by: Paul Lorrah
A special needs trust is set up for a person with special needs to supplement any benefits the person may receive from government programs.
A properly drafted special needs trust will allow the beneficiary to receive government benefits while still receiving funds from the trust. There are three main types of special needs trusts, but first it is important to understand how a typical trust works.
A trust is really a relationship between three parties:
- a donor [known as the Grantor], who supplies the funds for the trust;
- a Trustee, who agrees to hold and administer the funds according to the donor's wishes and;
- a beneficiary or beneficiaries who receive the benefit of the funds.
Often, but not always, the donor's wishes are spelled out in a document that gives the trustee instructions about how she should use the trust assets. Trusts have been used for estate planning for a long time, and are highly useful tools for ensuring that a donor's property is administered as he sees fit. One of the reasons trusts are so popular is that they usually survive the death of the donor, providing a low-cost way to manage the donor's assets for others when the donor is gone.
A special needs trust is a trust tailored to a person with special needs that is designed to manage assets for that person's benefit while not compromising access to important government benefits. There are three main types of special needs trusts:
- first-party trust;
- third-party trust and;
- a pooled trust.
All three name the person with special needs as the beneficiary. A "first-party" special needs trust holds assets that belong to the person with special needs, such as an inheritance or an accident settlement. A "third-party" special needs trust holds funds belonging to other people who want to help the person with special needs. A pooled trust holds funds from many different beneficiaries with special needs.
The reason there are several different types of trusts has to do with regulations regarding Supplemental Security Income (SSI) and Medicaid. SSI and Medicaid are government programs that assists people with low incomes who have special needs. In order to qualify for SSI, an applicant or beneficiary can have only $2,000 in his own name. If the person has more than $2,000 in his own name, (typically because of excess savings, an inheritance or an accident settlement), the government allows him to qualify for SSI so long as he places his assets into a first-party special needs trust. The trust must be created by the beneficiary's parent or grandparent, a guardian or by a court and now due to a new bill passed in December 2016 it can be created and funded by the beneficiary.
While the beneficiary is living, the funds in the trust are used for his/her benefit, and when he/she dies, any assets remaining in the trust are used to reimburse the government for the cost of his medical care. These trusts are especially useful for beneficiaries who are receiving SSI or Medicaid and come into large amounts of money, because the trust allows the beneficiary to retain his benefits while still being able to use his own funds when necessary.
The third-party special needs trust is most often used by parents and other family members to assist a person with special needs. These trusts can hold any kind of asset imaginable belonging to the family member or other individual, including a house, stocks and bonds, and other types of investments. The third-party trust functions like a first-party special needs trust in that the assets held in the trust do not affect an SSI beneficiary's access to benefits and the funds can be used to pay for the beneficiary's supplemental needs beyond those covered by government benefits. But a third-party special needs trust does not contain the "payback" provision found in first-party trusts. This means that when the beneficiary with special needs dies, any funds remaining in her trust can pass to other family members, or to charity, without having to be used to reimburse the government.
A pooled trust is an alternative to the first-party special needs trust. Essentially, a charity sets up these trusts that allow beneficiaries to pool their resources for investment purposes, while still maintaining separate accounts for each beneficiary's needs. When the beneficiary dies, the funds remaining in her account reimburse the government for her care, but a portion also goes towards the non-profit organization responsible for managing the trust.
Anyone can establish a special needs trust and if the trust is properly drafted to account for tax planning, in certain situations gifts into the trust could very well reduce the size of the donor's taxable estate. As if these are not enough reasons to create a trust, elderly people who are attempting to qualify for long-term care coverage through Medicaid can transfer their assets into a properly drafted third-party special needs trust for the sole benefit of a person with disabilities without incurring a transfer-of-assets penalty, allowing the elder to qualify for Medicaid and making sure that the person with disabilities is taken care of in the future.
Of course, every person with special needs is different, which means that every special needs trust is going to be different as well. The only way to determine which special needs trust is right for your family is to meet with a qualified attorney to discuss your needs.