CARING FOR A DISABLED CHILD, A LEGAL PERSPECTIVE
Being a parent is a tough job. Being a parent of a disabled child is even tougher. Not only are there a multitude of issues surrounding the child’s health, there are also many legal issues that the parent must address, in particular, issues surrounding the preservation of government entitlement benefits and decision-making authority.
Children who suffer profound disabilities – such as cerebral palsy, multiple sclerosis, or autism – tend to need significant amounts of medical attention and, as a result, have high medical bills. Initially, the child may be covered by a parent’s medical insurance, but as the child ages, he will eventually lose coverage as a dependent of the parent.
Without such government-sponsored programs as Medicaid, the disabled child would be left without medical coverage.
Until the child is eighteen, the assets and income of his parent are “deemed” to him, meaning that whatever assets the parents have, the child has. This often prevents children under the age of eighteen from qualifying for Medicaid. Fortunately, most of these children do receive coverage under their parents’ health plan.
When the child obtains the age of eighteen, the deeming of assets from parent to child ceases, so at this age, the child will often qualify for Medicaid, since the child will have less than the maximum value of assets permitted to qualify for the Medicaid program, $2,000. (As a side note, grandparents or other relatives will sometimes give the disabled child savings bonds; the grandparent may have given other grandchildren savings bonds and doesn’t wish to treat the disabled child differently. Ownership of these bonds could cause ineligibility for the Medicaid program if the child has more than $2,000 in assets.)
Issues arise when a relative of the child dies and leaves the child a portion of her estate. The receipt of this inheritance will disqualify the child from the Medicaid program, if the inheritance is greater than $2,000. Most likely, this will result in the inheritance being used to pay for the child’s medical treatment – something for which the Medicaid program would pay if the child continued to receive Medicaid benefits.
The solution to this issue is for the parent to create what is commonly referred to as a “special needs trusts” – or more accurately called a supplemental benefits trust – for the child. The trust can be created during the parent’s life but left unfunded, meaning that the parent doesn’t put any money into the trust.
When a relative – including the parent – passes away, their Will could be drafted so that she leaves any inheritance that she wanted to leave the disabled child to the trustee of the supplemental benefits trust. The trust preserves government benefits, such as Medicaid, but also provides a source of funds that can be used to either supplement the government benefits or pay for items for which the government benefits do not pay.
The second major issue that parents of disabled children need to address is decision-making authority. A child could be profoundly disabled, being unable to make even the simplest decision, yet when the child obtains the age of eighteen, no one could make decisions for the child.
Because of this, the parents must be appointed by a court as the child’s guardian. The guardianship authorizes the parents to continue to make all health care, residential, and financial decisions for the child.
Most guardianships require the person seeking the guardianship to obtain written reports of two doctors, declaring the person who is the subject of the guardianship incapable of making decisions for himself. But the Division of Developmental Disabilities – a government agency serving individuals who are developmentally disabled before age twenty-two – permits a guardian to be appointed if one doctor’s report is obtained.
Navigating these legal obstacles is can be complex. For issues such as these, it definitely benefits to obtain the advice of an attorney who specializes in elder and disability law.