In New Jersey, What Makes a Trust a Special Needs Trust (SNT)
There are different types of trusts. There is not just one form of trust used by everyone. There is no such thing as a one form trust. The same thing applies to special needs trusts. There are also several types of special needs trusts. But one thing is the same; each type of special needs trust shares the common trait of maintaining the financial eligibility of the beneficiary for means tested government benefit programs such as Medicaid, Division of Developmental Disabilities (DDD) Services and Support, and Supplemental Security Income (SSI). A “means tested” public benefit simply means there are dollar limits imposed upon a person’s income and resources above which eligibility for government benefits will be lost. In addition, a well-written special needs trust can be used to enhance the quality of the life of a person with a disability by providing care services and purchases of products and services not provided by means tested government programs. The goal of a special needs trust is to enhance the quality of life of the person with the disability.
To Better Understand a SNT, You Need to Understand “Means Tested” Programs
Although the goal of a Special Needs Trust is to qualify a person for government benefit programs, qualifying a disabled person confronts a significant amount of complexity if the SNT is defective. This is because there are multiple government benefit programs, and each program has its own set of rules that determine eligibility. While an extensive examination of these programs is beyond the scope of this page (but is available to read further down on this website), it is important to understand that it is this complexity that forms the rules and guidelines under which a special needs trust operates.
Understanding a Special Needs Trust
Eligibility for Means Tested Benefit Programs
As a practical matter, an applicant must first meet the physical and/or cognitive health requirements of the program. Simply put, they must physically or psychologically qualify for the public benefits for which they apply. This is known as the medical eligibility test. In our discussion, I am assuming that the medical “need” for benefits is not an issue and therefore, I will only examine and discuss hereafter financial eligibility. If you need more information about medical eligibility, feel free to reach out to me at the address given at the end of this page.
Income and Resource Test ($$$)
In addition to meeting the “Medical Eligibility test”, most New Jersey “means tested” government assistance programs have income and resource limits which place caps on a person’s assets and income. While the income cap varies from program to program, the resource cap is generally $2,000.00. Certain assets, such as the individual’s home and automobile, are generally not counted as available resources when determining eligibility. Most other assets are counted, including assets that are capable of being spent down and used to pay for medical care and services. This includes property held in restricted accounts that cannot be accessed without a court order. Without a SNT and careful planning, the individual with too much income or resources will need to spend down all available resources and then apply, or reapply, for government benefit programs. We can avoid this forced spend down by creating the right SNT for him or her.
Penalty Periods Can Deprive a Person of Benefits
If an individual transfers his or her savings, assets, etc. for less than full fair market value, a penalty period will be imposed by New Jersey during which time the individual will be ineligible to participate in that government benefit program. In most cases, this penalty period will be applied retroactively for a period of five years from the date the application for benefits is submitted. In addition to penalty periods, everyone who accepts and enrolls in government benefit programs has an affirmative duty to disclose any material change in his or her financial circumstances. If an individual fails to notify the agency that administers his or her program of material change in his or her finances, the agency can seek reimbursement of those benefits during any periods of prior eligibility. In some cases, the agency may have a cause of action for civil or criminal fraud against the individual.
Traditional Trusts Are Treated as an Available Resource for Determining Benefit Eligibility in New Jersey
As a general rule, assets held in a traditional revocable trust (and some irrevocable trusts) are counted as an available resource by the government. Counting the funds in a trust as an available resource makes things very difficult for individuals and their families who want to attempt any sort of planning for future needs. While many typical trusts will result in disqualification for program benefit eligibility, it doesn’t have to be this way.
Beware: Use of Revocable Trusts in New Jersey Equals Disqualification For Many Public Benefits
The problem with a revocable trust is that the individual who creates the trust or the trustee of the trust retains the legal authority to pay income or trust corpus to the disabled person or is allowed to alter the terms of the trust and/or revoke a trust instrument. In such a case, the revocable trust is treated no differently than any other available asset or cash in the bank. For example, an individual’s revocable trust will be treated no differently than his or her savings or checking account. This is why a Special Needs Trust Attorney typically does not recommend funding revocable living trusts for the benefit of a person with a disability if public benefits are contemplated now or in the reasonable future.
Beware: The Incorrect Use of Irrevocable Trusts in New Jersey Also Equals Disqualification
Since a person with an irrevocable trust does not retain legal authority to revoke the trust, an irrevocable trust is often treated differently than a revocable trust. The specific language found in the trust must be carefully reviewed and evaluated according to two criteria; namely how trust funds can be spent to avoid the loss of benefit eligibility. However, with the right approach, we can preserve eligibility for government benefit programs and improve the life of the person with the disability with an irrevocable trust.
Here’s a Question: Can any portion of trust income or principal be used for the benefit of a disabled person?
If payments from a revocable trust or defective irrevocable trust can be made, either to the individual or disabled person for the benefit of that individual, those funds paid will be considered an available resource by the government. That means either a reduction of benefits or a total loss of benefits. You need this mistake corrected ASAP if you are a trustee or beneficiary of a defective trust.
Actual Payments Made to a Disabled Person
Payments actually made to an individual from a trust other than a special needs trust will be considered income to the individual, and the income rules of means tested public programs will apply. This can also mean… ineligibility.
SOUNDS SCARY!! DOESN’T IT? IF SO,
CALL OUR OFFICE TODAY. I know I just covered a lot of information with you. It’s confusing and probably overwhelming. Let me explain it further with you. Call me personally to discuss your New Jersey Special Needs Trust toll-free at (855) 376-5291 or e-mail me at firstname.lastname@example.org. I’m here to help you!
Written by Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a New Jersey Special Needs Trust Attorney