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Children and Adult Children with Disabilities - The Truth is Out There

Q: Don’t all children with disabilities receive some sort of government cash benefit? 
A: 
No. A minor child with severe disabilities can get Supplemental Security Income (SSI) benefits ($710/month in 2013) only if the parents meet the income and asset guidelines. There is generally no benefit for the disabled minor child of healthy, working parents, unless lower earnings and family size combine to make them eligible. If a parent with a strong, steady work history becomes disabled, dies, or retires while still responsible for minor children, the disabled and non-disabled children alike may draw Social Security auxiliary benefits. Be sure to list minor children in the application.

Q: My 35-year-old cousin receives SSI benefits. Her father retired recently. Might she become entitled to adult child’s benefits on her father’s earnings record? 
A: 
Yes. If she has been receiving SSI benefits as an adult, having little or no work history of her own, she may start receiving a higher amount in adult Childhood Disability Benefits (CDB) on her parent’s earnings record when the parent retires, dies, or becomes disabled. She may be due no SSI benefit after an offset is applied. Also, she should not lose her Medicaid benefits or have a higher community-Medicaid spend-down imposed just because her income goes up; special laws protect disabled people in that group from being penalized by the increase in their income as a result of their parents’ retirement, death or disability.

Q: Does it matter when a child or adult child becomes disabled? 
A: 
Yes. Minor disabled children of low-income parents may qualify for SSI in their own right, and may continue to draw SSI after a review at age 18 if they are unable to perform “substantial gainful activity,” i.e., earn at least $1,040/month gross (in 2013) at a non-sheltered job. To qualify as an adult disabled child and draw benefits on a parent’s work record, however, the onset date of the disability is critical. The claimant must be able to prove that the disability began during the developmental years, defined as “before age 22.” For instance, a 25-year old adult child who has suffered developmental delays from birth, or who became disabled as a result of an early childhood disease, is treated differently from a 25-year old adult child who, at age 25, is diagnosed for the first time with bipolar disorder or who suffers a traumatic brain injury. Those who had no documented impairments before age 22, and worked or went to college before mental illness or a motorcycle accident affected their functioning, may never be able to draw on a parent’s earnings record, even if they have always been dependent on their parents and unable to support themselves.

Q: Is it true that adults receiving disability benefits can’t get married?
A: 
No. Competent adults with disabilities may freely marry whomever they wish. Nevertheless, getting married can affect their benefits.For someone receiving adult Childhood Disability Benefits on a parent’s work record, marrying a non-disabled bride or groom ends the benefits. If the new spouse is also receiving work-record-based disability (or retirement) benefits, the couple will not lose the benefits each had while single. For adults with disabilities receiving only SSI (neither work history of their own nor a parent’s record to draw on), the income and assets of one spouse can affect the other’s SSI benefits, since the couple is treated as a unit. Even though common-law marriage is no longer recognized in Ohio, a couple holding themselves out as husband and wife may be treated as a married couple, which may affect the household’s SSI disability benefit levels.

Q: I read about a man who died while waiting to get Social Security Disability benefits. Do adult children who are indisputably disabled also have to wait?
A: 
No. Those found medically eligible for adult Childhood Disability Benefits are not subject to the same five-month waiting period that most disabled workers must endure even if they win their case right away. CDB recipients are subject to the same 24-month waiting period for Medicare eligibility. (Only claimants suffering from end-stage renal disease or ALS [Lou Gehrig's disease] are spared that waiting period.) Medicaid, with its income and asset guidelines, is available during this period for those who have no assets or who have proper special needs estate plans in place. Insurance under the Affordable Care Act may also be an option.

Q: My aunt is trying to transfer her assets to her disabled adult son so that Medicaid will pay for her own nursing home care. Can she do this without being penalized? 
A: 
Yes, although those in this situation should consult an elder law attorney so they fully understand the repercussions of such a gift. Along with a few other exceptions, a disabled adult child is the only adult child to whom the elder can transfer assets without suffering a transfer penalty or period of ineligibility for Medicaid. Warning:  While this transfer may qualify the elder for nursing home Medicaid, an outright gift may disrupt the benefits of the disabled child unless special planning, usually involving a Medicaid-payback trust, is undertaken. In this way, an elderly parent’s own assets can be used to give them peace of mind about how their disabled child will fare after the parent’s incapacity or death.

10/27/2013

Law You Can Use is a weekly consumer legal information column provided by the Ohio State Bar Association. This article was prepared by Mary B. McKee, Esq., a shareholder in the Cleveland and Sheffield Village firm of Hickman & Lowder Co., L.P.A.

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Articles appearing in this column are intended to provide broad, general information about the law. Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.

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