On December 13, 2016, President Obama signed the 21^st Century Cures Act.  One of the more relevant aspects of the law to estate and special needs planning is found in Section 5007 of the Act, which is called “Fairness in Medicaid Supplemental Needs Trusts.”  The purpose of this section is to amend 42 U.S.C. Section 1396p d(4)(a) to add the words “the individual” to the list of persons who may establish a first party or self-settled special needs trust (SNT) for a disabled individual.

In 1993 Congress enacted the Omnibus Budget Reconciliation Act of 1993 (commonly referred to as OBRA 93).  As part of this larger Medicaid overhaul, 42 U.S.C. Section 1396p d(4)(a) was enacted which allowed a parent, grandparent, guardian or a Court to establish a first party, or self-settled, SNT for a disabled individual under the age of 65 to be funded with that individual’s own assets.  The self-settled SNT has since become an important estate planning tool by allowing disabled individuals to receive certain government assistance while still enjoying the benefit of their own assets to supplement their living expenses.  The tradeoff being that upon the death of the disabled individual or the termination of the trust, the benefits received during the disabled individual’s lifetime must be repaid from trust assets.  Curiously, though, the OBRA 93 language did not provide a mentally competent disabled person the ability to establish his or her own self-settled SNT.  This became particularly onerous when a disabled person had no parent or grandparent to establish such a trust for them, forcing them to petition a Court for approval of their SNT; a costly and time consuming process.

With the passing of the 21^st Century Cures Act, however, this issue is rectified.  Now, disabled persons with the requisite mental capacity may establish their own self-settled SNTs without the need for assistance from other parties or Court approval.  It is important to note that the disabled individual must still be under the age of 65 when creating the trust and the trust must still contain a payback provision for government assistance.  Also, it is important to distinguish the self-settled SNT from the third party SNT, a different type of special needs trust which is established and entirely funded by a third party but exists for the benefit of a disabled individual.  These third party SNTs do not require a payback provision and are not affected by the new law.  Special Needs Trusts are an important and powerful tool when considering estate planning for the disabled or individuals with disabled beneficiaries.  Care should be taken to receive appropriate advice regarding the use of special needs trusts as part of a broad, comprehensive estate plan.