The Aging Parent and the Child with Disabilities: Estate Planning Concerns and Options

Estate planners counseling families who have children with disabilities are increasingly confronted with planning dilemmas that mirror the social, financial, and societal issues presented by an aging population. It is not uncommon when discussing "special needs" planning with clients to discover that they are in their 70s or 80s and possibly in declining health, and that their child with special needs is a 50-year-old who has never lived anywhere but at home and is receiving public benefits such as Supplemental Security Income (SSI) and Medicaid. This scenario presents special problems for the client and the attorney. Without advance planning, eligibility for Medicaid to pay for nursing home care essentially requires the impoverishment of the senior. However, there are some provisions in the long-term care Medicaid statutes and regulations (both federal and state) that offer certain opportunities to seniors who have children with disabilities to provide for those children without initially depleting their assets in the event of the senior's nursing home placement. This article discusses some planning techniques and other planning issues and opportunities that need to be addressed in this area of practice.