Special Needs Trust and the ABLE Act

October 12, 2016 By Margaret Fulton

Chances are that you have heard of a Special Needs Trust. What is a Special Needs Trust and why is it necessary? You may have also heard about the ABLE Act. Both the ABLE Act and special needs trusts are important tools in planning for the future of your special needs child.

Parents of a child with special needs, or other family members, can leave that child’s inheritance to the special needs trust instead of directly to the child. If your child will not able to work or live independently, he or she may need to remain eligible for “means-based” public benefits, such as SSI or Medi-Cal. The receipt of an inheritance by your disabled child might cause the child to lose eligibility for these vital benefits. A properly drafted special needs trust can hold assets for the benefit of a disabled person without those assets counting as the property of the disabled person. The assets of the special needs trust will supplement the public benefits the disabled person may be eligible to receive and will make it possible for the disabled person to have the same quality of life in the future.

Another new option for parents and special needs persons is to open an ABLE Account. The Achieving a Better Life Experience (ABLE) Act of 2014 allows people who have disabilities that began before they turned 26 to keep money in a special tax-advantaged account. The first $100,000 in an ABLE account does not count against the $2,000 Supplemental Security Income (SSI) resource limit, and none of the money in an ABLE account is counted for determining Medi-Cal eligibility. Each state is authorized to open its own ABLE account program, and California recently passed legislation to establish an ABLE program. However, the California program is not available yet and may not be ready for some time. The federal legislation does provide that you can open an ABLE account in another state. Ohio is the first state to establish this program and Tennessee has just opened an ABLE program. Both states allow contributions from residents of all states.

Article was written for Parents Resource Guide Summer 2016 and can be viewed at: parents-resource-guide-summer-2016.

Decision Making for Your Eighteen Year Old Special Needs Child

October 12, 2016 By Margaret Fulton

When your child reaches age eighteen, your son or daughter is legally an adult. Adulthood, for all persons, brings legal rights and responsibilities. An adult can legally enter into a contract and make medical decisions. Moms and dads, including the author of this article, are surprised to learn that, after they have made decisions for their child for eighteen years, now medical providers ask them to leave the room during doctor’s appointments and are no longer able to share information with them. This situation can be even more challenging for the parents of a child with special needs. Before your disabled child turns eighteen, it is important to determine whether a parent should continue to be involved in her financial and medical decisions. Will a court conservatorship be necessary, or will there be a less expensive and less restrictive option which will allow parents and others to continue to participate in decision-making? There are several alternatives to consider.

If the disabled person has sufficient capacity to understand and execute documents, she can sign powers of attorney to allow an agent, such as a parent, to handle health and financial affairs without court supervision. In California there are two types of powers of attorney: one which deals with finances, and another which deals with health. By signing a financial power of attorney, the adult child can give a parent or other trusted person the authority to make financial decisions for her. The power of attorney can be effective while the person with disabilities has capacity, or it can become effective at a future time when the individual loses capacity. A health care power of attorney, also called an advance directive, gives a parent or other individual the ability to make heath care decisions for the adult child. In addition, the adult child with sufficient capacity can sign a HIPAA authorization which will permit parents or other individuals to access the child’s health records and other medical information. Of course, with the young adult’s consent, parents or others can always informally assist her in making her own independent medical and financial decisions.

If the person with a disability does not have the capacity to understand and sign documents, it may be necessary to establish a court conservatorship. Before authorizing the establishment of a conservatorship, the court must determine that a conservatorship is the “least restrictive alternative” for making decisions for the disabled person. There are two kinds of conservatorships. A regular conservatorship gives the court-appointed conservator full decision- making powers. Limited conservatorships are similar to regular conservatorships, except they are only established for developmentally disabled adults. A limited conservator’s duty is to help the limited conservatee develop self-reliance and independence. The judge will only give the limited conservator powers to do things the disabled person cannot do without help.

If a conservatorship is necessary, it’s a good idea to start the process well before the disabled person’s eighteenth birthday. An estate planning and special needs attorney can help you evaluate your child’s individual situation and arrive at the appropriate arrangement for your child.

Article was written for Sacramento Parent. You can view it here.

Attorneys Attend MIND Institute’s Summer Institute on Neurodevelopmental Disorders

August 30, 2016 By Karen Rabak

On August 5, 2016, attorneys Margaret Heiser Fulton and Ashley Clower attended UC Davis Mind Institute’s Summer Institute on Neurodevelopmental Disorders. Over 200 people attended the conference. Participants included medical professionals, social workers, parents of children with disabilities, and educators. Ms. Fulton and Ms. Clower were the only attorneys to attend as guests. The keynote speaker was Andrew Imparato, the Executive Director of the Association of University Centers on Developmental Disabilities. He spoke about disability policy on a national level and his work to create bipartisan support for improving education and employment opportunities for people with disabilities and moving people with disabilities into integrated settings in the community. One of the workshops we found especially interesting was a discussion of “supported decision making” as an alternative to conservatorships.

Attending this MIND institute conference allowed us to get invaluable insight into the policies and changes occurring in the disability community, and helped us to better understand the issues faced by special needs families.

Margaret Heiser Fulton Attends Annual Special Needs Planning Meeting

March 10, 2016 By Margaret Fulton

Margaret Heiser Fulton attended the 10th annual meeting of the Academy of Special Needs Planners, held in Tucson, Arizona, March 10-12, 2016. The 235-member Academy is the nation’s leading organization of special needs planning professionals. Members of the Academy devote a significant part of their practices to working with individuals with special needs and their families to plan for the future and ensure that children with special needs receive ample financial protection.

The Academy’s annual meeting featured presentations by some of the nation’s leading experts in special needs planning, who kept attendees current on the latest regulatory changes and legal decisions and shared strategies for better serving clients and their families in this fast-growing legal field. Meeting sessions included “An Update on SSI Rules,” “Special Needs Trusts and Retirement Benefits,” “Recent Trends in Special Needs Planning,” “Identifying and Handling ‘Tricky Issues’ in SNT Administration,” as well as an “Ask the Experts” panel discussion. Perhaps most importantly, the meeting afforded the chance for attendees to exchange planning ideas and strategies with fellow members working in special needs planning around the nation.

This year’s meeting was held concurrently with the Society of Settlement Planners, giving attendees invaluable insights into how to best work with these key players in the special needs arena.

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