Special Needs Fairness Act

On December 13, 2017, President Obama signed the 21st Century Cures Act. It already passed in the House and the Senate. This law wants to expand medical research, invest in mental health resources, and combat prescription and opioid drug addiction problems.

The 21st Century Cures Act also contains the Special Needs Trust Fairness Act. This Act makes a simple change to current federal laws. A person with special needs can now create their special needs trusts. The previous law from 1993 required that a special needs trust be “established for the benefit of such individual by a parent, grandparent, legal guardian of the individual, or a court.”

This old law assumed that a person with special needs – mental or physical – did not have the mental capacity to create a trust for themselves. This meant a person with special needs could qualify for any government benefits on their own. They needed someone else to create the special needs trust for them so they could qualify for government benefits.

What Changed?

The Special Needs Fairness Act removes this restriction. So long as a person can recognize what they have and how they want it to be used, he or she can create their own special needs trust. This law was immediately effective.

This change has been long coming. The older law was written twenty-three years ago – in 1993. In 2013, the House of Representatives introduced a bill that allowed a person with special needs to create their own trust (H.R. 2123). The Senate introduced their own version in 2013, too (S. 1672). The bill did not pass.

The two Bills were reintroduced in 2015 as H.R. 670 and S. 349. These were voted on and passed by both the House and the Senate. President Obama then signed them into law.

How Does This Help Me?

The federal government has finally realized that having a disability does not mean a person is incompetent. By changing the law, if you have special needs, but can work and make decisions, you can also set up your own trust.

This means that you no longer need to get help from parents, grandparents, guardians, or apply to the court for help. You can now act for your yourself, create your own trust and use your own property to fund it. You don’t have to jump through the legal loops that existed under the old law.