Most individuals with intellectual and/or developmental disabilities can manage their own affairs with assistance and guidance from their support system. If guardianship is necessary, it should be tailored to your needs and monitored to protect your best interest. In the eyes of the law everyone is legally permitted to make decisions on his/her own behalf at the age of majority. The only way your parent can continue making decisions for you is to become your legal guardian. Fortunately, guardianship is not all or nothing – you can carve out areas to retain important decision-making rights.
There are three types of guardianship:
1. Limited: Makes decision in only some specific areas, such as medical care.
2. General: Broad control and decision-making authority over the individual.
3. Conservator: Manages the finances (income and assets) of a person with a disability.
Special Needs Trust
A Special Needs Trust can be your primary savings tool for the future. It allows you to develop savings without jeopardizing your ability to receive government benefits.
They can be used for anyone receiving public benefits, such as Supplemental Security Income or Medicaid.
Items to remember when setting up a special needs trust:
• What supports do you need to manage these finances? How will you protect yourself from fraud?
• Will you need a lawyer?
• The Special Needs Trust needs to be separate from any other living trust your family may have.
• The trust is irrevocable in your name once funded, but the trust owns the assets, not you.
You can also look into the ABLE Act (see below), a tax-free savings accounts to cover qualified expenses such as education, housing and transportation.
The Achieving a Better Life Experience Act of 2014 (ABLE) states that its purpose is to (1) encourage and assist individuals and families in saving private funds for the purpose of supporting individuals with disabilities to maintain health, independence, and quality of life; and (2) provide secure funding for disability-related expenses of beneficiaries with disabilities that will supplement, but not supplant, benefits provided through private insurance, title XVI (Supplemental Security Income) and title XIX (Medicaid) of the Social Security Act, the beneficiary’s employment, and other sources. For more information, click here.
Other Legal Considerations
Other legal considerations to keep in mind while planning for your future:
Note: It is necessary to obtain legal assistance from an attorney who specializes in disability law; the law is complicated and there are many details to know and understand. Handling legal proceedings is also timely and energy draining. The right attorney will have the knowledge of the law and procedures to resolve your case. There are several pro bono attorneys available.
New Jersey Resources
South Jersey Legal Services (SJLS) is a non-profit organization with over 50 years of experience created to provide quality legal representation and advocacy to low-income individuals in Atlantic, Burlington, Camden, Cape May, Cumberland, Gloucester, Monmouth, Ocean and Salem Counties.