May 18, 2006

Ask The Lawyer

Reader asks how to protect developmentally disabled
brother after dad dies without a will

This week's question:
I have a rather difficult situation and was wondering if you could help. My brother is developmentally disabled and needs special help all of the time. On top of that, our father just died without a will. I am concerned that when my brother's share of our father's estate comes to my brother, it will render him ineligible to receive Social Security and Medi-Cal benefits. Can anything be done legally and morally to prevent this?

Doug D.
Almaden Valley

Dear Doug:
You are in a tough situation with the loss of your father and all, but I may have some good news for you and your brother.

A case was just decided by the State of California First District Court of Appeal, Division Five, that may be of some help with preserving public benefits for your brother. The title of the case is Conservatorship of Estate of Kane, and the opinion is dated March 6, 2006.

The case arose in Marin County. In that case, Kevin Kane was a developmentally disabled adult who lived with his mother until her passing. Kevin was unable to live safely independently or to manage his prospective inheritance. Upon his mother's passing, Kevin became entitled to receive an inheritance of about $65,000.

After his mother's passing, Kevin lived in a group living facility that was suitable for his special needs. He received Social Security Income (SSI) and Medi-Cal benefits, which paid for much of his care and medical treatment.

Since Kevin was unable to manage the $65,000, the Probate Court established a limited conservatorship of his estate and Barbara Simon was appointed Conservator. Unfortunately, the estate planning previously undertaken for Kevin's mother did not include any special provisions for Kevin, such as the establishment of a special needs trust for him so as to preserve public benefits.

In the words of the Court of Appeal: "Such a special needs trust is desirable for [Kevin] because if he were to receive his inheritance directly, he would be ineligible for SSI and Medi-Cal benefits, and would likely deplete the inheritance relatively quickly to pay for ordinary living expenses and medical care. However, if the legacy was placed in a special needs trust, he could use the trust proceeds for his special needs, such as various types of therapy, while he is still receiving public benefits."

Although the trial court felt sympathetic toward Kevin's situation, it ruled that it did not have the authority to establish such a special needs trust. The Court of Appeal reversed the trial court and held that a special needs trust could be established for Kevin under the substituted judgment procedure set forth in §2580 of the California Probate Code. A long list of authorities was cited by the Court of Appeal, both federal and state, to support the creation of a special needs trust for Kevin so as to preserve public benefits.

You can read the Conservatorship of Estate of Kane case for yourself by logging on to www.findlaw.com and heading for California cases. Then enter "Conservatorship of Estate of Kane."

The direct link is: http:// login.findlaw.com/scripts/callaw?dest=ca/caapp4th/slip/2006/a110631.html. As always, you will want to read this case in consultation with your own attorney for a full and balanced understanding as it applies to your particular situation.

Good luck, Doug. I hope it all works out with you, your brother, and the rest of your family.

Donald J. DeVries
Almaden Valley


Donald J. DeVries is an attorney practicing law in Almaden Valley. If you would like him to answer your question in his next Almaden Times column, you can reach him by e-mail at don@almadenvalleylawyers.com, fax at (408) 268-6502, telephone at (408) 268-9500, or mail at, 6475 Camden Avenue, Suite 200, San Jose, CA 95120. Your matters are personal and private, so of course, he will not disclose your identity or any details about your situation. To view Almaden Times columns since 1986 visit www.almadenvalleylawyers.com. DeVries writes this column to provide you with general information about important legal matters affecting California residents—not to give you legal advice about your specific matter. No attorney-client relationship is created by these articles. The law is complex and constantly changing and varies from state to state. So you should consult an attorney before taking any action that would affect your personal or business matters.