In the landmark Olmstead v. L.C. ruling, the Supreme Court recognized the need for a range of services for people with mental retardation or other disabilities. This decision  responds to the varied and unique needs of the entire disability community: “We emphasize that nothing in the ADAor its implementing regulations condones termination of institutional settings for persons unable to handle or benefit from community settings...Nor is there any federal requirement that community-based treatment be imposed on patients who do not desire it.”  119 S. Ct. 2176, 2187 (1999).

 

The question is always asked: "Do I need to ask the court to make me the legal guardian for my adult child with a disability?" The answer is nearly always the same: "it depends."

 

In his article, author and estate planning attorney Paul Heckt, explains two kinds of legal trusts for persons with mental retardation or developmental disabilities -  “supplemental needs trusts” and “special needs trusts” - and their role with regard to inheritance and Medicaid eligibility.  Mr. Heckt is a long a long time VOR member who practices law in Minneapolis, MN. He has a daughter, Ann, with mild developmental disabilities and a sister, Janice, with severe developmental disabilities. His father is Mel Heckt, former VOR Board Member, who continues to practice law at age 84. Mel wrote the first supplemental needs trust in the State of Minnesota, and he served on the President’s Committee on Mental Retardation under Presidents Nixon and Ford.

 

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VOR's Choices for a Lifetime, Options for All legal advocacy program minimizes the injustice of excluding families by defending choice and empowering families in the legal system. Justice regarding residential placement options for people with mental retardation and developmental disabilities is best achieved when those most familiar with the needs of the residents are involved (see, Heller v. Doe, 509 U.S. 312, 328-30 (1993)).

 

There have been many successful, efforts in the state legislatures to codify choice in residential settings. The following summarizes these examples. "Administration" in the following relates to the Governor, Commissioner, Secretary, or other like post in the Executive Branch of the state government.