NAELA: Reps. Thompson, Pallone, and Sens. Grassley, Nelson Seek to Correct Error That Presumes Persons with Disabilities Cannot Handle Their Own Affairs

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The Special Needs Trust Fairness Act corrects an error in the law by allowing individuals with disabilities, who have the mental capacity, to create their own special needs trusts.

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NAELA applauds Reps. Thompson and Pallone, and Sens. Grassley and Nelson for coming together across party lines to correct an error that has been law for too long.

Reps. Glenn “GT” Thompson (R-PA) and Frank Pallone (D-NJ) in the House, along with Sens. Chuck Grassley (R-IA) and Bill Nelson (D-FL) in the Senate, introduced the Special Needs Trust Fairness Act (H.R. 670/S. 349) to correct an error in the law that presumes that all persons with disabilities lack the mental capacity to handle their own affairs.

“The National Academy of Elder Law Attorneys (NAELA) applauds Reps. Thompson and Pallone, and Sens. Grassley and Nelson for coming together across party lines to correct an error that has been law for too long,” said NAELA President Bradley J. Frigon, CELA, CAP.

Individuals with disabilities often rely on programs like Medicaid to cover the high costs of long-term care. But, in order to qualify for Medicaid, individuals can only retain sometimes as little as $2,000 in assets. Federal law allows individuals with disabilities to utilize special needs trusts to retain some of their assets for the purpose of helping with certain costs of living not covered by government programs.

Under current law, only a parent, grandparent, legal guardian of the individual, or a court can establish a special needs trust. Those who do not have a parent, grandparent, or legal guardian must petition the court, causing unnecessary legal fees.

“The law presumes that someone like myself, a lawyer who drafts these trusts on a daily basis, somehow lacks the necessary mental capacity to enter into my own trust, just because I happen to have a disability. It’s preposterous,” said NAELA board member Michael Amoruso, Esq., who leads NAELA’s public policy efforts.

Individuals with disabilities can enter into other legal arrangements that allow them to set aside money for the purposes of qualifying for government assistance programs. “Leaving the words ‘the individual’ out was almost certainly an oversight when the law on special needs trusts was drafted in ’93,” Frigon noted.

In the last Congress, this legislative fix had bipartisan support in both chambers and was passed out of the Senate Finance Committee as part of its growth rate legislation. It also had support from a number of national organizations, including the National Multiple Sclerosis Society, the American Association of People with Disabilities, Easter Seals, the United Spinal Association, the Special Needs Alliance, and the Academy of Special Needs Planners.

“While I’m pleased with the progress the Act made in the last Congress, until this legislation passes, persons with disabilities will suffer from both higher legal fees and the fundamental indignity of being presumed to be mentally incompetent,” said Amoruso.

Learn more about the Special Needs Trust Fairness Act.

About NAELA
Members of the National Academy of Elder Law Attorneys (NAELA) are attorneys who are experienced and trained in working with the legal problems of aging Americans and individuals of all ages with disabilities. Established in 1987, NAELA is a non-profit association that assists lawyers, bar organizations, and others. The mission of NAELA is to establish NAELA members as the premier providers of legal advocacy, guidance, and services to enhance the lives of people with special needs and people as they age. NAELA currently has members across the United States, Canada, Australia, and the United Kingdom. For more information, visit NAELA.org.

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Abby Matienzo, Communications Associate
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