When a loved one has a physical or mental disability, either because they were born with it or because they were afflicted with it later in life, it can be difficult to figure out how to provide for them. Worse still, efforts to try to provide for their needs can potentially disqualify them from government benefits they might otherwise have access to, if you are not careful. For situations like this, you should consider if a special needs trust is right for you.

A special needs trust, which is sometimes known as a supplemental needs trust, is a kind of legal arrangement where one person (known as the grantor or trustor) gives another person (known as the trustee) their money or property to oversee on behalf of a designated beneficiary. The trustee has a legal duty, known as a fiduciary duty, to watch over the assets in the trust on behalf of the beneficiary, and to manage them as best they are able. If they breach that duty, they can be brought into court and suffer legal and financial penalties, including fines and potentially jail time, depending on the severity of the breach.

While there are many kinds of trusts (including trusts where the grantor is also the beneficiary), a special needs trust is unique because it is designed to benefit someone who has a physical or mental disability. The trust can provide money for food, rent, medical expenses, or other expenses that might arise. Often, but not always, the beneficiary of a special needs trust has a disability that impairs their ability to handle their own legal or financial affairs, which can be what necessitates the trust in the first place.

The purpose of a special needs trust is simple: to ensure an individual with disabilities can receive financial support from their loved ones without also disqualifying them for certain benefits, like Supplemental Security Income (SSI) or Medicaid, which they might lose if their effective income is too high. The money held in a special needs trust is not counted towards the disabled person’s income or assets, meaning they can still receive money disbursed from the trust while also receiving government benefits. The money in the trust is also given protection from taxation and from creditors, meaning you do not generally need to worry about the IRS or debt collectors taking from the trust.

However, special needs trusts have their downsides. First, it can be costly to maintain a trust, both due to needing to pay a trustee for their services, as well as for regular legal fees needed to maintain the trust. Second, whoever is appointed as the trustee has an extraordinary amount of control over the assets held in the trust, and it can be easy for an unethical trustee to abuse their authority. Holding a bad trustee to account can also be difficult, especially if the beneficiary does not understand they are being abused or lacks the ability to bring a legal action on their own.

Additionally, special needs trusts are considered irrevocable trusts, meaning that once they are formed, their terms generally cannot be altered except with the consent of the beneficiary. However, that can be complicated, as many people who are beneficiaries of special needs trusts have physical or psychological issues that can impair their capacity to legally consent to those changes. In that case, any proposed changes to the trust would need to be approved by the beneficiary’s legal guardian, or whoever holds the beneficiary’s power of attorney.

Despite these potential drawbacks, a special needs trust may be a useful tool for protecting loved ones struggling with disabilities. If you believe a special needs trust might benefit you or your loved ones, you should seek out an attorney knowledgeable in trusts and estates who can discuss your options and help you create a plan that works best for you.

The elder law attorneys at David J. Lorber & Associates, PLLC will thoroughly analyze your estate and work with you to determine the best means of transferring your assets, minimizing taxes, and ensuring your needs are met. For comprehensive estate planning services in New York, call David J. Lorber & Associates, PLLC at (631) 750-0900 or contact us online to schedule a free consultation at our Setauket office.

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