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Legal Assistance

Background 

A major issue for parents of Exceptional Family Members (EFMs) with significant disability or mental illness is how their child will be supported after the parents are no longer living or able to care for them. Planning for a disabled child’s future care and quality of life may involve complex financial and legal arrangements to preserve assets for the child’s care without jeopardizing eligibility for government benefits. Military legal services offices provide assistance for a wide range of legal needs including wills, power of attorney, and advice on issues such as divorce, consumer rights, estate planning, immigration, bankruptcy, and taxes. 

Key Points

  • Letter of Intent – Although not a legal document, a letter of intent can be a useful tool for parents who want future caretakers to understand and support an EFM’s current quality of life. In it, parents can describe the EFMs likes and dislikes, diet, education, work, recreational needs, and health care issues; include information about doctors, therapists and teachers; and include instructions for medications and therapeutic procedures.
  • Will – A will is the center piece of a special needs plan. After a person dies, it provides for property distribution, naming a guardian (subject to state court confirmation), and creating a trust or transferring assets into a trust. In special needs situations, the absence of a will could result in a distribution of assets that might be mismanaged or jeopardize government benefits, or it could leave guardianship choices to the court.
  • Trust – A trust holds money or property for the benefit of another person and usually designates a person or institution to be the trustee to oversee distribution of assets. There are many different types of trusts including “special needs trusts” specifically designed so that funds supplement the beneficiary’s care and do not pay for expenses covered by Supplemental Security Income, Medicaid, or other public funds that are tied to income and assets.
  • Guardianship – A guardianship is a court-approved legal relationship between a competent adult and a minor child or an impaired adult. A guardianship may be for the person or for property. It may be full guardianship over all aspects of a person’s care, limited guardianship that allows the ward to have autonomy in some areas, or temporary guardianship. 

Resources

  • MilitaryINSTALLATIONSMilitaryINSTALLATIONS is a searchable database of installation and state resources available to military personnel worldwide. Contact information for installation Legal Assistance Offices can be found through this resource.
  • National Guardianship Association (NGA) – The NGA website provides detailed information regarding guardianships.

Frequently Asked Questions on Legal Assistance

The following are Frequently Asked Questions on Legal Assistance. Please click on the question and the answer will appear. Click again to hide the answer. 

 

What should parents consider when planning for their special needs child's quality of life in the future?

In developing future plans for an exceptional family member, parents should consider the quality of their child's future as well as their financial support. Future planning should begin during the early teen years when the child, parents, and school begin developing a transition plan. Planning that focuses on the child's goals for continuing education, job training, employment and living arrangements should be augmented by discussions about money management plans, coping skills, and social/recreational opportunities. Continuing future planning into adulthood is important even if the child has mastered independent living but still relies on the parents for advice and emotional support. Parents should be encouraged to talk with their child often about the future and prepare him or her for a time when they will no longer be there.

What should parents plan for in terms of living arrangements as their special needs child becomes older?

Parents of disabled children who have reached the age of adulthood but remain at home, unable to live independently, should have a plan for alternative living arrangements. There are many options, and parents will want to choose the one that best meets their child's needs. Options may include group or supported living homes, public or private residential facilities, boarding homes, nursing homes, and mental hospitals. If parents and their child are considering a group home, they should be advised that some homes have waiting lists of many years, and they may wish to look into this option as soon as possible.

What is a letter of intent?

A letter of intent is not a legal document, but it can be a useful tool for parents who want future caretakers to understand and support their child's current quality of life. In it, parents can describe his or her likes and dislikes, diet, education, work, recreational needs, and health care issues. A letter of intent will also include information about doctors, therapists and teachers, as well as instructions for medications and therapeutic procedures. Some families put their letter in a three-ring binder with pictures of their child and photocopies of important documents such as the parents' will and trust documents and the child's social security card, birth certificate, medical records, Medicaid card, individualized educational plan, etc. Parents with a letter of intent should be reminded to keep it updated and make sure someone else knows where to find it.

What is a will and how does it relate to the special needs plan?

A will is the centerpiece of a special needs plan. After a person dies, it provides for property distribution, naming a guardian (subject to state court confirmation), and creating a trust or transferring assets to a trust. Wills may be changed to reflect new intentions up until the testator's death. Even when parents have few assets or liabilities that exceed assets, a will still allows them to indicate desires and intentions for their children. In special needs situations, the absence of a will could result in a distribution of assets which might be mismanaged or jeopardize government benefits, or it could leave guardianship choices to the court.

What is a trust and how does it relate to the special needs plan?

A trust holds money or property for the benefit of another person and usually contains a person or institution designated to be the Trustee to oversee distribution of assets. There are many different types of Trusts including "special needs trusts" specifically designed so that funds supplement the beneficiary's care and do not pay for expenses covered by Supplemental Security Income, Medicaid, or other public funds that are tied to income and assets. Trusts may be funded through a combination of family assets, inheritance, gifts from family or friends, or life insurance.

What is a "guardianship?"

A guardianship is a court-approved legal relationship between a competent adult and a minor child or impaired adult. Guardians have a defined degree of authority over their wards. Therefore, appointments should only be made to the extent necessary for the protection and welfare of the individual and based on his or her needs and abilities. A guardianship may be for person or property. It may be full guardianship over all aspects of a person's care, limited guardianship that allows the ward to have autonomy in some areas, or temporary guardianship.

Parents of significantly disabled children should be aware that when their child reaches the age of majority, they are no longer the legal guardians. The law regards disabled children over the age of eighteen (or twenty-one in some states) as adults unless someone has gone to court to become their guardian.

Are there alternatives to a formal guardianship for special needs children?

Guardianship can be a very sensitive issue for families. When a person's disability is so severe that he or she cannot meet basic needs, there is no question about the need for a guardian. In other cases, families can be conflicted about a child's ability to handle money, property, or personal care decisions. Parents may be well advised to explore alternatives to guardianship before pursuing legal action. Some common alternatives are appointing a representative payee for benefit checks, having joint property ownership and joint bank accounts, and establishing a durable power of attorney or health care proxy. Detailed information about guardianship may be found on the National Guardianship Association website.

What is the Survivor Benefit Plan (SBP) and how does it relate to special needs children who are adults?

Military retirees rely on the SBP to provide for their survivors upon their death. They are automatically enrolled at the time of retirement unless they take action to decline coverage or reduce the amount. They may also name their children up to age eighteen (or age twenty-two if still in school) as beneficiaries. Some disabled children may receive benefits for life if they became incapable of self-support while they were eligible beneficiaries. Current laws prohibit SBP from being placed into any kind of trust. Special needs families eligible for SBP upon retirement from the military should be warned that these benefits could make the disabled family member ineligible for Supplemental Security Income and/or Medicaid.