A Special needs trust (“SNT”) is a form of a pure discretionary, spendthrift trust designed to preserve a disabled person’s eligibility for government benefits. These public benefits may include means-tested programs where eligibility is based on financial need, such as Medicaid, Supplemental Security Income (“SSI”) or Snap Benefits (Food Stamps), or insurance programs where eligibility is based on criteria other than financial need, such as Medicare or Social Security Disability Income.
Yes. There are both private and pooled First Party Special Needs Trusts. In addition, there are Third Party Trusts as well.
The characteristics of a private special needs trust found at 42 USC §1396p(d)(4)(A) Trusts are:
- Individual trusts drafted by an attorney
- State specific
- For a beneficiary under the age of 65
- No additional funds may be added to the trust after the beneficiary is 65 years old, unless through a previously established structured settlement annuity
- A parent, grandparent, guardian, court or the beneficiary may establish such a trust
- The trust agreement must grant Medicaid a first right of recovery against the trust assets upon the beneficiary’s death
- The trustee must be knowledgeable enough about government benefits to protect the beneficiary’s eligibility for said benefits
- The costs associated with drafting and establishing a private first party special needs trusts can vary depending on the facts of the case
- Approval of the trust from Medicaid must be secured in order for the trust to be deemed a non-countable resource
The characteristics of a pooled special needs trusts found at 42 USC §1396p(d)(4)(C) are:
- Trust is administered in accordance with one master trust agreement
- The trust is administered for the benefit of individuals nationwide
- Anyone can join a pooled trust, but Medicaid often considers joining a pooled trust after
the age of 65 to be an improper transfer
- Unlike with private special needs trusts, a disabled individual may join the trust himself/herself
Medicaid payback may be avoided by permitting the trust to keep the assets upon the death of the beneficiary
- The trustee must be knowledgeable about government benefits to properly administrator the trust
- The costs associated with joining a pooled trust are generally lower than those associated with establishing a private special needs trust
- An individual can join and establish an account with a pooled trust in a very short period of time
- The pooled trust trustee will secure the necessary government approval
The purpose of a third party special needs trust is to preserve public benefits for an individual or family member with physical or mental disabilities. Money is provided to a trust for the benefit of a disabled individual via gift or inheritance. The trust is to provide for the disabled person’s supplemental needs. The trust must be a pure discretionary spendthrift trust that grants the trustee the authority to determine if and when a distribution is appropriate and to deny a requested distribution if such a distribution could negatively impact the beneficiary’s eligibility for benefits and/or overall well-being. Third party special needs trusts can be testamentary or inter vivos trusts and can be revocable or irrevocable. Also, and of great importance, Medicaid is not the primary beneficiary upon termination of the trust, rather the grantor can determine how the remaining trust assets are to be disbursed at the death of the beneficiary.
The following questions should be asked:
- Does the client want to determine the trustee, financial manager, and the terms of trust administration?
- Does the trustee require a minimum deposit for trust services?
- Does the trustee have experience with special needs trust administration?
- What are the fees for trustee services?
- Will the trustee travel to meet with the beneficiary?
- How are disbursements requested and processed?
The primary goal of a special needs trust is to preserve an individual’s means-tested government benefits. Therefore, it is important to learn if individual has the capacity to establish the trust, or if a parent, grandparent or legal guardian can establish the trust on his or her behalf. If not, a court order must be obtained to establish the trust properly.
Any money/property left in a First Party trust may either be retained by Life Plan for the benefit of other people with disabilities OR repay Medicaid in full. Only if Medicaid is repaid in full is it possible for funds left in a First Party trust to pass to the individual’s family. Funds that remain at the death of a beneficiary in a Third Party trust can go to family members or others, without repayment to Medicaid, because those funds do not belong to the beneficiary.
Government benefits are forms of healthcare and/or financial assistance that are made available to people within the United States. While eligibility for certain government benefits is based upon an individual’s monthly income and the value of resources he/she owns (means tested benefits), eligibility for other programs is based on the number of quarters of employment during which an individual paid taxes into the Social Security system(entitlement benefits). Examples of means‐tested benefits are Medicaid, Supplemental Security Income, Food Stamps and Section 8 Housing Vouchers.
Examples of entitlement‐based benefits are Medicare, Social Security Disability Income and Disabled Adult Children’s benefits.
Medicare is a health insurance program that pays for an eligible individual’s medical costs.
Similar to SSDI, Medicare is an insurance program and not a program that is provided to people based on financial need. In simplest terms, Medicare pays for acute care, hospitalization, limited skilled nursing care, physician’s visits, medications used in the hospital, and prescription drugs under Part D.
Like Medicare, Medicaid provides insurance coverage for basic medical and hospital care, as well as prescription drugs and long‐term care services. In addition, and most often of critical importance to those with disabilities, Medicaid will pay for rehabilitative services, therapy (occupational and physical), and for care in either an individual’s home, a group home or nursing facility. Many states also provide services through waiver programs to support individuals with disabilities in the community.
SSI is a means‐tested Social Security (federal) benefits program that provides income to certain aged, blind and disabled people. The purpose of the SSI program is to provide certain individuals with income to be used for food and shelter. Currently, the maximum amount of SSI for an individual is $771 a month.
Social Security Disability Income (SSDI) is a benefit paid to people who cannot work because they have a medical condition that is expected to last at least one year or result in death.
Federal law requires this very strict definition of disability. In general, to get SSDI benefits, you must meet two different earnings tests: (1) a “recent work” test based on your age at the time you became disabled; and (2) a “duration of work” test to show that you worked (paid enough in social security taxes) long enough under Social Security. Certain blind workers must meet only the “duration of work” test.
Social Security’s definition of disability is the inability to do any substantial gainful activity by reason of medically‐determinable physical or mental impairment that can be expected to result in death or that has lasted or can be expected to last for a continuous period of not less than 12 months. In other words, the injury must prohibit the person from performing his or her previous job or any other substantial gainful activity in the national economy.
Yes. An SSDI beneficiary is entitled to receive health insurance coverage under the Medicare program after receiving SSDI benefits for a period of two years.
CDB benefits are SSDI benefits that are made available to a child (minor or adult) when his/her parent(s) reach retirement age, become disabled or die. The benefit is based upon the parent’s earning’s record with Social Security and is paid out as part of the parent’s Social Security benefit. In order for an adult child to access this benefit, he/she must have been determined to be disabled prior to the age of 22.
No. Generally speaking, whenever an individual loses his/her eligibility for Medicaid due to the receipt of benefits or an increase in a Social Security benefit, federal law ensures that the individual’s eligibility for Medicaid will remain in place.
This amount changes each year, but an individual CAN engage in work activities, which is good for all sorts of reasons. Contact us for a current earnings limit amount. Remember that resources must be limited for individuals who have SSI and/or Medicaid.
Resources are generally defined as those assets an individual or couple own and can apply, either directly or by sale or conversion, to meet basic needs of food, clothing and shelter.
Resources may be available money, real property, personal property or other assets subject to provisions for relative responsibility.
Non‐countable resources include household goods and personal effects, an automobile, life insurance with a cash value not to exceed $1,500, a prepaid burial plot or a burial fund up to $1,500, most pre‐paid funeral contracts and amounts in an ABLE account.
Yes. Life Plan has fiduciary insurance for both court ordered and non-court ordered Special Needs Trusts and Supplemental Needs Trust accounts.