1. GUARDIANSHIP, ESTATE PLANNING AND THE ABLE ACT

3. GUARDIANSHIP FOR ADULTS WITH DEVELOPMENTAL DISABILITIES
Many adults with developmental disabilities are able to make decisions for themselves, in these cases guardianship is not appropriate
Guardianship should be considered for an individual with a developmental disability who cannot make decision for him/herself
The legal stand is “being unable to govern and manage one’s own affairs”

4. WHO SHOULD SERVE AS GUARDIAN?
Typically, both parents seek to serve as co-guardians
As parents age, siblings are sometimes added as co-guardians
A guardian should
Have an interest in the individual with a disability
Be willing to learn about the individual’s needs
It is helpful if the individual lives close to the ward

5. WHEN SHOULD YOU START THE GUARDIANSHIP PROCESS?
At age 18 the law considers a child emancipated
Even the parents of a severely disabled child are not automatically the guardian of their child
Only a judge can appoint a guardian for a person over the age of 18.
Parents should start the process when their child is 17 ½ years old

6. WHAT IS THE GUARDIANSHIP PROCESS
An application needs to be submitted to the court
The application includes:
A verified complaint
Two doctor certifications
Affidavit of assets
Parents should meet with an attorney who will draft the necessary documents and comply with all court rules

7. AFTER THE APPLICATION IS SUBMITTED TO THE COURT
The court will set a hearing date
Appoint an attorney for the individual with a disability
The court appointed attorney will arrange to meet with the individual and proposed guardians and submit a report to the court
Parents are responsible for the court appointed attorney fees

8. GUARDIANS ARE RESPONSIBLE TO
Make decisions for the individual under guardianship
These decisions are of a legal, medical and financial nature
All decisions must be made in the best interest of the individual under guardianship
Guardians are to encourage the individual to be as independent as possible

9. NAMING A SUCCESSOR GUARDIAN
Parents should name a successor guardian in their wills
The person named will need to be approved by the court before being authorized to act as guardian
As parents age, petitioning the court to add a co-guardian should be considered

10. ESTATE PLANNING FOR FAMILIES OF A CHILD WITH A DISABILITY
A comprehensive estate plan will include the following documents
Will
Durable Power of Attorney
Living Will
Special Needs Trust
In some cases additional documents will be recommended to minimize estate taxes liability

11. Will Appoint an executor Arrange for the distribution of assets
Name a guardian for non-disabled minor children
Name a successor guardian for an adult child with a disability

12. THE SPECIAL NEEDS TRUST
Importance of protecting assets
Preservation of benefits
Structure of SNT
Role of Trustee

13. Achieving a Better Life Experience Act (“ABLE”)
In December 2014, Congress passed the ABLE Act establishing a way to save funds for individuals with disabilities without jeopardizing means tested government benefits like Medicaid and in some cases Supplemental Security Income (“SSI”)

14. What Happens Next? Federal Regulations needed to be promulgated
New Jersey passed a statute on January 11, 2016
New Jersey must promulgate regulations
N.J.S.A. 52:18A-250 was passed on 1/11/16, and became effective 10/11/16.

16. What Can Funds In An ABLE Account Be Used For?
Qualified expenses including: housing, education, transportation, health aides, employment supports, therapies and similar expenses

17. Benefits of ABLE Accounts
Funds saved in an ABLE account do NOT affect Medicaid eligibility
Funds saved in an ABLE account up to $100,000 will NOT affect SSI eligibility
Funds in an ABLE account used for housing do NOT affect Medicaid eligibility
However need to be careful about the timing of housing expenses so as not to accidentally affect SSI eligibility
Can be counted as resource

18. Limitations of ABLE Accounts
Maximum annual deposit into an ABLE Account is $15,000
Funds remaining in the account at the death of the individual with a disability must be used to repay government liens
If the individual was receiving Medicaid benefits there likely is an outstanding government lien
In some cases, SSI Eligibility will be jeopardized

19. ABLE Account v. Special Needs Trusts
What is the difference between an ABLE account and a third party special needs trust?
Funds in a third party special needs trust are not subject to government liens
Funds in a third party special needs trust are never considered a resource for Medicaid or SSI eligibility
ABLE account funds can affect SSI eligibility

20. Does the way the funds are used make a difference?
Funds spent from an ABLE account for housing do not affect Medicaid eligibility
Funds spent from an ABLE account for housing can affect SSI eligibility if families are not aware of timing issues- distributions for housing are “counted” if not spent in the month of the distribution
“Housing Expenses” includes mortgage, property taxes, rent, heating fuel, gas, electric, water, sewer, and garbage removal

21. Qualified Disability Expenses
The Social Security Administration has defined Qualified Disability Expenses as expenses related:
education, housing, transportation, employment training and support, assistive technology and related services, health, prevention and wellness, financial management and administrative services, legal fees, expenses for ABLE account oversight and monitoring, funeral and burial, and basic living expenses.

22. ABLE Account Administration
States are required to report first-of-the-month account balances to the Social Security Administration
States are required to report all distributions
Person with Signature Authority must maintain records

23. ABLE Accounts and Third Party Special Needs Trusts
Do I need an ABLE account and a Special Needs Trust?
An ABLE account may be part of a comprehensive plan to ensure financial security for an individual with a disability
This comprehensive plan may include both a third party special needs trust and an ABLE account

24. Please visit our website www.hinkle1.com
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