Summary: The new Special Needs Trust Fairness Act helps empower adults to be independent and advocate for themselves. It makes it easier for those with disabilities to establish their own trusts, and to improve their own lives without sacrificing government benefits.
The Special Needs Trust Fairness Act recently passed into law, making it easier for those with disabilities to establish their own trusts. The Special Needs Trust Fairness Act, part of the 21st Century Cures Act, allows mentally-competent adults to create and fund “self-settled” special needs trusts for their own benefit. (This change does no impact third party special needs trusts which by definition are created by someone other than the beneficiary.)
Special Needs Trusts can be used to improve people’s lives without sacrificing their government benefits. Prior to the creation of this type of trust, if a person with disabilities who was receiving government benefits suddenly received additional funds (ex: inheritance, lawsuit settlement, etc.), he or she would lose those government benefits. Medicaid and Supplemental Security Income, which help pay for basic living and medical expenses and are critical for so many people, have an asset limit requirement and receiving even small amounts of money can impact receipt of these benefits.
In 1993, Congress enacted a law in which the parent, grandparent, or legal guardian of a disabled person could establish a self-settled special needs trust. In the absence of one of these people, the law required a Court to establish the trust on behalf of the disabled individual. There was no reason that a competent individual should be saddled with the extra burden of finding someone else to be the trust settlor or incur legal costs for going to court to have it done. However, now, a disabled person with capacity can be the settlor of his or her own trust.
While the Special Needs Trust Fairness Act does empower adults to be independent and advocate for themselves, it is still a good idea to consult with an estate planning attorney prior to drafting a special needs trust. For more information, you can contact the Siedentopf Law via our website at EstateLawAtlanta.com or by calling us at (404) 736 – 6066.
© Sarah Siedentopf and Siedentopf Law, 2018. Unauthorized use and/or duplication of this material without express and written permission from this site’s author and/or owner is strictly prohibited. Excerpts and links may be used, provided that full and clear credit is given to Siedentopf Law and EstateLawAtlanta.com with appropriate and specific direction to the original content.