Special Needs Trust for the Disabled and Elderly

The primary purposes of a Special Needs Trust (“SNT”) for a disabled person is to prevent the waste of assets and to provide the proper care of those assets. The public benefits of Social Security Income and state-paid medical care are provided on a needs basis to those who cannot earn income for themselves due to a disability. Money distributed directly to a disabled person reduces these public benefits on a dollar for dollar basis. A properly prepared and administered SNT is a legitimate and valid tool under Social Security rules and laws.Protect payment of medical expenses (Medi-Cal) Medi-Cal is California’s version of the federally funded Medicaid program. The program provides medical benefits for the medically needy. No qualification for Medi-Cal is required for the disabled receiving Social Security Income. If income is less than Medi-Cal limits, Medi-Cal services are available at no cost. Typically the only source of income to the disabled is SSI. SSI income received by the disabled is less than Medi-Cal limits. So a disabled person receiving SSI also receives free medical care under the Medi-Cal program.Income in excess of Medi-Cal income limits require share of cost (SOC) of medical expense. One goal of special needs trust is to provide benefits to the disabled without those benefits being counted as income. So no cash disbursements can be made to the disabled in order to preserve free medical care.Protect receipt of social security income (SSI) SSI is intended to provide funds for food, clothing, and shelter for the aged (over age 65), disabled, or blind recipient. An individual receives less than $1,000 per month. Any money received by an SSI beneficiary is considered income to the beneficiary, and reduces SSI benefits on a dollar-for-dollar basis. Payments made to third parties for food or shelter is considered payment in-kind and results in about 33 cents loss or reduction of SSI benefits for each dollar spent.Payments to third parties for goods and services that are not food or shelter will not result in any reduction of SSI benefit. These payments are key to improving the quality of life of a disabled person. Examples of permissible expenditures are:• purchase of a home, telephone, TV cable, dental expenses, eye glasses, transportation expenses (including purchase of vehicle, maintenance, gasoline), furniture, movies and vacations.The trustee of a special needs trust must be aware of the fine distinction between non-food and shelter items. The devil can be in the details. A movie is a permissible expenditure, but popcorn bought for the movie is not. Thanksgiving dinner is an exception to the food prohibition as is discarded food. The discarded food is an example of how much attention has been made on this matter.In addition to managing the assets of the trust, a trustee can provide a connection to the community and prevent isolation. Public charities authorized to act as trustee can provide community support and make appropriate expenditures. Theses trustees also address a major concern of parents, “what will happen to our disabled child when we are gone.”These organizations pool the assets of multiple special needs trusts for management, but each individual has a separate trust account. Disbursements are made from the individual accounts They also provide community resources such as help in finding suitable housing, providing medication education, life skills tutoring, social activities and friendship.Two examples of such non-profits are the San Diego Special Needs Trust Foundation, serving San Diego Only, and Proxy Parent Foundation Proxy Parent Foundation, serving all of California. San Diego Special Needs Trust Foundation’s web address is http://www.sntf-sd.org. Proxy Parent Foundation Proxy Parent Foundation’s web address is http://www.proxyparentfoundation.org.There are costs for these services. At one organization there is an enrollment fee of $1,000, an annual administration fee of 1.5% with a $1,500 annual minimum charge and an annual Bank investment fee of 1%. Tax returns, if required, are an additional cost.Requirement of Payback Provision Funding By a Third Party: A special needs trust established by someone other than the recipient of public benefits with assets belonging to someone other than the recipient is not required, in order to avoid the trust assets being considered available resources to the beneficiary, to contain the payback provisions of 42 USCA 1396p(d)(4)(A).Funding By the Disabled: A disabled individual, under age 65, may establish a trust with his or her own assets. This trust must have payback provisions. The provisions require upon death of the disable for the trustee to pay back to the State of California the cost of all state provided medical care.Special Needs Trust for the ElderlyKey Issues: Is it needed as a matter of public policy? The practicality of transferring assets Does it improve the quality of life of the elderly?Social Security Income and Medicaid are for the needy. The concept behind a special needs trust for the elderly is to meet the no asset requirement to receive public benefits by “spending down” or transferring assets out of the elder’s control. A basic moral question to ask is “should a person who can afford medical care receive medical care intended for the poor.” If the answer is no, then a special needs trust should be avoided.Putting aside the morality issue. Just how practical is such a trust. Assets must be transferred out of the elder’s control. Who can be trusted with those assets. What are the gift tax implications in a transfer.Specifically how does one transfer retirement accounts. A change in control of a retirement account is a taxable event and taxed at the prevailing income tax rates. An elder is allowed to retain retirement assets as they are not assets counted to qualify. But the income will flow to the elder and dollar for dollar reduce the public benefits. The elder will also receive social security income with more reduction of public benefits.Finally what are we trying to accomplish here. Mainly it is to have the State of California pay for the cost of residing at a skilled nursing facility. As a rule, most people stay at nursing home for about two years. The sad fact is people just do not live that long after entering a nursing home. Assume the cost of respectable home is $10,000 per month. The savings is $240,000.Nursing homes paid for by the State are not upscale operations. They are bare-bones minimum arrangements to meet the most basic of needs. This is while the children enjoy the assets of their elderly parent.An elder’s quality of life is not improved with this type of living condition. Special needs trust for the elderly just do not make sense due to loss of control, limited benefit and public policy.

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