Planning
Special needs planning involves much more than trusts. Trusts are simply documents. The real value that an elder and disability law attorney and other members of the disability team bring to the table is the ability to assist in lifetime financial and personal care planning for the person with disabilities. The lawyer must understand the clients, their disabilities, their limitations, their strengths, their hopes, and their dreams. Planning involves an understanding of public benefits laws, tax laws, and the laws pertaining to special needs trusts.
In planning for special needs the following concerns must be addressed:
Disability
What is a disability? The Social Security definition of disability is set forth in the Social Security Act, which reads:
“Disability means the inability to do any substantial gainful activity by reason of any medically-determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months. The impairment must be so severe that the individual is unable to do his or her previous work or any other ‘substantial gainful activity’ which exists in the national economy. The person’s ‘residual functional capacity’ and age, education and work experience will be considered in determining whether the person is able to do other work.”[2]
Substantial gainful activity (SGA) for a person with a disability is the ability to earn $1,040 per month in the workplace effective January 2013. For a blind person, SGA is $1,740. This is indexed for inflation.[3] SGA is now determined by the ratio of the national average wage index for the previous two years, comparing that amount to the current SGA level and taking the greater of the two. Section 7501 of the Deficit Reduction Act (DRA)[4] requires the Social Security Administration (SSA), before payments begin, to review eligibility decisions for people age 18 or older made by the state disability determination agencies in order to ensure that the individuals are, in fact, eligible for SSI benefits. Known as “pre-effectuation reviews,” these reviews are already conducted for people in the Old Age, Survivors, and Disability Insurance Program (OASDI) and for SSI beneficiaries who also receive OASDI benefits.[5]
The Hartford Study
The Hartford issued a study revealing some interesting facts about the lack of preparation on the part of parents of children with disabilities.[6] The study showed that parents of America’s 2.6 million children with special needs have not planned for the future of their children after the parents are gone. Highlights of the study included the following:
[1] 42 U.S.C. §12101(a).
[2] 42 U.S.C. §1382c(a)(3)(A); 20 C.F.R. §416.905.
[3] 77 Fed. Reg. 65,754 (October 30, 2012) Formula published in 65 Fed. Reg. 82,905 (Dec. 29, 2000).
[4] 42 U.S.C. §1383b; Section 7501 of Pub. L. No. 109-171 (2005).
[5] Disability Policy Memorandum, The ARC and United Cerebral Palsy, Deficit Reduction Act of 2005, Pub. L. No. 109-171 (Mar. 23, 2006).
[6] Most Parents of Children With Special Needs Lack a Plan to Cover a Lifetime of Care, The Hartford, April 2009.
Any self employed person has a duty to report ANY and ALL work activity to SSA. Beware, often the Office of Inspector General (OIG) (investigative unit for SSA) will follow or use surveillance on an SSA claimant who was or is currently engaged in self employment work. Do not take a chance, assume you are being watched. Report all work activity to SSA in writing via U.S. Certified Mail. Obtain legal counsel for specifics on what the reporting should consist of to the SSA.
The interplay of the 12 consecutive month rule, meaning you have not engaged in SGA work activity over 12 consecutive months, and those “self employed”, is a SGA minefield for not qualifying for disability benefits. In general, those “self employed” claimants who go before a Judge must provide a monthly breakdown of an income and loss statement, provide details on the type of business, volume of business, and with specific regard, as to the “significant services” (services rendered rule) you the claimant/worker performed. The Judge must also consider the comparability and worth of the work.
The above details are a minefield which can be easily avoided. Simply do not engage in self employed work while your Social Security Disability claim is pending. If you have an incorporated business you should resign all officer positions. In Florida see, www.sunbiz.org if you are not sure about being an officer of the corporation. Holding stock in a corporation, closely held or otherwise does not impute “self employment” in and of itself. Self employment work is detail specific. If you are answering a phone for a business, this is indicative of work activity. Arranging deliveries, setting up work or jobs for another, scheduling deliveries of business related goods, etc., are examples of engaging in work activity. Do NOT split hairs in regards to self employment work. For example, a claimant may have a spouse or relative in the house who is self employed. The claimant must not “help” the spouse or relative with anything for the business enterprise. That spouse or relative is not to depend on a Social Security Disability claimant who alleges “total disability”. Common sense should be utilized. In the end, obtain an actual attorney, do not hire a law firm from the television, many send non-attorneys to your hearings which is not fully disclosed to you. Do your research, hire an attorney who will see you in person and can discuss the law of SSA’s self employment rules.
For more information please contact:
David W. Magann, Esq.
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