New special needs trust rules to aid those with disabilities

Back in spring 2013, at least one of us remembers a long, hot day on Capitol Hill going door to door as part of a contingency of the Special Needs Alliance, a national network of lawyers dedicated to disability and public benefits law. The purpose was to visit our representatives in Congress to explain the importance of supporting the “new” Special Needs Trust Fairness Act.

Prior to President Barack Obama’s signing of the 21st Century Cures Act in December, a competent person with disabilities who did not meet the narrow disability criteria established in 1993 could not petition a court to establish his or her own special needs trust. Only a parent, grandparent, guardian or a court could do so on that person’s behalf.

Addressing what was widely considered a drafting oversight for over two decades, the new act will now streamline the process of establishing a special needs trust for many people across the country.

While the passage of the act is a victory for people with disabilities, it reminds us of the importance of recognizing when a person with a disability needs assistance and the time-sensitive nature of responding to these needs.

We are frequently contacted by individuals or their family members for counsel in this area only to find that the options would have been significantly better had the individual sought help earlier. So,

here are some suggestions on when to seek help:

• Person with disabilities, regardless of age, will inherit assets in the

future. Planning should occur before the disabled individual has the legal right to receive the inheritance. Establishing the appropriate trust or other planning scenario in advance of the death of the person leaving the inheritance to the disabled person greatly increases the options for that person while obtaining or maintaining public benefits.

• Family members become caregivers. Regardless of the age of the disabled person or whether the caregivers and disabled person live in the same place, when a family member begins to provide care services — regardless of how minor they may appear to be — the writing is on the wall that the care needs will probably increase with time. A planning “checkup” is in order. One of the most common mistakes we see in this area involves caregivers who delay in seeking help and do so only when the situation escalates to where the disabled person needs care in a facility.

Planning at the outset not only could provide some outside funding for care but possibly maintain the community setting for the disabled person. Many programs that facilitate care in the home take months for approval, so it is important to pursue options early in the process.

• Medical events for the elderly. Once a person has a medical event later in life, such as a stroke or a fall, it is important to recognize what could happen if the medical event does not resolve itself and the options if the medical event is the beginning of a slippery slope toward longterm disability. Many clients come to our office and routinely say, “I should have come here five years ago.” While it is almost never too late to plan, it is especially true in this area that “diligence pays dividends.”

• Disabled person due to receive injury settlement. While it seems obvious that a disabled person about to receive a financial windfall to compensate the individual for injuries should explore his or her planning options, we routinely see people fail to seek advice from a disability planning attorney and end up with less than the results they expected. This failure to address planning issues until after the settlement is received can have consequences that will last for a lifetime.

These are just some of the common scenarios we encounter routinely. The important thing to remember is that a person with disabilities, no matter how slight or significant, does not have to navigate life on his or her own because many resources and planning options are available if the person (or a friend or family member) investigates.

Now, with the Special Needs Trust Fairness Act, they also can do it themselves.

Julian Gray and Frank Petrich are certified elder law attorneys who practice in the Pittsburgh area at Gray Elder Law. Send questions to elderlawguys@grayelderlaw. or visit www.grayelderlaw.com.