44 THE QUEENS COURIER • HEALTH • AUGUST 3, 2017 FOR BREAKING NEWS VISIT WWW.QNS.COM
The Elder Law Minute TM
Protecting the Assets and Benefi ts
of a Child with Disabilities
BY RONALD A. FATOULLAH, ESQ.
AND YAN LIAN KUANG-MAOGA,
ESQ.
Parents of children with disabilities
have a lot on their plates. While the day
to day care of a child with disabilities is
paramount, it is also crucial for parents
to plan for their child’s fi nancial needs
and continuing care. Engaging in proper
fi nancial and legal planning is generally
done to make sure that the funds available
to the child will not jeopardize the child’s
eligibility for any governmental benefi
ts such as Supplement Security Income
(SSI) or Medicaid. Planning for families
of children with disabilities oft en involves
two parts - planning for the child’s money
and planning for the parents’ money.
Planning to Protect
the Child’s Money
Oft entimes, a child’s disability may be the
result of some compensated personal injury
and therefore the child may come into a
sum of money. While this sum of money
is helpful to have for the care of the child,
it is oft en not nearly enough to provide for
his or her lifetime care. Th erefore, a properly
structured plan should protect the settlement
ELDER LAW
funds to supplement the benefi ts
that the child would be entitled to from
government programs such as Medicaid to
cover medical costs. A Special Needs Trust
(or Supplemental Needs Trust) is one great
vehicle to protect the child’s settlement
money. Th is type of trust is well established
and recognized by all governmental
agencies to preserve the money of the child
with disabilities. A Special Needs Trust
funded with the assets of the child is called
a First Party Special Needs Trust. First
Party Special Needs Trusts have specifi c
requirements in order to be recognized as
such. One requirement is that there must
be a “payback” provision. Th is means that
once the child dies, any balance of assets
in the trust must go towards reimbursing
Medicaid for all medical expenditures paid
for on behalf of the child. Th is type of tr ust
can also be used for any inheritance that the
child may receive during his or her lifetime.
Planning to Protect the
Parents’ Money
By law, a child is entitled to a portion
of his or her parents’ estate. Th erefore,
unless parents actively plan to avoid such
an inheritance, the child with disabilities
will get a portion of the estate. As mentioned
above, while a Special Needs Trust
is a great vehicle for protecting the funds
of the child, including funds from an
inheritance, the disadvantage is that any
balance in the trust must go towards paying
back Medicaid. Most parents would
prefer any balance to be distributed to
their intended benefi ciaries. Th erefore,
it is recommended that parents engage
in planning and establish a Th ird Party
Special Needs Trust for their child with
disabilities. A Th ird Party Special Needs
Trust also enables funds to be set aside
for the child without aff ecting his or her
government benefi ts. However, as it is a
Th ird Party Trust which is funded with
the parents’ assets, there is no need for a
“payback” provision and the parents can
designate the benefi ciaries to receive any
balance remaining in the trust aft er the
child dies. A Th ird Party Special Needs
Trust may be set up as a “living trust”
(a live and active trust while the parents
are alive) or a “testamentary trust” which
means that it is provided under the wills
of the parents and will not come into
eff ect until the parents pass away.
Fortunately, the assets of a child with
disabilities and his or her parents can
be set up in such a way as to provide
for a positive quality of life by supplementing
the benefi ts the child may
receive from various governmental agencies.
However, it is imperative to engage
the services of an attorney knowledgeable
in this area of law to properly set up
the trust for the child and the estate plan
for the parents.
Ronald A. Fatoullah, Esq. is the principal
of Ronald Fatoullah & Associates,
a law fi rm that concentrates in elder
law, estate planning, Medicaid planning,
guardianships, estate administration,
trusts, wills, and real estate.
Yan Lian Kuang-Maoga is an elder law
attorney with the fi rm. Th e law fi rm can
be reached at 718-261-1700, 516-466-
4422, or toll free at 1-877-ELDER-LAW
or 1-877-ESTATES. Mr. Fatoullah is
also a partner with Advice Period, a
wealth management fi rm, and he can
be reached at 424-256-7273.
RONALD FATOULLAH
ESQ, CELA*
SECURITY VS. DEPENDENCY, AND AGING
A grim choice confronts some people
when they face problems associated with
advancing age. Do they have to accept
insecurity and deprivation? Must they
surrender much of their independence
and integrity in order to be helped?
Elderly men and women may prefer to
go it alone instead of taking advantage of
available resources to which they may be
entitled. To the world they may appear as
stubborn and unrealistic. But they may
feel life would no longer be worthwhile
if they were to become too dependent on
others for their needs.
Young adults may also fear the dependency
associated with old age. It’s not
unusual for them to declare that they
would rather die than grow old with
a multiple of diseases and disabilities,
rightly or wrongly associated with aging.
Th us, the dread of old age already infl uences
the thoughts, feelings and actions
of people who are still years away from it.
Since this fear of dependency weighs
heavily upon so many people, both old
and not so old, it’s important to understand
the psychological and bio-social
realities. Th e question then is: why does
dependency appear as such a grim prospect?
We all begin life as helpless infants that
are dependent on others for our survival
and well-being. It takes years to reach a
point before we can take full responsibility
for our lives. Many of the steps along
the way are diffi cult and few of us make
our way without struggle or confl ict.
We are always having to prove our
independence to ourselves and others
and struggle to overcome the temptation
of sliding back to that earlier stage
of dependency.
We recognize the advantages of independence
and the obstacles we must
overcome to gain it. Th ere are also times
when it seems so pleasant to drift into a
more passive state, seemingly to relinquish
what we’ve achieved. “Let somebody
else take care of us, make the tough
decisions, protect, nurture….”
Th is ambivalence is complicated by
biological and cultural expectations and
impulses. A s adults, we may be called
upon not only to be self-reliant, but also
to meet the dependency needs of others,
especially young children. Th is too
can be hard on the type of person who
may have strong dependency cravings
beneath a façade of independence.
An old person is not a child by any
stretch of the imagination and it is therefore
appropriate for an elderly individual
to seek help and protection as physical
and/or mental abilities begin declining.
Family and community can provide
aid and comfort that will go a long way
in assuring the elderly they are not alone
during a crisis, now and in the future.
A few examples of that aid can be a hot
meal, a ride, medication pickup, and any
other kind of meaningful assistance.
Quotable Quote: “Nothing in the
world is more dangerous than sincere
ignorance.”
Dr. Sheldon Ornstein is a
registered professional nurse
with a doctoral degree in
nursing organization. He
has specialized in the care
of older adults and has
published many articles on
the subject. He has done
post-graduate work in gerontology
and has taught
at several universities. In
2013, he was inducted into
the Nursing Hall of Fame at
Teachers College, Columbia
University.