“Disability” by general definition, means a physical or mental condition that limits a person’s movements, senses, or activities. As you know, there is a sliding scale that represents the level of someone’s “disability.” I’d like to focus today on families that have a minor child or child nearing the age of 18 that are disabled.
To most parents it can be extremely daunting to navigate the world of a child with a disability. If your child is born with a physical or mental health issue, not only are you learning how to function with a new baby at home, but also with a child with a health issue, possibly juggling other children and a job. As your child grows, you are now learning how to bring school/outside education into the picture and navigating the world of individualized education plans or IEPs. Soon your child will reach the age of 18 and even though you have cared for this child for their entire life, you are not automatically extended that right. You may need to jump through some hoops to continue to have the authority to act on behalf of your child.
From the financial side of things, you may need to educate yourself on the various programs that might be available to your child and the limits they impose on the amount of assets your child can have. Minnesota recently launched their ABLE program. ABLE is an acronym that stands for Achieving a Better Living Experience, check out www.ablenrc.org. The Minnesota ABLE plan helps individuals save, while preserving their Supplemental Security Income (“SSI”) and Medicaid benefits. It is one of the tools that parents may want to consider for children with a disability.
Our goal is to give the family the ability to continue to assist their child the best they can on a go forward basis and yet give the child as much room to be as independent as possible in spite of their disability. We want to learn as much as possible about the child, the nature of the disability, the level of capacity that child has to do various tasks and the entire family structure. We look for the least restrictive and burdensome options for the child and the family.
At a very minimum, parents with minor children (under the age of 18) should have a basic Will that identifies who you want to care for your children if something were to happen to you and your spouse. As your child with a disability reaches the age of 18, we need to identify who is going to continue to act on behalf of that child.
For example, if your child has experienced mental health issues (bi-polar) or even drug use issues, they may still have the capacity to maintain a job and live on their own. However, it may be as simple as having that child execute a power of attorney or health care directive to name parents to make decisions both financially and for health care purposes if that child becomes unable.
Children that are born with their “disability,” such as down syndrome, microcephaly or severe asperger’s syndrome, to name a few, will likely not have the capacity to execute the above documents and parents will need set up a guardianship/conservatorship on behalf of this child when they reach the age of 18. In a situation where a child has had the disability since birth and lived with and been cared for by parents for their life, the process to set up is fairly straightforward. The hard part is the new reporting requirements and monitoring that parents must now comply with. The parents are now under the supervision of the court system and the state of Minnesota. This of course is frustrating to the parents who have always taken good care of their children. It is a few bad actors out there that have made this process so supervised.
Any family with a disabled child needs to give some consideration to the legal documents required by parents so they can continue to act on behalf of their child who has now reached the age of majority. We’ll discuss in the coming articles more details on other types of disabled individuals and estate planning that should be considered.
Please send me an email at firstname.lastname@example.org with any topic suggestions or requests you may have. Although we cannot give you legal advice through the column, we can provide some general information that may be helpful for you to know. Our purpose is to educate and we hope that you can take something new away from this column each time you read it.