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.