Special Needs Issues: Did You Know…?

Special Needs Issues: Did You Know…?


By Donald D. Vanarelli, Esq.

Parents of children with special needs face many legal issues that may be critical to the care and welfare of their children. Below are just a few of the issues that parents of children with special needs should be aware of.


…that, when your child turns 18, you lose your parental rights over your child’s personal and financial affairs?

Unbeknownst to some parents of children with special needs, the parents’ rights over their child’s affairs terminate upon the child attaining the age of majority. At this point, parents lose the right to manage their children’s financial affairs, to direct their child’s medical or personal affairs, or even to obtain medical or other personal information regarding their child. This is why, if your child is unable to manage his or her personal or financial affairs, it is critical that you apply to the courts to be appointed as your child’s guardian.

Parents are entitled to be appointed guardian unless there is a showing that the appointment would be contrary to the child’s best interests. The process of applying for guardianship involves filing legal papers, along with the certifications of two physicians certifying that the child is unable to govern himself/herself or manage his/her affairs.

The appointment of a guardian necessitates a court adjudication that your child is legally incapacitated, and there are various legal duties imposed upon a guardian. However, appointment of a guardian is the best way to ensure that you will remain legally entitled to manage your child’s personal and financial affairs.

…that setting aside funds for your child’s benefit may jeopardize your child’s right to public benefits?

A common mistake made by parents of children with special needs is to set aside funds for their child (either by making direct gifts, establishing a support trust, or leaving money or assets to the child by Last Will and Testament). What some parents may not know is that such distributions may actually jeopardize their child’s current or future entitlement to certain public benefits, such as Supplemental Security Income (“SSI”), Medicaid and New Jersey Division of Developmental Disability (“DDD”) benefits.

Instead, parents should consider establishing a “special needs trust” for the benefit of the disabled child. The parent(s) may establish and be named as the trustee(s) of the trust, or another relative, trusted friend or institution may be named.

A special needs trust is designed to supplement, and not to supplant, impair or diminish, public benefits a beneficiary is receiving or may receive. A special needs trust is used (1) to protect the trust corpus, if the beneficiary is eligible for public benefits; and (2) to protect eligibility for benefits, which would otherwise be in jeopardy by an outright distribution.

In some cases, a well-intending relative may have left money outright, or in trust, to your child under a Last Will and Testament. It is also possible to apply to the court to “reform” that Last Will and Testament, so that the funds are placed in a special needs trust to protect the child’s eligibility for needs-based governmental benefits.

A special needs trust may also be funded with the disabled child’s own money (for example, from a litigation settlement or from gifts the child has received over the years), to preserve the child’s eligibility for public benefits.

Although there are special requirements to which the special needs trustee(s) must adhere strictly, a special needs trust is an invaluable tool by which to ensure that your child retains his or her eligibility for public benefits while having the benefit of trust assets to enhance the child’s quality of life.

…that your child may be entitled to public benefits as a result of his or her disability?

There are many public benefits to which a disabled child may be entitled. Additionally, eligibility for such benefits may change as the child reaches the age of majority.

For example, the child may be entitled to Supplemental Security Income (“SSI”) and Medicaid, or Social Security Disability (“SSD”). If the child has reached the age of majority, he or she may obtain such benefits under the child’s own social security number. Upon reaching the age of majority, the Social Security Administration’s “deeming” of the parents’ assets and income to the child ceases, often resulting in the child becoming eligible for SSI and Medicaid.

Moreover, if the parent(s) are receiving SSD or social security retirement benefits, the child may be entitled to social security benefits under the parent(s)’ social security number.

Other public benefits programs exist and should be explored, such as benefits through the New Jersey Division of Developmental Disabilities (“DDD”). End of article icon.


For additional information regarding Special Needs Planning Issues, call us at 908-232-7400 or click here to contact us online.

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