The Probate Act prescribes the legal authorities and responsibilities of an estate guardian for a disabled person under 755 ILCS 5/11a-18.
An estate guardian is responsible for uncovering, collecting, and protecting assets belonging to the disabled person. The Public Guardian’s Office works with various financial institutions including banks, investment firms, insurance companies and others to uncover and collect assets. Where investments are involved, the court approves such investments based on the disabled person’s history, estate plan, and best interests. In situations where financial exploitation is suspected, the Public Guardian seeks court authority to freeze assets and protect the disabled person’s estate.
The Public Guardian’s Office determines an appropriate budget for the disabled person. A budget is based on the individual needs and amount of funds available to each person and includes medical and pharmaceutical costs, transportation, recreation, possible prior debts, etc. For individuals in the community, the Public Guardian must consider the costs for maintaining a home, home care, food consumption, household and personal expenses. For individuals in various types of supervised living arrangements, the costs of room and board, companion care, and other appropriate services are considered.
Managing Real Property
For disabled individuals with real property, the Public Guardian maintains the property including insurance, taxes, and general upkeep. If the disabled person does not live in the property, the Public Guardian’s Office will seek court authority to list and sell the property if it is in the disabled person’s best interest. Often times, the Public Guardian’s Office must also deal with mortgage foreclosures, evictions, tax deed sales, partitions, quiet title actions and the like.
The Public Guardian’s Office determines whether the disabled person qualifies for governmental benefits, and applies for such benefits.
Medicaid is a needs-based health insurance program operated by the Illinois Department of Healthcare and Family Services. Medicaid covers hospitalizations, physician treatment, long-term care, medications, medical supplies and durable equipment, among other services. In addition, Medicaid will cover the room and board for participating nursing homes and facilities in the Supportive Living Program. The Supportive Living Program is a Medicaid funded assisted living type of program. To apply for coverage under Medicaid’s Aid to Aged, Blind and Disabled Persons (AABD) program, an individual must be disabled, blind, or older than 65 years old. In addition, the individual’s non-exempt assets must be less than $2,000.00. Exempt assets may include a homestead, a pre-need funeral, furniture and personal effects. The Medicaid program also provides for spousal impoverishment protection, where the nursing home spouse is allowed to transfer a designated amount of income and assets to the community spouse. For more information regarding Illinois’ Medicaid program, visit their website at: http://www.hfs.illinois.gov/.
Medicare is a federal health insurance program that individuals may qualify for based on their insured status or that of a spouse, or of a parent if a child became disabled before age 22. Individuals receiving Social Security Disability Income or Old Age benefits will qualify for Medicare. Some government employees will also receive Medicare if Medicare taxes were withheld while they were employed. Persons over the age of 65 may purchase Medicare. Medicare Part A covers inpatient hospital and skilled nursing care. Medicare Part B covers medical doctors, surgeons, and outpatient care services. Medicare Part D is the pharmaceutical program of Medicare. Individuals who receive both Medicare and Medicaid must enroll in Medicare Part D. Persons must have Medicare Parts A and B to enroll in a Medicare Part D plan. Individuals pay a monthly premium for the coverage and the plans pay a portion of the drug costs. For more Medicare information, visit their website at http://www.medicare.gov/.
Most disabled adults are eligible for benefits through the Social Security Administration. Individuals who worked and earned sufficient credits for Social Security will qualify for old-age benefits at the determined retirement age. Individuals who do not have a sufficient work history may qualify for old-age benefits from a spouse or even an ex-spouse in certain circumstances. Under the Social Security Disability Insurance program (SSDI), disabled adults younger than 62 may be eligible for benefits if the person earned enough work credits and the disabling condition began within a few years of their work stoppage. Disability is evaluated in terms of the ability to perform substantial gainful activity, irrespective of the job market. A person who was disabled prior to their 22nd birthday may also receive SSDI under the parent’s Social Security credits. In order to receive benefits as a disabled adult child, the disability must have started before age 22 and the qualifying parent must be deceased or currently receiving Social Security benefits. Supplemental Security Income (SSI) is needs-based and provides benefits to disabled individuals with limited income and resources. Individuals must have less than $2,000.00 in assets and other income will offset the SSI benefits. An individual must also either be disabled or over age 65 to qualify. See SSA’s website for more information, http://www.ssa.gov/
The Illinois Department on Aging (IDOA) and the Illinois Department of Rehabilitative Services (IDORS) offer benefits through their community care programs. The Community Care Program (CCP) is a Medicaid-waiver program that uses both federal and state Medicaid funds to provide care for disabled persons under 60 (IDORS) and persons 60 years or older (IDOA) who need assistance in the community with activities of daily living. To qualify for either program, an individual must have non-exempt assets less than $17,500 and must score over 29 on the Determination of Needs (DON) test. Based on the individual needs of each person, IDOA and IDORS provide funds for home care services. IDOA also offers adult daycare programs for qualifying individuals. For IDOA information, visit their website at: http://www.cbrx.il.gov/aging/1athome/ccp.htm , and for IDORS, see http://www.dhs.state.il.us/page.aspx?item=29738.
Some disabled adults under guardianship are veterans and may qualify for benefits through the Veterans’ Administration (VA). Individuals who became disabled during military service may be eligible to receive service-connected disability payments. Others who served during wartime and became disabled after their military service may qualify for an improved disability pension based on their limited income and assets. Individuals eligible for pensions may also qualify for Aid and Attendance benefits from the VA. This benefit defers the costs of a home caregiver or assisted living for the veteran and/or his spouse. The Public Guardian’s Office investigates the disabled individual’s military history and works with the Veteran’s Administration to obtain benefits for the individual. See Veteran’s Administration’s website for more information http://www.veterans.illinois.gov/ or http://www.vba.va.gov/VBA/
Creating Special Needs Payback Trusts
For disabled adults where the Public Guardian acts as the legal guardian of the estate, the Public Guardian’s Office must determine how best to use the person’s funds for his or her care, based on the individual’s best interest. In situations where the disabled person has limited funds and the cost of care (usually medical or nursing care) is comparatively high, creating a special needs payback trust may be in the disabled person’s best interest.
A special needs payback trust is only one of many different types of special needs trusts. The creation of a special needs payback trust shelters a disabled person’s assets and qualifies the person for various government benefits, i.e., Medicaid, Illinois Department on Aging or Department of Rehabilitative Services, or SSI. In a special needs payback trust, the disabled person’s assets are used as the trust corpus, and during the disabled person’s lifetime, funds in the trust may be used for the disabled person’s benefit for items and services not covered by Medicaid, Medicare, or other insurance. Upon the disabled person’s death, the Illinois Department of Healthcare and Family Services is reimbursed for Medicaid payments made on behalf of the disabled person. Funds remaining in the trust after reimbursement are then distributed to named beneficiaries or the decedent’s estate.
Planning Funeral Needs
As part of the estate planning, the Public Guardian’s Office makes pre-need funeral, burial, or cremation arrangements for its wards. Whenever possible, the Public Guardian’s Office consults the individuals and their families in the planning process to ensure that arrangements are consistent with the individual’s wishes. For individuals with limited financial means, the Office works with various funeral homes to ensure the best available arrangements and that services are performed with care and dignity.