There is an expectation and duty for a parent to support their child and to make decisions on their behalf until they reach adulthood . Yet, these responsibilities can extend much longer when the child has special needs. Caring for and raising a special needs child will be a different experience and may require you to take care of them long past the age of 18. Once a child turns 18, or graduates high school, any child support payments will naturally terminate. A parent who needs to continue providing care for an adult child will have a continuing need for support. The non-custodial parent will have an obligation to continue paying child support, although the amount may be modified or limited in duration depending on the ongoing needs of the child. At our law firm, we help parents and special needs children continue getting the support they need.
While the terms child support and custody are often intertwined, there are distinct differences.
Child support is defined as a parent’s obligation to provide financial support for the child, regardless of the type of custody arrangements that may be in place. Under Virginia law, paying child support is also a legal obligation and is often decided by the courts.
This obligatory support incorporates various measures to care for a child, including food, clothing, and shelter expenses. It also involves amounts for medical, dental, and psychological services and coverage.
Custody defines a parent’s rights and responsibility to make essential decisions for the welfare of the child, including how they will be raised, cared for, and educated.
It differs from child support in that the focus is on decision-making responsibilities. The state court will determine whether one or both parents have this decision-making responsibility for the child depending on the best interests of the child.
Legal custody will not impact child support calculations, but physical custody, or where the child lives, may have an impact.
Disabled adults have certain rights under established government disability laws. These rights prohibit discrimination based on a disability, such as in employment. Disabled adults have a right to be able to access public accommodations, commercial facilities, and telecommunications. Additional rights provide protection against housing discrimination as outlined in the Fair Housing Act.
The laws also establish that a disabled or incapacitated adult is to have an equal opportunity to benefit from state and local government services, programs, and various activities. Examples include employment, public education, social services, public transportation, health care, and voting.
While the rights for disabled adults are in place, there are additional steps to consider taking. Your special needs adult child will most likely need help managing daily activities or financial matters even after turning 18. Since a parent’s legal rights to make such decisions end when the child comes of age, you will need to consider protection measures. Your special needs adult child may require appointment of a guardian or conservator, limited guardian, or a durable power of attorney.
Guardianship provides a parent, or other caretaker, with legal rights to make essential decisions on behalf of a special needs adult child. As the guardian, you will oversee and be responsible for the care, control, and custody of that adult child. There are two types of guardianship to consider:
The type of guardianship to seek will depend on your particular situation and the well-being and future of your child.
The process begins with the filing of a Petition for Guardianship with the court, asking for a legal ruling. This ruling is to confirm that the adult child is unable to manage financial affairs or daily activities due to a disability. Once granted, you, as the appointed guardian, have the legal obligation for making decisions on behalf of your special needs adult child.
If your special needs adult child has an understanding of and the ability to make some life decisions, you can consider creating a Durable Power of Attorney with special provisions. Add to this a Special Needs Trust and other provisions, such as assisted living arrangements, to protect them as much as possible.
Whether you seek guardianship or durable power of attorney, you will need to provide supporting evidence first. This evidence must show the level of your adult child’s abilities and may include testimony and statements from medical care personnel familiar with your child, such as physicians, therapists, and social workers. Other potential witnesses to your child’s capabilities and daily living include teachers and other school personnel, as well as family members.
To help you determine who can attest to the abilities and behaviors of your child, it will be beneficial to work with an experienced family law attorney. Your custody attorney can also file for guardianship or create a durable power of attorney that addresses you and your child’s particular situation.
The Americans with Disabilities Act (ADA) legally prohibits the discrimination of individuals based on a disability.
While no exhaustive list of covered disabilities is provided under the ADA, federal ADA regulations do identify certain conditions that, under the meaning of the law, will substantially limit major life activities. Examples of disabling medical conditions on this list include:
Yet, it is essential to note again that this list is not exhaustive in any way, and many types of conditions involving mental or physical impairment can qualify as the basis for this Act. Such conditions may limit hearing, seeing, brain function, immune function, cell growth, musculoskeletal function, endocrine function, or neurological function.
Parental responsibilities refer to the decision-making a parent must make on behalf of a child. For a disabled child, these parental responsibilities are the same as if the child was not special needs, yet they need to go beyond that level.
Decision-making relating to the upbringing, the best kind of care, and how and where a child is educated will expand and be crucial and essential to their quality of life.
For example, when it comes to education for a special needs child, parents play an increasingly vital role. Federal laws mandate that all disabled children have access to free and appropriate education (FAPE). This federal legislation also specifies parental rights for being involved in that educational process. As such, you will be involved in an individualized education program or plan (IEP) developed specifically for your special needs child.
Thus, you have both rights and responsibilities to become a contributor along with the educational professionals who play a huge part in your disabled child’s future. Together you are responsible for determining the best steps to take in the best interests of the special needs child.
As your special needs child approaches the age of 18, this is the time to start preparing for the years ahead. Keep in mind that your child may still be in high school once they reach this age and continue to be so for many more years. You will also face both financial and legal challenges once your special needs child turns 18 and crosses over into adulthood.
One situation to be aware of is that there will likely be changes to their Supplemental Security Income (SSI) benefits due to the standards in place once an individual turns 18. Prior to this age, your child may be receiving SSI benefits or Social Security Disability Income (SSDI) benefits based on one or both parent’s employment record and income.
When your child reaches 18, these benefits will be under review because of those changing standards. Your income will no longer be considered as the Social Security Administration (SSA) determines ongoing eligibility. Benefits will now be based on the adult child’s income and resources alone. On the other hand, if they did not receive benefits prior to turning 18, they may be able to do so once they are of age and considered an adult.
At this point, you will need to determine whether to file for guardianship or establish a durable power of attorney for your special needs adult child. Doing so is crucial because once they turn 18, all legal and financial decision-making will fall into their hands rather than stay in yours.
A durable power of attorney with added special provisions is an option if your adult child can make basic decisions. Other options to consider include creating a Special Needs Trust and becoming the SSI/SSDI Representative Payee.
The sooner you start planning, the better prepared you will be for when your disabled child reaches 18. Call our law firm today to find out more.
A common question is whether parents (custodial parents or not) must still pay support once their special needs child turns 18. The answer is it depends, based on a few factors. These factors include the degree of the child’s disability and an inability to live independently.
If your special needs child is severely mentally or physically disabled, such that the disability prevents or greatly hinders their ability to work or find jobs, thus interfering with their ability to earn a living, the courts can legally extend child support payments. Severely disabled is defined as an individual’s inability to provide self-support and care for themselves sufficiently.
If your special needs adult child needs to remain in your house after turning 18 and cannot live independently because of a physical disability or mental impairment, the paying of support can be ordered or legally extended. If payment is not forthcoming, a court order can force a parent to provide or continue providing child support for a disabled adult child.
Under Virginia law, as a parent, you have a support obligation for your child, and this can continue for any children who reach age 18.
Seek the legal advice of our experienced custody lawyers and determine what steps to take to keep your disabled child protected and supported past their 18th birthday.
As a parent, you can offer support to your adult child in a number of ways beyond non-custodial parent-child support payments.
Per the Social Security Administration, a disabled child may receive Social Security Disability Insurance (SSDI) if you or your spouse continue to receive social security or disability benefits after they turn 18 years old or a parent is deceased but worked enough to earn coverage and qualify for SSA benefits prior to death.
If your child received benefits prior to their 18th birthday, these benefits can continue based on the parent’s record as long as the child is determined to be disabled. This determination is made by the SSA based on established disability adult rules. Your child will undergo evaluation as an adult, and you will need to complete a Child Disability Report and an application for benefits and payments. Once granted, these benefits can continue so long as your adult child does not engage in substantial employment.
Also, put in place a support system for your disabled adult child in the event that you are not able to support them alone or if something should happen to you. Provide family members, caregivers, and medical staff with a letter of guidance or intent, providing important information concerning your special needs adult child and any specific instructions on routines or preferences concerning what the child needs.
Other ways you can continue to support your disabled adult child is through maintaining access to government assistance, including Medicaid for health care expenses, establishing a Special Needs Trust, and opening and funding an ABLE account.
A Special Needs Trust is a planning option that parents can set up for their disabled children to help with future medical expenses. While there are no size limitations for this type of trust, it will be essential to set it up in such a way as to avoid making the adult child ineligible for public benefits going forward.
If your adult child lives full-time with you and will stay in your home should something happen to you, include the house in the trust along with monetary resources for ongoing property taxes and maintenance, as well as utilities and other expenses. You can make this a part of your estate planning.
Designating a trustee will be an important consideration as well, and they can be a family member or other designated person or entity. The trustee(s) will maintain a duty to act in your adult child’s best interests and will manage and disburse funds as needed.
The Virginia ABLE Act (Achieving a Better Life Experience) provides a way for you to offer even more financial planning and support to your disabled child, providing them with additional financial security and independence. In return, you receive peace of mind while providing for a better quality of life for your special needs adult child.
Under the Act, you can open an account for your disabled child. An ABLE account is essentially a special savings account with tax advantages. The designated beneficiary will be your disabled adult child, and the money in the account must be used for qualified disability expenses. Examples of expenses covered include the disabled individual’s housing, transportation, education, employment training, assistive technology, legal fees, and financial services.
As with the Special Needs Trust, this account will need specific planning and monetary limitations to keep your disabled adult child from becoming ineligible for government programs and benefits such as Medicaid and Social Security.
If you have a special needs child who is turning 18, you might be worried about what the next steps are and if payments will still arrive. With so many ongoing concerns and wanting the best for your adult child, hiring a special needs custody attorney can help.
Your attorney will work on your behalf to obtain child support or seek the continuance of child support payments beyond the age of eighteen. In addition, you will have access to legal advice concerning the establishment of an ABLE account and more to help your adult child. Contact our knowledgeable attorneys in order to see how we can help you and your child.
When your special needs child turns 18, your concerns and worries can accelerate. Knowing your child needs ongoing support and decision-making can be overwhelming. To help determine how your adult child can be financially set for the future, contact the law firm of Melone Hatley, P.C. today by calling 800-479-8124 or submitting our online contact form. We have offices throughout Virginia and North Carolina for your convenience.
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