Special Needs Trusts Can Now Be Created by Individuals

On December 13, 2016, the long awaited amendment to the Special Needs Trust Fairness Act was signed into law by President Obama.

For more than 20 years, individuals who had a disability were unable to create a self-settled special needs trust without a parent, grandparent, or legal guardian participating in the process. The only other option for an individual with a disability was to have the court create the trust on his or her behalf. This was often an incredibly costly process. Now, an individual may create a special needs trust effective immediately. While the statute was amended to only add two words “an individual” to the Omnibus Budget Reconciliation Act of 1993 (24 USC Section 1396p(d)(4)(A)), the implications of the change will be enormous.

This means that Joe, a person who has a physical disability, will be able to set up a Special Needs Trust for his benefit without requiring Joe to seek court permission to do so. This will allow Joe to have the benefit of this type of trust without the expense and delay of involving a court. Joe will also be able to be his own advocate and maintain control over the process.