54 THE QUEENS COURIER • HEALTH • MAY 4, 2017 FOR BREAKING NEWS VISIT WWW.QNS.COM health The Elder Law Minute TM When Your Child with Special Needs Turns 18… BY RONALD A. FATOULLAH, ESQ. AND EVA SCHWECHTER, J.D. Parents of children with special needs ELDER LAW face unique challenges in raising their children. One such challenge is the question PERPETUATION AND AGING BY DR. SHELDON ORNSTEIN Numerous anthropologists have described ceremonies in many parts of the world during which a group of people keep their collective past alive by a drama or dance enactment of a great battle victory. We don’t have to look to far off lands for a ritual perpetuation of the past. Th e chances are we do it ourselves and will do it even more as we continue to age. At times this tends to keep the past alive and is carried out by groups such as alumni or veterans, but more oft en it is a task each person does for himself. Th ere is an enormous form of diversity in past perpetuating behavior. Recalling a loved one may involve as little as a once a year observance, or as keeping a room set aside while waiting for “his return” from a college break or a military homecoming. We may even perpetuate the past by the way we speak and the clothes we wear. Our actions may be so obvious as to invite curiosity and perhaps ridicule, or so subtle that only we ourselves know what these little actions may mean. Th ere may be powerful reasons for this kind of behaving as though past is still present. Th e last surviving member of a family, for example, has the responsibility of keeping an entire family history from perishing. Nobody else will represent all those lives and keep them preserved for future generations . Th ere are few available avenues for sharing personal and family recollections with our present and future society. Perhaps it would be to the advantage of society to have some specialists around to represent the past. We scrap and discard many mutual material items, (i.e.: planned obsolescence) a familiar strategy. We treat the past as disposable. Yet if we valued it more, then the individual man or woman, young or old, who cherishes certain features of the past, would become more a part of the mainstream of social life. Perpetuation of the past is only unhelpful when the “pastness” itself is denied. Th e existence of this process in a particular person however, does not necessarily indicate a weakness or pathology. We must try to understand the role of past perpetuation especially in the older individual’s total life situation. How does one keep the past alive? by those moments in history that are signifi cant and that are brought back to life; by recalling a loved one that serves to give the older person something tangible to organize himself around. In other words, a means of self refl ection and validation that allows the individual to renew and achieve faith in his own competency. 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. of what to do when a child with special needs turns 18, the legal age of adulthood. It is during the few years aft er a child turns 18 that the services and programs associated with the public education system end, and are replaced by different benefi ts targeted toward adults. Managing the transition from services for minors to adult care presents one of the greatest challenges for parents of children with special needs. Th ere are a number of paths the parent can take to ensure that her adult child is best provided for in the future. First, parents must ensure that there is someone who is authorized to make monetary and health care decisions for their child once she reaches majority age. One such option is to pursue a guardianship. Th is process involves hiring an attorney and providing medical proof to the court of the child’s legal incapacity, among other things. At the conclusion of the process, if the court declares that the child is incapable of making decisions on her own, they will appoint the petitioner (usually the parent) as guardian. Following appointment, the guardian must make periodic accountings to the court, to ensure that she is acting in the child’s best interest. Courts typically require that guardians ask for court approval before making any large-scale decisions regarding a ward’s fi nances or living situation. Alternatives to guardianships exist that can help avoid the cost and burden of guardianship. If the 18-year-old has adequate capacity and understanding, she may execute a durable power of attorney giving an agent the power to make many fi nancial decisions. She may also execute a health care proxy designating an agent to make health care decisions on her behalf. Th ese documents, when properly draft ed and executed, are usually suffi cient to prevent a parent from having to resort to guardianship if their child’s decision-making ability becomes more limited later in life. Another concern for parents of children with disabilities is continuing health care coverage. Once a child turns 18, her own income and assets factor into the calculation for SSI. If a child has more than $2,000 in assets when she reaches the age of 18 she will be ineligible for Supplemental Security Income (“SSI”). To avoid this situation, and allow the child to maintain her SSI and Medicaid benefi ts, a parent, grandparent, guardian or the court has the power to create a trust, known as a “fi rst-party” supplemental needs trust (“fi rst-party SNT”) to hold her savings. Any assets held by the trust do not count towards the $2,000 asset limit for SSI, allowing her to qualify. One requirement of a fi rst party SNT is that when the benefi ciary passes away, any funds remaining in the trust must be used to reimburse the state for the benefi ts which the trust benefi ciary received during her lifetime. In addition to preserving the child’s own assets, parents want to be assured that their child can benefi t from additional services being paid for by themselves or others without compromising the child’s eligibility for government benefi ts. Many families create trusts known as “third-party” supplemental needs trusts (“third-party SNT”). For a third party SNT, families must fund the trusts with their own assets, not with their child’s funds. A requirement of the trust is that the trustee is given complete discretion to distribute the funds for a benefi ciary’s care. As long as it is properly draft ed and executed, the funds held in the trust will not count as the child’s assets. Furthermore, these trusts do not have to contain a payback provision, allowing families to place significant amounts of money into the trust without worrying that the government will receive a large portion later on. Th e trusts can then provide a child with special needs with “supplemental” services and care, in addition to those provided via government benefi ts. Many parents choose to provide for their child’s continued maintenance by funding the SNT with life insurance proceeds. Th e transition to legal adulthood presents parents of children with special needs with various hurdles, including transitions in terms of benefi ts programs, education, and medical coverage. Whenever this transition occurs, it requires careful planning and extensive research regarding the options available in the particular community. Fortunately, with proper planning and assistance from professionals in the fi eld, these transitions can be smooth and can open up new opportunities to individuals with special needs and their families. 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. Eva Schwechter is an associate 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*
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