In Special Needs Planning

Screen shot 2022 12 30 at 10. 56. 19 amIn Louisiana, when a person turns 18 years old, he or she is legally considered an adult and is presumed to have the capacity to marry, vote, enter into contracts and do all the things that adults can do. Some individuals with disabilities will be able to do these things without any assistance, while others may need support in navigating the “adult” world. And then, there are others who may never be able to do these things on their own.

When a disabled child is in school and qualifies for special education services, that child is “entitled” to those services. There are no waiting lists. Local school systems are the single agency that coordinates special education services. This single point of service coordination does not exist in adult services and  services in the adult system are usually not entitlement based. 

Since there is no single source to tell you what you need to do when your special needs child turns 18, we have created a list of the most common things you should consider. While this list isn’t exhaustive and not everything on the list may apply to you and your child, we hope it will be a good place to start.

  1. Decide if your child should apply for Supplemental Security Income (SSI). SSI is a federally-funded, needs-based disability program for adults and children which provides monthly cash benefits. The applicant must meet disability and income requirements to qualify. You can apply as soon as the month after the child turns 18. If your child turns 18 on the 1st of the month, file that month. An article from the Aging and Disability Resource Center for Dane County, Wisconsin provides an excellent guide to when and how to apply for SSI for your child. The article can be found on their website
  2. Get a valid state ID and register to vote. Once your child turns 18 years old, he or she will need proof of identification for many things, including setting up a bank account or getting a job. If your child will not be getting a driver’s license, you will need to obtain a Louisiana ID card. You can visit your local Office of Motor Vehicles to obtain an ID card. You can find the information you will need to obtain an ID card and regsiter to vote on the OMV website.
  3. Decide if you should apply for Medicaid. If your child receives even $1 per month of SSI, he or she will be automatically eligible for Medicaid, a program funded by the federal and state governments. Medicaid pays for health coverage for people with disabilities. However, even if he or she does not receive SSI, he or she may qualify for Disability Medicaid in Louisiana. You can access information about Disability Medicaid at the Louisiana Department of Health’s website.
    If your child isn’t already receiving services through a Medicaid Waiver and/or is not currently on a waiting list for a Waiver, decide if your child should be screened for one. Medicaid Waivers can provide services and supports to assist individuals with disabilities with their needs at home and in the community.
  4. If your child is a male, he must register with the Selective Service. Men with disabilities still need to register with the Selective Service System. Almost all male U.S. citizens and male immigrants who are 18 through 25 are required to register with Selective Service. The easiest and fastest way to register is to register online
  5. Consider having your child sign powers of attorney naming you as the Agent for financial and health care decisions. If your disabled child has legal capacity, when he or she turns 18 consider whether you should consult with an attorney about healtch care directives and a financial power of attorney so you can assist your child with financial and/or health care decisions.
  6. Discuss whether or not guardianship is appropriate. If your child does not have the ability to understand or execute legal documents, it might be necessary to become your child’s guardian (what we call a “curator”  in Louisiana). You should contact an attorney who practices “interdiction” law in Louisiana to discuss whether a guardianship (curatorship) should be started. If your child is under 18, in Louisiana you can apply to a court to become his or her “continuing tutor.” While similar to an interdiction, the continuing tutorship might be a less difficult and cheaper process. Make sure you start this process well before your child turns 18 as it may take months to complete, and if your child turns 18 before it is complete, you will then have to use the interdiction process.
  7. Meet with an estate planning attorney to discuss whether you should have a Special Needs Trust to hold your child’s inheritance at your death. If you believe that your child will require Medicaid, SSI, or other governmental subsidies, discuss a Special Needs Trust (SNT) and/or an ABLE account. These tools can prevent Medicaid and SSI financial disqualification. Further information about SNT and ABLE can be found online. Don’t forget to ask other family members if they intend to leave anything to your child at their death. Often, well-meaning grandparents leave a gift at their death to their grandchild that causes SSI and/or Medicaid disqualification. An estate planning attorney with knowledge of special needs planning can assist in making sure everyone’s plan for your child protects their vital benefits.

With the above information, you’ve got a great start on what to be aware of and what steps to take to ensure your special needs child is ready for adulthood. And when in doubt, know that you can get help from qualified professionals, like estate planning attorneys, who can help guide you through the process.

The information provided is not intended to be legal or tax advice and does not constitute any attorney/client relationship. You should consult with an attorney for individual advice regarding your own situation.

Ms. Melancon is an attorney with Legacy Estate & Elder Law of Louisiana, LLC with offices in Baton Rouge, New Orleans and Lake Charles, LA. The primary focus of her practice is estate planning, probate, special needs planning, and elder law. For more information or to attend an upcoming estate planning seminar, call her office at (225) 744-0027.

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