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Ensuring capacity in trust-making: one reason to work with an experienced attorney, P.2

In previous posts, we've been discussing a recently passed federal law which allows disabled and special needs individuals to more easily create self-settled trusts. We've also been looking at the issue of capacity in the creation of wills and trusts, as capacity is a requirement to create a self-settled special needs trust under the new law.

Although the new law is supposed to reduce the obstacles for disabled individuals setting up their own trusts, it is still important for such individuals to still consult with an experienced attorney before moving forward, to ensure everything is done correctly. 

One specific reason to work with an experienced attorney when establishing a self-settled special needs trust in Florida is to ensure that there is no question that the settler has the proper capacity to establish the trust. Leaving such questions open could result in problems down the line, not only with respect to creditors, but also to other interested parties.

The capacity necessary to make a will in Florida is not the same as that applied to the creation of a trust. Capacity to create a trust in Florida is a bit more complicated than the issue of capacity to create a will. Although, it is arguable that the necessary capacity is the same, the question is not entirely settled and it is important to proceed carefully in order to prevent potential problems down the road.

Another important reason to work with an experienced attorney is to ensure the special needs trust is set up correctly to achieve the special needs individual's goals. This is particularly important to avoid disqualification from government benefits based on accusations of fraud. Working with an experienced attorney ensures that a special needs individual sets up an effective trust document that protects assets for the person's benefit. 

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