Beware the "Sometimes Special Needs" Attorney
Choosing the right attorney to help you establish a Special Needs Trust and plan for your child's future is a critically important decision.
After all, your child’s lifetime care, financial security, and well-being will depend on the plans you make now with your Special Needs Trust ("SNT").
Moreover, you want to find someone who is easy to work with as the years go by. This is going to be a long-term relationship, and you want to make sure you truly enjoy working with your special needs trust attorney.
Nowhere is proper trust planning more important than when creating a trust for a child with special needs. Innocuous drafting errors or failure to anticipate and thoroughly plan for complex transitions can cause devasting impacts for your child’s future after you are gone.
I have found that parents are happy to pay reasonable fees for a great attorney who can help them create the ultimate SNT, but your expectations must be very high from the outset to make sure you are receiving quality representation.
This article will break down the five essential qualifications you should be looking for in your special needs trust attorney.
Plus, we’re going to give you our “Special Needs Attorney Quiz” – 20 Questions that every special needs attorney should be able to answer If they can’t, then they’re probably not the right attorney for you.
#1. AFFABILITY AND EMPATHY
OK, this is a "two-fer" qualification, but as you will see, these personality traits go hand in hand. While experience (#2 on our list) is an essential "provable" factor, I consider affabality/empathy the most important "feeling" factors in your attorney selection.
Do you like this person? Is her/his heart in the right place? Does she treat you with respect? Does he take time to listen to you and truly understand your concerns?
Or does the attorney just launch into a monologue describing their impressive credentials and how they're going to solve all of the dificult legal obstacles you are facing?
Empathy is “the capacity to understand what another person is experiencing from within the other person’s frame of reference, i.e., the capacity to place oneself in another’s shoes.”
This is where you really need to trust you own judgment. It should be obvious within 1 or 2 minutes after first meeting the attorney whether she or he truly understands where you are coming from as a special needs parent.
You need to rely on your internal alarm system to steer you away from an attorney who does not click with you. Trust your gut here. If this is not someone you really like, then no matter the experience and legal skills; this is not someone for you.
Your attorney should be friendly, but you are not there to find a new fishing buddy or wine club pal. One of the most important skills employed by an experienced special needs attorney is being blunt.
You need an attorney who will get right to the point and "tell it as it is." Someone who will give you useful advice to solve the unique problems you face as a special needs parent.
A pleasant, empathetic, and supportive demeanor are truly significant. And having a kind sense of humor would certainly help!
Bob Newhart would have been a
Fantastic Special Needs Attorney for a T.V. Series :)
When it comes to special needs planning, experience is essential. That might seem obvious, but you have to be very careful here.
As in all professions, it takes a thousands of hours and many years of focus to truly become a master of your trade. You certainly don't want to work with an attorney who is going to be "learning on the job" with your child's special needs trust.
Over the past 20 years of my special needs law practive, I've come across the work-product of many estate planning attorneys who really should have never been drafting a special needs trust at all. Unfortunately, the mistakes they make can have dire consequensces for your child's future.
Post-death repair of special needs trusts is complicated, will often require court intervention, may result in loss public benefits for your child, and will certainly be costly and stressfull for all concerned.
The reality is that many attorneys simply lack the experience to properly plan for the multitude of complex scenarios that will unfold in the life of a child who has special needs. Depending on your child's age, we're talking about a special needs trust plan that needs to last and be effective for as long as 80-90 years!
So you need to be even more cautious than most parents who are searching for an estate planning attorney. You must insist on retaining an experienced attorney. Your child's very future without you is on the line.
A good rule of thumb here would be to make sure your attorney has at least 10 years experience in both drafting special needs trusts and handling conservatorships/adult guardianships for young adults with special needs.
Is the attorney actually a "sometimes special needs" attorney? This is a subset of #2 - Experience. Your attorney should be focused exclusively on planning for families with special needs.
Beware the attorney who is a generalist, and whose website lists "special needs trusts" on a laundry list of general legal services they offer.
Now, of course, there will be a lot of estate planning attorneys who are going to tell you that they are experts at special needs trust planning, but that’s to be expected. I'm not saying that attorneys would intentionally misrepresent their qualifications and experience in order to get your business.
Most estate planning attorneys are aware of how special needs trusts work, from a legal standpoint, and they are likely qualifed to draft a "legally sufficient" special needs trust.
But, as a special needs parent, you and your child need much more than just a legally sufficient document. We talk more about the complexities of life with special needs here.
There are a lot of attorneys out there to choose from, and you should focus on specialization in working with special needs families as a primary factor in making your choice.
Is Vinny really what you're lookng for?
What really matters is not what they say about themselves, but what other people say about your prospective special needs attorney.
This is where you turn to your close circle of friends and other special needs families. Of course, your Facebook groups are a great resource for learning about a special needs attorney that others recommend. You can also ask you child's special education teacher or aide. And you can check with your child's service providers to see if they have any recommendations.
Wherever your source, everyone should be using terms like "awesome" and "fantastic" and "the best ever" and be truly excited when recommending a special need attorney for you.
Reputation is right up there with experience in terms of qualifications. But remember, all of these five recommended qualifications should be viewed as a composite.
Your special needs attorney should be able to check all five boxes, and there will be some areas that carry greater weight, depending on the attorney.
And oh yes, there's one more critical qualification...
#5. MUST SPEAK DUTCH
As part of their passage into the special needs world, many parents have read “Welcome to Holland” by Emily Perl Kingsley. Kingsley's essay describes the excitement of boarding a flight for a long-anticipated vacation to Italy(the fibirth of her child).
However, her world changes drastically when the plane unexpectedly lands in Holland (the birth her child with disabilities). Suddenly, she's landed in a foreign world, where everyone is speaking Dutch. I wrote more about Holland here.
I often joke with my clients about how I can speak Dutch. They get the joke when our discussion focuses on their current experiences and obstacles in life with a child who has special needs.
I/DD, IEP, ITP, ABA, SSI, SSDI, FAPE, ADL, IDEA - we could fill ten pages with the specific "Dutch" acronyms and terms that special needs parents must learn.
Having a practical understanding of the lexicon of special needs world is an essential qualification for your special needs trust attorney.