SPECIAL NEEDS TRUSTS: WHAT YOU NEED TO KNOW

By: BENJAMIN D. ECKMAN, ESQ.
Elder Law Attorney

A special needs trust is created to ensure that beneficiaries who are disabled or mentally ill can enjoy the use of property which is intended to be held for their benefit. The primary purpose of such trusts is to avoid having beneficiaries lose access to essential government benefits. In addition, a beneficiary may lack the mental capacity to handle their financial affairs, and assets can be better managed within the special needs trust. A trust for a disabled beneficiary is essential foe Medicaid recipient. For example, Special needs trusts can provide benefits to, and protect the assets of, the physically disabled or the mentally disabled. Special Needs Trusts are frequently used to receive an inheritance or personal injury settlement proceeds on behalf of a disabled person or are founded from the proceeds of compensation for criminal injuries, litigation or insurance settlements.

The basic purpose of a “special needs trust” (also known as a supplemental needs trust) is to provide benefits, by means of a trust, to a beneficiary who would otherwise lose eligibility for public assistance (Supplemental Security Income or Medicaid). The beneficiary is one who qualifies for public assistance by reason of some disability that makes that person unable to hold meaningful employment and with insufficient assets to provide adequate support. “Special needs trust” is a general term describing a number of trusts designed to meet the above stated purpose.

Types of Special Needs Trusts

“Disability” or Self-funded Trusts. These trusts, recognized by federal and state statutes, are established with property or funds belonging to the person with the disability. The disability trust may be established for any person under the age of 65 years. The law requires that the trust is established by the person’s parent, grandparent, guardian or the court. This is more commonly known as a d4a trust. Upon the death of the disabled beneficiary the trust must reimburse the state to the extent that the state paid expenditures for medical assistance under Medicaid.

Third Party Created Trusts. Trusts funded by someone other than the beneficiary are third party trusts. A third party trust may benefit a person with a disability as long as it is a special needs trust. This kind of trust may be established either as a living (or “intervivos”) trust or a testamentary trust (created by a will).

Living Trusts. The living trust is ideal for a parent who wants to create a trust for a child who has a disability but does not want the child to lose eligibility for public benefits. If there are other family members who want to leave something by will to the disabled individual but do not want to create a special needs trust in their Wills, they can merely make the devise to the existing trust. The parent, of course, can make either lifetime or a gift by will to the trust.

Testamentary Trusts. To create a testamentary trust the parent merely makes a will and includes in it a special needs trust for the child with the disability. This does not afford other relatives the vehicle to leave a devise to the disabled child without the relative writing a trust in their wills.

What can a Special Needs Trust pay for?

The simple definition of special or supplemental needs is anything that constitutes non-support items. A trust that is deemed special needs cannot provide food or shelter expenses (support expenses) or the trust will be deemed an available resource. Alteanltively, the trust can pay for anything the beneficiary wants for personal use that is not in the category of food or shelter.

Support expenditures are defined in the Social Security Procedures and Operations Manual System (POMS). It is easy to say no food or shelter but it can be tricky. For example, basic utilities such as gas, water and electricity are basic shelter expenses that cannot be paid by the trust. Utilities such as telephone and cable service are not basic and can be paid by the trust. Food cannot be purchased by the trust, but food supplements can. Non-consumable items such as toiletries, cleaning supplies and personal care items can be provided by the trust.

Personal use by the beneficiary is important. If the beneficiary wishes to purchase something that is a legitimate purchase for the trust but intends it to be used by someone else, the purchase may not be allowed. Household goods, so long as they are reasonably necessary for the person to live in his or her residence, are permitted. Computers, furniture, and appliances are acceptable purchases.

Purchase and maintenance of a motor vehicle, as well as paying the insurance is allowable. A motor vehicle is an exempt resource if used for the beneficiary. Other transportation expenses may be paid by the trust.Travel expenses, including a companion, can be paid by the trust. Travel expenses may include travel, accommodations and meals.

Selection of Trustee and Trustee Discretion

The choice of trustee is absolutely critical. The trustee should be knowledgeable in government benefits law, Medicaid, and tax laws. The wrong trustee can jeopardize the whole trust and the government benefits the disabled child receives.

Sole and absolute discretion for distributions by the trustee is essential for any supplemental needs trust. There can be no way in which the beneficiary can “legally” compel distribution from the trust. That does not mean that the trustee cannot ask the beneficiary what he or she wants (or vice versa). But the final decision is with the trustee. Prior approval by the trustee is important. The beneficiary should not incur a debt and then expect the trustee to pay for it.

All purchases by the trust should be paid directly out of the trust. The trustee should never turn over cash to the beneficiary to buy a desired item. Cash is equivalent to support in terms of public benefit eligibility. Expenditures that are prohibited by federal or state regulations, or other mishandling of the trust, can result in the beneficiary being disqualified from pubic benefits.

If the trustee is uncertain as to whether or not an expenditure constitutes a special or supplemental need, he or she should consult an attorney who is knowledgeable and specializes in special needs trusts.

Benjamin D. Eckman, Esq. concentrates his practice on Elder Law & Estate Planning. Elder law is intended to broadly assist “extended living”. An elder law practitioner provides the legal information necessary for persons whose lives will extend or have already extended beyond the time when all children are usually out of the house and when regular employment ceases. After the elder law attorney and client complete their work, legal documents have been drafted, tax considerations have been analyzed, and a plan to protect the elder’s estate has been implemented.

Benjamin D. Eckman’s practice focuses on Estate Planning & Elder Law – legal issues facing senior citizens. Benjamin D. Eckman received his Bachelor’s Degree in Business/Accounting from Touro College and his law degree from Seton Hall University School of Law. He is a member of the New York State Bar Association, the New Jersey State Bar Association, the National Academy of Elder Law Attorneys, the Elder Law Section and Real Property, Probate and Trust Section of the New Jersey State Bar Association, the Union County Bar Association, Passaic County Bar Association and the Bergen County Bar Association. He can be reached at (973) 709-0909, (908) 206-1000 or (201) 263-9161.