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Special Needs Planning Newsletter: "The Best Laid Plans..." How We Adapt for Loved Ones with Special Needs

Chambliss Law Firm Monthly Editorial – May 2018

"The Best Laid Plans..." How We Adapt for Loved Ones with Special Needs

by Jennifer Exum, Special Needs Planning Attorney

My doctor assured me that Wednesday in August that all was well and we would be delivering my still-growing boy on schedule in October, and she sent me home to catch up on some well-deserved rest. I saw her again that Friday as I was being prepped for delivery. For no apparent reason, my October baby had no intention of waiting.  

As I grappled to understand the situation, my thoughts whipsawed from total panic to something more zen. The hospital staff did all they could to turn things around, but at a certain point, their efforts shifted from me to focus on my son who was determined to be born that day.

In this haze, I recalled a line that is commonly paraphrased from the poem "To a Mouse" by Robert Burns1, "The best-laid plans of mice and men / Go oft awry," and I laughed out loud. It was not the first time that a remnant of my background as an English major appeared out of nowhere, but at that moment, the irony was immense. No one in my team of physicians, as brilliant and capable as they were, would have guessed that our best-laid plans would be so upended that day. 

But, nevertheless, we adapt. At work, I'm an attorney who advises families seeking to protect their legacies and plan for future generations – I help my clients adapt all the time. Bumps in the road like death, divorce, illness, substance abuse, or financial hardship can cause a plan to shift, sometimes suddenly and these events are even more stressful when a family member has special needs.

In a recent case, the family did everything right to protect their loved one with special needs. They created and funded a special needs trust and named a family member and a corporate entity as co-trustees. They even made sure there were support systems in place, other than the trust, to add an increased level of care and protection of their loved one. But there was one part of the best-laid plan that no one saw coming – a breakdown in the relationship between the family member trustee and the beneficiary.

When the beneficiary of the special needs trust resisted the family member trustee's degree of control (which is required in this type of trust), the trustee became more rigid and resentful. After all, the trustee was only trying to help! But the damage was done, and the situation became more tense and unmanageable by the day. After all attempts to reconcile had failed, it appeared they were at an impasse. Divisive litigation to remove this trustee was one option, but not one we wanted to use. So we went back to the drawing board, the trust document itself, and searched for alternatives.

Thankfully, this best-laid plan had some built-in adaptability, unlike some trust documents that are not so flexible. This particular special needs trust provided for the appointment of a trust protector who was there to assist with just this type of problem. The trust protector holds the authority to appoint a co-trustee, which it did, and the addition of that third co-trustee effectively neutralized and diffused the actions of the trustee. The beneficiary's fears were calmed, and the trustee was no longer the "bad guy." In implementing this solution, hurt feelings were given time and space to heal. The trustee and the beneficiary now have a restored relationship – and a wonderfully working trust!

Accepting that circumstances change and adapting quickly are a part of my life – both as a parent of a very active four-year old son and as a part of the team at Chambliss. Our team knows that the best-laid plans need to be adaptable. As we work through new developments in the lives of our clients, our estate planning documents are examined regularly and fine-tuned to address their ever-changing needs. Even a special needs trust with its required restrictions and "structure" can be made more effective with our creative expertise. All trust documents are not created alike. Here, we continuously update our trust documents to be as innovative and flexible as possible.

If you have a trust that may not fit your needs like it once did, take the time to review it. The best-laid plans do not have to go awry! If you have questions about special needs planning or the right trust for you or your loved one, please contact us.

1 "To a Mouse, on Turning Her Up in Her Nest With the Plough," by Robert Burns, November, 1785.