By Shana Siegel and Abbey Horwitz, Norris McLaughlin, P.A., Attorneys at Law
Planning for a special needs child can be complicated, confusing, and even overwhelming. Moreover, each person living with intellectual and/or developmental disabilities is unique, so what may be appropriate or desired for one individual may not be the right fit for another.
When planning for the transition to adulthood, there are several important legal matters to consider. Before your special needs child becomes a legal adult, we suggest that you consult with professionals such as attorneys, financial planners, and others who can help you make critical decisions about your child’s future.
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Here are some questions you may have as your child approaches age eighteen.
Do I need to seek Guardianship or are there less restrictive alternatives?
Guardianship is a court-ordered arrangement in which one person is given the legal authority to make decisions on behalf of another person. It entails a finding of incapacity and while it involves a loss of rights for the individual, it is sometimes necessary to protect a child who is vulnerable to exploitation or cannot appoint an agent. A guardianship can be limited to carve out areas where the individual retains decision-making authority, or general, in which the guardian has broad power to make health and financial decisions for the individual.
If your child can participate in important decision-making aspects of his or her life, a conservatorship may be more appropriate. A conservator manages the finances but has no authority to make personal decisions (i.e., medical, educational, etc.). Alternatively, your child may be able to execute a power of attorney and health care directive, appointing you to make decisions on his or her behalf or assist in the decision-making process.
What financial support is available to adults with disabilities?
The Social Security Administration (SSA) has three benefits programs for people with disabilities over the age of 18 including Supplemental Security Income (SSI) and two programs under Social Security Disability Insurance (SSDI), one for individuals who work themselves and one based on parental work history.
SSI is available to people whose disabilities prevent them from substantially gainful employment. To be eligible for SSI, your child must have limited resources and a monthly income. Additionally, individuals who qualify for SSI are eligible to receive Medicaid, which pays for a wide array of services for people with developmental disabilities and provides government-funded health insurance and funding for long-term services and supports. SSI is often sought to facilitate support services through the Division of Developmental Disabilities (DDD).
SSDI provides income supplements to people who are restricted in their ability to be employed because of disability and are available regardless of the individual’s income and resources. An individual can be eligible based on their work history even if quite limited or when a parent reaches retirement age based on the parent’s work history. To be eligible for a benefit under the Childhood Disability (formerly known as Disabled Adult Child) Benefit, the child must be deemed disabled before age twenty-two, so it is important to seek professional advice early.
When should parents begin transition planning?
It is never too early for parents to consider transition planning for their special needs child.
At Norris McLaughlin, our goal is to help our clients best prepare for the challenges that lie ahead for the family member with special needs. Too often families suffer unfortunate consequences when they try to navigate these complex programs and rules without proper advice. Our attorneys offer a holistic approach focusing on specialized estate planning, special needs trusts, trust administration, and trustee representation, special education advocacy, employment, and residential issues, guardianships and conservatorships, and public benefits including Medicaid and Social Security.
If you have any questions about this post or any other related matters, please feel free to email Shana at ssiegel@norris-law.com or Abbey at amhorwitz@norris-law.com.
About the Authors
Shana Siegel, Chair of the Norris McLaughlin Elder Care & Special Needs Law Practice Group, concentrates her practice in the area of elder law, focusing on representing seniors, individuals with special needs, and their families in connection with life care planning, public benefits, trust and estate planning, and long-term care advocacy.
As one of the few Certified Elder Law Attorneys (CELA) in northern New Jersey to be certified by the National Elder Law Foundation (NELF), Shana has extensive experience in probate and estate administration, asset preservation, supplemental and special needs trusts, planning for disability, guardianship and estate litigation, resident rights, health care decision making, Medicare, Medicaid, and health insurance appeals.
Abbey M. Horwitz practices exclusively in the area of estate planning and administration. She assists individuals and families with estate and tax planning in both New Jersey and New York, preparing both simple and complex estate plans for her clients as appropriate to ensure their assets are distributed consistent with their wishes. Abbey is experienced in preparing wills, insurance trusts, revocable trusts, qualified domestic trusts, grantor-retained annuity trusts, qualified personal residence trusts, charitable trusts, supplemental benefits trusts, durable powers of attorney, and advance directives for health care.
As a parent of a child with special needs, Abbey is also uniquely qualified to relate to and advise clients with planning for their special needs child. She prepares special needs trusts and other estate planning documents that are available to clients in planning for their special needs child. She prepares special needs trusts and other estate planning documents that are available to clients in planning for their children’s futures.