disabilities

March 15, 2012 by Rebecca Esmi

Timing is everything: special considerations in Guardianship proceedings

Special considerations arise for children with disabilities. Parents or parental surrogates have legal authority over their minor children and so can make decisions on their behalf. But they can no longer make decisions for offspring who have reached 18 absent a Guardian appointment. It is essential that parents be decision-makers for their disabled children for medical, educational, legal, and any and all other matters.

A good rule of thumb is that parents of a child with a disability should consider initiating a Guardianship proceeding mid-way through the child’s 17th year. This will generally allow time for the proceedings to be completed.

Once initiated, a Guardianship allows appointment of a temporary guardian during the pendency of the proceeding typically not to exceed 45 days. This is an important step in minimizing gaps in decision-making. N.J.S.A. 3B:12-24.1(c) et seq.

March 15, 2012 by Rebecca Esmi

Guardianship: Court-granted surrogate decision-making for an incapacitated person

A guardianship is a legal action whereby a third person with standing is authorized by the Court to make decisions for an incapacitated individual. The legal test for incapacity is the inability to govern oneself or manage one’s affairs. N.J.S.A. 3B:1-2. It may apply to individuals with physical or mental illness or disability, as well as those who are chronic substance abusers. In New Jersey, the action is brought in the county Chancery Court, Probate Part.

The Guardian is that third person once vested with the court’s authority to decide, while the adjudicated incapacitated person is called the Ward. The authority granted may be full or limited, depending upon the capabilities of the Ward. For example, if a Ward needs help solely with his or her finances, a limited Guardianship for this specific purpose is warranted. Limited Guardianships should be employed to ensure self-determination as feasible. However, should a Ward be fully incapacitated, then a full Guardianship may be warranted.

A proceeding for third-party decision-making authority may be involuntary (Guardianship) or voluntary. A voluntary proceeding is called a Conservatorship, but in reality, it is rarely seen perhaps because of the flexibility of Guardianships.

January 16, 2012 by Rebecca Esmi

Don’t “kill” your beloved disabled family member with uninformed kindness

Guardians or parents of a disabled child may apply for income from the Social Security Administration under the Supplemental Security Income program (SSI). This benefit can be essential both financially as well as by opening the door to other key benefits, such as Medicaid, SNAP (formerly food stamps), and other state-provided social services. The disabled person must be a citizen of the United States or a legal permanent resident and must meet eligibility requirements as to disability. The disabled person must also meet asset and income related requirements (2012 numbers): (1) Having less than $2,000 in “resources” or assets; and (2) $705.25 or less per month in income (the first $20 is exempt).

Many well-intentioned family members and friends, however, jeopardize this critical benefit by their uninformed actions. These actions include:

Gifting.
Designating the disabled person as beneficiary on insurance policies.
Child support. One-third of child support payments received on a monthly basis are deducted in calculating the amount of income imputed to the disabled person.

The proper course of action is to deposit funds into, or designate as policy beneficiary, a Trust for the disabled person. Note there are several types of trusts that are typically used for these circumstances, generally a grantor-provided Special Needs Trust or third-party provided Supplemental Benefits Trust. A key difference between the two relates to treatment of remaining funds upon the disabled person’s death. Generally speaking, a properly-drafted Special Needs Trust requires that any remaining funds in the Trust must upon the death of the disabled person reimburse the State. This contrasts with the upon-death provision in a Supplemental Benefits Trust, which allows payment to a different beneficiary (e.g., a sibling).