As a disabled child approaches the age of majority, 18 years of age in Florida, there are many decisions to be made for his or her welfare, even beyond the planning and preparation that families undertake for children without disabilities as they reach adulthood. “Disability” remains largely nebulous in Florida’s common law, but seems consistent with the Social Security Administration’s definition because its purpose is to provide support for those unable to support themselves. Florida Statutes § 743.07(2) states that support of a child beyond the age of 18 may be appropriate where the child is dependent because of a mental or physical incapacity that began before the age of majority.[i] Further, our state does not ordinarily require parents to pay for the post-high school education of an adult child, but may in the case a dependent adult child.
Determining whether to order child support and/or how much to award for a disabled child who will remain a dependent adult in the case of his parent’s separation, whether through administrative proceedings to establish child support, actions for paternity, or dissolution of marriage, requires significant factual inquiry which can be complex and ultimately costly. Medical records evidencing diagnosis and treatment plans are essential to the determination process and the average lay witness, most often a parent, may not have the ability to get essential information before the Court. In the absence of factual findings of physical or mental deficiencies in the child, support termination at the age of majority (or graduation from high school if between the age of 18 and 19 with a reasonable expectation of graduation) is the rule.[iii] Failure to timely address these issues may exclude disabled adult children from direct support they could otherwise receive from their parents. The family practitioner is often expected to provide advice and counsel outside the general areas of divorce and paternity (e.g. real estate, tax, etc.), but may find himself completely overwhelmed when trying to sort through the complications of support in these cases.
As education and awareness of special needs children continue to increase, professionals have appeared in various fields to meet the demand of families with disabled children. Professionals to be consulted in planning for the transition of a disabled child into adulthood include those in the fields of: elder law, disability/Medicaid law, guardianship and probate law, trust law, tax law, financial and estate planning, quality of life planning, health planning and administrative/government agency policy. Some or all of these types of professionals can and should be used to establish adequate preparation for the dependent child who shall remain dependent as an adult.
Many of the benefits and programs that may be available to dependent adult children are income based, therefore affected by awards of alimony and child support. When the family resides is in a single household and constant care of the child is needed, often one of the parents takes on a nearly exclusive caregiving role rather than working outside of the home. When the parents of that child divorce and both parents are working, or spousal support is awarded, planning for the future support of the child becomes exponentially more difficult. The impact of the resulting financial contribution from increased income or from the support paid from one household to the other can significantly and permanently affect the adult child’s access to government benefits and programs.
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The immediate need as the disabled child approaches the age of majority is the appointment of a guardian advocate to assist the adult child with legal, medical, and financial decisions. This can be a parent but is complicated when the parents are divorced and have differing views of the needs and responsibilities of the adult child. In circumstances where the parents cannot, or are unwilling to serve, an application for appointment of another individual must be filed on behalf of the child. Interestingly, the dependent adult cannot be reviewed for competency until he or she has reached the age of 18. In light of the increasing demands on the Court, parents are encouraged to start this process well in advance of the disabled child reaching the age of majority. Chapter 744 of the Florida Statutes governs the procedures by which a guardian is appointed.
Financial planning takes on a new meaning when disabled children reach the age of majority and become dependent adults. Concerned parents and extended family members can inadvertently reduce the number of benefits available to the adult child by innocuous acts of generosity such as: establishing savings accounts in the child’s name, improperly defining beneficiaries of life insurance, bequeathing monies in their own estate planning directly to the child, and at times even paying ongoing child support. Extreme caution should be used in financial planning to ensure that maximum benefits remain available for the child and his caregivers/guardians throughout the life of the child (as opposed to the lives of the parents). Additionally, a person appointed as Trustee, Power of Attorney, or Representative Payee for Social Security purposes, although having effective control over the finances of the dependent adult, is not a legal guardian.
A Special Needs Trust (SNT), also referred to as Supplemental Needs Trust, should be considered in the planning of the financial future of a dependent adult. The trust can provide for the financial need of the beneficiary while allowing the maximization of government benefits and extending financial resources past the lifetime of the contributing parents or other extended family and friends. An SNT can provide the beneficiary funds to purchase items and services that would be otherwise prohibited purchases with government benefits that are intended to provide the basic necessities of food, clothing, and shelter. The beneficiary of an SNT can enjoy vacations, periodicals, entertainment, and electronics, to name a few. Additionally, the contributors to the trust can leave a Letter of Intent for the trustee outlining the goals of the trust as well as the standard and quality of living that the parents or guardians intended for the beneficiary.
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SSDI and SSI
Disability benefits are available to disabled adults and children through SSDI and SSI respectively. SSDI provides benefits to disabled adults whose disability began before they reached the age of 22. This benefit is based on a qualifying parent’s Social Security earnings. The qualifying parent is one who is receiving Social Security retirement or disability benefits or has passed away after reaching eligibility status. SSDI benefits continue as long as the dependent adult remains disabled.[iv]
According to the U.S. Social Security Administration Office of Policy, SSI is intended as “an income source of last resort” for disabled individuals as it is intended to benefit those of limited means. This is an area of particular consideration for the family lawyer as the program excludes only one-third of child support payments from countable income. Once the child reaches the age of 18, child support awards can reduce SSI benefits dollar for dollar. In order to qualify for SSI, a disabled adult may not hold more than $2,000.00 in assets, excluding a car and a home. The benefits paid must be spent on food, clothing, and/or shelter.