By: Attorney Rachel Trafton

On Tuesday December 13, 2016, President Obama signed the 21st Century Cures Act. Several pieces of the legislation focus on medical breakthroughs. It also includes the Special Needs Trust Fairness Act. Elder law attorneys across the country have been advocating in support of the Fairness Act for years. The passage of the Fairness Act means that individuals with disabilities are now able to establish their own first-party special needs trusts to be funded with that individual’s own assets.

There are several types of special needs trusts, and the purpose of all of them is to maximize resources for an individual with disabilities. Assets transferred to and held in a special needs trust will not be countable for the purpose of determining an individual’s eligibility for means-tested public benefits like Medicaid (called MaineCare in Maine) and Supplemental Security Income (SSI). A parent or grandparent of an individual with disabilities may create a trust for the child or grandchild to be funded with the parent’s or grandparent’s own assets. That type of special needs trust is called a third-party special needs trust, and there are few federal laws or state regulations governing third-party special needs trusts.

First-party special needs trusts hold the assets that an individual with disabilities owned or to which he or she was legally entitled. The type of first-party special needs trust affected by the Special Needs Trust Fairness Act is sometimes called a “d4A trust” (also a self-settled trust or a payback trust). The term “d4A” refers to the federal law which allowed for its use to protect the assets of an individual with disabilities: 42 U.S.C. 1396p(d)(4)(a).

Until now, the d4A first-party special needs trust could only be established by a court or by the parent, grandparent or guardian of the individual with disabilities. The law unfairly prevented a capable, competent individual with disabilities from establishing and funding his or her own trust. The result has been an unnecessary expense and complexity.

The common-sense Fairness Act gives individuals with disabilities more dignity and independence, and here at the Maine Elder Law Firm we celebrate its passage.