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Special Needs Planning

Special needs planning is an area of law that can create solutions and added support for people living with disabilities, including those people who may struggle with the effect of mental illness and substance abuse. Planning ahead to make sure that medical and financial support is in place is one way to ensure that someone who needs extra assistance can receive that assistance after the death of a spouse or parent. In some cases, even the individual’s own money can be preserved without loss of the public benefits so many individuals rely upon. The goal is always to develop plans that focus on enhancing quality of life and promoting autonomy. Plans may include special needs trusts, ABLE accounts, and protective proceedings such as guardianships and conservatorships.

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Public Benefits

Two common benefits that people with disabilities might receive are Medicaid and disability benefits. In Arizona, Medicaid care comes through the Arizona Health Care Cost Containment System (AHCCCS) or its long-term care subsidiary the Arizona Long Term Care System (ALTCS). Disability income can be from Supplemental Security Income (SSI) or Social Security Disability Income (SSDI) benefits.

Medicaid (including AHCCCS and ALTCS) and SSI are “needs based”; an applicant cannot receive benefits unless their income (and, in most cases, their assets) are below set amounts. For SSDI, the work history of the applicant or a family member – not their financial need – is the determining factor.

The interplay of these programs can be complicated and confusing. That is made worse when you consider other benefits like SNAP nutrition benefits, Section 8 housing, and Medicare Savings Programs (QMB, SLMB, QI or QDWI). Each benefits program has different eligibility requirements, and planning should consider them all.

Special Needs Trusts

A “special needs trust” is specifically designed to allow trust assets to be available for a beneficiary while preserving eligibility for the major needs-based government benefits, SSI and ALTCS.

There are two general categories of special needs trusts: third-party and first-party, self-settled trusts. Third-party special needs trusts are established by a person for the benefit of another person, while first-party special needs trusts are funded by an individual with a disability who is also the beneficiary. If someone who may receive a bequest from you has a disability, a special needs trust should be a part of your plan.

ABLE Act Accounts

The Achieving a Better Life Experience Act, also known as the ABLE Act, permits states to establish accounts for individuals with disabilities. Anyone who developed a qualifying disability before age 26 is eligible for an ABLE account. If the disabled individual cannot open the account themselves, an authorized legal representative can open one for them.

Contributions may be made to these accounts and the funds used for a wide variety of qualified purposes without endangering the account holder’s SSI or Medicaid. Although these accounts are easy to set up and use, there are limitations. One is that the total contributions for a year cannot exceed the annual gift tax exclusion for the year. If the account accumulates funds over $100,000, some benefits could be interrupted.

Guardianships and Conservatorships

If a person is unable to manage his or her affairs, a guardianship and/or conservatorship may be necessary, particularly if no prior estate planning was done. Both guardianship and conservatorship require court proceedings that limit an individual’s right to make their own decisions.

In Arizona, guardianships are often likened to a parent-child relationship; the guardian is responsible for most of the life decisions, including medical care and living arrangements. Under Arizona law, Conservators manage finances. Although guardians and conservators are the official deciders, they are required to promote the autonomy and independence of the people they serve, and further to terminate the protective arrangement if it is no longer needed.

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Fleming & Curti, PLC was very helpful as both legal counsel for our elderly Aunt’s Trust and as Health Care Power of Attorney. Both Legal Counsel and Case Worker’s were transparent and responsive to family inquiries.

- Chris T


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Robert B. Fleming


Robert Fleming is a Fellow of both the American College of Trust and Estate Counsel and the National Academy of Elder Law Attorneys. He has been certified as a Specialist in Estate and Trust Law by the State Bar of Arizona‘s Board of Legal Specialization, and he is also a Certified Elder Law Attorney by the National Elder Law Foundation. Robert has a long history of involvement in local, state and national organizations. He is most proud of his instrumental involvement in the Special Needs Alliance, the premier national organization for lawyers dealing with special needs trusts and planning.

Robert has two adult children, two young grandchildren and a wife of over fifty years. He is devoted to all of them. He is also very fond of Rosalind Franklin (his office companion corgi), and his homebound cat Muninn. He just likes people, their pets and their stories.

Elizabeth N.R. Friman


Elizabeth Noble Rollings Friman is a principal and licensed fiduciary at Fleming & Curti, PLC. Elizabeth enjoys estate planning and helping families navigate trust and probate administrations. She is passionate about the fiduciary work that she performs as a trustee, personal representative, guardian, and conservator. Elizabeth works with CPAs, financial professionals, case managers, and medical providers to tailor solutions to complex family challenges. Elizabeth is often called upon to serve as a neutral party so that families can avoid protracted legal conflict. Elizabeth relies on the expertise of her team at Fleming & Curti, and as the Firm approaches its third decade, she is proud of the culture of care and consideration that the Firm embodies. Finding workable solutions to sensitive and complex family challenges is something that Elizabeth and the Fleming & Curti team do well.

Amy F. Matheson


Amy Farrell Matheson has worked as an attorney at Fleming & Curti since 2006. A member of the Southern Arizona Estate Planning Council, she is primarily responsible for estate planning and probate matters.

Amy graduated from Wellesley College with a double major in political science and English. She is an honors graduate of Suffolk University Law School and has been admitted to practice in Arizona, Massachusetts, New York, and the District of Columbia.

Prior to joining Fleming & Curti, Amy worked for American Public Television in Boston, and with the international trade group at White & Case, LLP, in Washington, D.C.

Amy’s husband, Tom, is an astronomer at NOIRLab and the Head of Time Domain Services, whose main project is ANTARES. Sadly, this does not involve actual time travel. Amy’s twin daughters are high school students; Finn, her Irish Red and White Setter, remains a puppy at heart.

Famous people's wills

Matthew M. Mansour


Matthew is a law clerk who recently earned his law degree from the University of Arizona James E. Rogers College of Law. His undergraduate degree is in psychology from the University of California, Santa Barbara. Matthew has had a passion for advocacy in the Tucson community since his time as a law student representative in the Workers’ Rights Clinic. He also has worked in both the Pima County Attorney’s Office and the Pima County Public Defender’s Office. He enjoys playing basketball, caring for his cat, and listening to audiobooks narrated by the authors.