There is important federal legislation sponsored by Rep. Glenn Thompson, of Pennsylvania, that is pending in Congress. This change to the Social Security Act is supported by the National Academy of Elder Law Attorneys and many advocacy groups for persons with disabilities, such as the Special Needs Alliance. The legislation would allow persons with disabilities to create their own trusts under 42 USCA 1391p(d)(4)(a) if they have the capacity to do so.
The Special Needs Fairness Act of 2013, H.R. 2123, addresses a problem for many persons with disabilities. Special Needs Trusts allow a person with a disability to set aside assets to supplement daily living expenses and provide additional care when government benefits are not sufficient. Such a trust now must be settled by a parent, grandparent, guardian, or the court, even when the person is not incapacitated. When there is no family member or guardian to act as settlor, filing a petition to have the court act as settlor is a purposeless formality that adds considerable expense to the process and burdens overworked courts unnecessarily.
It is significant that no court action is necessary when a parent or grandparent acts as settlor of the Special Needs Trust. Requiring a court to establish the trust solely due to the unavailability of a parent or grandparent is an unfair restriction for a person with a disability in the exercise of his or her rights. The Special Needs Alliance supports the legislation, stating, in part, as follows:
Often, our members are called upon to assist persons with disabilities in creating special needs trusts, as provided in 42 U.S.C. §1396p(d)(4)(A). Unfortunately, this section does not permit a capable person with special needs to create his or her own trust, limiting the class of trustors to the person’s parents, grandparents, a guardian or the Court. Since adults often outlive their parents and grandparents, many persons with disabilities have no alternative but to expend unnecessary time and money to go to a Court to ask a judge to create the trust for them. This restriction fails to recognize that persons with disabilities should have rights equal to nondisabled citizens where possible, and it continues the traditional denigration of persons with disabilities.
Please contact your U.S. representative and ask him or her to support H.B. 2123. If you are a member of an organization that provides assistance to, or advocacy for, persons with disabilities, urge your organization to support the Special Needs Fairness Act of 2013.
John B. Payne, Attorney
Garrison LawHouse, PC
Dearborn, Michigan 313.563.4900
Pittsburgh, Pennsylvania 800.220.7200
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