Basic Facts: Special Needs and Pooled Trusts
If you want to give money to a disabled family member receiving government benefits like SSI (Supplemental Security Income) and Medicaid, consider setting up a special needs trust and naming that person in your Will. Careful planning is required since disabled people can lose their eligibility to receive certain benefits if their net worth and assets increase.
Once you’ve created the proper type of trust account, your disabled family member will be in a better position to: (1) start receiving an added monthly stipend or inheritance from a family member; (2) accept a large sum of money after surviving a serious vehicle accident caused by another person’s negligence; or (3) receive funds from another unusual source.
Here’s additional information about creating SNTs – special needs trusts. You may want to set up a third-party or first-party SNT – and possibly even a pooled trust.
Here are some of the unique features offered by third-party SNTs (special needs trusts)
The American Bar Association says that this type of SNT, also referred to as a supplemental needs trust, can be used to help a disabled beneficiary receive a gift or inheritance from a third party such as a relative. However, it should never to be used for any assets or money that already belong to the beneficiary.
Based on the general terms you set forth in the trust, your trustee will then determine the exact way all funds will be used to help your beneficiary (or loved one). While many of these types of trusts are considered testamentary (part of someone’s estate), they can also be used for inter vivos transfers of gifts (those made while the person making the gift is still alive).
Like the third-party SNT described below, this first-party type should be set up so that the recipient’s government benefits remain their primary source of income -- and these types of added funds are simply a supplemental source.
What are some of the unique attributes of a first-party SNT (special needs trust)?
While sometimes referred to as self-settled special needs trusts, these are mainly created to receive assets that are the beneficiary’s legal possessions. As is true of most SNTs, you’ll need the help of a highly experienced Houston business law attorney to help you create one since the multiple state and federal laws governing them can periodically change.
What’s most unique about this type of trust is that it must include a provision stating that when the beneficiary dies – depending on the exact amount of assets still contained in the SNT -- Medicaid must be repaid for all funds that were ever spent on the beneficiary.
Those who most often benefit most from these types of first-party, special needs trusts usually fall into one of the two following categories.
They are under age 65 and want to receive funds worth more than $2000 (or more than the net worth amount currently allowed by law) – while remaining eligible for government benefits -- or
They have received (or will receive) an unexpected financial windfall – possibly as the result of a personal injury lawsuit following a car accident.
Keep in mind that first-party SNTs can only be established by a parent, grandparent, legal guardian or court for a special needs person.
If you can’t afford a trust administered by a paid trustee – ask about “pooled” trusts
When funds are limited, you can ask your attorney to create what’s often referred to as a “pooled trust.” This type of account containing a disabled person’s money can be added to funds that have been deposited for other special needs individuals.
All of these accounts are then monitored and administered together by a non-profit board or agency. Among other tasks, your attorney may need to create a joinder agreement (or review one offered to you) as you start applying to various types of appropriate pooled trust groups.
Many disabled adults prefer this approach since they can personally help establish their own “pooled trust” with an organization set up to administer such accounts – without the help of other family members.
Whatever else you do, try to avoid simply giving extra funds to a family member so that person can later provide for all the disabled person’s needs. Given human nature, that money may never wind up being spent to benefit the person with special needs.
Please contact one of our Murray Lobb attorneys so we can use our lengthy experience creating special needs and other trusts to protect your disabled loved one’s financial interests -- both now and in the future.