Buried in a new federal law is a tiny change that will now allow individuals to set up their own special needs trusts. The sum total of the change is two words - "the individual" - intended to correct a more than 20-year-old error. The change is called the Special Needs Trust Fairness Act.
Authorized under the Omnibus Budged Reconciliation Act of 1993, special needs trusts protect assets and allow an individual to maintain eligibility for governmental benefits such as Supplemental Security Income (SSI) and Medicaid.
Prior to the law being enacted, a person with a disability under the age of 65 would, in most cases, have to spend down to reach $2,000 or less in assets before becoming eligible for Medicaid and other governmental benefits. The individual would have to remain at that asset level to continue receiving benefits.
Under the 1993 law, a disabled individual's assets in a special needs trust are disregarded in evaluating the individual's assets for the purposes of obtaining government benefits. At death, the state that provided for the person's care would be repaid out of the assets remaining in the trust.
But here's the issue. The law allowed parents, grandparents, legal guardians and courts to create such trusts. So what happens to individuals with disabilities who don't have living parents or grandparents? Previously, their only option was to go to court to have a special needs trust created on their behalf.
Now, under the new law, individuals can create their own special needs trust.
This is a huge relief, because individuals can avoid the extra time and costs incurred from going to court. But it's still essential to have an attorney draft the trust property and make sure it's customized to your needs and those of your loved ones.