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Special Needs Trust

Special Needs Trust Attorney 

If you are raising a child with a physical or developmental disability, or you have another loved one (i.e. parent, sibling, niece, nephew, etc.) who is physically, mentally or developmentally disabled, there are many obstacles and difficulties that you and your family may face. The Law Office of Richard W. Hartman III, Attorney & Counselor at Law, PLLC can help you find the assistance you need and ensure your special needs child or loved one will be well cared for when you are gone or are no longer able to serve as the primary caregiver.

special needs attorney vienna vaIn the past, families commonly disinherited loved ones with special needs in order to preserve their eligibility for government assistance and benefits programs. This often meant giving everything to a sibling with the hope that they would help their brother or sister when necessary. Fortunately, there is a better way for many families.

Your child or loved one should be able to receive his or her inheritance the right way and sill preserve their eligibility for government assistance. While it is usually advantages to preserve eligibility for government programs, most families do not want to leave their loved one completely dependent on the government care system. After all, these programs generally provide for little more than the bare necessities, and most of us would like our loved ones to live comfortably, not just get by.  With proper planning tools, such as a Special Needs Trust, you can be sure that your loved one’s future is secure and safe.

At The Law Office of Richard W. Hartman III, Attorney & Counselor at Law, PLLC, in Vienna VA we are dedicated to providing comprehensive planning services to families that have children and loved ones with special needs. We will work with you in developing a plan to care for your child’s long-term future.

So, what is a Special Needs Trust (also known as a Supplemental Needs Trust)?

A Special Needs Trust is a legal vehicle that allows a disabled person to receive inheritance, gifts, lawsuit judgments or settlements, and other funds without losing his or her eligibility for government benefits. These trusts must be carefully drafted to ensure that the special needs beneficiary’s government benefits are not jeopardized. In the most basic terms, this means that the trust must only provide for “supplemental” needs, and the special needs beneficiary cannot have control of the assets.

Types of Special Needs Trusts:

Third Party Special Needs Trusts are created and funded by someone other than the beneficiary. These can be “stand-alone” vehicles that you create for a loved one and fund with your assets or life insurance (and others can contribute to them as well).  This type of trust can also be incorporated into a last will and testament and funded upon your passing, or they can be incorporated into your revocable living trust in some cases.  One of the great advantages of Third Party Special Needs Trusts is that they are not required to payback Medicaid after the beneficiary’s lifetime. This means that the person who establishes the trust can determine what happens to anything left in the trust after the disabled beneficiary passes away (i.e. you can give the residue to your other children, family members, a charity, etc.)

First Party Special Needs Trusts are created by a parent, grandparent, legal guardian or the court and are funding with the beneficiary’s own assets.  There are some specific requirements for the creation of these trusts, one of which is that they must contain a Medicaid payback provision. This provision provides that after the beneficiary dies, the government will receive anything remaining in the trust up to the amount that was paid by Medicaid.

Pooled Special Needs Trusts are created and run by organizations, usually nonprofits. They manage assets and provide for a large number of individuals with special needs.

What can a Special Needs Trust provide for, and what should a Special Needs Trust not pay for?

The Special Needs Trust can be used for a variety of life enhancing expenditures without compromising your loved ones’ eligibility for government assistance, such as:

  • Annual check-ups at an independent medical facility;
  • Out-of-pocket medical and dental expenses;
  • Health Care;
  • Attendance of religious services;
  • Supplemental education and tutoring;
  • Transportation (including purchase of a vehicle);
  • Maintenance of vehicles;
  • Purchase of materials for a hobby or recreation activity;
  • Funds for trips or vacations;
  • Funds for entertainment such as movies, shows or ballgames;
  • Purchase of goods and services that add pleasure and quality to life: i.e. computers, videos, furniture, or electronics;
  • Athletic training or competitions;
  • Personal care attendant or escort.

Special Needs Trusts cannot, however, provide for the basic support that is generally covered by government programs and still maintain the beneficiary’s eligibility.  Some of the expenses that cannot be paid for by a Special Needs Trust include items such as:

  • Direct cash distributions to the beneficiary;
  • Food expenses (including trips to restaurants, except for the occasional gift);
  • Housing expenses (i.e. rent or mortgage payment, property taxes, etc.).

But, in some cases, the Trustee may still make these types of payments while only sacrificing part of the government benefits.  These decisions must be thought through carefully and made by the Trustee on a case by case basis with the assistance of knowledgeable and qualified advisors.


Special Needs Trusts are a critical component to consider for your estate planning if you have disabled beneficiaries for whom you wish to provide upon your incapacity or after your passing. These trusts require thorough discussion and consideration, and you should utilize the services of a knowledgeable and qualified attorney to ensure that the planning options you choose will achieve your goals and objectives. For more information, or to schedule an initial consultation contact The Law Office of Richard W. Hartman III, Attorney & Counselor at Law, PLLC today.


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