The Oklahoma Bar Journal February 2024

E state P lanning

Planning for People With Special Needs By Travis Smith

“H OW DO I ENSURE THAT MY CHILD’S NEEDS ARE MET?” is a question all parents of children with special needs have, whether their child is 3 or 30. “What happens to my child with special needs after I’m gone?” is a question that keeps parents of older children awake at night. Fortunately, there are several things families can do to alle viate their worries.

Special needs planning is dou bly important if the person with disabilities needs means-tested benefits, such as Supplemental Security Income (SSI) and Medicaid (SoonerCare). Means-tested bene fits do not include Social Security or Medicare, which are insur ance programs and not subject to income or asset limits. A minor can get SSI benefits because they are disabled but cannot get Social Security disability benefits because they are disabled. Social Security, SSI and Medicaid are all part of the Social Security Act, which is complicated, to say the least. As the U.S. Supreme Court noted, “The Social Security Act is among the most intricate ever drafted by Congress. Its Byzantine construction, as Judge Friendly has observed, makes the Act ‘almost unintelligible to the uninitiated.’” 1 This article is designed to help lawyers spot the issues. It contains the basics, with many statements

having an exception or needing more explanation to fully under stand their applications. It mostly addresses financial issues and not guardianship and living arrange ments. Except where noted, the numbers in this article are for Jan. 1, 2024. The numbers go up a little every year, except for the $2,000 asset limit for SSI and most catego ries of Medicaid eligibility. SUPPLEMENTAL SECURITY INCOME SSI is the best entry point into planning because most people with special needs get SSI at some point, and its rules form the basis of Medicaid eligibility rules. SSI is a payment from the Social Security Administration (SSA) that pays a maximum of $943 per month to people who are over 65 or disabled and whose countable assets are $2,000 or less. 2 It is for people who have not worked enough to get a Social Security

check or whose Social Security is less than $943 per month. SSI disability is available to individuals of any age up to their “full retirement age.” At full retire ment age, benefits are switched to retirement, which has the same income and asset rules as SSI dis ability. For those under 18, some income and all assets of a parent living with the child are counted when determining the child’s eli gibility. 3 At age 18, parents’ income and assets no longer count. 4 SSI INCOME For an adult (18 or older), the SSA deducts all but $20 of unearned income from the maximum pay ment. Unearned income includes another person supplying cash, food or shelter. Shelter includes payment of rent or mortgage, prop erty taxes and insurance required by a lender, and natural gas, electricity, water, sewer and trash. 5 Unearned income does not include

Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff.

16 | FEBRUARY 2024

THE OKLAHOMA BAR JOURNAL