Special Needs Planning


Your child is turning 18 soon and I commend you for all of your effort and care.  In order to continue to be the decision maker for your child in areas where warranted, a special proceeding is brought in Surrogates Court to appoint a guardian.  Minor children’s parents are typically their natural legal guardians, making all decisions for them like consenting for medical treatment, choosing schools, permitting travel, applying for insurance, or government benefits, etc.

Upon reaching the age of 18, the children are considered independent adults who make their own decisions.  Even though it may seem obvious to you that your grown child continues to need assistance with decisions, in the eyes of the law, you’re no longer his legal guardian.  You may petition the Court to be his legal guardian, and set up a system of standby or alternate guardians as well so that there is a plan in place with a guardian to look after your adult child in the future.  I encourage you to make these arrangements promptly to avoid delays or lack of instruction in the future.

Article 17A guardianship (17A is the citation for the New York State statute that provides for this type of legal guardian) provides for a developmentally disabled or mentally retarded child reaching age of majority OR adult who developed disability during childhood.  (I often provide this service pro bono or at reduced fee for parents in need.)

Special Needs Trusts:

Since Medicaid, housing programs, and other government benefits are income and/or resource based, it’s important that the recipient does not receive funds in their own name that exceed those limits and render them ineligible for those benefits.  Money and other assets may be held in Trust for a disabled individual to be used to enhance quality of life while preserving vital government benefits.  Trusts may hold inheritances, structured settlements from lawsuits, gifts, etc.

A trust is an entity that has three participants, the person who creates it, the person in charge of it, and the beneficiary.  The person in charge of it is the Trustee.  The beneficiary would be the special needs individual.  The trustee would make sure to only spend the money in the Trust on expenses for the beneficiary that are not already covered by Medicaid.  In other words, the Trustee would make sure to operate the trust in compliance with Medicaid rules and prevent jeopardizing vital benefits.