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New Bill May Lift Unjust Burdens for Individuals With Special Needs

It is about time that we fix an inequity in the law for people with special needs. At this time people with special needs can not establish his or her own Special Needs Trust (under OBRA 1993). A Special Needs Trust allows the assets and income of the Trust to be used to supplement daily living expenses and care while allowing the individual to access government benefits such as Medicaid and SSI. There is a required payback provision for the State to be reimbursed for Medicaid upon the demise of the beneficiary (funds permitting).

The Special Needs Trust Fairness Act of 2013 (H.R. 2123), was introduced to the House of Representatives on May 23, 2013 by Rep. Glenn Thompson (R-Pa.), and is supported by the National Academy of Elder Law Attorneys. If enacted, the Act will address the injustice of the current law by allowing individuals with special needs to create their own Special Needs Trust. The assets placed in the trust can then be used to supplement daily living expenses and care while allowing the individual to access government benefits such as Medicaid and SSI.

As the law stands today, individuals with special needs are prevented from creating their own special needs trusts, despite being mentally competent to do so. This means that a first-party special needs trust can only be created by a parent, grandparent, guardian or court.

This restrictive provision forces many people with special needs, who do not have living, willing or capable parents or grandparents, to petition the court to establish the trust despite their capability to create the trust independently. In addition to being unjust and demeaning for the individual with special needs, this process is costly and creates an unnecessary burden for our courts.

Although the bill has not yet been introduced to the Senate, the fact that it has

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been introduced to the House is a positive step in the right direction in achieving “justice for all.” You can track the Special Needs Trust Fairness Act 2013 at www.govtrack.us.

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