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Sheri R. Abrams
Attorney at Law
10467 White Granite Drive
Suite 306
Oakton, VA 22124
(571) 328-5795
Please see our website at:
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 I hope this month's newsletter finds you well and enjoying the warmer weather! I loved watching another year of the cherry blossoms blooming and I had the opportunity to visit with my family in New Jersey over my son's spring break.
As we head into the end of the school year, many parents, including myself, will soon be celebrating high school graduations for their son or daughter. This is of course a huge milestone for all parents, but even more so for parents who have teens with special needs. With celebration also comes an urgency to plan. Time is now of the essence to create legal documents that will allow you to continue to make medical decisions and manage your now adult child's legal and personal affairs.
Keep in mind that the type of planning that you'll need is not "one-size-fits-all;" instead, it will depend on your child's level of independence, how you envision your child spending his or her future (going to college, staying in high school, joining a vocational program, working, etc.) and your financial situation. In the article below, I've outlined some of the legal tools that Special Needs Planning Attorneys will often utilize to help parents of young adults with disabilities achieve their goals, and some of the drawbacks you should be aware of.
Ultimately, you'll want to sit down with an attorney to chart out a path that is best for your family. If your child is approaching age 18, or possibly even 22 and is preparing to age out of school, please feel free to hit "reply" and I will be happy to meet with you to discuss your options.
Have a great month,
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The Difference Between a Power of Attorney and a Guardianship
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As we age, decision-making about money or health care can get harder as physical or mental conditions change. If a person loses the capacity to make big decisions, a power of attorney or a guardianship provide different ways to plan for making important choices on a person's behalf. Understanding the differences between them can help make sure a senior or disabled person and their property are well taken care of as they get older or become unable to make decisions for themselves.
What is a Power of Attorney?
A power of attorney (POA) is a written document that authorizes another person to act in an individual's place. The individual must have legal capacity when they sign the POA, which means that they must be able to understand that they are giving up the power to make certain decisions to someone else. A durable POA permits another person to act for an individual even if the individual loses that ability to understand the purpose of the POA after signing the document. Durable POAs can be used to permit a trusted person to make decisions about money or health care for an individual. POAs should be drafted by a lawyer familiar with the law of POAs to make sure they are valid where the individual lives.
What is a Guardianship?
In a guardianship, a person is appointed by the court to make personal decisions for another individual. When a guardian is chosen, the disabled and/or incapacitated individual becomes a "ward" of that person and loses many of their rights. For this reason, a guardianship should be a last resort reserved for cases where individuals did not have a durable power of attorney drafted when they were able to do so. A guardian can be appointed only after the court finds that the individual is incapacitated based on the evidence provided.
What is a Conservatorship?
A court may also appoint a conservator, who makes decisions related to the financial situation and property of the ward. Normally a person has to be able to be bonded to be appointed a conservator.
How do I know whether a POA or a Guardianship is more suitable?
Whether a power of attorney or a guardianship is appropriate depends on the ability of the individual to understand and make decisions. If an individual still has the ability to understand and make decisions, and has someone to appoint to help act for them, a durable POA is the right choice. Durable POAs allow an individual to keep more decision-making power and should be obtained while the individual is still legally able to do so. A guardianship places significant limits on an individual's ability to act and decide for themselves and is only appropriate if the individual has already lost the ability to make and understand decisions. Additionally, a guardianship is more costly, time-consuming, and often takes a greater emotional toll on the family. In any situation, only a trusted, reliable person should be appointed to act under a durable POA or appointed as a guardian or conservator.
If you have a person in your life (especially a senior or a person with a disability) and they are interested in creating a power of attorney, or you are interested in filing for a guardianship or conservatorship for them, please contact our office.
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Will My Social Security Disability Benefit Amount Increase If My Condition Worsens?
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Social Security Disability is a government program that pays monthly benefits to individuals who become disabled and can no longer work.
In order to qualify the individual must have a disability that is severe enough to prevent them from working for a year or more, or result in death. The claimant must have also accumulated enough work credits throughout his or her career, the amount of which will depend on his or her age at the time of disability.
It's important to note that Social Security does NOT pay benefits for partially disabling conditions. If you are granted benefits, it means that you are 100% disabled-nothing less.
As such, the amount you are paid monthly in the form of your Social Security Disability benefit is not tied to your medical condition. If your condition worsens, your benefit will not increase to reflect such changes as you were already considered 100% disabled when you were approved for benefits.
On the flip side, your benefits can be taken away if your condition improves and your ability to work is restored. At various times, the disabled individual will need to go through a Continuing Disability Review (CDR) to evaluate whether or not they still meet the qualifications to receive benefits.
The bottom line is that while benefit amounts will not increase if your condition worsens, you can lose your benefit all together if you get better.
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Good News for Beneficiaries of Special Needs Trusts
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Last year the Social Security Administration (SSA) specifically clarified that
True Link Cards can be used to make disbursements from Special Needs Trusts (SNT) for beneficiaries who receive Supplemental Security Income (SSI).
As long as the correct card settings are in place, according to the guidelines in SSA's Program Operations Manual System (POMS), True Link Cards provided by a trustee to SNT beneficiaries are not countable as income or as a resource for SSI eligibility.
You can read the full text of the SSA's update
here.
This means that a beneficiary of a Special Needs Trust can enjoy the independence of using a re-loadable Visa card while still protecting their benefits.
Here's what you need to know:
The Special Needs Trust, not the beneficiary, must be the account owner and administrator;
The card should not be used to take out cash or then the amount will be considered cash income, which can jeopardize SSI benefits;
The card should not be used to buy food or shelter, as then this would be counted by SSA as In-Kind Support and Maintenance (ISM), which can reduce the amount of your SSI benefit by as much as 1/3;
If the card is used at places that sell food or shelter, like Walmart, Target, or drugstores, receipts should be collected for all purchases;
A True Link Card can be set up with the spending restrictions that a beneficiary needs. Therefore, a beneficiary can confidently and independently use a True Link Card that is owned and administered by the trust or trustee and set up to block cash withdrawals and purchases of food or shelter. Purchases attempted at merchants or in categories that are blocked will be denied.
For more information visit:
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Free Download of Sheri Abrams' New Special Needs Planning Guide!
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Special Needs Planning is critical to ensure that parents can access key benefits and resources that will be necessary to ensure a smooth transition for their child into adulthood.
You can download a free copy:
here
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Free Download of Sheri Abrams' Book "Don't Gamble With Your Social Security Disability Benefits"
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You can download a free copy:
For more information please click
here
to read our Press Release.
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| Our Office Location |
The law firm of Sheri R. Abrams, Attorney at Law is located at:
10467 White Granite Drive
Suite 306
Oakton, VA 22124
(571) 328-5795
This is in the "ServiceSource" building and there is plenty of free and accessible parking.
Our office is also accessible by public transportation.
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| Referrals |
If you know of someone who could use our legal services, please forward to him/her this e-mail newsletter or give him/her our telephone number: (571) 328-5795.
We provide legal services in the areas of Social Security Disability Law, Special Needs Planning, Elder Law, Estate Planning, Special Needs Trusts, Wills and Trusts, Powers of Attorney, Advance Medical Directives (Living Wills), Guardianship, Conservatorship, Disability Planning and Student Loan Discharge.
If you, or someone you know, is involved with an educational event or support group that would benefit from a presentation on any of the areas of law for which we provide legal services, please call us at (571) 328-5795.
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