Your Disabled Child’s Special Needs and Adulthood

Q.           My child with a disability is turning 18. Can he continue to get the publicly funded services we were able to get for him as a minor?

 

A.            Once your child turns 18 your legal authority over him ends. For example, you were able to get involved in his education through development of an Individual Education Plan (IEP) to assure that he received public benefits that enabled him to succeed at school. Now that he is an adult his financial and care needs are his legal responsibility.

 

Q.           My child can’t do this by herself. What can I do to help assure that she gets the services she needs?

 

A.            A first recommended step is to have your child apply for benefits under the Social Security Income (SSI) program at your local Social Security Office if your child has less than $2,000 of property in her own name. Once SSI is obtained she will be automatically eligible for Medicaid upon applying to the Michigan Department of Human Services. This will open the door to valuable community health services not otherwise available; particularly in regard to mental health.

 

Q.           My child is really not able to make informed decisions regarding his care and finances. How can I continue to step in and do that for him?

 

A.            There are a number of steps that can be taken to establish a continuing authority for you. In regard to Social Security, you should apply to the Social Security Administration to be a Representative Payee at the time SSI is applied for. This is the only agent for receipt of payments that Social Security will recognize.

Another step would be to establish a guardianship under the Michigan Mental Health Code. This approach does have the drawback of eliminating the rights of the disabled person to act independently, making them more vulnerable. It is a public record of developmental disability with a potential for stigmatization. Lastly, it is an expensive and time consuming court process. It should only be undertaken when necessary.

There are alternatives to guardianship which can eliminate these drawbacks and pave the way for an enhanced quality of life with the lowest degree of restrictions on an individual’s rights, such as Patient Advocate Designations for medical and mental healthcare and Durable Powers of Attorney for Finances. These legal documents serve much the same purpose as a guardianship and are strictly private, eliminating the potential for stigma and the added costs of a continuing court process.

 

Q.           Can I continue to provide financial support to my child while he or she is receiving government benefits?

 

A.            A special needs individual receiving an inheritance, lawsuit settlement, or monetary gift can be disqualified from having Social Security and Medicaid benefits if proper planning is not done.  A special needs trust can be utilized to protect their money and keep their savings below the Social Security and Medicaid requirement of $2,000. There are several forms of Special Needs Trusts and the design and administration of the trust is critical in order to provide all of the protection and benefits needed. A Special Needs Trust enables you to appoint someone you trust to manage assets and advocate for the individual. It also provides for an enhanced quality of life for the beneficiary and as well as allows one to be self-reliant and independent to the maximum extent possible.

 

Q.           I have seen standard forms on the internet and elsewhere. Can I use these forms?

 

A.            While these forms can be helpful for families that simply cannot afford an attorney, they are often not suitable for a given set of circumstances. Michigan law provides special requirements for these documents to be valid and protect your child’s government benefits. A standard form may not conform to those requirements. It is best to consult a special needs attorney for assistance in most cases.

 

 

 

 

Caring For Family Members Who Become Incapacitated

Q. If my loved one becomes incapacitated can I arrange for their care and manage their financial affairs?
A. There is no inherent right to act for another person who is incapacitated based on a relation to them, except for a parent/child relationship. Express legal authority is required to do so. This applies to anyone age 18 and over.
Q. How does one obtain express legal authority to act for another?
A. It depends on whether or not authority was given to another to act for the incapacitated person before they became incapacitated.
No Authority Prior to Incapacity – Petitions for guardianship and conservatorship must be filed with the county probate court. A hearing is held to determine incapacity based on evidence presented and the petitioner or another person is named Guardian, Conservator or both. This proceeding is public and the Guardian/Conservator is under continuous court supervision, having a duty to make reports and perform other acts. These arrangements are expensive, time consuming, and often continue for a considerable period of time.
Authority Prior to Incapacity – The Guardianship/Conservatorship route can be avoided by using private Durable Powers of Attorney and designating a Patient Advocate. A Power of Attorney is a document signed by a person that authorized another to act on their behalf. It is “Durable” if it expressly continues even when the person issuing the power becomes incapacitated. Durable Powers of attorney are issued for both financial affairs and healthcare decision-making. Michigan law authorizes a Patient Advocate to act for an incapacitated person regarding healthcare and end-of-life decision-making. Durable Powers of Attorney can only be signed by a person who can make informed decisions regarding the matters that the document addresses. Significant time, privacy and expense can be saved by having these documents prepared and signed prior to becoming incapacitated. These documents are inexpensive compared to court proceedings.
Q. Can I add a person to my bank account so that they can write checks, pay my bills, and take care of ordinary, regular financial affairs on my behalf?
A. Yes. However, once you add an owner on an account they can withdraw the balance and use the money for their own purposes. A Durable Power of Attorney can allow another person to handle these functions and obligates them to act strictly in the best interests of the account holder. While some persons add loved ones as account owners to facilitate inheriting the money without going through probate, there are other ways to avoid probate without naming an additional owner.

Welcome to Arizona Mobile Legal Services

Michael G. Kelly Kelly Legal Solutions PLCMike and Mary Kelly of Arizona Mobile Legal Services would like to welcome you to their new website. Please take the time to browse their practice areas of Elder Care, Veteran’s Benefits, Estate Planning, and Business Law.

Arizona Mobile Legal Services provides affordable and professional service to their clients. We come to you whether it is to your home, hospital, or business.

They handle many areas of the law that focus on senior citizens such as Medicare Planning, Long Term Care Planning, Veteran’s Benefits, and Medicaid Planning. In addition they offer Estate Planning and Business Law
S
ervices.

They are unique from many large law firms: your work is handled completely by the attorney you put your trust in. They are fortunate to have an elder-care advocate that is also a legal assistant and registered pharmacist to assist with their Elder Care practice.

Arizona Mobile Legal Services  offer convenient night and weekend appointments. Please give them a call at (623) 628-1110 to schedule your appointment. You can also email them for more information.

Mary Kelly Kelly Legal Solutions PLC