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Special Needs Planning

What is the purpose of a Special Needs Trust?

When should a Special Needs Trust be established?

Who can establish a Special Needs Trust?

Our family is wealthy. Do we still need to create a Special Needs Trust?





Q: What is the purpose of a Special Needs Trust?

While you can certainly bequest money and assets to those with special needs, such a bequest may prevent them from qualifying for essential benefits under the Supplemental Security Income (SSI) and Medicaid programs.  However, public monetary benefits provide only for the bare necessities such as food, housing and clothing.  As you can imagine, these limited benefits will not provide those loved ones with the resources that would allow them to enjoy a richer quality of life.  But if parents leave any assets to their child who is receiving public benefits, they run the risk of disqualifying the child from receiving them. Fortunately, the government has established rules allowing assets to be held in trust, called a “Special Needs” or “Supplemental Needs”  Trust  for the benefit of a recipient of SSI and Medicaid, as long as certain requirements are met.


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Q: When should a Special Needs Trust be established?

When a Special Needs Trust should be established depends on whether it is a first party or third party Special Needs Trust.  Generally, a first party Special Needs Trust should be established prior to the beneficiary’s 65th birthday. A Special Needs Trust established by a third party (with the funds of the third party) may be established at any time, and may include a beneficiary over the age of 65.  If you have a disabled or chronically ill beneficiary, you may want to consider establishing a third party Special Needs Trust at an early age. 


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Q: Who can establish a Special Needs Trust?

While Special Needs Trusts are typically established by parents for their disabled children, any third party can establish a Special Needs Trust for the benefit of a disabled beneficiary.  It is important to seek the assistance of competent counsel when creating a Special Needs Trust.  Indeed, a poorly drafted Trust can easily be subject to “invasion” by the government agencies who provide benefits.  Our law firm has the experience and the expertise to establish effective Special Needs Trusts for anyone who wishes to provide for a disabled beneficiary.


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Q: Our family is wealthy. Do we still need to create a Special Needs Trust?

Yes, you should still establish a Special Needs Trust to protect your disabled beneficiaries from potential creditors.  For example, if your disabled beneficiaries are ever sued in a personal injury action, the assets in the trust would not be available to the plaintiffs.  Furthermore, because the funds in the Special Needs Trust are not countable as available assets for purposes of determining government benefit eligibility, more of your money can be used for those supplemental expenditures that will allow your disabled beneficiary to enjoy a higher quality of life.  Otherwise, much of your assets will be used to pay for private care benefits that are extremely expensive and can drain even significant sums of money over a period of years.


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Merhab Robinson, Jackson & Clarkson assists clients in Lake Forest, CA and throughout Orange County & the Greater LA area including Irvine, Newport Beach, Costa Mesa, Corona Del Mar, Aliso Viejo, Mission Viejo, Dana Point, Santa Ana, Huntington Beach, Fountain Valley, Tustin, Laguna Beach, Laguna Woods, Garden Grove and Laguna Hills.



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