Category Archives: Special Needs


Special Needs Trusts

Individuals with disabilities frequently rely on government programs to provide basics such as food, clothing and shelter, as well as various services and supports. Most of these government programs are needs based, requiring the recipient’s income and resources to stay within program limits. While this amount will vary from one year to the next, resources in excess of $2,000 will probably disqualify an individual from receiving public benefits.

What then, can be done for the individual with a disability who inherits a sum of money in excess of $2,000 from a relative, or who will receive a settlement as a result of a personal injury suit? What do parents do, if they want to leave their assets to provide for their child with special needs after they die?

Special Needs Trusts (SNTs) are designed just for these instances. Both a First Party SNT, which contains assets contributed by the beneficiary (ex., inheritance or settlement of a lawsuit) and a Third Party SNT (a/k/a a supplemental needs trust), which is funded by persons other than the beneficiary (ex. a devise directly into the SNT under a parent or grandparent’s will) are intended to allow the individual with a disability to continue to be eligible for means tested government benefits. Of course, the SNT must be properly drafted so that it achieves its goals, which are:

  • Preserve eligibility for government programs,
  • Enhance the beneficiary’s quality of life,
  • Supplement the services provided by the government, and
  • Avoid recoupment by the government.

Proper drafting is critical. A SNT must be compatible with the beneficiary’s needs while limiting the beneficiary’s legal right to access the trust funds, as access can jeopardize the individual’s eligibility for benefits. A SNT must be used to supplement not supplant benefits received by government programs. When properly utilized, A SNT is a valuable tool offering assurance and peace of mind that your loved one will be provided for.

This article is intended as general information and not as legal advice. If you would like to discuss whether a Special Needs Trust is appropriate in your Estate Plan or for your loved one with special needs, contact an attorney at Maselli Warren, P.C. to schedule a consultation where we will meet to discuss your particular circumstances. If you already have a Special Needs Trust and it is over five years old, consider having it reviewed by an attorney to be sure it is in compliance with current laws.

The Division of Developmental Disability and the NJ-CAT

The Division of Developmental Disability’s (“DDD”) mission is to assure the opportunity for individuals with developmental disabilities to receive quality services and supports, participate meaningfully in their communities and exercise their right to make choices. DDD provides and funds services to qualified individuals. Services are available for adults with intellectual and developmental disabilities, provided the individual meets the functional criteria of having a developmental disability.

What are the Criteria the State uses to determine developmental disability?

The New Jersey Administrative Code sets forth definitions and criteria. It provides:

“Developmental disability” means a severe, chronic disability of an individual, which:

  1. Is attributable to a mental or physical impairment or combination of mental or physical impairments;
  2. Is manifest before age 22;
  3. Is likely to continue indefinitely;
  4. Results in substantial functional limitations in three or more of the following areas of major activities of daily living:
  5. Self-care;
  6. Receptive and expressive language;

III. Learning;

  1. Mobility;
  2. Self-direction;
  3. Capacity for independent living; and

VII. Economic self-sufficiency; and

  1. Reflects the need for a combination and sequence of special interdisciplinary or generic care, treatment, or other services, which are of lifelong or extended duration and are individually planned and coordinated. Developmental disability includes, but is not limited to, severe disabilities attributable to intellectual disability, autism, cerebral palsy, epilepsy, spina bifida, and other neurological impairments where the above criteria are met. N.J.A.C. 10:46.

 

In addition to meeting the above criteria, any individual seeking to receive services through DDD must also apply, become eligible for and maintain Medicaid eligibility, and have primary residency in New Jersey. At 18 years of age individuals may apply for eligibility and must be 21 to receive Division services.

What services does DDD provide?

DDD funded services are offered under a fee-for-service model. Under this model, adults will be determined eligible for either the Supports Program or the Community Care Waiver Program. The Supports Program provides services such as assistive technology, behavior supports, career planning, prevocational therapy, supported employment, transportation and day habilitation, to name just a few. The Community Care Waiver provides case management, community transition services, day habilitation, individual supports, respite services, and residential placements.

What about residential services?

Should the need for residential placement arise, a case manager or Support Coordinator can explore residential options with the individual and his family. Among the options that may be offered to an eligible person are Group Homes, in which a home is shared with no more than four residents who receive services from on-site 24 hour a day staff; Supervised Apartments, in which an individual lives alone or with a roommate in an apartment leased by a provider agency, which employs staff available to serve the individuals 24 hours a day; Supportive Housing, in which an individual leases his own apartment and receives services on an as-needed basis either in person or through phone contact, 24/7; and Community Care Residence, in which an individual lives as part of the family of a caretaker and receives assistance from that person and/or from an agency on a routine basis.

What is the NJ-CAT?

The New Jersey Comprehensive Assessment Tool, (NJ-CAT) is the mandatory questionnaire used by DDD as part of the process of determining an individual’s eligibility to receive DDD funded services. It assesses a person’s support needs in three main areas; self-care, behavioral and medical. Once the NJ-CAT is submitted, DDD assigns a Tier and a corresponding budget.

Before completing the NJ-CAT, keep in mind that the questionnaire will determine your loved one’s budget and it is therefore crucial that care be taken to answer each question keeping in mind what your loved one can do without your assistance, not with your help and support.

Can I ever appeal the Budget?

Appealing the budget assigned after the NJ-CAT is submitted is difficult, but can be done. DDD is very specific about the way one must proceed if they want to request reassessment of the budget. For this reason, it is suggested that you consult with someone knowledgeable about how to answer the NJ-CAT before you sit down to fill it out. If, however, you have already submitted it, or it was done by a support coordinator on your loved one’s behalf, go to the DDD website and read about requesting reassessment.

This article is intended as general information and not as legal advice. If you are applying for DDD services and will be completing the NJ-CAT, or if you would like to appeal the budget already assigned, contact an attorney at Maselli Warren, P.C. to schedule a consultation.

Guardianship and your Child with Special Needs

When an individual in New Jersey or Pennsylvania turns 18, he has reached the age of majority and his parents can no longer make decisions legally on his behalf. This applies to all young adults, even those who have special needs.

Before your child with special needs turns 18, consider whether he is able to make important decisions, including consent to medical treatment, education, where to live, how to spend his day and making financial decisions. If, as a result of a developmental or intellectual disability, your adult child is limited in his ability to make and/or express decisions, consideration of Guardianship is warranted.

Q: What is Guardianship?

A:Guardianship is the court appointment of a person or agency (the Guardian) to make personal and financial decisions for an individual who is not capable of making these decisions independently. A properly crafted guardianship will facilitate the independence of the person with a disability because it will be limited to address only those areas where the individual is not able to make his own decisions.

 

Q: Should I begin thinking about Guardianship when my child turns 18?

A: No – you should begin thinking about Guardianship at least six months before your child’s 18thbirthday.  Guardianship is a legal process whereby the court first determines whether an individual is incapacitated, whether the individual requires a guardian, and then appoints the guardian(s) to make decisions for that individual. This process takes time and requires preparation to gather necessary information, arrange for doctors’ appointment and draft legal documents.

 

Q: How do I know if Guardianship is appropriate for my child?

A: When meeting with clients, we ask a variety of questions aimed at determining whether a general guardianship, limited guardianship, or no guardianship at all, is right for each situation. Full Guardianship grants full decision making authority over all aspects of the individual’s life, including medical decisions, entering into marriage, choosing a residence, managing finances, vocational choices, and voting rights, to name a few. A limited Guardianship allows the incapacitated person to retain decision making authority over as many areas as he is capable of managing. Courts prefer to employ limited Guardianship whenever possible.

When thinking about whether Guardianship is appropriate for your child, here are some initial considerations:

  • Can she prepare her own meals?
  • Can she shower and dress herself?
  • Is she able to communicate with doctors regarding her medical issues?
  • Is she able to make purchases and get proper change back?
  • Can she be left home alone overnight or longer?

While certainly not an exhaustive list of questions, these considerations offer a starting point to determine the extent to which your child may need a Guardian.

We consider Guardianship arrangements a thoughtful act of protection for the newly minted adult who lacks the capacity to understand all the legal consequences of his actions, needs and decisions.

This article is intended as general information and not as legal advice. If you have a loved one with special needs, contact an attorney at Maselli Warren, P.C. to schedule a consultation where we will meet with you, answer your questions and discuss all available options to help you to determine what works best for you and your child.