Special Needs Planning

fairfax va special needs planning attorney

My Child with a Disability is Turning 18 Years Old – Now What?

As parents, we make all the important decisions for our children.

Being a parent never really ends. But reaching the legal age of majority will change things for your disabled child. When a child turns 18 he is considered an adult. As an adult, a disabled child can legally make his or her own decisions about medical treatment, living arrangements, and finances. But what if he or she is unable to do so.

GUARDIANSHIP

If you think your child is not able to make decisions on his/her own, and perhaps can be taken advantage of, you should consider filing for Guardianship.

Guardianship is an important issue for parents of children with special needs because when a child turns 18, parents are no longer legally entitled to decide things on their behalf.

A guardian or conservator is a person charged with overseeing care for someone else and is responsible for making financial, legal, and medical decisions, such as where the person will live. A guardianship can be full or limited. If limited, the guardian only oversees certain issues.

To obtain a guardianship you must prove that your child is unable to handle decisions on matters such as money, property, or other issues. Guardians receive the right to make decisions on their adult child’s behalf, although they are not legally obligated to support their child financially.

SUPPLEMENTAL SOCIAL SECURITY INCOME (SSI)

When your disabled child reaches age 18 you should have your child,or you as his or her Guardian, apply for benefits under the Supplemental Security Income (SSI) program at your local Social Security Office.   Social Security Administration pays monthly Supplemental Security Income (SSI) benefits to people with limited income and resources who are disabled or blind.  Blind or disabled children, as well as adults, can get SSI benefits.  SSA pays SSI benefits in order to meet basic needs for food and shelter.  Unlike Social Security Disability benefits, SSI benefits are not based on a person’s prior work record or a family member’s prior work record.

For disability purposes in the SSI program, a child is considered an adult when they turn 18.  Social Security Administration (SSA) uses different medical and nonmedical rules then when your child was under 18, when deciding if a disabled child over age 18 can get SSI disability payments.   For example, SSA does not count the income and resources of family members when deciding whether a disabled child over 18 meets the financial limits for SSI.   SSA counts only the income andresources of the child who is over 18.  Your child will need to have less than $2,000 of property in his or her own name to qualify. SSA also uses the disability rules for adults, which are different than those for children, when deciding whether a child who turns 18 is disabled.

  • If your child is already receiving SSI payments, SSA must review your child’s medical condition when he or she turns age 18.  SSA usually does this review during the one-year period that begins on your child’s 18th birthday. SSA will use the adult disability rules to decide whether your 18 year old child is still considered disabled and entitled to continued SSI benefits.
  • If your child was not eligible for SSI before his or her 18th birthday because you and your spouse had too much income or resources, your child may become eligible for SSI at age 18.

Once SSI is obtained he/she will be automatically eligible for Medicaid.  This will open the door to valuable community services not otherwise available

Even if you are your child’s guardian you should apply to the Social Security Administration to be his or her Representative Payee at the time SSI is applied for. Even if you are your child’s guardian, a Representative Payee is the only agent for receipt of payments that Social Security will recognize.

SPECIAL NEEDS TRUSTS

Supplemental Security Income (SSI) will not provide enough money to care for your adult child for the rest of his or her life. You and other family members will want to provide money, a home, or an inheritance to provide for your disabled child’s care. However, a special needs child who receives an inheritance, lawsuit settlement, or monetary gift can be disqualified from getting SSI and Medicaid benefits.This can be avoided by creating a Special Needs Trust.

A Special Needs Trust can hold money and assets for the care of your adult child. A Special Needs Trust will protect your child’s money and keep their savings below the Social Security and Medicaid resource limit of $2,000. A Special Needs Trust also enables you or someone you appoint to protect these assets and advocate for your child.

Fairfax Virginia Special Needs Planning Attorney