Public Benefits Eligibility Law for Special Needs and Disabled Persons

Special Needs Trusts in New Jersey

If you have a family member or someone close to you with a special need(s) and/or a disability, you may want to learn more about the many federal and state benefit programs available to him or her.  Disability and special needs law for children and adults is a maze.  At Hanlon Niemann & Wright, we guide and assist individuals and families looking to qualify for public benefits legally and ethically as the law permits.

Life is Tougher with a Disability

Life is hard without having a disability. The life of a person with a disability and his/her family caregiver(s) can be even harder, more isolated, and full of anxiety, fear, frustration, and expense. The future is less certain especially if a caretaker is getting older and/or is declining in health.  Caregivers do not live forever or stay healthy until their older age.

Don’t Lose Out on the Services and Benefits Available to Young and Older Persons with Disabilities and Special Needs

Have you noticed that some people know all the tricks and strategies to gain benefits under state welfare and support programs but middle-class, hardworking parents and families like you struggle to get the help needed for a loved one?  It’s wrong and it’s unfair, and it can end for you because Hanlon Niemann & Wright is dedicated to helping you maximize your eligibility and approval for all available state and federal programs, services, and financial aid.  At Hanlon Niemann & Wright, we represent families, parents, grandparents, guardians, powers of attorney, and interested persons seeking the assistance of experienced legal counsel.  Contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at to schedule a face-to-face discussion about how we can assist you.  As a father of four children (now adults), Mr. Niemann understands the importance of advance planning.  You’ll find him really easy to talk to and genuinely interested in helping you.  Call or email him today.


Support Person Permitted to Accompany a Person with a Disability Who Needs Be Hospitalized

The Commissioner of the Department of Health issued a very important memorandum to New Jersey Hospitals. It is important because it instructs hospitals to allow a designated support person to accompany a person with a disability who has to be hospitalized. The support person has to be someone who does not have symptoms of COVID-19.  The hospital is required to screen the support person every 12 hours, and they have to stay at the hospital during their loved one’s hospitalization. They cannot leave. The hospitals are also instructed to supply Personal Protective Equipment to the support person.  Hospitals are permitted, but not required, to allow a second support person.

This is extremely important.  If your loved one with a disability has difficulty communicating, or is in the midst of a mental health crisis, they do not have to be alone.  This is an important exception to the limitations on visitors at our hospitals.

This instruction applies to anyone with a disability that, “May be due to altered mental status, intellectual or cognitive disability, communication barriers or behavioral concerns.”

If you have a loved one with a disability who has been hospitalized, and they do not have a support person with them, contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at to discuss your family member’s right to be accompanied by a support person while they are hospitalized.

Let’s Work Together to Achieve a Terrific Result

Millions of Americans and thousands of NJ families have members with special needs and/or disabilities. These disabilities can be physical, intellectual, emotional and/or psychological.

Even if you don’t have a family member with a disability, you likely know many families and individuals who do.

Understanding New Jersey and Federal Disability Laws, Programs and Benefits

If a person is eligible for Supplemental Security Income (SSI), Medicaid, DDD, PPP, Social Security Disability (SSD) and other benefit program(s) (i.e., Section 8 housing, group housing, food stamps, prescription drug assistance, health insurance), you need to act now.  Funding and wait lists exist for many programs so don’t delay.

Discovering the State Agencies with the Authority to Act

There are three principal agencies for services under NJ law; the Division of Developmental Disabilities (DDD); the Division of Mental Health and Addiction Services (DMHAS), and the Department of Children and Families (DCF).  They serve different individuals.

Individuals who qualify under DDD or DMHAS are person(s) with a developmental disability, person(s) with an intellectual disability, person(s) with a health condition or a diagnosis of mental disorder, individuals diagnosed with disabling anxiety, depression, bipolar, borderline personality disorder, schizo-affective disorder, schizophrenia, and other similar mental disorders can also be eligible for services in New Jersey.

From start to finish, the entire experience of the “dreaded” estate planning and especially preparing our special needs child trust agreement went so smoothly.  That is thanks to the professionalism and dedication of Mr. Niemann and his wonderful staff.

Mr. Niemann, with the help of Lucille and Michele managed to guide us with sound advice, answer each and every question that arose (and there were many!) with the utmost patience, sensitivity and always with a smile on their faces.  Thank you from the bottom of our hearts!

We will be counting on all of you for helping us to obtain guardianship of Hannah next year!
—Sharon Arafa, Cliffwood, NJ

To Better Understand Public Benefits Law, You Need to Understand “Means Tested” Programs

The government benefit program(s) your loved one may qualify under often introduces a significant amount of complexity.  This is because there are multiple public benefit programs, and each program has its own set of rules that determine eligibility.  While an extensive examination of these programs is beyond the scope of this page, it is important to understand that it is this complexity that is found in the rules and guidelines under which public benefit laws operate.

Eligibility for Means Tested Programs

Level of Care / Medical Eligibility

As a practical matter, the first test to pass is the physical and/or cognitive requirement established for program eligibility.  Simply put, a person must medically “need” the public benefits for which they apply. This is known as the medical eligibility test.  In the following discussion, I am assuming that medical “eligibility” for benefits is not an issue and therefore, I will only examine financial eligibility.  But I caution you, proof of medical eligibility is and always will be the threshold proof required to successfully obtain services and benefits.  If you have questions about medical eligibility, then we can meet to evaluate this issue as well.

Mr. Niemann has been a God send to me and my family. He has met with me many, many times with patience, sensitivity and understanding that few people expect from an attorney. My family issues are complex and Mr. Niemann understands what I want to happen to my estate upon my death, especially for my adult incapacitated child and other adult children. He created a special trust for my son. He has followed up with me to help me make decisions without forcing his opinions on me. In the end, he told me, “Jerri, my job is to explain your choices and help you understand the legal effect of those choices.”

He guided me and put me at ease. He wanted me to make decisions that are the right ones for me. I am thankful for Mr. Niemann being my attorney and I recommend him to elderly persons who seek a qualified professional who will treat them with dignity, respect and sensitivity.
—Jeraldine Vincitore, Freehold, NJ

Please accept my sincere thanks to your law firm and your staff for all your patience and assistance in helping my sister and I through the tangled legal jungle in preparation for my sister’s special needs. We would have been lost without you.

— Ginny Ditzel, Snow Camp, NC

You Can Create Legal Documents to Protect a Disabled Individual and Allow Them to Be Financially Secure and More Independent

There are many reasons to create a plan for the benefit of a special needs and/or disabled person.  It will be my pleasure to explain them to you face to face.  Here are some of the benefits I explain to clients when they come to see me.  I have bullet pointed them for you here and then I go onto explaining each point in much greater detail on the pages that follow.

Below I Have Highlighted the Benefits of a Customized Plan to Improve the Quality of Life of a Disabled Person

  • The person with the disability will keep his/her income (SSI or SSD) and health care benefits, including Medicaid and Medicare.
  • Money can be used to pay for personal items and services not covered by public benefits.
  • Money can be used to pay for a doctor, dentist, therapist and other professionals who do not accept Medicaid, or for the services, co-pays and deductibles not covered by Medicare A & B & Medicaid.
  • Parents and grandparents can control how, when and where money goes to their loved one with the disability while he or she is alive and even after their passing. Otherwise, the only alternatives left are (1) give nothing to the child; or (2) leaving money to a pooled trust; or (3) leaving money that is not in a public benefits qualifying trust causing the loss of public benefits.
  • Numerous programs exist that are dedicated to enhancing the day-to-day quality of life for a disabled person.  A plan can help achieve this enhanced quality of life.

Understanding Financial Eligibility for Benefits and Services

Be Sure to Achieve Financial Eligibility

In addition to meeting a “Medical” Eligibility test, all New Jersey “means tested” government assisted programs have resource limits which place caps on the individual’s assets and/or income. While the income cap varies from program to program, the resource cap is generally $2,000.00. Certain assets, such as the individual’s home and automobile, are generally not counted as available resources when determining eligibility. Most other assets and “things” of value are counted including funds and resources that are capable of being spent down and used to pay for medical care and services. This includes property held in restricted accounts that cannot be accessed without a court order. Without careful planning, the individual with too much income or resources will need to spend down everything and then apply, or reapply, for government benefit programs. We can avoid this forced spend down by creating the right plan for you and drafting the appropriate legal documents.

Traditional Trusts Are Treated as an Available Resource for Determining Benefit Eligibility in New Jersey

As a general rule, assets held in most traditional savings and investment accounts and revocable trusts will be counted as an available resource by the government.  If the government considers a resource to be available, things become very difficult for individuals and their families who want to plan for future needs.  It doesn’t have to be this way!

Beware: Use of a Revocable Trust in New Jersey Equals Disqualification for Many Public Benefits

Since the individual or trustee retains the legal authority to alter the terms of the trust and/or can revoke a trust instrument, a revocable trust is treated no differently than any other available asset such as cash in the bank.  For example, an individual’s revocable trust will be treated no differently than his or her savings or checking account.  This is why Fredrick P. Niemann, Esq. typically does not recommend funding revocable living trusts for the benefit of a person with a disability who could otherwise qualify for a public benefit program while the settlors or beneficiary are/is alive.

Beware: The Incorrect Use of an Irrevocable Trust in New Jersey Also Equals Disqualification

Since the disabled/special needs individual does not retain legal authority to revoke the trust, irrevocable trusts are treated differently than a revocable trust.  The specific language in the trust must be carefully reviewed and evaluated.  Tight restrictions on how trust funds can be spent must be included in these trusts to avoid the loss of benefit eligibility. However, with the right approach we can preserve eligibility for government benefit programs and improve the life of the person with the disability with a well-written irrevocable trust.

Here’s a Question: Can any portion of a Revocable or Irrevocable Trust be used for the individual’s benefit?

The Potential for Payments to the Disabled Person is a Real Problem

If any payment can be made, or must be made, either to the individual or for the benefit of the individual, the portion of the payment that could be paid or must be paid will be considered an available resource by the government.  That means loss of eligibility. If your document(s) contain such language, you need this corrected immediately.

Avoid at All Costs Actual Payments to the Disabled Person

Direct cash payments made to the individual will be considered income to the individual, and the income restriction rules will apply. This also means… ineligibility or a meaningful reduction of financial payments and benefits.


I know I covered a lot of information with you.  It’s confusing and probably overwhelming.  We understand.  We’re here to help but you need to contact me personally to discuss your personal situation.  Call me toll-free at (855) 376-5291 or e-mail me at  Our offices are conveniently located off of Route 9 North in Freehold, NJ.

Fredrick P. Niemann Esq.



Special Needs and Disability Attorney serving these New Jersey Counties:

Monmouth County, Ocean County, Essex County, Cape May County, Camden County, Mercer County, Middlesex County,
Bergen County, Morris County, Burlington County, Union County, Somerset County, Hudson County, Passaic County