President Obama, in signing the 21st Century Cares Act into law at the end of 2016, has given many individuals with special needs across the country a very useful and benefit-saving planning strategy: the Self-Settled Special Needs Trust.
Individuals with disabilities, who have the capacity to do so, can now create their own self-settled trust to maintain their government benefits in the event of an inheritance or personal injury award without having to get a court order.
Previously, unless state law allowed it – which North Carolina law did not – individuals could not create their own self-settled special needs trust. They have to rely on a parent, grandparent, guardian, or judge to establish the trust for them. Now, individuals who have no living parents or grandparents and do not have or need a guardian, can create their own trusts without having to go to court – which could be a long and drawn-out process. This creates a “First-Party Trust” – which would still require Medicaid to be paid back after the individual passes – unlike a “Third-Party Trust.”
It also assists people who receive an inheritance or personal injury award which exceeds the $100,000 cap for ABLE accounts.
This sort of planning should not be taken lightly. Always consult an experience special needs planning attorney before moving forward with this type of planning.