El Dorado Hills, CA asked in Elder Law for California

Q: In what types of situations would setting up a special needs trust benefit someone recently diagnosed with Alzheimer's?

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1 Lawyer Answer
Sally Bergman
Sally Bergman
  • Elder Law Lawyer
  • San Mateo, CA
  • Licensed in California

A: The (well) spouse of a person with Alzheimer's (ill spouse) should establish a testamentary special needs trust through his/her will to protect the ill spouse in the event the well spouse dies before the ill spouse. These types of trusts between spouses can only be established through a will. Any other type of special needs trust cannot be established once the ill spouse reaches age 65.

I do encourage families who have received this diagnosis to sit down with an elder law attorney to discuss this and many other matters. It is very likely that health care directives, powers of attorneys, trusts and other documents may need to be changed to protect both spouses, as well as other family members. If appropriate documents are not in place before the ill spouse completely loses mental capacity, a conservatorship could be required. That would be a very expensive and intrusive proceeding that in almost every circumstance can be avoided with proper pre-planning.

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