special needs trust can help ensure the quality of life and quality of care for an individual with disabilities. Needs-based government programs such as Supplemental Security Income ("SSI") and Medicaid are designed to provide only a basic level of service and support. The challenge is to maximize the quality of care and quality of life for the SN beneficiary and still obtain, maintain and not jeopardize the beneficiary's eligibility for government benefits. The SN beneficiary is, by definition, a person with disabilities who most likely cannot speak up for themselves. The special needs trust trustee cannot usually expect the beneficiary to call to complain when something is not going correctly. It is important that the Trustee be guided by advice from those who know the Beneficiary best and are aware of their situation and needs. A Letter of Intent to assist the trustee in administering the trust should be written by the grantor, usually the parents of the SN beneficiary.

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Letter of Intent
A Letter of Intent is a document written by the parents, guardians or other family members that describes a disabled son or daughter's history, his or her current status, and what are the hope for him or her in the future. A`Letter of Intent is not a legal document. Yet, courts and others can and do  rely upon them  for guidance in understanding your son or daughter and the wishes you have.

A Letter of Intent serves many purposes. First, it spells out in black and white your son or daughter's background and history and his or her present situation. It also describes your wishes, hopes, and desires for his or her future care and, where possible, describes your child's feelings about the present and desires for the future. While you are still living, the Letter can be used by your lawyers and financial planners to draft the proper legal documents (wills and/or trusts) to ensure your wishes are carried out. Once you are no longer able to take care of your son or daughter, due to death or illness -- and this is the most important reason to write a Letter of Intent -- the Letter gives your son or daughter's future caregivers some insight into how to care for him or her. It provides advice on possible alternatives for his or her care. If your child has a severe disability, caregivers will not have to waste precious time learning the most appropriate behavior or medical management techniques to use. If your child is used to doing things independently and only requires occasional assistance, the Letter can spell out exactly what is needed. The Letter of Intent can describe this very concrete information and much, much more, including valuable information about the personality of your son or daughter -- his or her likes, dislikes, talents, special problems, and strengths. Thus, the Letter is a crucial part of any life or estate plan, because it speaks both for and about the person with a disability and his or her family.

Writing the Letter of Intent now is a way to protect your son or daughter from unnecessary chaos and turmoil when he or she must depend upon someone other than you for the care and support that is necessary. The Letter of Intent helps pave your son or daughter's transition by giving future caregivers the information about him or her that they so vitally need

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