In 1993, the Omnibus Budget Reconciliation Act of 1993 (OBRA-1993) was enacted to overhaul Medicaid. This allowed parents, grandparents, guardians or courts to establish self-settled Special Needs Trusts for individuals under 65 years old who have disabilities. However, until the signing of the Fairness in Medicaid Supplemental Needs Trusts as part of the 21st Century Cures Act in December, people with disabilities nationwide, including in Florida, could not establish such trusts on their own -- regardless of their levels of disability.
With a slight change to the language of the Act, individuals whose disabilities allow them to make independent decisions will now be able to establish self-settled SNTs on their own. Previously, anyone with a disability had to have someone else create trusts for them or go to court to have a trust created even though their mental capabilities were not compromised by their disabilities. This recent change removed a significant problem for any individuals whose parents or grandparents have passed on and who have no need for guardians.
People with physical limitations who receive inheritances or monetary awards from civil lawsuits, such as personal injury, medical malpractice or other sources, often establish self-settled SNTs. A Special Needs Trust allows such funds to be kept apart from regular funds without the danger of losing government benefits. Without such a trust, the individual can lose benefits that cover basic medical and living expenses such as Medicaid and Supplemental Security Income (SSI).
Now that people with physical disabilities can make independent decisions about their finances and Special Needs Trusts without having to rely on others, it may be wise to gather all the information necessary to make informed choices. Guidance and advice are available from experienced estate planning attorneys in Florida. A skilled lawyer can assist with the drafting of an appropriate estate plan, including a self-settled SNT.
Source: wealthmanagement.com, "Special Needs Trust Fairness Act Becomes Law", Bernard A. Krooks, Amy C. O'Hara, Accessed on Jan. 6, 2017