by: Begley Law Group

by Thomas D. Begley, Jr., Esquire, CELA

           Many personal injury cases involve plaintiffs with long-term disabilities.  This person may need a variety of supports throughout his or her lifetime including SSI, Medicaid, Federally-Assisted Housing, Energy Assistance, and Food Stamps.  Many of these programs are means-tested, and to be eligible the beneficiary may benefit from a Special Needs Trust.  However, this is not always the answer.  The problem with Special Needs Trusts are (1) distributions can be somewhat restrictive, and (2) there is a Medicaid payback on the death of the beneficiary.

Before deciding on a Special Needs Trust, a thorough analysis should be made.  The last thing a Personal Injury Attorney wants is a client to come back years later and file a malpractice claim for not reviewing all of the other options.  Here are four scenarios in which a Special Needs Trust may not be the best option:

  1. Client is likely to be permanently in a long-term care facility. If a client is already in a long-term care facility or will soon be entering one, frequently he or she is already receiving Medicaid.  In order to maintain that Medicaid, a simple solution is to place the settlement proceeds in a Special Needs Trust.  The problem is that the money in the Special Needs Trust must be used for the sole benefit of the disabled individual.  For a person in a long-term care facility, there is really not much to spend money on.  Frequently the money simply sits in the trust, even grows, and on death the monies remaining in the trust go to repay Medicaid.  A better solution in this situation would be to engage in long-term care planning.  If the client is married and/or has children, there are many strategies that can be employed so that the spouse or children can benefit from the personal injury recovery, and monies can also be available to provide for the modest needs of the institutionalized individual.

Another variation would be to establish a Self-Settled Special Needs Trust to pay for the plaintiff’s care in a facility for five years, and engage in long-term care planning that would benefit the spouse, children or other family members as well.  Which of these options makes sense must be subject to careful analysis by the plaintiff’s attorney, the injured party, family members of the injured party and an attorney specializing in Special Needs Trusts and long-term care planning.

  1. The injured plaintiff will eventually require very expensive long-term care, but does not need much care in the immediate future. An example may be where an injured plaintiff can receive care at home provided primarily by family members with relatively little assistance from a home health agency.  Maybe the outside care will cost $3,000 per month.  It is anticipated that eventually the injured party’s health will decline and more expensive care may be required – either at home or in an institution.  Again, if a trust is established distributions from the trust are limited for the sole benefit of the trust beneficiary, distributions from the trust are somewhat restrictive, and a Medicaid payback will be required on the beneficiary’s death.  Again, long-term care planning may be the best option, so that a spouse and other family members may benefit.  In some cases, it may make sense to allocate a modest amount of money to a Self-Settled Special Needs Trust.
  2. Plaintiff is age 65 or older. Begley Law Group frequently receives calls from Personal Injury attorneys wanting to establish Self-Settled Special Needs Trusts for their injured clients who are age 65 or older.  To be eligible for a Self-Settled Special Needs Trust, the intended beneficiary must be under age 65.  In these situations a Special Needs Trust would not qualify as a (d)4(A) trust and would not be eligible for the exemption from the Medicaid transfer of asset penalty.  There are two possible solutions to this dilemma.  One is to establish the Self-Settled Special Needs Trust anyway, and transfer assets into the trust.  There would be a transfer of asset penalty based on the amount transferred to the trust, but the maximum period of eligibility, if done correctly, would be five years.  In some situations, this may make sense.  In other situations, long-term care planning may be beneficial, particularly if the settlement is large and a spouse or children could also benefit.
  3. Long-time Medicaid recipient settles case, but life expectancy is short. In cases where a plaintiff settles a personal injury case but has been receiving Medicaid for a long time and has a short life expectancy, perhaps pending the settlement of the case, it may be better not to do the Self-Settled Special Needs Trust.  It may be cheaper to pay for care for the rest of the plaintiff’s life, rather than have Medicaid pay from the date of the establishment of the trust to the date of death, and then have to repay Medicaid for all of the Medicaid benefits that the client has received since birth.  The Medicaid payback is not just from the date of the settlement or the date of the establishment of the trust to the date of death, it is from the date of birth until the date of death.