The National Academy of Elder Law Attorneys (“NAELA”) has designated
October as National Special Needs Law Month. NAELA wanted to spotlight
special needs law to help spread the word to people with disabilities
and their families that there are attorneys who specifically focus on
helping them with a wide variety of legal needs, including becoming qualified
for government benefits.
For needs based government benefits programs such as Medicaid or SSI, the
applicant must satisfy income and asset restrictions. One way a special
needs lawyer can help an applicant meet the restrictions for the assets
test is to create a special needs trust. There are two types of special
needs trusts. A special needs trust that is established using the money
of the person who has a disability (1st party trust) or a special needs
trust that is established by another person, with their money, for the
benefit of the person with a disability (3rd party trust).
One of the important distinctions between a 1st party special needs trust
and a 3rd party special needs trust is that a 1st party trust has a Medicaid
payback provision and a 3rdparty trust does not. This distinction is crucial
for family members who want to leave the person with a disability an inheritance
to understand. (An inheritance can greatly enhance the quality of life
for a person with a disability by making things such as additional therapies
available, but an unplanned inheritance can potentially disrupt the quality
of life by threatening the continued receipt of much needed government
benefits). An attorney familiar with special needs law can assist the
family members in planning ahead for inheritances by including the appropriate
3rd party special needs trust provisions in their estate plans.
Using special needs trusts in estate plans is just one example of the ways
in which an attorney with knowledge of the special needs area of the law
can help people with disabilities and their families. There are many other
ways that an attorney with this knowledge can be of assistance in planning
for the present and future wellbeing of the person with a disability.