Bill Introduced to Allow Individuals with Disabilities to Create own Trusts

Rep. Glenn Thompson (R-Pa.) introduced the Special Needs Trust Fairness Act of 2013 on May 23, 2013 (H.R. 2123).

According to a press release from the National Academy of Elder Law Attorneys (NAELA), the bill would allow people with disabilities to create first-party special needs trusts to hold their assets without interfering with their access to Supplemental Security Income (SSI) and Medicaid.

The bill addresses a quirk in the current law defining special needs trusts that prevents mentally competent people with disabilities from establishing so-called (d)(4)(A) trusts. As the law stands today, a first-party special needs trust must be created by a parent, grandparent, guardian or court, even if the beneficiary is going to be the person transferring the funds into the trust once it is created.

This restrictive provision, which was likely the result of a drafting error, forces countless trust beneficiaries who don’t have parents or grandparents, or whose parents or grandparents are unwilling or unable to help them, to petition courts to establish trusts when they are perfectly capable of creating the instruments themselves.

According to NAELA’s press release — the text of the bill is not available online at this time and neither Rep. Thompson nor his Democratic co-sponsor, Rep. Frank Pallone (D-N.J.) have any information about the legislation on their Web sites — the bill would amend the Social Security Act to allow beneficiaries to create and fund their own special needs trusts, which, according to NAELA President Gregory S. French, would “maximize client independence and self-determination.”

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