Elder Law Attorneys Helping You Plan For The Future

When Your Child With Special Needs Transitions to Adulthood

Many children with special needs will go to college and/or will go on to work and be able to support themselves. Other children, whether they are medically fragile and will need lifelong care, or whether they have a disability or disabilities that will make employment unfeasible, will require a more robust plan as they transition to adulthood.

Children with special needs, particularly those who require significant and ongoing medical care or therapies, may qualify for government supports and services throughout childhood. Frequently, however, a child with disabilities who lives with a parent, or parents does not qualify for Supplemental Security Income (SSI) because the parents’ income is “deemed” to the child. SSI is a federal program administered by the Social Security Administration that provides a monthly cash payment to people with disabilities who have limited resources and no or limited income. To qualify, an unmarried person’s income must be below a certain threshold per month—$943 in 2024—and part of parental income counts against that cap, unless the parents are also eligible for SSI.

However, when the child reaches the age of 18, under Social Security law, the parents’ incomes are no longer deemed to the child. At this point in the adult child’s life, it is often beneficial to apply for SSI. Why? First, in addition to the monthly cash payment, a person in Texas eligible to receive even just $1 of SSI also qualifies for Medicaid health care benefits.

Second, not only is the adult child able to receive the cash payment and Medicaid, but later, if the adult child begins receiving Social Security under a parent’s work record after the parent retires, passes away, or becomes disabled, the adult child may lose the SSI, but federal rules allow the adult child to keep the Medicaid benefit. The adult child who begins receiving a percentage of the parent’s Social Security will be eligible for Medicare but will have to wait 24 months. And, if they never received SSI, they will have missed the opportunity to preserve the Medicaid benefit. For more information about benefits for adult children with disabilities, see https://www.wrightabshire.com/publications/benefits-may-change-when-a-disabled-adults-parent-retires-or-passes-away/.

In addition to public benefits, there is another very important planning need for a child with special needs who is about to turn 18. Anyone or any entity dealing with the child, including doctors and other medical professionals, will assume the child has the ability and capacity to make their own decisions. Privacy laws will usually not allow third parties to give information to or speak with the parents even though the only change has been that the child is now an adult.

If the adult child has capacity, it is important to put advance directives in place, including a durable financial Power of Attorney, Medical Power of Attorney, HIPAA Authorization, Physician’s Directive or “Living Will,” and a Declaration of Guardian to give parents the ability to assist as the child’s surrogate decision maker and later, allow other trusted decision makers, to step in when parents are no longer able to.

If the adult child does not have the requisite capacity to execute advance directives and if there are no other alternatives to ensure their safety and wellbeing, a guardianship will need to be established. A guardianship is a court-monitored process that removes rights from a person who is largely unable to care for themselves because of a disability and appoints a guardian to take control of decision making for the person.

An elder law or special needs attorney can help as your child reaches adulthood, from evaluating available public benefits, to assessing whether your child has the capacity to sign legal documents such as powers of attorney, to pursuing options for surrogate decision making.

Nothing contained in this publication should be considered as the rendering of legal advice to any person’s specific case but should be considered general information.