Planning for Life

SNT vs. ABLE Account: Which Makes More Sense for You

Posted by Harry S. Margolis on October 15, 2019

By Harry S. Margolis

ABLE Accounts and Special Needs Trusts - Margolis -and-Bloom

We have prepared a handout to assist beneficiaries of Supplemental Security Income and other public benefits programs to determine whether they're better off using ABLE accounts or special needs trusts, or both.


Both ABLE accounts and SNTs permit the beneficiary to maintain eligibility for public benefits programs will being the beneficiary of funds held in reserve, but both also have their advantages and drawbacks. Here are a few of them:

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Topics: special needs planning, supplemental needs trusts, Special Needs Trust, ABLE Accounts, Attainable Savings Plan, Supplemental Security Income

Trustee Beware -- Fee Petition Turned Down

Posted by Harry S. Margolis on April 9, 2019

Photo by Sam Mathews on UnsplashBy Harry S. Margolis

Unlike a conservatorship, most trusts don't require court approval for a trustee to be paid. But that can be different where the trustee is court-appointed. In a California case, Thomas Thorpe v. Audelith Jenivee Reed, Trustee, et al. (Ct. of App, 6th App., CA H037330, Dec. 13, 2012),  the court denied the petition of a court-appointed trustee of a special needs trust for compensation.

Danny, the beneficiary of the trust received compensation for injuries he suffered while attending the Burning Man festival in 1996 when he was 21 years old and a drunken driver drove through his tent.  Danny's mother was named as trustee of the trust.

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Topics: trusts, special needs planning

When to Use an ABLE Account

Posted by Harry S. Margolis on January 29, 2019

By Harry S. Margolis

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ABLE accounts were created by the Achieving a Better Life Experience Act of 2014 as an alternative to special needs trusts and to share the benefits of 529 plans for people who are unlikely to pursue higher education. They only go part way towards those goals but nevertheless can be very useful in providing flexibility around very strict public benefit rules, especially those of the Supplemental Security Income (SSI) program.

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Topics: special needs planning, Special Needs Trust, ABLE Accounts, Attainable Savings Plan

Divorce-Created SNT Deemed Self-Settled for Creditor Purposes

Posted by Harry S. Margolis on January 22, 2019

By Harry S. Margolis

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In determining eligibility for MassHealth and Supplemental Security Income (SSI), the state and federal agencies treat self-settled trusts -- those created by the applicant for benefit -- and third-party trusts -- those created by someone else -- entirely differently. The assets held in a self-settled trust are considered available to the applicant for benefits to the extent the trustee has discretion to distribute them to the applicant or to use them for her benefit. The assets of a third-party trust are only considered available to the extent the trustee actually distributes them to or uses them for the applicant for benefits.

These rules track the rules for creditors. With some exceptions, creditors can gain access to assets in trusts created by the debtor and cannot gain access to trusts created by someone else for the benefit of the debtor. The issue in the case of Calhoun, et al. v. Rawlins (93 Mass. App. Ct. 458, June 27, 2018) is whether a trust created by one divorcing spouse for the benefit of the other spouse is protected from the creditors of the beneficiary spouse. This has significance for special needs planning because it's not unusual for special needs trust to be created in the context of divorce.

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Topics: special needs planning, divorce, Special Needs Trust, creditor protection

Your Must-Have Checklist if You Need Guardianship When Your Child with Special Needs Turns 18

Posted by Rebecca J Benson on January 30, 2018

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By Rebecca J. Benson

Every child automatically becomes an “adult” in the eyes of the law as soon as the child turns 18 – an unnerving thought for many parents.  Parents of a special needs child need to consider whether their child will need a legal guardian, even after turning 18.  Our comprehensive “how-to” checklist will help you determine whether guardianship is needed and outline the steps for obtaining the necessary Massachusetts court appointment:

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Topics: guardianship, special needs planning, disability, Special Needs Child, proxy

Choosing a Trustee for A Child’s Special Needs Trust

Posted by Karen Mariscal on November 7, 2017

by Karen B. Mariscal

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Topics: trusts, special needs planning, special needs, Special Needs Child, Special Needs Trust, trustee

“I’d be Honored”: Paving the Way  For Your Special Needs Trustee - Preparing a Memorandum of Intent

Posted by Karen B. Mariscal on October 26, 2017

iStock-587221754.jpgWhen our autistic son was 8 years old, he was a holy terror.  That was true when he was younger than 8 and older than 8 (he settled down around the time of puberty, for which I am eternally grateful), but I am focusing on age 8 right now. We had two younger boys as well, then ages 5 and 4.  So when I asked my sister Laura whether she would be the guardian of our children, and take over if something happened to my husband and me, it was with great trepidation.  Laura knew full well what was going on in our house, and how difficult a request I was making.  She responded, without hesitation, “I’d be honored.”  I have tears in my eyes as I write this, as it never fails to get to me, even 17 years later.

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Topics: trusts, special needs planning, Intellectually Disabled, autism, disability, Special Needs Child, Caregivers, Special Needs Trust

Congress Passes Special Needs Fairness Act

Posted by Harry S. Margolis on December 9, 2016

By Harry S. Margolis

As part of the 21st Century Cures Act which passed last week, Congress  has finally corrected a glitch in the law dating back to 1993. Back then, Congress authorized the creation of so-called (d)(4)(A) trusts which permit people with disabilities under age 65 to shelter funds and still qualify for Medicaid (MassHealth in Massachusetts) and Supplemental Security Income. A quirk in the law has required these trusts to be created by a parent, grandparent, guardian or court, even if the beneficiary is competent to create the trust herself. This has limited the availability of these trusts and required expensive proceedings in court which have often delayed eligibility for vital public benefits.

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Topics: trusts, special needs planning

The Difference Between SSI and SSDI

Posted by Elizabeth Stepakoff on November 29, 2016

by Karen B. Mariscal, Esq. 

There is a lot of confusion about the difference between SSI (Supplemental Security Income) and SSDI (Social Security Disability Income).  Although SSI and SSDI both provide supplemental income to disabled people, and have similar names, they are completely different programs.

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Topics: special needs planning

Housing for Your Special Needs Child: A Legal and Personal Perspective

Posted by Karen B. Mariscal on November 19, 2016

By Karen B. Mariscal

Most parents of special needs children keep their kids at home with them through the parents’ 40s, 50s, or even longer. Only about 15 percent of DDS (Department of Developmental Services) clients receive housing from the state when they turn 22, and those tend to be the most difficult cases – where the person cannot live safely on his own or with his parents. The rest are left to their own resources when it comes to housing. Their parents need know their options and think creatively about how best to provide for their loved ones as they age.

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Topics: special needs planning

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