Trusts for People with Disabilities

One of the primary concerns people have as they age is protecting their children, grandchildren, and other people they love. This can be complicated when an adult child is living with a disability.

Current estimates suggest that as many as 48.9 million Americans living outside of institutions are living with disabilities. As many as 24.1 million have severe disabilities, according to the National Service Inclusion Project (NSIP). This means that a lot of Americans may die each year, leaving a surviving disabled adult child or other close relative. When planning, here are a few questions people might want to ask:

• Who will take care of this person when I am gone?
• How will this person obtain medical care without my help?
• If I leave this person all my money, who will manage the funds?
• If I leave this person money, will he or she lose Medicaid and Medicare eligibility?

These are just a few of the big questions families must ask when they are providing for a disabled adult child or other close relative. Fortunately, there are things people can do right now to protect their loved ones for years to come.

Types of Trusts

A trust is just a document that establishes a set of rules and procedures for managing and distributing assets that are owned and controlled by that document. There are many kinds of trusts. For instance, most trusts are established as revocable, meaning they can be revoked or changed during a person’s life. There are also irrevocable trusts. One people put assets into that type of trust, they cannot change their mind and take things back out of the trust. There are also special needs trusts, which are set up to protect people with disabilities.

Funding a Trust

There are two basic ways to fund a trust – self-settled and third-party settled. A self-settled trust is one that is funded by the person who is intended to receive its benefits. In other words, you put money in a trust that is set up to provide for your own care and upkeep. On the other hand, a third-party settled trust is one that is funded by someone other than the individual who will receive its benefit.

Special Needs Trusts (SNT)

A special needs trust is often set up to maintain eligibility for public aid and other needs-based benefits, like Medicaid, Medicare, Social Security, and so forth. These trusts are often quite complicated and require the careful review and assistance of an experienced attorney.

Rules for SNTs

In August of 2017, the Centers for Medicare and Medicaid Services (CMS) released guidelines entitled, “Implications of the Cures Act for Special Needs Trusts. In this release, CMS provided clarification on the requirements for establishing a workable SNT.

A properly drafted SNT must meet the following:

• Disabled adult is under 65
• Person must have a qualifying disability
• Trust must be set up solely for that person’s benefit
• Trust reimburses the state for all money left over after death (up to the amount of free care paid by the state while alive)
• Can be established using the money of a loved one or the disabled person created on or after December 13, 2016)

Estate Planning for Disabilities

If you have loved ones with disabilities, there can be a lot of public benefits to preserve, as well as potential tax consequences. In Birmingham, the experienced estate planning lawyers of Five Points Law Group can carefully review the facts of your unique situation and look for the best option to protect those you love. No single solution is good for everyone. Get caring and knowledgeable advice. Call (205) 352-4455 to schedule an appointment today.

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