Frequently Asked Questions
Eligibility Under IDEA and Section 504: Frequently Asked Questions
- How does a child become eligible for special education services under IDEA?
- How do I determine whether my child meets the eligibility criteria under IDEA?
- How does a student become eligible to receive services and protection under Section 504?
- How does a student become eligible to receive services and protection under Section 504?
- Is every student with a disability who is eligible under the IDEA also covered under Section 504?
_________________________________________________________________
Your Existing Will: Questions and Answers
- Is my will current?
- Does my will represent my current wishes?
- Is my will valid under my present circumstances?
- Have I properly stored my will?
- Does my legal representative know the location of my will?
_________________________________________________________________
Questions and Answers About Wills and Trusts for Individuals with Disabilities and Their Families
- What is a will?
- Why have a will?
- What is a trust?
- Why have a trust?
- What is a discretionary trust?
- What is a living trust?
- What is a living will?
- What is a power of attorney?
- What is a guardian?
- What information should I gather before I contact an attorney to prepare a will?
_________________________________________________________________
Frequently Asked Questions About Special Needs Trusts
- When should a Special Needs Trust be considered in litigation matters?
- What is the least amount of a recovery for which a Special Needs Trust should be considered?
- Who should be the trustee of a Special Needs Trust?
- Are Special Needs Trusts simply a “loophole” which has recently been discovered in the law?
_________________________________________________________________
Special Needs Trusts: An Overview for Financial Planners
Printable Version Includes:
- Purpose
- Types of Special Needs Trusts
- Thorny Issues in the Creation and Maintenance of Special Needs Trusts
_________________________________________________________________
Eligibility Under IDEA and Section 504: Frequently Asked Questions
How does a child become eligible for special education services under IDEA?
IDEA sets forth two criteria for determining whether a child is eligible for special education and related services. First, the child must have a disability. Second, as a result of the disability, the child must need special education and related services.
There are 13 disability categories under IDEA which are as follows: Autism, Deafness, Deaf-blindness, Hearing impairment, Mental retardation, Multiple disabilities, Orthopedic impairment, Other health impairment (which includes ADD/ADHD), Serious emotional disturbance, Specific learning disability, Speech or language impairment, Traumatic brain injury, Visual impairment (including blindness).
How do I determine whether my child meets the eligibility criteria under IDEA?
If a parent believes their child may need special education services, the parent should send a written request to the school district requesting that their child be evaluated to determine whether the child is in need of special education services. If the District has reason to believe the child may need special education services they can initiate the evaluation process as well.
Regardless of who initiates the evaluation process, the parent will be presented with a form entitled “Permission to Evaluate” which the parent should sign and return to the District as soon as possible. Upon receipt, the District has 60 school days to conduct a comprehensive psycho-educational evaluation. The evaluation assesses several areas of the child’s cognitive and physical development and abilities. Assessments are based on formal and informal evaluations and observations by School Psychologists, Speech and Language Pathologist, Occupational Therapist, Teachers and Parents. The information gathered is then used to determine whether the child meets the eligibility criteria. The information is presented in an Evaluation Report. If it is determined that the child is eligible, the information is then used to create an Individualized Education Plan (IEP).
How does a student become eligible to receive services and protection under Section 504?
To become eligible for services and protection under Section 504, a student must be determined, as a result of an evaluation, to have a physical or mental impairment that substantially limits one or more major life activities.
A physical or mental impairment described as: any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following basic systems: neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive; digestive; genitourinary; hemic and lymphatic; skin and endocrine; or any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and special learning disabilities.
Major life activities are defined as “functions such as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working.”
When should the district evaluate a student for a disability under Section 504?
A District should conduct an evaluation when:
a.) a student is referred to the child study team for a special education evaluation, but is determined not eligible for services under the Individuals Disabilities Education Act (IDEA).
b.) a student is referred to the child study team and it is determined that a special education evaluation is not warranted.
c.) a student show a patterns of not benefiting from the instruction provided.
d.) a student returns to school after a serious illness or injury.
e.) a the student exhibits a chronic health condition.
Is every student with a disability who is eligible under the IDEA also covered under Section 504?
Yes. Students who are eligible for special education programs and related services under the IDEA meet the definition of eligibility under Section 504. IDEA eligible students are entitled to additional protections and services offered under Section 504, e.g., the right to accessible facilities.
________________________________________________________________
Your Existing Will: Questions and Answers
This is a critical question, because many individuals believe that a Will created many years in the past will address their current needs despite changes in the family’s financial and personal circumstances. An out-of-date Will can actually create more problems for loved ones than not having any Will at all. Tax laws change with some frequency, and size and expensive assets usually change as well. Updating your Will is essential when financial circumstances change, family situations are modified, or to address recent tax developments and new techniques in estate planning.
Does My Will Represent My Current Wishes?
In many circumstances, over a period of five (5) to ten (10) years, a family’s economic and personal circumstances change dramatically. Your estate may have grown beyond that which you possessed at the time your present Will was drafted. You may no longer have dependents who live at home or rely upon you for their support. Tax laws change, sometimes in very significant ways. The more changes which occur in your personal circumstances, and the greater the time which has passed from the drafting of your current Will, the more you should consider updating your Will.
Is My Will Valid Under My Present Circumstances?
Have you moved to a different state or country since creating your last Will? Was your previous Will handwritten without the assistance of competent counsel? Would you obtain the appropriate number of valid signatures on your Will? The importance of a Will to your surviving family members cannot be fully emphasized, and therefore reputable estate planning attorneys should review your current Will in these circumstances.
Have I Properly Stored My Will?
Your Will should be maintained in a safe, accessible location where your Executor can easily find it upon your death. Your own personal situation may determine the proper location for your Will, and you should discuss this issue with your attorney.
Does My Legal Representative Know the Location of My Will?
Once you select a proper place to store your Will, it is generally wise to advise your Executor of its location. It is also useful to provide a list of accounts, assets, and funeral instructions to your Executor and to trusted next of kin.
________________________________________________________________
Frequently Asked Questions About Special Needs Trusts
Although Special Needs Trusts have been available under the Social Security Act since 1993, news of their substantial benefits has been slow to filter its way to all members of the bar. Since there is virtually no reason to fail to consider the use of a Special Needs Trust for a disabled plaintiff who qualifies for Medical Assistance and/or Supplemental Security Income benefits, an educated bar on this issue is essential to proper representation. In the paragraphs which follow, we try to answer some of the most frequently asked questions fielded by our office.
When should a Special Needs Trust be considered in litigation matters?
Answer: Any time a disabled individual receives, or is otherwise qualified for, Medical Assistance or SSI benefits and a recovery of money due will cause disqualification of public benefits, a Special Needs Trust should be considered. Such situations could involve a personal injury settlement, an inheritance, an award of past benefits for SSI or other insurance programs. Since individuals who receive SSI and MA generally can possess only about $2000.00 in liquid assets, any financial circumstance which would develop resources beyond that amount should be considered for a disabled individual.
What is the least amount of a recovery for which a Special Needs Trust should be considered?
Answer: As set forth in the previous question, any recovery which jeopardizes the individual’s MA and SSI should be considered for a Special Needs Trust. At the same time, however, for smaller recoveries, a variety of “spend-down” techniques could be used to purchase non-liquid assets which are excluded from consideration for MA and SSI eligibility. Excluded resources which could be purchased could include a home, household goods/effects up to a value of $2000.00, an automobile, a burial space, burial funds, and term life insurance. Naturally, care must be taken in promptly obtaining such “spend-down” resources so that the settlement monies due to the disabled person do not disqualify the individual for public benefits. It is often wise to include such purchases directly in a court order which approves the settlement.
Who should be the trustee of a Special Needs Trust?
Answer: If the matter involves a minor or incapacitated person, the Rules of Civil Procedure appear to require the use of a corporate fiduciary. While some corporate fiduciaries require large settlements before accepting the role of trustee, other corporate fiduciaries are now accepting smaller settlements in selected cases. If a corporate fiduciary is not feasible, some judges have considered the appointment of a trusted family member, friend, or investment advisor as trustee. In cases not put into suit or otherwise not covered by the Rules of Civil Procedure, there is no requirement that a corporate fiduciary be used, although the expertise of such a fiduciary is generally wise in any larger settlement.
Are Special Needs Trusts simply a “loophole” which has recently been discovered in the law?
Answer: Not at all. In 1993, Congress explicitly authorized the creation of Special Needs Trusts for the purposes which I have described in this and other articles, i.e., to allow a disabled individual to receive public benefits while having access to monies, through a trustee, which can pay for the supplemental needs of the disabled individual to allow a more desirable quality of life. Naturally, the Trust itself must fulfill basic requirements to qualify under the 1993 law, the most significant of which is that upon the death of the disabled beneficiary, the State has the first lien upon the residue of the Trust to repay it for Medical Assistance paid during the lifetime of the beneficiary. However, not all Medial Assistance payments during the beneficiary’s lifetime need be reimbursed, but only such amounts as are required by the State’s “Estate Recovery Plan”, which often does not mandate repayment of all Medical Assistance benefits. At the same time, however, any Medical Assistance lien relating to injuries of the disabled person which gave rise to the litigation must be satisfied prior to funding the Special Needs Trust.
_________________________________________________________________
Questions and Answers About Wills and Trusts for Individuals with Disabilities and Their Families
A will is a legal document by which a person makes a distribution of his or her property to take effect after his or her death. A will may be modified or revoked during the lifetime of its maker.
A will is necessary to insure that your choices of estate administrator (executor or executrix), beneficiaries, and guardians for minor children are honored after your death. In many cases, careful preparation of a will can lessen death taxes. If your family includes a person with disabilities, or an individual who may require long-term skilled care, the use of a Special Needs Trust should be seriously considered.
A trust involves the transfer of property from one person (called a settlor) to the control of another person (called a trustee) to be held and used for the benefit of a third person (called a beneficiary).
Many estate plans do not require a trust. However, trusts are often essential to insure the proper management of property left to individuals who are minors, disabled or irresponsible. Trusts such as a Credit Shelter Trust or an Irrevocable Life Insurance Trust can also be essential in order to reduce significant death taxes in larger estates.
What is a discretionary trust?
A discretionary trust is a trust created either during the lifetime of the settlor, or in a deceased person’s will, for the benefit of one or more persons, with the trustee retaining full discretion to determine the level of assets to be provided to the beneficiaries of the trust. Under current Pennsylvania law, a properly drafted discretionary trust known as a Special Needs Trust can make assets available for a person with disabilities without disqualifying that person from important governmental programs.
A living trust is a trust created by an individual during his/her lifetime where the settlor of the trust manages the trust and retains the right to designated in the trust. The use of living trusts does not typically save death taxes unless it is created as an irrevocable trust.
What is a living will?
A living will is a set of medical directives, made by a person while
competent, to health care professionals, to be used in the event that the
person should become incapacitated and in 1) a terminal condition, or 2)
a state of permanent unconsciousness.
What is a power of attorney?
A power of attorney is a written document signed by a competent
individual which authorizes another to act as the individual’s agent,
typically in financial and/or medical matters. If it is drafted as a
“durable” power of attorney, the authority to act by the holder of the
power survives the incapacity of the maker.
Back to Top
What is a guardian?
A guardian is a person appointed by a court to make financial and personal decisions for an adult incapacitated person. In 1992, Pennsylvania enacted a limited guardianship plan which allows a court to find a person totally or partially incapacitated, and to appoint either a plenary (full) or limited guardian. The appointment of a family member or any other person as guardian does not increase the financial responsibility of the guardian to support the disabled person.
What information should I gather before I contact an attorney to prepare a will?
1. The distribution which you desire for your assets.
2. Executor and Alternate Executor- individuals you would trust to
manage the affairs of your estate after you pass.
3. Guardians of minor children- individuals you would trust to care.
4. An approximate idea of your net worth including life insurance-
if your net estate- including life insurance- is over two million
dollars, tax planning may be necessary and can save very
substantial death taxes.
5. Where a family member has a disability, the nature of the
disability and the long-term prognosis for that person.
- Upcoming MLO Seminars! Click Here for more information and to Register.
- Supplemental Security Income (SSI) Recipients Will Receive Cost of Living Increase in January 2012. Beginning in January 2012, the nation’s Social Security recipients will get a 3.6% cost of living increase in payments. Thus, the maximum Supplemental Security Income (SSI) monthly payment will increase from $674 per individual for 2011 to $698 per month per individual in 2012. Please note that the $2,000 resource limit for SSI recipients is not increasing. For further information on public benefits, please call McAndrews Law Offices.
- Federal Court voids Pennsylvania’s restrictions on Pooled Special Needs Trusts in Lewis v. Alexander Read More →
- Important Court case for children with Autism and their families Read More →
- The current budget cycles in federal, state, and local governments may affect all students in special education. See our full discussion regarding this important issue. Read More →
- Learn About The Special Needs Tax Credit Read More →
- PDE Guidelines for Effective Behavioral Support Read More →
- Learn More About Our Speakers Bureau: McAndrews Law Offices have speakers available for your organization. We provide dozens of FREE seminars and presentations each year to relevant organizations in the field of Special Education, Estate Planning, and Special Needs Trusts. Click Here for More Information →
- McAndrews Law Offices is on Facebook. Become a fan!
- Check Out Our Video Library.View Videos →
Main Office: McAndrews Law Offices | 30 Cassatt Avenue | Berwyn, PA 19312
Phone: (610) 648-9300 | FAX: (610) 648-0433
Other Locations: Harrisburg, PA | Scranton, PA | Wyomissing, PA | Wilmington, DE | Privacy Policy
The information within this site is not, nor is it intended to be, legal advice. You should consult an attorney
for individual advice regarding your own situation. ©2007 McAndrews Law Offices, P.C. All Rights Reserved.