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Webinar — Supported Decision Making for Loved Ones With Disabilities – Breaking Through 2.0
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March Is Developmental Disabilities Awareness Month – and Supported Decision Making Is Taking Off in Maryland
By: Stephen R. Elville, J.D., LL.M. – Managing Principal and Lead Attorney – Elville and Associates, P.C.
Do you know someone with developmental disabilities? If not, you probably know someone who does. And even if that’s not the case during this Developmental Disabilities Awareness Month, you most likely will somewhere along your life’s path. Why do I ask? Because whether you already know someone with disabilities or not, it is important to remember that they have rights just like you and me, and have always had such rights, it’s just that those rights and the ability to exercise capacity and self-determine were not always recognized legally (and clearly). By way of the new Supported Decision Making law, Maryland now recognizes the rights of individuals with disabilities to direct their own lives and exercise capacity and self-determination. This includes persons young or old with disabilities. For an in-depth discussion of this issue please see my article from June 2022 by visiting here.
But in summary, what is Supported Decision Making in Maryland? In my view, Supported Decision Making (SDM) is the ability of a person with disabilities to make their own decisions to whatever extent possible, provided that they have the support to do so (mainly with the support of their supporting decision maker). As you become familiar with this new Maryland law, notice that the person with disabilities is the person who retains their right to make their own decisions and does not yield this right to anyone else. Again, we might say “I can make my own decisions to whatever extent possible, providing that I have the support to do so.” SDM challenges (and changes) old notions and paradigms of incapacity and capacity. Further, as you gain an understanding of Supported Decision Making in Maryland you may ask “Where does the new SDM law begin and where does it end?” – the law is so broad in scope. Well, it’s no secret that some persons with disabilities will understand their new rights of self-determination, while others will not. It is also true that parents and other loved ones of a person with disabilities may embrace the possibilities of Supported Decision Making, while others will not, or remain skeptical.
But regardless of our current understanding of Supported Decision Making in Maryland and its application, what’s important to remember during this Developmental Disabilities Awareness Month is that like a new jet airliner flying to its destination, this new Supported Decision Making law has just lifted off the runway and is climbing to altitude for its long-term journey. Our job is to learn what Supported Decision Making in Maryland really is, including its broad application, and to go along for the ride as persons with disabilities (and those with intellectual disabilities) are now recognized and empowered like never before under the law.
Elville and Associates’ Managing Principal and Lead Attorney Stephen Elville’s work is centered in special needs planning, elder law, and estate planning with special emphasis in the areas of tax planning and asset protection. As a member of the Academy of Special Needs Planners, the National Academy of Elder Law Attorneys, and the National Network of Estate Planning Attorneys, he works to bring peace of mind to clients by creating solutions to their needs through counseling and education using the very best legal-technical knowledge available. He is a seasoned speaker and each year presents at dozens of webinars, workshops, conferences, and continuing education events. Steve has also been named to the Maryland Super Lawyers list eight times, including the past seven consecutive years. Steve is also the founder
and president of the firm’s charitable organization, the Elville Center for the Creative Arts, in 2014, a 501(c)(3) organization that partners with school music programs and other organizations such as the Annapolis Symphony Orchestra to give the gift of music to children who want to participate in music but don’t have the means to do so on their own. Steve may be reached at steve@elvilleassociates.com, or by phone at 443-343-8708 x108.
Presented by Elville and Associates’ Managing Principal and Lead Attorney Stephen R. Elville, webinar attendees will come to understand what is involved in the planning process for a special needs family and the importance of preserving your loved one’s financial security and quality of life.
The key issues of understanding the role of public benefits, making decisions about the future, Maryland ABLE, and using estate planning and trusts to protect assets will be discussed along with the types of special needs trusts and their specific purposes (along with who the decision makers and beneficiaries can be in these trusts). Also, to be touched upon will be the “planning team concept” – how your planning team (attorney, financial advisor, CPA) – can work together to help provide your family peace of mind during the special needs planning process.
More Webinars from Elville and Associates
The education of clients and their families through counseling and superior legal-technical knowledge is the mission of Elville and Associates. We hold multiple educational events every month. Click to view our calendar of educational webinars and events or visit the Elville and Associates YouTube channel to view recordings of our past webinars.
#elvilleeducation #elvillewebinarseriesMany critical mistakes can occur when planning for a loved one with special needs, along with the perils that exist for persons with disabilities when no planning is implemented for them.
Bill Hufnell, Founder and Principal at Bay Point Wealth, and Stephen R. Elville, Managing Principal and Lead Attorney of Elville and Associates, discuss the biggest mistakes in special needs planning, what the ramifications are, and how to overcome and avoid them.
More Webinars from Elville and Associates
The education of clients and their families through counseling and superior legal-technical knowledge is the mission of Elville and Associates. We hold multiple educational events every month. Click to view our calendar of educational webinars and events or visit the Elville and Associates YouTube channel to view recordings of our past webinars.
#elvilleeducation #elvillewebinarseriesUnique tax benefits are available to families who have children with special needs. And thanks to recent changes in the tax code, there are opportunities to save substantial amounts of money at tax time. Thomas M. Brinker, Jr., a professor of accounting at Arcadia University in Pennsylvania, has put together a handy checklist of some potential tax benefits that could be available to families who care for a special needs child.
This list includes the tax benefits that have been available for a while and incorporates updated information from the Tax Cut and Jobs Act of 2017, the CARES Act (passed in March 2020 for COVID relief), and the American Rescue Plan of 2021 that have a direct impact on families with special needs dependents.
Special education
If the special needs child attends a special school (or is in an institution) for the main purpose of alleviating his disability by using the facility’s resources, the cost of the child’s tuition, lodging, meals, and transportation is deductible, as are the costs of supervision and care. Regular independent schools can be classified as “special schools” if the school has a special curriculum for neurologically disabled individuals, and according to IRS regulations, their tuition costs would be deductible.
If the child is receiving private tutoring by a specialized teacher, the IRS has ruled that those fees are deductible, as are tuition fees for special education provided to dyslexic children.
Services and therapies
Prof. Brinker notes that prescribed vitamin and equestrian therapies are deductible, in addition to other group or individual programs such as art, music, dance, and play, and summer camp. It is crucial to get a doctor’s recommendation as part of the necessary paperwork.
Medical expenses
As Prof. Brinker explains, “Unreimbursed medical expenses are deductible only to the extent that the Tax Payer itemizes their deductions (Schedule A) and these exceed 7.5 percent of their Adjusted Gross Income (AGI).” Note that as part of the Tax Cuts and Jobs Act of 2017, the standard deduction was significantly increased, and is $12,550 for individuals and $25,100 for couples in 2021. So only families who expect to spend substantially more than these amounts on medical care for their special needs dependent would benefit from this provision.
For families who plan on itemizing their special needs medical expenses, note that travel costs for medical treatment are deductible as follows: $50 per day of food and lodging for the taxpayer and one other person (if an overnight stay is required), and driving expenses at $.16 per mile.
Also, registration and attendance fees for medical conferences (though not food and lodging) qualify, as long as the conference topic relates to the condition of the dependent with special needs.
Tax-deferred and tax-advantaged accounts
Parents of children with special needs might consider enrolling in a flexible spending account (FSA) through their employer to pay for qualifying medical expenses that are not reimbursed. For 2021, the maximum annual contribution to an FSA is $2,750, and as a provision of the CARES Act, over-the-counter medications are now eligible expenses for FSAs.
Regarding early withdrawals from qualified retirement accounts such as IRAs and 401(k)s, any distributions spent on deductible medical care (i.e., amounts in excess of the 7.5 percent of AGI threshold) for dependents with special needs are not subject to the 10 percent penalty (though they are still subject to income tax).
Other benefits in Prof. Brinker’s checklist include an expanded definition of a qualifying child, who can be older than 19 if shown to have special needs and lives at home. And revised provisions mean changes to the personal and dependency exemption rates and phase-outs, as specified in the Tax Cuts Act of 2017 and the American Rescue Plan of 2021.
To ensure you are taking advantage of all the tax benefits and credits available to you, consult with an attorney whose practice focuses on working with families of special needs children.
If you would like to learn more about the potential tax benefits available to families supporting a child with special needs, check out Prof. Brinker’s checklist and consult with the special needs planners at Elville and Associates, who will partner with you to learn about your situation, answer your specific questions, offer solutions and create a path forward for you. You can reach out to Managing Principal and Lead Attorney Stephen Elville and steve@elvilleassociates.com or by phone at 443-393-7696 x108. Or, you may contact us here.
#elvilleeducation
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Unique tax benefits are available to families who have children with special needs. And thanks to recent changes in the tax code, there are opportunities to save substantial amounts of money at tax time. Thomas M. Brinker, Jr., a professor of accounting at Arcadia University in Pennsylvania, has put together a handy checklist of some potential tax benefits that could be available to families who care for a special needs child.
This list includes the tax benefits that have been available for a while and incorporates updated information from the Tax Cut and Jobs Act of 2017, the CARES Act (passed in March 2020 for COVID relief), and the American Rescue Plan of 2021 that have a direct impact on families with special needs dependents.
Special education
If the special needs child attends a special school (or is in an institution) for the main purpose of alleviating his disability by using the facility’s resources, the cost of the child’s tuition, lodging, meals, and transportation is deductible, as are the costs of supervision and care. Regular independent schools can be classified as “special schools” if the school has a special curriculum for neurologically disabled individuals, and according to IRS regulations, their tuition costs would be deductible.
If the child is receiving private tutoring by a specialized teacher, the IRS has ruled that those fees are deductible, as are tuition fees for special education provided to dyslexic children.
Services and therapies
Prof. Brinker notes that prescribed vitamin and equestrian therapies are deductible, in addition to other group or individual programs such as art, music, dance, and play, and summer camp. It is crucial to get a doctor’s recommendation as part of the necessary paperwork.
Medical expenses
As Prof. Brinker explains, “Unreimbursed medical expenses are deductible only to the extent that the Tax Payer itemizes their deductions (Schedule A) and these exceed 7.5 percent of their Adjusted Gross Income (AGI).” Note that as part of the Tax Cuts and Jobs Act of 2017, the standard deduction was significantly increased, and is $12,550 for individuals and $25,100 for couples in 2021. So only families who expect to spend substantially more than these amounts on medical care for their special needs dependent would benefit from this provision.
For families who plan on itemizing their special needs medical expenses, note that travel costs for medical treatment are deductible as follows: $50 per day of food and lodging for the taxpayer and one other person (if an overnight stay is required), and driving expenses at $.16 per mile.
Also, registration and attendance fees for medical conferences (though not food and lodging) qualify, as long as the conference topic relates to the condition of the dependent with special needs.
Tax-deferred and tax-advantaged accounts
Parents of children with special needs might consider enrolling in a flexible spending account (FSA) through their employer to pay for qualifying medical expenses that are not reimbursed. For 2021, the maximum annual contribution to an FSA is $2,750, and as a provision of the CARES Act, over-the-counter medications are now eligible expenses for FSAs.
Regarding early withdrawals from qualified retirement accounts such as IRAs and 401(k)s, any distributions spent on deductible medical care (i.e., amounts in excess of the 7.5 percent of AGI threshold) for dependents with special needs are not subject to the 10 percent penalty (though they are still subject to income tax).
Other benefits in Prof. Brinker’s checklist include an expanded definition of a qualifying child, who can be older than 19 if shown to have special needs and lives at home. And revised provisions mean changes to the personal and dependency exemption rates and phase-outs, as specified in the Tax Cuts Act of 2017 and the American Rescue Plan of 2021.
To ensure you are taking advantage of all the tax benefits and credits available to you, consult with an attorney whose practice focuses on working with families of special needs children.
If you would like to learn more about the potential tax benefits available to families supporting a child with special needs, check out Prof. Brinker’s checklist and consult with the special needs planners at Elville and Associates, who will partner with you to learn about your situation, answer your specific questions, offer solutions and create a path forward for you. You can reach out to Managing Principal and Lead Attorney Stephen Elville and steve@elvilleassociates.com or by phone at 443-393-7696 x108. Or, you may contact us here.
#elvilleeducation
Understanding Estate and Trust Administration
Presented by the Elville Webinar Series and Elville and Associates’ Managing Principal and Lead Attorney Stephen Elville, this webinar delves into the situations that arise after the death of a client, client’s family member, or loved one and the trust and estate administration that takes place during that time. Helping advisors and family members understand what their roles are in helping clients and loved ones through the legal process, what that legal process is, and how advisors and other planning team members can best work together in support of clients is of paramount importance during this challenging time for all involved.
Learning Objectives:
– unraveling the mystery of what happens after the death of a client or loved one
– minimizing confusion and providing maximum support to clients and loved ones at a time of crisis
– what is the legal step-by-step process that needs to be taken after death?
– what are the practical steps that should be taken after death?
– examining the most significant and potentially problematic legal and tax issues advisors and family members should be aware of in the months following the death of a client or loved one
– how financial advisors, CPAs, and attorneys can best work together in support of clients
More Webinars from Elville and Associates
The education of clients and their families through counseling and superior legal-technical knowledge is the mission of Elville and Associates. We hold multiple educational events every month. Click to view our calendar of educational webinars and events or visit the Elville and Associates YouTube channel to view recordings of our past webinars.
#elvilleeducation #elvillewebinarseries
Once a person becomes a guardian, they should be aware of their responsibilities. Since the ward loses significant rights, guardians must promote their autonomy to the fullest possible extent. Guardians must make decisions, such as moving the ward across states, in the ward’s best interests. In the case of a guardianship of an adult, there are many rights and responsibilities to be aware of.
Types of Guardianship
There are several types of guardianship of an adult. An adult may require assistance across domains or may only need help in certain areas. In a “plenary” or “total guardianship,” a person may have more responsibilities than in a “limited guardianship,” in which the ward retains more rights.
- In guardianships of the estate, or conservatorships, responsible individuals handle money for others.
- Guardianships of the person support personal affairs, such as education, housing, and health care.
- Plenary guardianships provide total assistance.
- In limited guardianships, the substitute decision-maker only helps with particular decisions. A court may order a limited guardianship when an adult’s incapacity may only affect certain decisions. It is the least restrictive arrangement.
Effect on the Ward
In many cases, those subject to guardianship of an adult no longer have significant rights, which can vary depending on how restrictive the guardianship is. In some circumstances, lost rights include:
- Voting
- Marriage
- Choosing where to live
- Providing medical consent
- Deciding whether to extend their lives or die naturally
- Holding a driver’s license
- Controlling, buying, or selling property
- Owning a firearm or weapon
- Entering into contracts, such as leases
Guardian’s Responsibilities
Making decisions for those who cannot, guardians must act in the best interests of their charges and fully support their independence. Depending on the terms of the order, responsibilities include arranging appropriate housing, education, and access to medical care. States can also require guardians to take classes.
Although the guardian’s controls can extend across many domains of the ward’s life, the guardian’s power stems from the court. Individuals exercising authority may face sanctions if the court has not approved a particular action.
Many guardianship of an adult orders allow a competent adult to manage the finances of an incapacitated individual’s — to purchase food and pay bills, for example. In many cases, however, the court does not give custodians complete powers.
- A guardian may lack the power to sell the adult’s property, such as a home. To do so, the guardian would need special permission.
- Caregivers also typically cannot reimburse themselves from the funds of the person with a disability without special permission from the judicial authority.
Annual Report
Protectors must file a yearly report. Depending on the guardianship of an adult type, this document may update the court on factors such as the following:
- how the adult with a disability is doing
- where they currently live
- their financial status
It is crucial that guardians remember to keep good records and submit the report each year. Otherwise, they could face judicial reprimand and removal.
Transferring Guardianship of an Adult Across States
Sometimes, the responsible person may wish to transfer the ward to another state to receive care. Moving must not simply constitute a matter of convenience for the caregiver, but must fulfill the ward’s best interests. The custodian must have reasonable and adequate plans for the ward’s care in the new location.
Before the majority of states adopted the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act (UAGPPJA), transferring guardianships was complex. Since state laws govern guardianships, each state had its own rules. Streamlining the process, the Act makes moving those under guardianship easier by honoring the rulings of other jurisdictions. According to Special Needs Alliance, 45 states have enacted the UAGPPJA.
Similar to when an individual petitions for guardianship of an adult, they must ask the court to transfer the guardianship to a new jurisdiction and give notice of the move to all interested parties. If a person disputes the relocation, the court holds an evidentiary hearing to determine if moving aligns with the ward’s best interests.
Removing Guardians
When protectors fail to uphold their duties, the court may strip them of their authority and appoint another guardian. Grounds for removal include:
- physical abuse
- emotional abuse
- financial abuse
- failure to meet procedural standards, such as neglecting to file the annual report
Terminating Custody
Capacity can fluctuate over time. In some cases, incapacitated people regain the ability to make decisions. Other times, a ward may dispute guardianship. When a person wishes to end a guardianship, they can ask the court to terminate it.
Since wards sometimes face bias in legal proceedings, ending a guardianship of an adult can be challenging. Although individuals can represent themselves pro se, or without an attorney, a special needs attorney can help those subject to guardianship restore their rights.
Find a Special Needs Attorney
Speak to the special needs planning and elder law attorneys at Elville and Associates to learn more about transferring or ending guardianship of an adult or child with a disability. Managing Principal Stephen R. Elville and Senior Principal Lindsay V.R. Moss will work with you to understand the circumstances surrounding your situation, answer your specific questions and educate you about the entire guardianship process, and help create a path forward for your matter. Reach out to Steve at steve@elvilleassociates.com or Lindsay at lindsay@elvilleassociates.com, or by phone at 443-393-7696. You may also fill out a contact form here and a staff member will respond to you promptly.
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