The word "disability" has many different meanings, even within the field of law. It can mean physical disabilities or mental disabilities. It can refer to eligibility for Social Security benefits or eligibility for public benefits such as Medicaid. It may also refer to persons who may need assistance in managing their assets or making medical decisions.
When someone is identified as "disabled" it invariably means that action must be taken to protect the person with disabilities. If nothing is done, the legal system will make sure the person with the disability is taken care of – according to the legal system’s standards. The problem is that having the government take care of you is expensive, it can mean the loss of assets, it puts the government instead of trusted family members and friends in charge of managing your assets and your life, and it causes eligibility for public benefits such as SSI, Medicaid, subsidized housing, and food stamps to be lost or adversely affected.
Proper planning can avoid these problems from occurring.
A person with disabilities who is competent must have a financial or durable power of attorney and a health care power of attorney. These documents let the person with disabilities choose the person to be responsible for making financial and medical decisions if the time ever comes when he or she can’t make decisions for him- or herself.
The financial or durable power of attorney also has another very important function: If public benefits ever become available to help provide medical care or financial assistance to the person with disabilities, and the person has become incompetent, the power of attorney can allow the agent to take whatever steps are necessary to help achieve public benefit eligibility to help pay for the cost of medical care.
Many people with disabilities have parents or friends who can help care for them now and are competent to participate in life decisions. However, many disabilities worsen over the years and the person can become unable to manage his or her affairs years down the road. Since no one knows when that day may come, having the financial power of attorney and health care power of attorney in place now can prevent an unexpected loss of a caregiver or just as importantly, ensure the government isn’t put in charge of personal affairs.
A senior citizen who is diagnosed with Alzheimer’s, dementia or who has physical or mental problems that may impair his or her ability to make financial or medical decisions for themselves in the future needs these documents. A diagnosis of Alzheimer’s or other dementia, or the suffering of a stroke does not necessarily make that person unable to sign these documents.
Any adult, whether they have any disabilities or not.
Any child over 18 who has any mental disability. While a person is a minor, parents can make financial and medical decisions for their child. However, that right to make decisions ends at age 18. The law allows many people who have mental disabilities to sign financial and medical powers of attorney. Mental disability does not mean someone is incompetent to sign these documents. Having these documents signed by a person who is competent, can prevent so many problems down the road and eliminate, in many cases, the need for a guardianship and conservatorship if the person becomes unable to make decisions in the future. In addition, the person who is to make those decisions in the future can be chosen by the child instead of determined by the Probate Court.
A plan for the long-term care of the person with disabilities needs to be developed immediately. Parents and caregivers of persons with disabilities never know when they can no longer care for that person. It could be 5 years from now, 20 days from now, or even tomorrow. What we do know is that if no plan is in place and the parent or caregiver gets sick or dies unexpectedly, the government will take control. There are no assurances that the guardianship and conservatorships that may be required and issued by the state will take care of the person with disabilities as he or she wishes or that the preferred person is chosen.
A parent of a child with disabilities or the spouse of a person with disabilities can have a say in selection of a guardian or conservator in the event that a person needs a guardian or conservator in spite of the best prepared plans of the parent, child, or spouse. South Carolina allows a parent to name a guardian for a child even if the child is over 18. In addition, a spouse can name a guardian for a spouse if he or she is unable to care for him- or herself. This often becomes necessary if the spouse develops Alzheimer’s or other dementia. By naming a guardian in the parent or spouse’s Will, the Court will give first consideration to the person named in the Will.
Estate planning is extremely important when a parent, family member, or friend wants to leave assets to a person with disabilities. Naming the person with disabilities outright is a poor idea for two reasons. First, the person may not know how, or in the future, be able to manage the assets. In this case, a conservator may be required. Second, receipt of an inheritance can result in a loss of public benefits now or in the future. Even though a person may not require public benefits now, if something happens to the person’s parent or spouse, public benefits may be necessary in the future to help care for him/her. If the person with disabilities is simply named, the inheritance may have to be spent for medical care for which public benefits might otherwise pay. On the other hand, if a special needs trust is established by the parent’s or spouse’s trust, public benefit eligibility can be established or preserved and the inheritance can be used to enhance the quality of life because the medical expenses of the person with disabilities can be paid for by public benefits such as Medicaid.
Many people decide to leave a child with disabilities out of a Will and give the inheritance instead to another family member to be used for the benefit of the person with disabilities as the family member sees fit. This almost never works for a host of reasons. Instead, simply creating a special needs trust will ensure the best care possible for the person with disabilities.
A very important aspect of disability planning is ironically a non-legal document. It is called various things but is often referred to as a Letter of Intent. This is a document which is a "roadmap" to be followed by the person who takes over in caring for a person with disabilities after the parent or caregiver’s death. It outlines the medical conditions, medical providers, likes and dislikes of the person with disabilities about such simple things as food, recreational likes, allergies, and all aspects of his/her life that makes it special. If these personalized preferences are written down in a place where they can be addressed, caring for the person will be less difficult. This is especially true during the difficult transition that occurs after a parent’s or caregiver’s death. An experienced lawyer can help you prepare this document.
Planning for people with disabilities is a never-ending process. The law changes all the time. Public benefits change all the time. The needs of a person with disabilities changes continually as the person ages. Therefore, whatever plan is adopted must be reviewed on a regular basis by someone who is experienced in working with persons with disabilities. Don’t rely on a person who prepares Wills and Trusts for people but doesn’t understand and is not experienced in the special needs of people with disabilities and the public benefit programs that can enhance their quality of life.
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