Senate Passes Fix to Let Persons with Disabilities Create Special Needs Trusts

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The Special Needs Trust Fairness Act corrects an error that created needless delay and legal expenses for many people with disabilities.

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This is a big step towards correcting an error that demeans persons with disabilities...

The Senate unanimously approved the Special Needs Trust Fairness Act (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 legislation was introduced by Sens. Chuck Grassley (R-IA) and Bill Nelson (D-FL), with Sen. Debbie Stabenow (D-MI) joining as a co-sponsor.

Special needs trusts help ensure that individuals with disabilities can receive assistance for their long-term services and supports from means-tested programs like Medicaid without becoming utterly destitute. “This is a big step towards correcting an error that demeans persons with disabilities and forces many to jump through unnecessary legal hoops to have their trusts approved,” said National Academy of Elder Law Attorneys (NAELA) President Shirley B. Whitenack, Esq., CAP.

Under current law, only a parent, grandparent, legal guardian of the individual, or a court can establish a special needs trust in contrast to other parts of the law, such as the recently passed ABLE Act. Those who do not have a parent, grandparent, or legal guardian must petition the court, causing unnecessary legal fees and delay.

Previously, the Senate Finance Committee unanimously approved the legislation on June 24, 2015, with a series of other health-related measures.

“This is a common-sense, bipartisan fix that goes a long way for the individuals affected. I look forward to working with the House to get this to the President’s desk,” Whitenack said.

Learn more on the Special Needs Trust Fairness Act.

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


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Abby Matienzo, Communications Associate
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