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Parents of children with developmental disabilities often have major concerns regarding the future of their children once they are no longer able to take care of them. Therefore, it is important to make arrangements for guardianship. Guardianship is a process which legally gives a parent, relative, friend, or organization the right to act on behalf of the individual with the developmental disability. Until a child reaches the age of 18, guardianship can be provided for through your will. However, once your child reaches 18, the law considers all adults competent unless a guardianship hearing has taken place and the person in question has been determined unable to care for himself/herself. To ensure your continued authorization to act on behalf of your child’s best interest, guardianship should be obtained by the time he/she reaches the age of 18. However, you may apply for guardianship after the age of 18 as well. Guardianship is processed through the Surrogate’s Court in the county in which the child resides. You should contact an attorney who is knowledgeable about guardianship and estate planning for people with developmental disabilities or you can contact the New York State Commission on the Quality of Care for the Mentally Disabled and ask for information on this subject. They will send you sample forms and instructions on how to fill them out, as well as offer guidance if you choose to file the petition on your own without the assistance of an attorney. Drafting a will serves three functions:
In the case of parents who have a child with a disability, you will probably be advised not to leave any of your estate outright to this child. Provisions for him/her would best be met by setting up a Trust. This way your child will not lose eligibility for government entitlements such as Social Security, Medicaid, etc. and yet the money in this trust could still be used to enhance the quality of his/her life. As mentioned above, a trust is an important tool in providing for your child’s future. Basically, a Special Needs Trust gives you the power to:
There are many different ways to establish a Trust and a great many things to take into consideration. Retaining a competent attorney who is well versed in Special Needs Trusts for people with disabilities is key in guaranteeing your child’s rights. For additional information, contact: Saratoga County Surrogate’s Court 30 McMaster Street Ballston Spa, NY 12020 884-4722 or NYS Commission on Quality of Care
for the Mentally Disabled, Your child may be eligible for various government entitlements such as Social Security or Medicaid. Depending upon your individual circumstances, benefits may be available when your child is very young or he/she may become eligible at age 18. Because the rules governing these entitlements change from time to time and are determined by your current situation, you should contact the local offices listed below to determine your child’s eligibility status. Social Security Administration 530 Franklin Street Schenectady, NY 12305 382-1001 or Department of Social Services Saratoga County 152 West High Street 884-4140 For information and referral regarding entitlement questions, contact: OMRDD, Revenue Support Field Office, 370-2010. |
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