When a person with developmental disabilities reaches the age of 18, that person becomes an adult in the eyes of the law. If a parent or other family member feels that the person needs assistance with making life decisions, such as medical procedures, where to live, or whether to enter contracts, the parent or family member should consult with an Elder Law attorney to discuss their options.
What We Cover
Special Needs Trust
In order to preserve eligibility for public benefits, such as Medicaid, the Med-Waiver program, or Supplemental Security Income (SSI), a person who has been deemed as disabled cannot own property. Often the best planning technique is for a family member to execute a Supplemental or Special Needs Trust or to incorporate a testamentary trust within their own estate plan. This type of trust, when established by a family member, is called a third party special needs trust and is not subject to Medicaid payback.
If an individual who relies on public benefits does inherit property directly or becomes the recipient of a settlement or other windfall, that individual can set up a first party supplemental needs trust to hold the assets and preserve their eligibility for benefits. This type of trust is subject to a future Medicaid lien. A consultation with an Elder Law attorney is important to discuss how to properly create and fund the trust, whether a spend down is necessary or desirable, and how to best accomplish the individual’s goals. Other options to discuss may involve a Pooled Trust.
For proper planning, it is critical to know exactly what type of benefits the individual with a disability is receiving or is eligible to apply for. Attorney Martini can assist in applying for Medicaid or Med-Waiver benefits, handles Med-Waiver appeals, and can counsel special needs families on proper estate and special needs planning. If you have been denied benefits or have received a notice from the Agency for Persons with Disabilities that you or your family member have received a Notice of iBudget Amount that reduces your annual iBudget, level of supports, or residential habilitation rate, you have the right to appeal that decision and request a Fair Hearing.
A person with a developmental disability or special needs may have the capacity to execute an advance directive, such as a durable power of attorney, designation of health care surrogate, and HIPAA release. This will allow a parent or trusted friend to assist with financial and health care decisions. When a person with a developmental disability turns 18, they have the same rights and legal capacity as any other 18-year-old. An advance directive can allow a parent to continue assisting their now adult child. If the person does not have capacity to execute an advance directive, guardian advocacy is another less restrictive alternative to full guardianship that can allow a parent to continue assisting the person now that they are an adult.
For more information when your child turns 18, visit turning18.org.
You May Need:
Third Party Special Needs Trust
First Party Supplemental Needs Trust (d4a)
Pooled Trust (d4c)
Application for Medicaid
Application for Med-Waiver
Supplemental Security Income
Disabled Adult Child Benefits
Fair Hearing Representation
How We Can Help
A family member can petition the Court to be appointed as Guardian Advocate for their loved one with a developmental disability, if advance directives are not possible. This is a much less complex process than a full guardianship. It is possible for families to navigate the Guardian Advocate process on their own or with minimal guidance. While hiring an attorney is not required, the family may feel more comfortable with the assistance of an attorney. The Law Office of Pamela G. Martini offers this assistance and other special needs planning services at rates that families can afford, with an emphasis on building a relationship with the family that they can rely on throughout the years.
Families may also need counsel or assistance in applying for services with the Agency for Persons with Disabilities, applying for public benefits, or managing appropriate educational and behavioral supports. When parents of a special needs child do their own estate planning, special consideration of preserving public benefits for the child’s future needs must be taken. The Law Office of Pamela G. Martini offers affordable estate planning services, including supplemental or special needs trusts, and trust administration, if necessary.