Adult Children with Disabilities: Creating a Support System

March 27, 2023Filed Under: Elder Law, Estate Planning, Special Needs

Growing numbers of people with disabilities live in the United States, and planning for an adult child’s future well-being is a responsive, continuous process. A Journal of the American Medical Association reports the life expectancy of adults with Down Syndrome has increased from 25 in 1983 to 60 in 2020. The same study cites that those with cerebral palsy, the most common motor disability of US children, may often live into their 50s.

The ever-increasing life expectancies of adults with disabilities mean that comprehensive special needs planning requires short and long-term planning to lay the foundation of five key elements to ensure a successful support system:

Vision
Living Accommodation
Government Resources
Private Financial Resources
Legal Needs

Vision

How do you envision your adult child’s life after you’re gone? As you define and refine your vision to the extent possible, you should involve your child in the process. It’s important to focus on the strengths and abilities of the adult child, not just the challenges of their disabilities. This involvement helps promote self-esteem and independence to the highest degree possible.

Letter of Intent (LOI)

Although this letter is not a legal document, it provides key instructions and information about your child’s routines, preferences, and wishes. The LOI can and should be extremely detailed, including identifying caregivers, medical information and providers, and other individuals in their lives who may be a good fit to care for or support your child. Reviewing and updating the letter at least every two years or when significant changes occur is good practice.

Supported Decision-Making

If your adult child is capable and in charge of decision-making, selecting a team of trusted advisors is still important. This team may include family members, professionals, friends, and community services who all participate in your adult child’s success. The National Resource Center for Supported Decision-Making has information about the right to make choices by state.

Living Accommodation

Where your adult child will live depends on several factors, including their disability type and available financial resources. If your child currently lives in your home, don’t wait until you die to have them move into and experience a new home. Moving can be a tough experience while you are alive but catastrophic when you are gone.

Housing Options

Your home – It’s great if you can leave your residence to your child in a special needs trust as long as it also contains enough money to cover ongoing property maintenance, taxes, and other costs.
Another home – You might purchase a townhouse or condo for your child and hold the property in a special needs trust.
Section 8 vouchers – This federal program provides housing in the community to low-income people; however, wait lists can be long.
Group homes – Adults with disabilities can use private money or Medicaid payments to live in a group home. In some cases, this living situation also has counselors and other staff that can help residents live as independently as possible.
If assisted living is a requirement, a special needs attorney can help identify options.

Government Resources

Creating a schedule of the individuals, services, and organizations that have become your adult child’s support system and how they are financed makes your vision for your child a reality. You can be creative, and pair speech, physical, and occupational therapists, as your child’s abilities develop more fully. Much of your child’s resources throughout adult life will depend on the continuation of government programs that provide the support and services they need.

Government Assistance Programs

It’s wise to involve a special needs attorney to explain how to properly manage these resources to preserve your child’s access to government programs.

A person with developmental disabilities can often access the Supplemental Security Income (SSI) program, which guarantees a minimum income to qualifying low-income recipients. A representative payee can assist those individuals who are unable to manage their finances.

To be eligible for Medicaid benefits, the recipient must have a limited income and assets (assets not protected by ABLE or Special Needs Trust accounts) and covers a broad range of healthcare costs.

Maintaining eligibility standards and managing these benefits may be more than your adult child with disabilities can manage. Identifying a reliable candidate and creating the structure that legally permits them to facilitate these programs is crucial to your child’s future well-being.

Many US military personnel have experienced serious physical and mental health problems since serving in Iraq and Afghanistan. A large percentage of these service members are unmarried and under thirty. For parents of veterans with disabilities, look into the Veterans Disability Compensation program.

There is also a benefits program for veterans with permanent disabilities, which is needs-based. The Veterans Disability Pension has eligibility requirements based on your adult child’s assets and income. A veterans specialist or disability attorney can create a special needs trust to ensure your adult child can qualify.

Many other government programs are available to help your adult child with disabilities have a successful future. A special needs attorney can explain more about discrimination protections outlined in the Americans with Disabilities Act (ADA), the Affordable Care Act (ACA), the Ticket to Work Program, and more.

Private Financial Resources

Parents of children with special needs have additional planning requirements to ensure the safety and success of their child’s life when they are no longer alive to oversee that child’s well-being. Creating a realistic strategy is key to success. Begin with creating a general framework with a special needs lawyer and then fill in the financial details. Financial resources may include life insurance policies and other investment strategies, such as funding an Achieving a Better Life Experience (ABLE) account. The cash flow these accounts create will allow your adult child to continue living a life of safety, purpose, and impact after you are gone.

Additionally, your lawyer can create a special needs trust appropriate for your family’s financial situation and child’s needs. This trust type provides additional monies to your adult child without them losing eligibility for government benefits. There are various special needs trust types, including:

Third-Party Special or Supplemental Needs Trust (SNT)
First-Party Special Needs Trust or Self-Settled SNT
Pooled Special Needs Trusts

Legal Needs

There are several legal tools that parents can use to create a lifelong plan for their adult child with disabilities, including:

Guardianship
Conservatorship
Special Needs Trusts
Advance Health Care Directive
Durable Power of Attorney

It’s important to consult with an attorney who has experience with special needs and disability law to determine the best option for your adult child’s future specific needs and situation.

Conclusion

Planning for your child with special needs is customized to your family circumstances and your child’s unique needs. Legal guidance is critical because missteps can lead to ineligibility for crucial government benefits programs. To provide for your child’s future success after you are gone, speak to a special needs or disability attorney and begin your proactive planning.

We hope you found this article helpful. If you’d like to discuss your particular situation, please don’t hesitate to reach out. Please contact our Cincinnati office by calling us at 513-771-2444 and schedule a consultation. We look forward to the opportunity to work with you.

Appeal Rights for Medicare Recipients

January 30, 2023Filed Under: Elder Law, Long Term Care

An appeals court recently ruled that some Medicare beneficiaries may now appeal decisions regarding their patient status.

The Underlying Issue

When Medicare patients go to a hospital, they often enter through the emergency department. The physician who attends to them must decide whether to admit them into the hospital as an inpatient, discharge them, or keep them in the hospital under observation status. A patient under observation services receives care virtually identical to inpatient care but is classified as an outpatient to qualify for traditional Medicare coverage.

If the patient receiving observation services must go to a nursing home to continue their recovery, traditional Medicare won’t cover the nursing home care because they were not classified as an inpatient for at least three consecutive days when they were in the hospital. This can have a serious financial effect on the patient since they must pay for the services on their own. What made the situation worse is that the Centers for Medicare & Medicaid Services would not allow patients to appeal the decision.

Observation Status

A patient in observation status is in limbo since a physician has determined that they are too sick to go home but not sick enough to be admitted into the hospital as an inpatient. They receive basically the same level of care as a patient who is classified as an inpatient, including mental and physical assessments, diagnostic tests, short-term treatments, medications, and feedings.

In 2015, then-President Barack Obama signed the Notice of Observation Treatment and Implication for Care Eligibility Act, a.k.a. Notice Act. The Notice Act requires hospitals to notify patients if they have been receiving hospital services under observation status for more than 24 hours. Patients must be given both written and oral notifications if their observation status exceeds 36 hours.

The written notice must explain why the patient is not classified as an inpatient. It must explain how their observation status may affect the cost of their hospital care and their eligibility for skilled nursing facility care coverage. The written notice must be signed by the patient or someone acting on the patient’s behalf. If they refuse to sign the notice, then a staff member of the hospital must sign it.

Alexander v. Azar

A recent federal court decision in the Alexander v. Azar case sided with Medicare beneficiaries who had been admitted to hospitals as inpatients but then changed to observation status. If you were a patient in a hospital and switched from inpatient status to observation status, you may have the right to appeal Medicare’s decision. To appeal your observation status decision, you must have been:

Hospitalized since January 1, 2009
A Medicare beneficiary with traditional Medicare (not Medicare Advantage) during your hospitalization
Admitted to the hospital as an inpatient before your status was changed to observation status
Notified of Medicare Outpatient Observation status from the hospital or have a Medicare Summary Notice stating that you will, or did, receive observation services that are not covered by Medicare part A
Qualified for either both Medicare Part A and Part B or only Medicare Part A
Hospitalized for at least three consecutive days but fewer than three days as an inpatient
Admitted to a skilled nursing facility within 30 days of discharge from the hospital.

Stay up to date as this situation develops by checking in with the Center for Medicare Advocacy.

Help with Medicare and Medicaid

Navigating the complicated Medicare and Medicaid systems can be difficult and time-consuming. It is all too easy to make mistakes that will cause coverage to be denied. An experienced elder law attorney can guide you through the process to get the benefits you need.

This article offers a summary of aspects of estate planning, elder law, and Medicaid and Medicare coverage. It is not legal advice and does not create an attorney-client relationship. For legal advice, you should contact our Cincinnati office by calling us at 513-771-2444 and schedule a consultation.

A Guide to Being Appointed as a Guardian of Property

January 23, 2023Filed Under: Elder Law

Martin, your grandfather, cannot make decisions on his own anymore. A court appoints you to be Martin’s guardian of property, to help Martin manage his money. You become Martin’s “fiduciary.” The law now requires you to act to a high standard of good faith and honesty.

There’s a lot of work involved with a guardianship, and the high standard could be daunting. To assist you, the Consumer Financial Protection Board (CFPB) has issued a guide: “Managing Someone Else’s Money: Help for Court-Appointed Guardians of Property and Conservators.” Download your free copy.

The guide details property-guardianship duties. These include keeping careful records, taking care to keep Martin’s money separate from yours, and making sure to spend Martin’s money for Martin’s benefit, only. The court order signed by the judge may provide a list of your duties, or, if not, you can follow the list provided in the CFPB guide. You may be paying Martin’s bills and taxes, overseeing bank accounts, making investments, obtaining insurance, and any other duties contained in the court order appointing you.

The guide recommends that as a first step, you must carefully read the court order. Speak to a lawyer about it if you can, and of course especially if the law in your state requires you to. The guide warns that you may be required to buy a bond, but, if you do not have good credit, you may not be able to get it. If so, the guide directs, inform the judge of this point before you are appointed.

The guide further details the guardian’s duties. These include creating an inventory of Martin’s property, keeping Martin’s goods and home safe, creating a budget for spending on Martin’s behalf and how to document that spending, how to sign checks on Martin’s behalf, and how to create an accounting to submit to the court as often as the court requires.

Also included is valuable advice to consult Martin as much as his condition permits; to resist pressure from others who may not have Martin’s best interests at heart; and, if in doubt, to consult the judge first before acting. You may also be required to consult and work together with other people whom Martin has designated for health care and other personal matters.

A guardian appointment is a big responsibility, as you must care for the person conscientiously and attentively. Be reassured, though, that help in discharging your duties is available to you from the court and from the CFPB guide.

If we can help you or a loved one understand when a guardianship may be necessary, please don’t hesitate to reach out. Please contact our Cincinnati office by calling us at 513-771-2444 and schedule a consultation.

How to Take Care of Your Elderly Parents

January 16, 2023Filed Under: Elder Law, Long Term Care

There is nothing you can do about aging, and it affects everyone in your family. It can be challenging for adult children to imagine their parents as seniors and to understand and respond to the reality that each parent will age differently. Even if you are in the fortunate circumstance where your aging parents can go it alone for a long time there will come a day when assistance or long-term care will be needed. There are things to consider as you help your parents live their best possible aging scenario. Managing their welfare takes time, research, and planning.

Your parents and their abilities to remain independent are most easily defined by activities of daily living and instrumental activities of daily living (ADLs and IADLs). Activities of daily living address daily functional mobility like getting in and out of bed or a chair, self-feeding, bathing and personal hygiene, the ability to use the toilet, and the ability to get dressed. These are essential daily living requirements that promote dignity and physical as well as emotional well-being for your elderly parents. If your parents are having difficulty managing these ADLs, it is an appropriate time to find help for them whether it is you or another qualified caregiver.

IADLs include all ADL activities and more. The additions are grocery shopping and cooking, medication management, laundry, and other housework, bill paying and finance management, using a telephone, and driving or using public transportation. Recognizing your parent’s limitations in any of these categories is a sign that you need to develop a care plan that provides appropriate assistance. The degree of change or sometimes multiple changes is an indication that staying at home may no longer be appropriate and safe for your parent. If you require assistance in determining suitable care needs, you can set up a comprehensive geriatric assessment by a medical professional. Take an honest look at the stage of life your parent is experiencing and then find the support and help they require.

Your aging parents’ geographical location is critical to consider as a family. Families are fortunate when one adult child lives nearby and can ensure their parent’s well-being. Video chat either online or through a phone application is one way to daily check on a parent. A friend may live close by and can do wellness checks and provide information about behavioral or health changes. If none of these options are viable, it may be time to discuss the idea of your parent(s) downsizing into another more supportive location and living arrangement.

Having this discussion is best before a parent’s adverse health event. Making residential changes without a previous plan in place can negatively impact the parent, especially when experiencing a health care crisis. When aging at home cannot be appropriately managed, it is time to consider the alternatives. These alternatives may include independent living communities, assisted living communities, nursing homes, or living with a trustworthy and capable relative or family member.

All of these assessments and changes in your parents’ lives impact their financial outlook. Making necessary residential changes can often be very costly, and your parent may need additional financial support from government or community programs to offset the difference in expenses. It is critical to take advantage of all possible financial help. As an adult child, you may have to begin managing your finances and retirement funds more actively. There are various federal, state, and non-profit groups that provide free tax assistance for seniors.

Some of the better organizations to help you navigate what is available are online and include Benefits.gov, Area Agency on Aging, and Benefitscheckup.org. These groups can help you assess the best strategies for housing, healthcare, financial assistance, legal aid, transportation, in-home services, prescription drugs, energy and utility support, and nutrition. BenefitsCheckUp is part of the National Council on Aging and is considered the nation’s most comprehensive online service for seniors with limited income and resources. The information available canvases all 50 states and the District of Columbia.

Caring for your aging parents should not be the job of one family member. The commitment should not be a burden, and responsibilities should be shared. Look for caregiver support organizations and forums as well as involving all family members. Everyone should do their part. The goal is to find the best blend of options and resources to allow your parents to age happily and well. Your parents’ health changes require that programs and opportunities change too. Caring for your aging parent is a dynamic process that must be retooled as their needs change.

We help families who are trying to navigate the maze of long-term care either for themselves or for an aging parent. We hope you found this article helpful. If you have questions or would like to discuss your personal situation, please don’t hesitate to contact us at 513-771-2444.