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Special Needs Trusts Can Successfully Protect Child Support Payments For Minor And Adult Children With Disabilities

Imagine this scenario: You successfully obtained a settlement for a couple whose child was severely injured.  You collaborated with an elder law attorney to create a special needs trust to protect the settlement proceeds and preserve the client’s government assistance.  Several years later you get a call from one of the client’s that the couple is divorcing and asking if you can refer them to a family law attorney.

The next visit is to the family law attorney who will advocate for that parent’s right to alimony and the child’s right to child support. Alternatively, if the couple was divorced prior to the lawsuit one parent may seek to reopen the family law case to request continuing support for the client’s adult disabled child after the age of majority. Can you identify the unique legal issues raised by these  facts, and the appropriate solutions?

Tale:

You represented the wife in a dissolution of marriage proceeding approximately 11 years ago. When the divorce was granted the couple had a minor age son. The son was diagnosed from birth with mental retardation (or in some cases the child is injured at birth as a result of malpractice). The son attends special education classes in the public school system and had an ESE plan created for him (exceptional student education). The wife was designated the primary residential parent.

The couple’s son has now turned age 18. Normally the father’s support obligation would end. However, your former client has asked you whether she has the right to petition the court for continued support. You ask her how her son is doing. She tells you that he is dependent upon her, needs guidance and supervision. He is receiving vocational rehabilitative services but is not working yet.The parent is considering having the child apply for SSI and Medicaid assistance in order to receive financial support and medical coverage.

You remember reading our newsletter that discussed how people with developmental disabilities could qualify for SSI (Supplemental Security Income) as well as Medicaid assistance. You recall that there is an asset limit of $2,000.00 and an income limit. Most importantly, you remember that once a minor child becomes an adult the parents’ assets and income are no longer reviewed by the government agencies.

You orchestrate a meeting with your client, the boy’s Father and his attorney. The Father is not completely adverse to continuing to pay child support however, he is concerned that it be used specifically for his son (and not the boy’s Mother) and that his son qualify for government benefits. Then, the thought crosses your mind that if the Court grants the request for continued child support that it could result in the son losing eligibility for SSI and Medicaid because he may have excess income or, assets. How do you advise your client.

Tip:

A collaborative venture is necessary for your client to be successful in seeking entry of a court order based on Florida Statute § 743.07(2) for support of a dependent person beyond the age of 18 years. Stephanie, a Board Certified Elder Law Attorney, will provide innovative solutions  that are in the best interests of the adult disabled child. These will include creating a special needs trust, guiding the parents through the application process for SSI and Medicaid, and educating the Family Law Court on why irrevocably assigning the child support payments to the special  needs trust will allow the child to maintain government assistance. Depending upon the adult child’s capacity it may be necessary to initiate a guardianship or, guardian advocate proceeding in order for the parents to have authority to create the special needs trust. Our firm has more than 18 years of experience in counseling client about special needs trusts, government benefit planning, and guardianships.

“Proper Planning May Create Peace of Mind”

Law Office of Stephanie L. Schneider, P.A.