A colleague of mine was involved in a situation involving an autistic adult about 50 years old residing in a group home with a part-time job. The family is attempting to file for guardianship of her because she’s about to inherit a lot of money that will disqualify her from public benefits, including Medicaid.
The family attorney was looking for guidance about “incapacity” and what might be the best approach to protect her inheritance from mandatory spenddown.
My opinion is that simply getting an order of guardianship will not solve the problem. If a disabled individual inherits money in their own name, with or without a guardian, I believe that will be a problem for Medicaid.
Keep in mind that until the distribution is received by the disabled person or by someone else on her behalf, it is not countable, so if you can arrange with the executor not to make any distributions to her at this time, it will give you time to figure out the best course of action. I think the creation of a special needs trust is the solution.
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By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold Township, Monmouth County, NJ Special Needs Trust Attorney