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John Bair
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Proposed Bill to Allow Disabled to Establish Own Special Needs Trusts

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Under current law, individuals with disabilities can’t establish their own special needs trusts without petitioning a court; instead, a parent, grandparent, guardian, or court creates the trust for the disabled individual. While this process is practical for those individuals with limited mental capacity, it is unfair to those who are physically disabled, yet mentally capable.

A bi-partisan bill, the Special Needs Trust Fairness Act of 2013 (H.R. 2123), was recently introduced in Congress by Rep. Glenn Thompson [R-PA], and gained quick support from Rep. Frank Pallone [D-NJ].

In a press release by the National Academy of Elder Law Attorneys (NAELA), Board Member and Public Policy Chair H. Amos Goodall Jr. stated,

“Since adults often have outlived their parents and grandparents, many persons with disabilities have no alternative but to go—like children—to a Court to ask a judge to create the trust for them. This continues an unnecessary denigration of these individuals and puts an additional burden on our overworked courts. A person should not be treated like a child because of a disability.”

The bill is extremely short compared to most—it simply adds the words “the individual” to amend the language of Section 1917(d)(4)(A) of the Social Security Act (42 U.S.C. 1396p(d)(4)(A)) so that it would read,

“A trust containing the assets of an individual under age 65 who is disabled (as defined in section 1614 (a)(3)) and which is established for the benefit of such individual by the individual, a parent, grandparent, legal guardian of the individual, or a court if the State will receive all amounts remaining in the trust upon the death of such individual up to an amount equal to the total medical assistance paid on behalf of the individual under a State plan under this title.”

It’s a simple change—but a massive step towards independence for disabled individuals who want to retain their assets while protecting their eligibility for SSI and Medicaid.

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