By Harry S. Margolis

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.

By Harry S. Margolis

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.

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:

by Karen B. Mariscal

When 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.

By Harry S. Margolis

As part of the 21^st 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.

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.

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.

By Karen B. Mariscal

Massachusetts funds the Supplemental Nutrition Assistance Program, or SNAP, to assist low income households with affording food. While an individual can qualify for SNAP benefits upon reaching the majority age of 18, there are certain nuances that disabled young adults living at home with their parents should be aware of before applying for this program.