Special Needs Planning includes preparing all the estate-planning instruments; advance directives, trusts, letters of intent, etc., that a disabled individual, or family of a disabled child, will need to ensure their quality of life into the future while still preserving their eligibility for needed government services.
While those instruments provide the basis for the Special Needs Plan, to be truly effective, the plan must address and resolve the important issues being faced by the disabled individual and their family / caregivers, such as, "if the parents pass away, or must go into nursing home care, what will happen to their disabled child?"; "how well does the disabled individual cope with change?"; "Who will step in to care for the disabled child / adult?"
All of these questions and many more are the focus of special needs plans, such as those that are developed by Special Needs Legal Advocacy on behalf of the parents / caregivers and / or the disabled individual. All special needs planning is primarily focused on maintaining the future well-being and quality of life for the disabled individual when the current living situation inevitably changes.
Proper planning for the future needs of a disabled individual requires an in-depth knowledge and fundamental understanding of federal and state laws that define how and when a person is eligible for government disability benefits and the legal instruments (special needs trusts) that, properly drafted, are exempt from being considered, by the Social Security Administration (SSA), an income resource. These exempt trusts allow individuals to qualify for government means-tested programs so long as they are drafted and administered in strict accordance with the rules that define them.
There are three main trusts that have been defined as "exempt" by the SSA, including two defined by the Omnibus Budget Reconciliation Act of 1993 (OBRA '93). These two OBRA trusts are the "self-settled Trust" and the "Pooled Trust", a third type of trust is a "Supplemental Needs Trust" also frequently called a "third-party Trust" because it is created by a third-party for the benefit of the disabled individual. Trusts which fail to meet all specific requirements, as defined by the SSA, are deemed to be resources available to the disabled individual, thus making them ineligible for the benefits that they need. A description of these three main exempt trusts follows;
It is worth noting that even within the above-described trusts there are variations of them that can be utilized and additional types of trusts, such as the Miller Trust that can be used for disabled individuals who prefer to, and can, continue to work while maintaining their Medicaid long-term care eligibility. An in-depth analysis of all available trust instruments is not the focus of this article, but can be discussed further during a personal consultation.