Which upon the death of the first spouses is or her assets will put into a probate will that spew cities that they be placed in a special needs trust for the remaining spouse and then upon their demise revert to a regular trust to be divided among their children
However, as others have pointed out, if Medicaid is not ever going to be an issue, then having the special needs trust inside a living/revocable trust of the first spouse to die, for the benefit of the surviving spouse, is a standard planning device.
I've drafted hundreds of wills, revocable, and irrevocable trusts over the years and include a very detailed discussion of what trusts to use and how to use them, in my book How to Protect Your Family's Assets from Devastating Nursing Home Costs: Medicaid Secrets (www.MedicaidSecrets.com). You may find the trust chapter helpful.
And spend the money to set up estate documents for all of you, POA's DPOA's, HealthCare proxies, WILLs, HIPAA releases so you are not locked out from getting information, See an elder law person who understands medicaid etc and not just preservation of assets
But if you have concerns, Perhaps do a realistic check on what the asset base is to see if there will be the money for private pay for care from the trust. If trust is low to mid6, there will be the $ for care for the average NH stay of 3 years imho. But if the trust has 100K that won't make more than a year if your lucky. Also ask about what is "feeding" the trust. The trust needs income to live (a trust is its own entity so needs a source of income) so what is that coming from and how is it performing? You want to speak with the FA the atty works with to go over this.
Also perhaps ask if the trust is planned to de-fund. Sometimes for special needs trusts this is done so the trust defunds about the time they hit 66 so Medicare & medicaid can start paying. good luck.
Seems to me if it is a joint trust (but one of the co-owners of the trust is or is becoming incapacitated and unable to handle their affairs)
Then upon the death of the competent spouse - a successor trustee should be named (I chose a professional fiduciary) and the trust would continue for the benefit of the remaining spouse.
Specifying that if any funds remain at the time of that spouse's death that
the children - charities named - or whoever - shall receive the funds and under what conditions.
If Medicaid will be needed, I don't know of any way to protect funds from state if there is only the remaining spouse. Likely would have to spend down those funds to Medicaid level before they would pay.
to buy groceries, do banking in her presence. The problems I face is that the attorney doesn't allow the principal to liquidate assets including stocks and investments. The attorney allegedly instructs the financial advisors and securities broker to hold cashing out of securities despite our demand. Does Elder law abide such financial transactions?