About Special Needs

Supplemental Security Income (SSI) was created to ensure that the elderly, blind, and disabled have a guaranteed minimum monthly income for living expenses. The amount paid is a combination of federal and state dollars and there is a formula to determine the amount, depending upon what other income there is available Though it is administered by the Social Security Administration (SSA), eligibility is based only on financial need, and, unlike Social Security Retirement Benefits or Medicare, payments are not dependent on any amount having been paid into the Social Security system.

People who qualify for SSI usually also qualify for Medicaid, a government program which covers many health care costs.

Social Security Disability Income (SSDI) pays benefits to those who are unable to work according to the very strict Social Security definition of disability. Benefits continue until the beneficiary is able to work again or reaches retirement age (in which case disability benefits become retirement benefits). Unlike SSI, you must have paid Social Security payroll taxes to collect SSDI benefits. Eligibility and benefit amount depends on age and number of accumulated work credits. After two years of receiving SSDI benefits, the beneficiary automatically becomes eligible to receive Medicare, even if they are less than age 65. Certain family members may also qualify for disability benefits, such as children of a covered worker. We can help you sort through the maze of government rules to determine what your loved one with a disability is entitled to.

A special needs trust is created with the intent of supplementing a disabled person’s income in order to pay for wants and needs not covered by government benefits.

If there are proceeds from a personal injury or medical malpractice settlement or judgment, then the special needs trust can be a lifesaver because the proceeds can be protected for the injured party while maintaining access to Medicaid, if necessary, to pay for the high cost of extended long term care.

In many states, the terms special needs trust and supplemental needs trust are used interchangeably. However, in the state of New York, a special needs trust specifically refers to a trust set up for a disabled person who already has his/her own assets, and a supplemental needs trust is set up for a person with disabilities by a third party such as a parent for such person.

In either case, it is extremely important to make sure that the trust meets the requirements of the government program(s) from which the disabled person currently benefits or is seeking benefits. If the trust does not comply with these requirements, the person with special needs (called the trust beneficiary) could lose his or her government benefits!

A supplemental needs trust can only be created for a person under the age of 65, and cannot be created by the individual for whom it would benefit. The trust usually covers things like education, clothing, recreation and uncovered medical care, etc. Because the assets were never owned directly by the person, someone who is a trust beneficiary of a supplemental needs trust can still receive benefits from government programs.

There are two forms of trust that allow someone to qualify for Medicaid and SSI: special needs trusts (sometimes referred to as payback trusts or d4a trusts) and pooled trusts (sometimes referred to as a d4c trust).

A special needs trust (payback trust or d4a trust) must be created by a parent, grandparent or legal guardian for a disabled person under age 65. Any money that remains in the fund after the beneficiary’s death must be used to reimburse (or pay back) Medicaid.

A pooled trust (d4c trust) is administered by a non-profit organization with the assets of the disabled person held in a separate account for his or her benefit. Depending upon the terms of the trust, the remaining account balance on the death of the person may pass to the charity or have to first be used to pay back Medicaid.

Our law firm can outline the pros and cons of these two different types of trusts and advise you as to which one is best for you.

Not without first talking to a qualified special needs (disability) lawyer experienced in special needs planning! Leaving money outright to your child may make them ineligible to receive government benefits and there may be no one with the legal authority to manage the funds. We can help you accomplish your goals without endangering your child or grandchild’s benefits. Trusts can be very helpful, such as the supplemental needs trusts discussed above.

In New York, once your child reaches the age of eighteen, you will not be able to make legal decisions for your child unless you are the legal guardian. Some people with special needs are capable of executing their own documents. Our law firm can advise you as to whether these documents can be executed or whether a legal proceeding needs to be commenced in the court for your appointment of legal guardian of your adult child. If your minor child is developmentally disabled or mentally retarded, then an Article 17A guardianship proceeding should be commenced six months before your child’s eighteenth birthday. We can help you with this process.

Our law firm is willing to act as trustee for your child should you pass away. We care about your child’s welfare and want you to feel secure that we will advocate for him or her after you are no longer able to.

What is the Difference Between an Article 17a Guardianship and an Article 81 Guardianship? An Article 81 Guardianship is for people of any age who can not make their own legal decisions. It is obtained in the New York Supreme Court.

An Article 17A Guardianship is for people who were born and certified as mentally retarded, developmentally disabled prior to age 22, or brain injured. It is obtained in the Surrogate Court, usually before a child reaches the age of eighteen. This type of guardianship has the advantages of being more family-friendly and costing less in legal fees because it is processed in New York Surrogate’s Court.

A special needs attorney (disability lawyer) at our law firm can help you determine whether a guardianship is necessary, and the steps to be taken to be appointed legal guardian. Our firm can also advise you as to your responsibilities as legal guardian.