Proving a Person over Age 65 is Disabled to be able to use a Pooled Trust

Why would you need to prove that a person who is 85 years old, under a plenary guardianship and in a nursing home, is “disabled?”  It happens.  Exceptions to general transfer rules apply to transfers to a blind or disabled child or to trusts established for these individuals.  Similarly some types of Special Needs Trusts (SNT) are only available for individuals who are disabled (d4A and d4C Trusts).  Lately we have been seeing DCF raise this issue, so be prepared.

You won’t have any luck going through Social Security because once the person reaches retirement age they either collect their retirement Social Security or once they turn 65 they are eligible for Supplemental Security Income (SSI) if they haven’t worked (assuming they meet all of the other criteria) because they are officially “old.”

If the disabled person is under the age of 65 then Social Security can make the determination but otherwise you must go through the State of Florida to get a determination.

The Florida Medicaid Manual states:
1640.0609.06 Definition of Disability (MSSI)
When an allowable transfer is alleged to have been made to a disabled individual (per policy in 1640.0609.04), you must determine if the individual meets the definition of disability used by the SSI Program.

Disability must be determined according to standard procedures. That is, if the person receives Social Security disability or SSI benefits, he is considered disabled for Medicaid purposes. If he does not, the District Medical Review Team (DMRT) must make an independent determination to evaluate if the individual meets the disability criteria.

A problem we are facing is that there is no longer a DMRT.  They have been dissolved.  There is now a DDD (Division of Disability Determinations) who determines disability for the State of Florida, but apparently they are not contracted to do these disability determinations for the Department of Children and Families.

The Local DCF offices are tasked with having their local resources including a person qualified to do the disability determinations.  You must ask them to do the determination.

The Social Security Regulations defines “disabled” in section §416 as follows:
§ 416.905. Basic definition of disability for adults.
(a) The law defines disability as 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 12 months. To meet this definition, you must have a severe impairment(s) that makes you unable to do your past relevant work (see § 416.960(b)) or any other substantial gainful work that exists in the national economy. If your severe impairment(s) does not meet or medically equal a listing in appendix 1 to subpart P of part 404 of this chapter, we will assess your residual functional capacity as provided in §§ 416.920(e) and 416.945. (See § 416.920(g)(2) and 416.962 for an exception to this rule.) We will use this residual functional capacity assessment to determine if you can do your past relevant work. If we find that you cannot do your past relevant work, we will use the same residual functional capacity assessment and your vocational factors of age, education, and work experience to determine if you can do other work.
(b) There are different rules for determining disability for individuals who are statutorily blind. We discuss these in §§ 416.981 through 416.985.
[45 FR 55621, Aug. 20, 1980, as amended at 56 FR 5553, Feb. 11, 1991; 68 FR 51164, Aug. 26, 2003]
Since the State of Florida follows the federal guidelines when making its own disability determinations, when dealing with a person over the age of 65 POMS Section DI 25015.025 is helpful.  Social Security needed to have a set of policies to determine a person over the age of 65 is disabled, initially for non-citizens who would not automatically qualify for SSI because of age.  The result is Social Security Ruling SSR 03-3p and was made into a POM.  

Social Security’s 5-Step Sequential Evaluation Process is helpful in determining disability for individuals of any age.  Age factors in to the 5th step, Residual Functional Capacity.  Additionally, if an individual is age 72 or older then any medically determinable impairment is considered severe such that you will immediately pass step 2 which eliminates candidates if the impairment is “non-severe.”  

Florida’s Department of Children and Families has provided a sample letter for a physician to sign that has been helpful in convincing the DMRT (in the past) to determine a person over age 65 is disabled.  Here is a sample of this letter:

If you have any questions or feel that we can help you regarding any of your Guardian Trust clients, feel free to contact our office.

Travis D. Finchum, Esq.
Board Certified Elder Law Attorney
Co-Trustee, Guardian Trusts


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