Q. My child with a disability is turning 18. Can he continue to get the publicly funded services we were able to get for him as a minor?
A. Once your child turns 18 your legal authority over him ends. For example, you were able to get involved in his education through development of an Individual Education Plan (IEP) to assure that he received public benefits that enabled him to succeed at school. Now that he is an adult his financial and care needs are his legal responsibility.
Q. My child can’t do this by herself. What can I do to help assure that she gets the services she needs?
A. A first recommended step is to have your child apply for benefits under the Social Security Income (SSI) program at your local Social Security Office if your child has less than $2,000 of property in her own name. Once SSI is obtained she will be automatically eligible for Medicaid upon applying to the Michigan Department of Human Services. This will open the door to valuable community health services not otherwise available; particularly in regard to mental health.
Q. My child is really not able to make informed decisions regarding his care and finances. How can I continue to step in and do that for him?
A. There are a number of steps that can be taken to establish a continuing authority for you. In regard to Social Security, you should apply to the Social Security Administration to be a Representative Payee at the time SSI is applied for. This is the only agent for receipt of payments that Social Security will recognize.
Another step would be to establish a guardianship under the Michigan Mental Health Code. This approach does have the drawback of eliminating the rights of the disabled person to act independently, making them more vulnerable. It is a public record of developmental disability with a potential for stigmatization. Lastly, it is an expensive and time consuming court process. It should only be undertaken when necessary.
There are alternatives to guardianship which can eliminate these drawbacks and pave the way for an enhanced quality of life with the lowest degree of restrictions on an individual’s rights, such as Patient Advocate Designations for medical and mental healthcare and Durable Powers of Attorney for Finances. These legal documents serve much the same purpose as a guardianship and are strictly private, eliminating the potential for stigma and the added costs of a continuing court process.
Q. Can I continue to provide financial support to my child while he or she is receiving government benefits?
A. A special needs individual receiving an inheritance, lawsuit settlement, or monetary gift can be disqualified from having Social Security and Medicaid benefits if proper planning is not done. A special needs trust can be utilized to protect their money and keep their savings below the Social Security and Medicaid requirement of $2,000. There are several forms of Special Needs Trusts and the design and administration of the trust is critical in order to provide all of the protection and benefits needed. A Special Needs Trust enables you to appoint someone you trust to manage assets and advocate for the individual. It also provides for an enhanced quality of life for the beneficiary and as well as allows one to be self-reliant and independent to the maximum extent possible.
Q. I have seen standard forms on the internet and elsewhere. Can I use these forms?
A. While these forms can be helpful for families that simply cannot afford an attorney, they are often not suitable for a given set of circumstances. Michigan law provides special requirements for these documents to be valid and protect your child’s government benefits. A standard form may not conform to those requirements. It is best to consult a special needs attorney for assistance in most cases.