Can I Create My Own Special Needs Trust?

As of today, the answer is no you may not create your own Special Needs Trust, but the SNT Fairness Act may change that soon.  Under the current law you must have a guardian or court order to create a SNT for yourself.

Congress gave the estate planning community a great gift today when the Senate approved H.R. 34, the 21st Century Cures Act, which includes the Special Needs Trust Fairness Act by a vote of 94 to 5.  The bill is now seeking final approval from the current sitting President Barack Obama, and political experts predict the president will sign the bill before he exits office.

The U.S. House of Representatives passed the Special Needs Trust Fairness Act on November 30 since time is running out with the current session of Congress.  Senator Glenn Thompson from Pennsylvania, who is the Fairness Act’s sponsor, hurried to find a legal avenue for the getting the act passed before lame-duck session of Congress ended.  Innovatively, he used the Cures Act, which is a lengthy $6.3 billion medical bill that bundles a wide variety of health care related.

To summarize, the Special Needs Trust Fairness Act has gotten a jump-start to passage by including the Act within the Century Cures Act that is now before the president.   The Senate unanimously approved the Fairness Act in September 2015.  The House of Representatives made slight changes to the bill due to its high price tag of $8 million and sent it back to the Senate to vote on the new language.

It was not certain that the Cures Act would pass the Senate vote.  While the Fairness Act enjoyed bipartisan support, the larger bill was not guaranteed to pass the Senate by any means.  The Cures Act faced some opposition in the Senate according to the public policy manager of the National Academy of Elder Law Attorneys David Goldfarb.  The main dissent among Senate members was due to the act’s elimination of tobacco cessation programs.

The Cures Act passed by a vote of 392 to 26 in the House on November 30 and passed the Senate 94 to 5 a week later.  Besides the Special Needs Trust, the Cures Act should offer a number of benefits to citizens.  For instance, the law should allow for money to go to biomedical research and speed the approval of new drugs and medical devices.

How A Special Needs Trust Works

The main benefit of a special needs trust is that it allows a person to leave money or property to a loved one with a disability while also not jeopardizing the person’s ability to receive Supplemental Security Income and Medicaid.

The main problem with the current law was that it did not allow a person with a disability to create a special needs trust to create the trust.  The special needs trust had to be established by a parent, grandparent, guardian or court.  This created a major issue where adults with a disability could not benefit from the trust because this person had no living parents.  Instead, the person would have to give up his or rights to a guardian.

This Act is a major improvement to the current law and allows a person with a disability to not give up his or rights through a guardianship in Florida.  For more information on special needs trust and how the law concerning the trust are changing, please contact the estate planning attorneys at The Law Office of David M. Goldman PLLC today.

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