Many elder law attorneys also practice special needs planning, which focuses on the needs of younger people with disabilities. Elder law and special needs planning fit together because some areas of law – such as public benefit programs and guardianship – operate similarly for adults of all ages. While the populations are different, many laws are not.
Parents of a child with disabilities encounter a unique set of issues as their child reaches the age of 18. The child becomes an adult at age 18 and is presumed to have the ability to care for him or herself, protect his or her property, and become able to support him or herself financially. Difficulties arise when disabilities impair the young adult’s ability to do one or more of these things.
This article briefly identifies the areas which need to be examined as a child with special needs reaches the age of majority.
Powers of attorney
Young adults who have sufficient capacity should execute durable general powers of attorney for financial affairs and medical powers of attorney. While young adults may not have many assets, a DPOA will allow parents to assist as needed with a bank account or contract. The principal who signs a power of attorney must have sufficient capacity to understand the task he is undertaking. For a DPOA, this is often understood as the ability to sign a contract.
A young adult can execute a medical records release and medical power of attorney to allow the parent access to medical information and to make health care decisions in the event that the principal cannot. The capacity standard to execute a medical power of attorney is the ability to understand and make medical decisions.
DPOAs and MPOAs are revocable and do not remove any decision-making power from the principal who signs them. The documents are insufficient for protecting individuals who, because of an impairment, take actions contrary to their best interests. For example, the DPOA allows the agent to bank for the principal, but does not prevent the principal from withdrawing money at will.
Guardianship and conservatorship
If a young adult lacks capacity to execute a DPOA and MPOA, or the documents are insufficient to protect him, appointment of a guardian and/or conservator may be necessary. In Virginia an adult is in need of a guardian or conservator when he has an impairment in receiving, processing or communicating decisions that prevents him from being able to protect himself or his property.
If a young adult is unable to make medical or personal decisions, she will need a guardian. She will need a conservator if she has resources but lacks the capacity to manage them. A conservator usually is not necessary if the young adult has no assets and receives income only from Social Security. Virginia law permits appointment of a temporary guardian or conservator, or a limited guardian or conservator, giving the attorney the ability to tailor the order to the needs of the individual. The petition for guardianship and/or conservatorship can be filed when the child is age 17 1/2, allowing for transition into adulthood without a loss of authority for the parents.
Public benefit programs
Young adults who are unable to work can apply for Supplemental Security Income (SSI) benefits upon reaching age 18. SSI is provided to low-income individuals who have been determined disabled by the Social Security Administration. The income and assets of the parents are not deemed available to young adults who apply for SSI benefits. If the young adult lives with parent (or someone else) their SSI benefits will be reduced if they do not pay for their own room and board. Some disabled young adults will qualify for Social Security benefits based on the work record of a deceased, disabled or retired parent.
Medicaid is a very important benefit for young adults with special needs. Medicaid provides health care to low income individuals who fall within certain eligibility categories. Individuals who receive SSI qualify for Medicaid coverage. Individuals with income up to 300 percent of the SSI benefit rate who need an “institutional level of care” can qualify for Medicaid “waiver” programs.
Medicaid waiver programs provide specialized services, such as respite care, residence in group homes and personal care, to specific populations of Medicaid beneficiaries. Some waiver programs have long wait lists for services.
Public schools can continue to serve children with special needs through age 21. When the child turns 18, parents lose their automatic decision-making authority. This authority can be regained through a power of attorney, guardianship, or the appointment of an “educational representative” by the school division. The authority is needed to negotiate an individualized education plan for the student, the key to receiving through the school (without cost to the parents) services that are essential for the student’s education. The need to make education decisions is often the trigger for seeking guardianship.
Estate planning issues
Many parents are relieved when their children reach age 18 and they no longer need to name a legal guardian in their will. If a child is incapacitated upon reaching adulthood, the parents’ wills should state their preferences for a guardian for the incapacitated adult.
Most parents create trusts for their minor children through their wills or living trusts. The minor trusts must be re-examined when the child with special needs approaches age 18. A typical support trust will undermine the ability of the child to receive SSI or Medicaid. Appropriate special needs trusts should be incorporated into the estate plans of parents whose children are likely to need public benefits.
- By Loretta Morris Williams