On February 3, 2015, U.S. Representatives Glenn ‘GT’ Thompson (PA-05) and Frank Pallone, Jr. (NJ-06) in the House, along with Sens. Chuck Grassley (R-IA) and Bill Nelson (D-FL) in the Senate introduced the Special Needs Trust Fairness Act of 2015 (H.R.670/S.349). This legislation would enable a disabled individual’s assets to be held in a trust and used to supplement daily living expenses and care when government benefits alone are insufficient.
“The Special Needs Trust Fairness Act of 2015 is a fundamental issue of equal protection under the law. Currently, individuals facing life changing disease or disabilities are not treated fairly and this bill will begin to reverse those policies. My thanks to Representative Pallone for his continued partnership on this issue. Together, with advocates within the community, we aim to build a groundswell of support to have this injustice corrected,” said Thompson.
“The barriers that currently prohibit an individual from creating a Special Needs Trust, despite having the mental capacity to do so, have no basis in reality and place an undue burden on disabled individuals who are simply trying to make ends meet,” said Pallone. “The bill Congressman Thompson and I introduced today will eliminate these unnecessary barriers and enable individuals living with a disability to provide for their future financial stability.”
“I applaud Congressmen Thompson and Pallone for introducing bipartisan legislation to correct an obvious error in the law, to empower persons with disabilities to be in charge of their own lives to the extent possible,” said Amos Goodall, of State College based law firm Goodall & Yuchak, P.C. and public policy advocate for the National Association of Elder Law Attorneys (NAELA).
As the law is currently written, disabled individuals must have a parent, grandparent, guardian or the court create a Special Needs Trust. This, in turn, places an undue burden on the individual and results in additional caseloads in our already overworked court system. The Special Needs Trust Fairness Act will allow individuals with disabilities, when appropriate, to create their own Special Needs Trust, which will empower them to be responsible for their own life decisions and have access to what is rightly theirs.
In the last Congress, this legislative fix had bipartisan support in both chambers and was passed out of the Senate Finance Committee as part of its growth rate legislation. It also had support from a number of national organizations, including the National Multiple Sclerosis Society, the American Association of People with Disabilities, Easter Seals, the United Spinal Association, the Special Needs Alliance, and the Academy of Special Needs Planners.
The Special Needs Trust Fairness Act of 2015-H.R. 670 is attached here – The Special Needs Trust Fairness Act of 2015-H.R. 670
Message from the New Jersey State Bar Association Elder and Disability Law Section:
Please support The Special Needs Trust Fairness Act
The Special Needs Trust Fairness Act corrects what is believed to be a technical or legislative drafting error in the Omnibus Budget Reconciliation Act of 1993 (OBRA-93). The law did not include “an individual” in the list of persons allowed to create a special needs trust. This omission has created a presumption that an individual with a disability lacks the requisite mental capacity to create his or her own trust. However, individuals are permitted to set up other arrangements under the newly enacted ABLE Act; and with pooled trusts, which were established at the same time as special needs trusts in OBRA-93. The Special Needs Trust Fairness Act would solve this inequity by making a simple change to the Social Security Act that would allow individuals to set up their own special needs trusts. This is a solution with bipartisan support that passed out of the Senate Finance Committee in the 113th Congress.
The passage of this bill would enable many people with special needs to set up a special needs trust without incurring the legal expense and use of a court’s time to create such trusts. I urge you to support passage of the law.
UPDATED ON JUNE 24, 2015: Today the Senate Finance Committee approved the Special Needs Trust Fairness Act, passing the key step to permit the entire Senate to vote on the bill.
For additional information concerning special needs trusts and disability planning, visit:
UPDATED ON SEPTEMBER 26, 2016: House Overwhelmingly Passes SNT Fairness Act
The Special Needs Trust Fairness Act, a bill that would allow people with disabilities to create their own first-party special needs trusts without having to rely on others, has passed the House of Representatives by a vote of 382 to 22.
The Senate unanimously approved the Act last year. However, because the Act is included in two separate legislative vehicles, it cannot yet be sent to the President. The House version of added three sections making small changes in the Medicaid program, including a smoking cessation program for pregnant mothers.
The Fairness Act corrects a decades-old error in federal law that presumes that all persons with disabilities lack the mental capacity to handle their own affairs. Under current law, if a person with special needs wants to place her own property or money into a special needs trust in order to preserve it and maintain access to government benefits, she must have a parent, grandparent, guardian or court create the trust for her; she can’t create the trust on her own. This process makes it unnecessarily difficult for people with few close relatives or limited access to the courts to preserve their assets.
The Special Needs Trust Fairness Act would allow a person with special needs to create a special needs trust on her own, without having to rely on family members.
Rep. Glenn Thompson (R-Pa.), who introduced the Act in 2013, said that he does not anticipate problems with getting the bill through the Senate again.
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