Self-Settled Special Needs Trusts

The “21st Century Cures Act,” H.R. 34, which was signed into law on December 13, 2016, becoming P.L. 114-255, made a change to the Social Security Act in order to allow people with disabilities to create their own Medicaid-qualifying trusts without court approval.

Specifically, section 5007 of the Act provides as follows::

‘(a) IN GENERAL.—Section 1917(d)(4)(A) of the Social Security Act (42 U.S.C. 1396p(d)(4)(A)) is amended by inserting ‘‘the individual,’’ after ‘‘for the benefit of such individual by’’.
‘(b) EFFECTIVE DATE.—The amendment made by subsection (a) shall apply to trusts established on or after the date of the enactment of this Act.’

Before this amendment, the relevant section of the Social Security Act referred to a trust established “for the benefit of such individual by a parent, grandparent, legal guardian of the individual, or a court….”  So persons with disabilities who were nevertheless legally competent could add their assets to a trust created by a parent, grandparent, etc., but could not establish the trust themselves.

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