If you currently provide care for a child or loved one with special needs (such as mental or physical disabilities), you have probably contemplated with fear what may happen to him or her when you are no longer able to serve as the caretaker. While you can certainly plan for them to receive money and assets upon your passing, such as through a bequest in your Will or through beneficiary designation under your retirement plan, such arrangements may prevent them from qualifying for essential benefits under the Supplemental Security Income (SSI), Social Security and Medicaid/TennCare programs. If you do not leave them any assets, the benefits provided by these and other programs are generally limited to the bare necessities such as food, housing and clothing. As you can imagine, these limited benefits will not provide the resources that would allow your loved one to enjoy a richer quality of life. Fortunately, the government has established rules allowing assets of the individual with special needs to be held in trust, called a “Special Needs” or “Supplemental Needs” Trust without resulting in disqualification for SSI and Medicaid, as long as certain requirements are met. If this type of trust is established by you for the benefit of your special needs beneficiary, it is not considered a "countable resource" for purposes of qualifying your loved one for Medicaid/TennCare. This type of trust also does not require that trust funds be used to reimburse the state for the public benefits expended on the beneficiary before trust assets can pass to the beneficiaries you named to receive the assets remaining in the trust after the death of your special needs beneficiary. Creating such a trust can avoid the heartbreaking decision to disinherit your special needs child or loved one under the (mistaken) belief that you must do so in order to avoid a reduction or elimination of public benefits for your loved one.
The Law Office of Virginia W. Griffee can help you set up a Special Needs Trust so that government benefit eligibility is preserved while at the same time providing assets that will meet the supplemental needs of the person with a disability (those that go beyond food, shelter, and clothing and the medical and long term support and services of Medicaid/TennCare). The Special Needs Trust can fund those additional needs. In fact, the Special Needs Trust must be designed specifically to supplement, not replace public benefits. You should be aware that funds from the trust cannot be distributed directly to the disabled beneficiary. Instead, it must be disbursed to third parties who provide goods and services for use and enjoyment by the disabled beneficiary. Moreover, some such trusts, such as those established by court order as part of a personal injury settlement for your loved one, may need to include a payback provision that reimburses the state for the public benefits expended on the beneficiary before trust assets pass to the remainder beneficiaries of the trust at the death of the special needs beneficiary. The Special Needs Trust can be used for a variety of life-enhancing expenditures without compromising your loved one’s eligibility such as:
- Annual check-ups at an independent medical facility
- Attendance of religious services
- Supplemental education and tutoring
- Out-of-pocket medical and dental expenses
- Transportation (including purchase of a vehicle)
- Maintenance of vehicles
- Purchase materials for a hobby or recreation activity
- Funds for trips or vacations
- Funds for entertainment such as movies, shows or ballgames.
- Purchase of goods and services that add pleasure and quality to life. This may include computers, videos, furniture or electronics.
- Athletic training or competitions
- Special dietary needs
- Personal care attendant or escort
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