December 13, 2016

Former President Obama signed the Special Needs Trust Fairness Act into law effective December 13, 2016.   Prior to this act, a disabled person who received a sum of money, i.e., from an injury settlement, was unable to create his or her own special needs trust without the help of a parent, grandparent or guardian.  A simple change to the existing statute allows individuals with disabilities, who have capacity, to create their own special needs trusts as defined by 42 U.S.C. Section 1396p(d)(4)(A).  It is a huge win for persons with disabilities to eliminate the presumption that all individuals with disabilities lack the mental capacity to handle their own financial affairs.  There have been incredible advocacy efforts of the National Academy of Elder Law Attorneys (NAELA) to make this legislation happen.  You can see NAELA materials here.

Because of this legislation, there will no longer be a need for disabled persons with capacity to have to petition the Court to have their settlement proceeds placed into a special needs trust.  Now there will be less out of pocket costs for injured persons, less involvement with other family members, and less time spent in the process of trying to finalize the person with a disability’s settlement.  A person with a disability will be now be able to set up a special needs trust to receive his or her settlement funds while still being able to keep important needs-based public benefits, such as Medi-Cal or SSI.

The new Act only adds two words to the existing statute.  “The individual” has been added to the list of persons authorized to establish a special needs trust as defined by 42 U.S.C. Section 1396p(d)(4)(A), in addition to a parent, grandparent, guardian, or the Court.

The new Act reads as follows and can be viewed here:

(a)  In General.—Section 1917(d)(4)(A) of the Social Security Act 42 U.S.C. 1396p(d)(4)(A) is amended by inserting “the individual,” after “for the benefit of such individual by”.

(b)  Effective Date.—The amendment made by subsection (a) shall apply to trusts established on or after the date of the enactment of this Act.