Planning for the future is a wise idea for all of us. However, if you have a child who is disabled and will soon turn 18, it is essential to plan now because soon he or she will become an adult in the eyes of the law and you will no longer have a say over personal or health matters.
Fortunately, there are legal steps you can take to maintain your control over your adult child’s affairs, no matter what your child’s age is. Some steps require court intervention, and some can be completed with the help of an experienced Virginia Special Needs Planning lawyer. Below is a checklist that will help you get started:
- Get your legal documents in order
As stated previously, upon turning 18, you can no longer manage your child’s affairs without proper legal documentation. It is important to determine whether your child can sign legal documents that would allow you to make decisions. If so, work with a Special Needs Planning attorney to get a Durable Financial Power of Attorney and a Power of Attorney for Health Care in place. If your child does not have the capacity to understand and sign legal documents, you will need to apply for a Guardianship, which is detailed below.
- Learn about filing for legal Guardianship
Many parents who have teens with disabilities in Virginia will need to petition the court for a Legal Guardianship over their child once he or she turns 18. A Guardianship is a court order that will give the Guardian (usually the parents) the legal authority to make all medical and personal and decisions for the child in question. It is a process that should be embarked upon with the help of an experienced Special Needs Planning Attorney. You can learn more about filing for Guardianship of your adult child here.
- Prepare files of all medical and educational records
If your child is still in public school, make a formal request for all psychological and educational evaluations. You will need these records to help prove disability to the Social Security Administration if you are filing for SSI benefits. Even if your child is already receiving SSI, Social Security requires a re-evaluation of the disability using the adult standards once the adult child turns 18. NOTE: Nearly 50% of disabled children on SSI lose their benefits at age 18 because they do not meet the adult standards. Often, this loss is attributed to a failure to provide medical records to Social Security as part of the re-evaluation.
- Review your health insurance policy
If your child is currently on your insurance, you need to figure out how long you can maintain this status. Under current law, your child can normally stay on your health insurance until they turn 26 years old. Some plans may allow you to keep your child on your insurance for as long as you are employed if your child is disabled.
- Set up their financial systems
If you are going to be the representative payee for your child’s SSI benefits, make sure you understand your responsibilities. Read the Social Security’s Guide for Representative Payee for more information. Once your child starts receiving SSI, they need to start paying you for room and board. Otherwise, your child’s check will be reduced by one-third because the parents will be deemed to be providing “free” room and board. It is important to have a written rental agreement between you and your child.
- Plan for their financial future
Consider putting money into an ABLE account for your child. A qualified Special Needs Planning Attorney can help you decide if this is a viable solution to help save money tax-free for the future.
- Prepare a “Memorandum of Intent”
A memorandum of intent will be a guide of sorts for whoever is going to care for your child after you are gone. The memorandum of intent instructs the caregiver regarding the wants and needs of your child. Read this article that I posted to learn more.
- Do your estate planning
It is critical for parents of disabled children to address their own estate planning needs. This way, a Third-Party Special Needs Trust can be set up for the child to be able to inherit your estate without jeopardizing their eligibility for government benefits and programs. Also, it is important to educate other family members who may want to leave something to your adult disabled child that they must designate your child’s Third-Party Special Needs Trust as the beneficiary. Again, any inheritance that takes their net worth over $2,000 in assets means the loss of SSI and Medicaid benefits.
There is a lot more to do to get ready for your child’s 18th birthday, but these things are critical. If you have questions about preparing for this important milestone for your soon-to-be adult disabled child, call The Law Office of Sheri R. Abrams at 571-328-5795 to schedule an appointment.