How can elderly parents best provide for the care of their disabled child after they die?

Many parents worry, as they age, what will happen to their disabled child after they are gone. It is an important and complicated question. To get answers, I reached out to Elder Attorney Janna Wallace, of Omega Elder Law, who has weighed in on previous articles involving qualifying for Special Assistance, as well as Aid and Attendance for Veterans.

1. When is the best time to plan?
   If a child has been disabled since birth, a family needs to plan from birth to care for that child should the parents not be around to assist. If a child becomes disabled later in life, then as the parents determine what the ongoing needs of the child will be, then they should make plans.
2. What benefits are available?
   RSDI/SDI benefits, Medicaid (possibly Medicare if the individual worked before becoming disabled), sheltered workshops, case management from the county, etc. Other support is available through the ARC, Easter Seals, and other organizations, but is very patchwork, and sometimes based on the cause of the disability.
3. What amount?
   That is REALLY going to be case specific and will vary by how independent the DA (disabled adult) is. Of course, the parents will want to establish a Special Needs Trust for the child and also use ABLE accounts when possible.
4. What else should parents do?
   Outside of money, parents will want to establish guardianship for any DA that is not competent to manage their own affairs, and will want to name a successor guardian in their will. If needed, they may want to establish a relationship with a care manager who will stay in place even after the parents are gone. As the DA moves into their 20’s, the family may want to consider some type of supported living arrangement (group home, etc) so that there will be continuity in the DA’s situation, even if the parents are no longer around.
5. What if the parent hasn't planned and now suddenly needs to go to Assisted Living. Can they gift their assets to the child in order to provide for the child and qualify for Special Assistance, Medicaid or Aid and Attendance themselves?
   For Medicaid qualification purposes, a gift to a disabled child is not a sanctionable transfer for the parent. It can be made outright, if the child can manage the funds or into a trust that is for the sole benefit of the child. I am unaware of any exemption to sanction rules for gifts to a disabled child when applying for Aid and Attendance.

"This is one reason it is important to plan ahead," Wallace added. "Gifts prior to the three-year look back for Veteran's Aid and Attendance should be fine as long as they are irrevocable."

Other ideas for spending down depends on type of assets and the situation and whether we are discussing VA or Medicaid.