Bray & Greenwood LLP 

The Special Needs Trust

    

Common knowledge is the fact that government programs - in the form of Supplemental Security Income (SSI) and Medicaid- are very important for people with disabilities in need, as they provide cash benefits as well as important medical coverage and long-term supports and services. Theincome level and financial resources of an individual with a disability, or family who is applying on behalf of their child with a disability, most recipients are allowed to retain only a total of $2,000 in assets, with some exceptions. A person with a disability receiving SSI, who accumulates more than $2,000 in cash resources, may lose SSI and, possibly, Medicaid.

 However, government cash benefits provide only for the bare necessities: food, shelter, and clothing. They amount to less than a federal poverty level income. As we all know, there are more things and activities beyond these basics that add quality to life. For a parent planning for the future of their child with special needs, this poses a problem. When parents are able to care for their child, they provide extras beyond the bare necessities to make their child’s life comfortable. But who will provide those resources when they are not there to do so ? If parents leave any assets to their child who are receiving government benefits, they run the risk of disqualifying the child from receiving government benefits. If they leave assets to another family member or person for the care of the child, they open other avenues of risk where the child might not get the benefit of those assets due to: divorce, bankruptcy, lawsuits, or financial mismanagement by the person caring for the assets. Fortunately, the government established rules allowing assets to be held in trust for a recipient of SSI and Medicaid, as long as certain parameters are met.

 These trusts, called Supplemental Needs or Special Needs Trusts (SNTs), preserve government benefit eligibility and leave assets that will meet the supplemental needs of the person with a disability. The SNT funds those additional needs that go beyond food, shelter, and clothing and the medical and long term supports and services of Medicaid. In fact, the SNT must be designed specifically to supplement, not supplant, government benefits. Money from the trust cannot be distributed directly to the person with a disability. Instead, it must be distributed to third parties to pay for goods and services to be used by the person with a disability.

The SNT can be used for various expenditures such as:

  • Out-of -pocket medical and dental experiences
  • Eyeglasses
  • Annual independent check-ups
  • Transportation (including vehicle purchase)
  • Maintenance of vehicles
  • Insurance (including payment of premiums)
  • Rehabilitation
  • Essential dietary needs
  • Purchase materials for a hobby or recreation activity
  • Purchase materials for a hobby or recreation activity
  • Purchase a computer or electronic equipment
  • Pay for trips or vacations, pay for entertainment like going to a movie, a ball game, concert, etc.
  • Purchase of goods and services that add pleasure and quality to life: videos, furniture, or a television
  • Athletic training or competitions
  • Personal care attendant or escort
  • Wedding

When should an SNT be set up?

Parents may consider setting up an SNT when they begin their future planning activities such as drawing up their wills. If their child with a disability will likely have long-term medical or support needs, the SNT can be a vehicle to supply the funding to provide lifetime quality care. Even if the child’s future prognosis is unclear, it is never too early to put plans in place for contingencies such as the parent’s sudden death or disability.

 

How is an SNT set up ?

 The laws governing trusts are complex and are subject to changes in legislation that may vary by state and which could affect a person’s eligibility for the government benefits that they depend upon. New laws have considerably tightened the eligibility criteria for receiving government benefits and thus have affected many aspects of the ways SNTs are drawn up. These regulations are complex an require a strong knowledge of the current legislation and how it impacts people planning for their child with special needs in order to preserve eligibility. Setting up a special needs trust requires coordinated planning with an attorney knowledgeable in special needs planning who can draft a will and necessary trust documents.

When a parent or grandparent dies, additional assets can be distributed, under a will, to the SNT. A percentage of shares in an estate can be left to a child’s SNT. Funding can come form discretionary contributions while parents are alive, probate distributions, a living trust, life insurance, Pension plan, or other sources. Therefore, the individual with a disability does not have to be left out of a will, but should have their share of inheritance directed to his or her SNT. In the case of a life insurance policy, pension plan, or other source that would go to a beneficiary on death, the child’s SNT should be the beneficiary.

 

Types of SNTs:

There are two types of SNTs. An experienced attorney can explains the benefits and disadvantages of each.

A. Testamentary SNTs: included in the will and funded as part of the probate process of the Last Will and Testament.

B. Irrevocable trusts are used in may special needs planning situations. The irrevocable nature of the trust helps protect the money on behalf of the beneficiary who has a disability. Irrevocable trusts can be funded during the life or at the death of the person who is granting the funds.

The Social Security Administration, the federal agency that administers SSI, and the state Medicaid agencies, evaluate trusts that have been set up for individuals with disabilities who are receiving governments benefits to determine if they are countable resources for those individuals. If the individual has the legal authority to revoke the trust and use the principle of the trust to meet his or her needs for food, clothing, or shelter, it is considered countable resources for SSI and Medicaid purposes.

 

Managing the SNT:

Having an SNT requires a trustee to be appointed . A trustee is one who manages another’s property and may be a person or an institution such as a bank. In this case, the trustee is the manger of the trust and has general unlimited discretion to use trust proceeds provided for the needs of the individual with a disability. The trustee may be given full discretion to mange the money in th trust and decide how the money is used for the person’s benefit. The SNT should be drafted to direct the trustee in how to use the trust’s resources for the individual’s needs.

Trustees should have good money management/financial skills. The SNT will likely exist for a long period of time. Trustees should be chosen with longevity in mind, and the trust itself should be drafted to adjust to changing circumstances, such as to allow trustees to be changed or removed.

After the death of the individual with a disability, the trustee oversees the final arrangements and the SNT usually ends. However, the trustee may terminate the SNT if laws change or the SNT is challenged by the government.

 
Staying On Top of Changes:

 There have been some changes to the law affecting transfers to trusts that were intended to make sure that only people who truly need government assistance have access to it . The Omnibus Budget Reconciliation Act of 1993 (OBRA OE93) was designed to discourage and /or penalize those people with middle to upper income levels seeking to transfer ( give away or sell) their assets to the next generation while accessing Medicaid to pay for their own long-term care. OBRA OE93 established disqualification periods in which the person is rendered ineligible because the assets that they wanted to transfer are counted as resources. The disqualification periods range from up to 36 months for outright gifts, and 60 months or more in some cases for transfers to trusts.

 This could have presented a dilemma for parents of children with disabilities who may need to seek Medicaid coverage for their own long-term care. Fortunately, Congress provided special treatment for these parents transferring assets to or for the benefit of their child with a disability. Asset transfers could be made to Special Needs Trusts by the parent of a child with disabilities, or anyone else under certain circumstances, without affecting the potential Medicaid eligibility of the grantor. In addition, an individual under 65 can set up a trust or transfer assets to a trust without affecting his/her own Medicaid eligibility by having an individual trust established by a parent, grand parent, legal guardian, or court or by setting up a pooled trust (see below). If the trust is established with the assets of the individual with disabilities, then, at the individual’s death, the trust must first pay Medicaid for the cost of benefits receive before other beneficiaries are paid.

Another such law affecting trusts is the Foster Care Independence Act of 1999 ( P.L. 106-169). Section 205 of this law provides that trusts established with the assets of an individual (or spouse) will be considered a resource for SSI eligibility purposes. It also addresses when earnings or additions to trusts will be considered income. However, SSI specifically honors trusts which meet the Medicaid rules and does not disqualify the eligible individual so long as the requirements are followed. These provisions are effective for trusts established on or after January 1, 2000.

All trust documents are thoroughly reviewed by the Social Security Administration to make certain that they comply with the new law. The new regulations call for close scrutiny as to whether any trust assets or income can be attributed to the person with a disability, or can be indirectly tied to that person.

Many states have their own additional sets of criteria that they utilize to evaluate SSI eligibility when special needs or supplemental needs trusts are also presented. These state guidelines often impose more stringent guidelines than federal SSA regulations.

 

Pooled or Community Trusts:   

In addition to the above, another form of special needs trust for a person with a Disability is the Pooled Income Trust also known as a Community Trust. These trusts contain the assets of a person with a disability and must meet the following criteria:

Must be established and maintained by a nonprofit organization which maintains separate accounts for each individual with a disability, but for management of funds, purpose of benefiting an individual with a disability. The Pooled Income Trust may be funded by the individual with a disability as well as a parent, grandparent, legal guardian, or court;

The funds remaining in the trust after the individual dies may be designated to be retained by the nonprofit organization, but if not, the state may claim the right to be reimbursed for medical expenses paid on the individual’s behalf.

 There are many nuances and complex issues involved in setting up a plan for the future of an individual with special needs which must be handled correctly. There is too much at stake for the individual to loose if proper planning is not in place. It is crucial to find an attorney experienced in trusts involving a person with a disability.

 

Kosloff & Greenwood, A Professional Corporation, is committed to helping families through the maze of legal and financial planning for the future of a child or dependant with special needs.

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