The United States Department of Health and Human Services issued a news release today about the International Day of Persons with Disabilities.  Some of the highlights include:

Saturday, December 3, 2011 is the 19th Annual International Day of Persons with Disabilities, a day to highlight efforts to improve the conditions of persons with disabilities. Across the globe, 15 percent of the world’s population is living with a disability and about a quarter of the global population has a family member with, or works with, someone with a disability.

When the Americans with Disabilities Act was passed in 1990, America became the first country in the world to declare equality for citizens with disabilities.

* The information contained in this Blog is intended for general information and educational purposes only and does not constitute legal advice or an opinion of counsel.

What would you do if you saw someone having a seizure? Would you know what to do?

November is National Epilepsy Awareness Month and the Epilepsy Foundation’s national initiative – Get Seizure Smart – is a grassroots public awareness campaign aimed at getting information about seizure first aid and recognition into the hands of as many Americans as possible, so they will know how to respond if they see someone having a seizure. Even though epilepsy is the most common neurological disorder affecting all age groups, it is still largely misunderstood by the general public.

According to the Epilepsy Foundation, 25,000 to 50,000 people will  die of seizures and related causes this year. Some people live well with controlled seizures, while others, approximately one-third of Americans with epilepsy,  have seizures that are resistant to medical treatment. Epilepsy causes many people to live with constant anxiety, wondering when the next seizure will strike. No age group or demographic is exempt. It is estimated that 1 in 100 children will be diagnosed with epilepsy before age 20, and the number of cases in the elderly continues to soar as the baby boomer generation approaches retirement age. Currently, more than 570,000 adults ages 65 and older in the United States have the condition.

You may have heard that special needs trusts are required to reimburse the government for MediCal expenses incurred by the trust’s beneficiary when she passes away, and, in some cases, this is true. But not all special needs trusts are required to contain this type of “payback” provision, so if you are worried that the trust funds will go to pay back the government, you may not have anything to fear.

If a parent, grandparent, family friend or any other interested person wants to set up a special needs trust for a person with special needs, they will typically create a “third-party” special needs trust. The trust is called a “third-party” trust because it is funded with assets that do not belong to the person with special needs. These trusts are commonly used by family members to set aside inheritances for, or to simply provide additional assistance to, a family member with special needs. If properly created and funded, the assets in a “third-party” trust will not count as the beneficiary’s funds if or when she applies for benefits like Supplemental Security Income (SSI) or MediCal. Most importantly, a properly designed “third-party” special needs trust does not have to include a payback provision, meaning that the government has no right to the funds when the beneficiary dies.

On the other hand, if a person with special needs wants  to place her own funds into trust, she has two main options – transfer the funds into a trust established for her benefit by a parent, grandparent or court called a “first-party” special needs trust (because the assets come from the person with special needs herself) or transfer the funds into a pooled disability trust that is run by a non-profit organization. In almost every case, these types of trusts must contain payback provisions in order for the beneficiary to avoid a loss of government benefits due to excess assets.

In many cases, a family member looking to fund special needs trust for a person with special needs will utilize a “third-party” special needs trust that doesn’t contain payback provisions and that provides enormous benefits to the person with special needs. Even if the trust does contain a payback provision, in some cases where the beneficiary exhausts all of the trust’s assets, there may still not be a government payback at all.

* The information contained in this Blog is intended for general information and educational purposes only and does not constitute legal advice or an opinion of counsel.

The National Academy of Elder Law Attorneys (NAELA) has declared October 2011 “National Special Needs Law Month.”  NAELA will be sponsoring programs throughout the United States to educate older Americans and Americans with disabilities about their legal rights and to call attention to the legal resources available to them within their own communities. I will be speaking to the San Jose Caregiver’s Support Group of the Northern California Alzheimer’s Association on Monday, October 10, 2011 about Conservatorship issues and the planning that can be done to avoid Conservatorships.

I am a member of NAELA, which is a professional association of attorneys concerned with improving the availability and delivery of legal services to  older Americans and Americans with special needs.  There is a growing need for attorneys that specialize in Special Needs Law as families and caregivers become more aware of the legal rights of their loved ones. Special Needs Law attorneys assist families in financing long-term care, and providing them with the legal tools for financial management, such as powers of attorneys and trusts as well as understanding Medicare and Medi-Cal, special needs trusts and a student’s right to an independent educational plan, housing options, and other issues.

* The information contained in this Blog is intended for general information and educational purposes only and does not constitute legal advice or an opinion of counsel.

Some commonly asked questions.

My son receives disability benefits from Social Security.  I heard that if I gave him a gift or left him money in my will he will lose his benefits.  I really want to leave some money to my son, is there a way to do this without causing him to lose his Social Security?

There are several different types of benefits available from Social Security. The only Social Security benefit that would be affected by a gift or an inheritance is Supplemental Security Income (SSI), which is a needs based program. If your son is receiving another form of Social Security benefit, which are referred to as entitlement benefits, he will not lose his benefits if you give him a gift or inheritance.

Because SSI is a need based program it has rules about how much property a person can have (resources) and how much income (including gifts and in-kind support) they can receive and still qualify for benefits. It is still possible to give gifts and leave an inheritance for your son without disqualifying him for his SSI, but it must be done within the rules that have been established for that program.

Gifts. You cannot give your son cash gifts, or pay for his food and shelter without causing at least partial disqualification from his SSI benefits. These gifts or support are counted as income or in-kind support that will reduce or disqualify your son’s SSI. There are, however, goods and services which you may purchase for him that will not cause a loss or reduction in benefits from SSI.  For example, you could purchase a cell phone for your son and pay his monthly service fees directly to the cell phone company.  Chapter 21 of the Social Security Handbook has more detailed information about what you can provide to your son.

Because the rules are quite complex, you should consult with an attorney with public benefit experience if you are unsure whether a gift will disqualify your son from benefits.  Your son’s medical coverage may be dependent upon his remaining qualified for SSI.

Inheritance. You can leave an inheritance to your son without disqualifying him for SSI, but it will take some advance planning. You can create a Special Needs Trust (SNT) for your son, to be funded upon your death, through your estate plan or you can create a SNT now that can hold monetary gifts or inheritances from yourself and others for your son. A properly drafted SNT will not be counted as an available resource for SSI, but the distributions from the trust will be counted as income, unless care is taken to make the distributions in the manner described in the Gifts section above.

If your son has already received a gift or inheritance, it is not too late to preserve his SSI benefits.  Your son or his conservator/guardian can petition a court to create a SNT.  This SNT will have different restrictions than one that you could have created for him.

* The information contained in this Blog is intended for general information and educational purposes only and does not constitute legal advice or an opinion of counsel.