January 16, 2025

Do You Need a Special Needs Trust?

13 minutes

So many of us have a loved one that may have special needs, a disability. Maybe a spouse has just been diagnosed with dementia and needs care, and they're afraid of losing their house or their money. If you're in that situation, or maybe your parents are, or a child that has special needs, this episode will be important. Elder law attorney Andrea Lee from Legacy Estate Planning joins Suzanne to talk about special needs trusts and how people can protect their own resources.

Andrea explains, "A first party special needs trust is a special needs trust that is created using an individual's own resources. They're the least popular... An individual might use a special needs trusts under the following circumstances. Let's say they were perfectly healthy, but they were in a car accident and they suffered a traumatic brain injury and now they need assistance for long term care benefits, like Medicaid or VA, or they're accessing Social Security. But they can't access those benefits because they have their own money. Maybe they've successfully were employed or maybe they had an inheritance... If it's an individual's own money, we then have to create what's called a first party special needs trust, where we use the assets of that individual to create that special needs trust. They do have a lot of limitations, so we don't use them as often as the other type of special needs trusts... The applicant has to be under the age of 65... and it must have a Medicaid payback.

"I practice in the state of Washington, and even though special needs trusts are created based on a federal law and special needs, trusts exist in all 50 states. And the way each state's interprets and treats those special needs trusts is different. So even though I can talk about special needs trusts in the broadest terms, if somebody is really interested in talking about how special trusts could serve them individually, they really need to meet with an elder law attorney in the state where they reside, because that elder law attorney can formulate a fantastic estate plan that will protect their assets, allow them to not lose their house, that will allow them to preserve some of their assets. And there's a lot of ways that we can preserve assets for a married couple, and allowing them to not become destitute, just because of a terrible diagnosis.

"Most of my clients are much better served with what we call a third party special needs trust... The third party special needs trust is a trust that's created with the assets of a non-applicant... They can choose the trustee. They cannot be their own trustee, but they could choose a trusted child. They could choose a professional organization. That money is protected, and it's used to provide good quality of life quality for the beneficiary."

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