A Special Needs Trust is a way to protect the assets of a special needs person and avoid being disqualified for public funding and benefits. Most ALTCS and Social Security government programs require that participants are low income and have little money. Funds in the trust can be used to enhance their quality of life. Family members can leave money to the Trust and not worry about affecting the eligibility for benefits.
When a special needs person becomes 18 years of age, his or her parents do not have legal authority to help their loved one with everyday life and financial decision making. Like any adult, this person is on their own legally and financially. For example, during minority, the parents take care of all special needs planning, particularly in regards to education, with involvement in processes such as development of Individual Education Plans (IEPs).
The first thing a special needs person with less than $2,000 in property should do on turning 18 years of age is to apply for Social Security Disability under the Supplemental Security Income (SSI) Program administered by the U.S. Social Security Administration. Once SSI benefits are obtained, the special needs person is automatically eligible for ALTCS benefits (upon applying to the ALTCS – Arizona Long Term Care System) which opens the door to valuable community health resources, particularly in the area of mental health, that are not otherwise accessible. IEPs developed during the schools years are actually an excellent tool that can assist in establishing eligibility for that program. This is just one of a number of things that need to be done when a special needs person becomes an adult. These persons need help in getting these things done. Important decisions need to be made and these persons are often not capable of making them for themselves.
Family members typically must step up and become surrogate decision-makers. A common way in which this is accomplished is through guardianship. While guardianship allows the appointed person to legally make decisions on behalf of a special needs person, it has a number of drawbacks including:
1. It eliminates the right of the special needs person to make decisions for themselves. A long standing principle in this field is to impose the least restrictive requirements possible;
2. It is a public (court process) record of developmental disability that travels with that person forever (potential stigmatization);.
3. It is an expensive (attorneys, legal costs) and time consuming process.
Unfortunately guardianships are sometimes necessary, often because of a lack of planning. For families who exercise the foresight to plan, there are alternatives to guardianships, such as powers of attorneys, which can serve to eliminate the concerns enumerated above and pave the way for an enhanced quality of life.