Tilling the Soil at Planting the Seeds

amandaBy Attorney Amanda Buzo

I had the honor of once again speaking at the Cuyahoga County Board of Developmental Disabilities’ semi-annual seminar, Planting the Seeds for a Successful Future, on October 12.  It is organized and moderated by John and Carol Culley, and I recommend it to anyone who has a loved one who currently receives, or may need, Board services.  We have also received great feedback from the county employees, group home administrators, and other professionals who have attended.

John and Carol truly plant the seeds of discussion and invite those of us who provide assistance to people with disabilities to join them in reviewing residential options, Waiver services, Board services, and general planning advice.  I presented on the topics of special needs estate planning, government benefits, and guardianship.  The attendees asked great questions and I thought it may be helpful to summarize them for our newsletter as you may have similar questions.

I know that to be eligible for Medicaid and SSI, a person’s resources have to be below a certain level.  But I also know that certain assets are exempt.  What assets are exempt?

Resources are items owned by or available to the person with a disability.  To be eligible for Medicaid, a single person’s resources must be below $1,500.00.  If a person receives Supplemental Security Income (SSI), and does not receive Medicaid, his or her resources may total $2,000.00.  Exempt resources are assets that are not included in the resource calculation, and include, but are not limited to, one vehicle, one home as long as the person with a disability lives in it, clothing, household items such as furniture, and properly drafted trusts.

I already established a trust for my child.  Is it a countable resource?
It depends on the specific terms of your trust.  If the trust is funded with assets that are owned by the parent, or anyone other than the child, then the trust most likely needs to be discretionary.  This means the trust should not include language that is standard in trusts established for people without disabilities, such as requiring the trustee to distribute trust assets to the beneficiary for “health, education, maintenance and support” or requiring the beneficiary to receive a certain percentage or dollar amount from the trust every year.

When does a trust require a Medicaid payback provision?
A trust requires a Medicaid payback provision when funded with assets owned by the beneficiary and the beneficiary wants to retain Medicaid eligibility.  For example, Tim has a disability and receives Medicaid.  He receives money or an asset (such as an inheritance, personal injury claim, accrual of earnings, or lump-sum back payment from Social Security), and having the asset will cause him to lose his Medicaid eligibility because he will have more than the $1,500.00 allowed under Medicaid rules.  For Tim, one option is asking  a parent, grandparent, guardian, or a court to establish a trust for his benefit.  Tim would then move his excess funds to the trust.  Because this type of trust holds assets which once belonged to Tim, the trust must have a Medicaid payback provision, which means that upon Tim’s death, Medicaid will be repaid out of the then-existing trust assets for the services provided to Tim.

My child is turning 18, and I am hesitant to seek guardianship.  Are there alternatives to guardianship?
If a person is competent and 18 or older, but needs some assistance, there are many alternatives to guardianship.  The person in need of assistance could nominate an agent to make financial decisions for him or her in a document known as a durable general power of attorney, or, in a separate document, nominate a person to make medical decisions, known as a health care power of attorney.  There is also an educational power of attorney which nominates an agent to make school-related decisions.  Medicaid and Social Security have their own forms which allow a person to name a representative for those agencies.

I heard my child could get Social Security on my work record when I die.  Can you give me more details?
If an adult child with a disability has a parent who has paid into the Social Security system, and the parent is disabled, retired, or deceased, then the adult child may be able to receive a portion of the parent’s Social Security benefit.  The child must be 18 or older, and must have been disabled prior to the age of 22.  This benefit is commonly known as Childhood Disability Benefit (CDB), or Disabled Adult Child (DAC).

I thought Medicare was only for people over 65, so how is my brother, who is disabled, receiving Medicare?
There are several ways your brother might be eligible for Medicare.  An adult child receiving CDB or DAC benefits, discussed above, will also be eligible for Medicare eventually.  Medicare is also available to people with end-stage renal disease or amyotrophic lateral sclerosis (ALS or “Lou Gehrig’s Disease”), regardless of their age.  Additionally, some adults with disabilities receive Social Security Disability Income benefits (SSDI) based on their own work records.  After receiving 24 SSDI checks, that person will be eligible to enroll in Medicare.

My brother has a disability and is working.  He is financially ineligible for Medicaid but he needs health insurance.  What can he do?
There is a Medicaid program designed for this exact situation.  It is known as Medicaid Buy-In for Workers with Disabilities (MBIWD).  It is different from “regular” Medicaid because it has higher income and resource limits.  To be eligible for MBIWD, a person with disabilities must be employed, either part-time or full-time, have resources less than $10,580, and earn no more than 250% of the federal poverty level, currently $27,084 per year.

If you are interested in attending a future Planting the Seeds for a Successful Future seminar, please speak with your Support Administrator or contact John Culley at  Sessions are scheduled for Spring and Fall 2012.

Posted in Articles, Articles: Children with Special Needs.