Steps in a Guardianship of Your Adult Disabled Child

What you can expect when you file for Guardianship of your loved one:

Parent homework: Schedule an appointment with your child’s doctor. Take the Physician’s Certificate of Medical Examination to be completed and return the completed form to the law office.

1^st – Application for Guardianship or Co-Guardianship of the Person filed with Physician’s Letter

*service of process by Sheriff to your child at the home

2^nd – JBCC online certificates. Parent homework: Parents must go to the JBCC website to register their Guardianship case, take the online training course, and submit the Certificate of Completion to the law office.

*In-home visit Court Investigator

3^rd – File AAL Motion & Order – performed by attorney

*in-home visit AAL

4^th – Attend a Court Hearing after your child turns 18 and all the reports are filed.

Working and Receiving SSI Benefits

Disabled workers must limit their hours to keep a paycheck and benefits

As many of our kids with special needs approach adulthood, a conflict becomes clear. How can my adult child gain independence with working and still be eligible for Supplemental Security Income (“SSI”) and Medicaid?

Your adult child can retain his or her federal government benefits and work part-time. The Social Security Administration (“SSA”) website is full of examples of the calculations you can use to determine if your child is earning too much money to maintain benefits eligibility.

See the chart below for more details about SSI monthly benefits.

Currently, the maximum monthly amount of SSI paid to an individual is $841.00. SSA will deduct from the maximum qualifying amount (using $841 in this example) a certain amount for earned income. The amount deducted depends on many factors.

For the new high school graduates under the age of 22 and attending college, these adults can earn income and have as much as $1,930 a month exempt from the benefits deduction. Keep in mind that there is an annual cap for this exemption of $7,670 earned income. For the months after the student has reached the total annual exclusion for “Student Earned Income Exclusion,” then the Social Security Administration can allow the student to exclude the first $65 earned, and then calculate one-half of the remaining monthly earned income to deduct from the $861 SSI monthly benefit. Math is not my friend, but here is my attempt to calculate – if your adult disabled child (who regularly attends school – at least 8 hours a week at college) works part-time and earns $400 a month, then Social Security ignores $65, leaving $335 to divide in half, leaving $167.50 as the amount to reduce from the monthly benefit of $841.00, yielding a $673.50 payment.

If your child wants to work so many hours a month that his or her benefits are jeopardized, one option is to suggest he or she perform hours of volunteer work for a local charity.

Qualifying for SSI and Medicaid is also dependent on the value of the recipient’s assets. Cash is considered an asset and the cap is $2,000.00.

Click here to see my video about SSI and bank accounts.

TIP: Do not have joint bank accounts with your adult disabled child. As a parent, you may be the Representative Payee (“Rep Payee”) for checks issued by the government, but keep your money separate from your child’s money. In other words, do not commingle your money with theirs. Other than a Rep Payee account, your adult disabled child should only have two other types of bank accounts – ABLE account, also known as a 529 A account, and an account owned by your child’s Supplemental Needs Trust. Here is a link to my video about bank accounts for people with disabilities.

Focusing on Families with Children with Special Needs

I Was On a PODCAST!

Wow! I was interviewed on the Adriana Beasley podcast “Conversations That Inspire” talking about Legal Life Planning. Many families with children with special needs have experiences that are similar to mine and to Adriana’s. Even though it seems as though so much of your life is out of your control, you do have the power to set your family’s course for the future with legal life planning. If you have a child with special needs who is approaching adulthood, now is the time to contact Filis Law Firm for a free 30-minute consultation about Guardianship, SDMAs, Special Needs Trusts, and other legal documents to protect your family’s future.

Parents – Balance Your Holidays with Me Time?

When I read articles on parent websites that talk about “me time” I chuckle and think to myself, if only they knew. If only they knew that during the holidays, when my ten year old son, who is Autistic and has ADHD, is home with me, with no school schedule to adhere to, it takes about one and a half to two hours to get him dressed and out the door.

How does one take “me time” when one is constantly nudging their child to perform regular tasks. I decided to work on my pessimistic attitude about my ability to have a jolly time during the holiday break. I know my son and I know I need to be realistic.

Let’s start with declining some invitations. Or if we really must attend a party or event, we just pop in for a short visit. There may be some offended people who cross our path during this break, but I need to focus on my son and myself.

Are we going to attend every holiday party we are invited to? No.

If we do make it to a party, are we going to leave early? Probably, unless trampolines are involved.

Honestly, we have been averaging thirty minutes per party/outing, before my son is uncomfortable and truly needs to leave. Even church service yesterday was cut short at around thirty minutes, instead of the usual one hour. For my son, there were too many differences in the service, too many people in the pews, and Sunday school only held his interest for five minutes.

Given that I know that when I ask my son to get dressed at 9 am, it will most likely be 11 am before we are ready to leave the house, I have decided that I am not going to spend two hours begging my son to get dressed. During part of that begging-free time, I will allocate a few minutes to the new me time. Now that I am thinking about it, we will probably spend the next couple of days at the house, in PJs, eating my son’s favorite foods – pancakes and popcorn, and watching movies.

Happy holidays!

Study Up on THHSC Programs That Support Individuals with Special Needs

For all the new parents of babies and toddlers diagnosed with chronic illness or a disability such as Autism, one of the first things you should do is sign your child up for support and services with your State and local authority. Years ago, for my child, I contacted the Department of Aging and Disabilities (DADS, now see Texas Health and Human Services Commission) and Mental Health and Mental Retardation Authority (MHMRA, now known as Harris Center).

Client Education

My first reaction to receiving information about the Interest Lists for Medicaid Waiver Programs was one of disappointment.

I was certain that my household income would disqualify my son for benefits. I was wrong. The requirement for low or no income that you typically associate with Medicaid is waived for most of these programs.

If you have not already done so, please call 1-877-438-5658 to add your child to the Medically Dependent Children’s Program (MDCD) and Community Living Assistance and Support Services (CLASS) Interest Lists.

For those of our parents whose kids have spent a couple of days in a nursing facility, and is medically fragile, you may wish to look into the MDCP Rider 28 if your child is returning home. Talk to your child’s doctor about Form 2406, Physician Recommendation for Length of Stay in a Nursing Facility.

For more information, contact The Filis Law Firm at 713-462-1777 or search for Medicaid Waiver Programs on the Houston Special Needs Attorneys website.

Traveling Soon and Have a Family Member with Special Needs?

Travel for my son has been limited to automobile transportation. Between his sensory issues due to Autism and his severe peanut allergy, I have been afraid to take my son on a plane. My son’s allergy doctor wrote a letter for me to provide to an airline should I choose to travel with my son on a plane. When I have contacted airlines about our potential trips, I was assured that we could board and deplane earlier than the other passengers. Also, our seats would be strategically located for our comfort. These are all reasonable accommodations offered by the airline, but leaving a plane “early” is not a true solution if my son has an immediate problem, like a meltdown, an anxiety attack or anaphylactic shock.

Travel limitation is especially cumbersome during the end-of-year holidays.

Surprisingly, I have family members who have physical challenges who have not had to remove airplanes as an option for their long-distance journeys.

While in the airport, the rights of individuals with disabilities are protected by the Americans with Disabilities Act (“ADA”), which is governed by the Department of Justice. Per the ADA, disabilities can include a physical or mental impairment that substantially limits a major life activity, such as learning, walking, seeing, and talking. See Section 504, for protections that primarily deal with accessibility.

Air carriers are subject to the rules in the Air Carriers Access Act (passed in 1986) that prohibits the discrimination of passengers who have disabilities. Air Carriers are governed by the Department of Transportation.

Equal access for travelers with special needs are about to improve. Last month marked a huge success for disability rights groups as the new “Bill of Rights” for air travelers with disabilities passed as part of the Federal Aviation Administration Reauthorization Act of 2018. Tying funding of the FAA to the protections will ensure improvement.

The Bill includes the following reforms:

• Increase civil penalties for bodily harm to a passenger with a disability and damage to wheelchairs or other mobility aids.

• Require that the Department of Transportation review, and if necessary, revise regulations ensuring passengers with disabilities receive dignified, timely and effective assistance at airports and on aircraft.

• Create the Advisory Committee on the Air Travel Needs of Passengers with Disabilities to identify barriers to air travel for individuals with disabilities and recommend consumer protection improvements.

• Require that the new Advisory Committee review airline practices for ticketing, preflight seat assignments and stowing of assistive devices, and make recommendations as needed.

• Mandate the DOT develop an Airline Passengers with Disabilities Bill of Rights, in consultation with stakeholders, describing rights of passengers with disabilities and responsibilities of air carriers.

• Study in-cabin wheelchair restraint systems, in coordination with disability advocates, air carriers and aircraft manufacturers.

You can find more information, although not updated recently, on Transportation.gov.

Have Questions about the ABLE account and the IRS? See the IRS bulletin below.

IR-2018-139: Tax reform allows people with disabilities to put more money into ABLE accounts, expands eligibility for Saver’s Credit

Internal Revenue Service (IRS) sent this bulletin at 06/15/2018 11:05 AM EDT

IRS Newswire

June 15, 2018

Issue Number: IR-2018-139

Inside This Issue

Tax reform allows people with disabilities to put more money into ABLE accounts, expands eligibility for Saver’s Credit

WASHINGTON – People with disabilities can now put more money into their tax-favored Achieving a Better Life Experience (ABLE) accounts and may, for the first time, qualify for the Saver’s Credit for low- and moderate-income workers, according to the Internal Revenue Service.

The Tax Cuts and Jobs Act, the tax reform legislation enacted in December, made major changes to the tax law for 2018 and future years, including increasing the standard deduction, removing personal exemptions, increasing the Child Tax Credit, limiting or discontinuing certain deductions and changing tax rates and brackets.

The new law also enables eligible individuals with disabilities to put more money into their ABLE accounts, qualify for the Saver’s Credit in many cases and roll money from their 529 plans — also known as qualified tuition programs — into their ABLE accounts.

States can offer specially designed ABLE accounts to people who become disabled before age 26. Recognizing the special financial burdens faced by families raising children with disabilities, ABLE accounts are designed to enable people with disabilities and their families to save for and pay for disability-related expenses. Though contributions are not deductible, distributions, including earnings, are tax-free to the designated beneficiary if used to pay qualified disability expenses. These expenses can include housing, education, transportation, health, prevention and wellness, employment training and support, assistive technology and personal support services and other disability-related expenses.

Normally, contributions totaling up to the annual gift tax exclusion amount, currently $15,000, may be made to an ABLE account each year for an eligible person with a disability, known as a designated beneficiary. But, starting in 2018, if the beneficiary works, the beneficiary can also contribute part or all of what they make to their ABLE account.

This additional contribution is limited to the poverty line amount for a one-person household. For 2018, this amount is $12,140 in the continental U.S., $13,960 in Hawaii and $15,180 in Alaska. However, the designated beneficiary is not eligible to make this additional contribution if their employer contributes to a workplace retirement plan on their behalf.

In addition, starting in 2018, ABLE account beneficiaries can qualify for the Saver’s Credit based on contributions they make to their ABLE accounts. Up to $2,000 of these contributions qualify for this special credit designed to help low- and moderate-income workers. Claimed on Form 8880, Credit for Qualified Retirement Savings Contributions, this credit can reduce the amount of tax a person owes or increase their refund. Like other IRS tax forms, Form 8880 will be revised later this year to reflect changes made by the new law.

In addition, some funds now may be rolled into an ABLE account from the designated beneficiary’s own 529 plan or from the 529 plan of certain family members.

Like other workers, ABLE account beneficiaries and other people with disabilities should make sure they are having the right amount of income tax withheld from their pay. Because of the far-reaching tax changes taking effect this year, the IRS urges all employees to perform a paycheck checkup now. Doing so now will help avoid an unexpected year-end tax bill and possibly a penalty. The easiest way to do that is to use the fully-accessible Withholding Calculator, available on IRS.gov.

For more information about ABLE accounts and the tax reform changes, visit IRS.gov/taxreform.

New Requirement for Guardians in Texas

If you are a guardian of your child with special needs, be aware of the new Guardianship Certification requirement.

Texas has the Judicial Branch Certification Commission (“JBCC”) that oversees the certification and registration of guardians. The JBCC will accept applications for guardianship registrations effective June 1, 2018, per the passage of Senate Bill 1096 for all Texas guardianships. If you have a pre-existing guardianship, you can simply register here after June 1st.

For all new guardianships, at least ten (10) days prior to the hearing for your application, you must apply to register online with the JBCC certification, registration & licensing system and complete the Guardianship Training (with the option of online training at the Guardianship Training page.)

The free, one (1) hour training module is a course that explains the following:

Understanding Why Guardianship May be Necessary
Overview of Alternatives to Guardianship
Types of Guardianships
Procedures to Establish a Guardianship
Duties of the Guardian
Reporting Requirements of the Guardian
Modifying, Terminating, or Closing a Guardianship

Don’t Let The 8.5% Cap on Special Ed Continue

In 2016, after the publication of a series of investigative articles by Brian M. Rosenthal in the Houston Chronicle, many parents with children in Texas public schools obtained confirmation of one of their worst fears – their children were missing out on education opportunities that could enrich their children’s lives. It may not sound like much to a parent with a typical child who can catch up on academics with a tutor, but for parents with children who require special education services and accommodations, catching up can feel impossible.

The U. S. Department of Education conducted their own investigation which concluded that Texas Education Agency (TEA) led schoold districts to delay or deny special education services to students by instituting an arbirtrary cap for enrollment of services at 8.5%.

Now, the TEA owes the public school children in Texas a proper education and the TEA is asking for your help. We have until April 18th to offer comments on the draft of the the strategic plan to get our schools in line with rest of the country with regards to special education.

Click on the link below to read more information on the draft and to offer your comments.

https://tea.texas.gov/About_TEA/News_and_Multimedia/Press_Releases/2018/TEA_accepting_comments_on_draft_strategic_plan_for_special_education_through_April_18/

IR-2018-139: Tax reform allows people with disabilities to put more money into ABLE accounts, expands eligibility for Saver’s Credit

News Essentials

The Newsroom Topics

IRS Resources

Issue Number: IR-2018-139

Inside This Issue