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When do I Need a Self-Settled Special Needs Trust?

by: Thomas D. Begley, Jr.

In the settlement of litigation, the plaintiff is often receiving public benefits.  The question then arises as to whether a special needs trust is required.  There are certain types of public benefits that are means-tested.  Others are not.  Generally, means-tested public benefits require that the individual have assets of less than $2,000 and have certain limits on income.  The following types of public benefits are means-tested and a special needs trust is generally required:

  • SSI
  • Medicaid
  • TBI – A Medicaid Waiver Program for persons suffering from traumatic brain injury
  • CRPD – A Medicaid Waiver Program providing home care
  • Section 8 Housing
  • Veterans Pension
  • Certain DDD Benefits
  • Psychiatric Institutionalization

Means-Tested Public Benefits

If the plaintiff is receiving any means-tested benefits or is likely to apply for them, then a self-settled special needs trust should be considered.  Assets in the trust are not counted for public benefit eligibility purposes.  Distributions from the trust can be made in such a way as not to count for income eligibility for public benefit purposes.

Age

To be eligible for a special needs trust, the plaintiff must be under age 65.  If the plaintiff is over age 65, there are Medicaid planning strategies that can be employed, but a self-settled special needs trust will not be a viable option.

Disabled

To be eligible for a self-settled special needs trust, the person must be “disabled.”  To be considered disabled, the person must generally have a disability determination by the Social Security Administration (SSA).  It is possible, however, to receive a disability determination from a Medicaid physician.  If a person has not yet received a disability determination from SSA, the trust can be established pending the disability determination.  Good practice is to obtain an opinion letter from a law firm that specializes in Social Security Disability appeals.

Assets of Individual

No assets other than the assets of the disabled plaintiff may be placed in the trust.