If you want to give assets to a loved one with a disability either during your lifetime or through your estate, you must plan carefully.
Otherwise, you could jeopardize their ability to qualify for public benefits (Supplemental Security Income and Medicaid).
While owning a house, car and other personal property
Fortunately, there are ways you can leave assets to a family member with a disability while preserving their eligibility for Medicaid and other assistance.
SPECIAL NEEDS TRUST
A Special Needs Trust (SNT) is the most well-known strategy for helping a loved one with a disability while ensuring they continue to qualify for public benefits. This works because assets are left to the trust, not the disabled family member.
Within the trust document, you will appoint a trustee who will have complete discretion over the trust assets and will be in charge of spending money on your disabled family member’s behalf.
The trustee cannot give money directly to your loved one — that could interfere with eligibility for public benefits — but the trustee can spend trust assets to buy a wide variety of goods and services for them.
Special Needs Trust funds are commonly used to pay for personal care, vacations, home furnishings, out-of-pocket medical and dental expenses, education, recreation, vehicles, and physical rehabilitation.
529 ABLE ACCOUNTS
The ABLE Act was signed into law in 2014, creating 529 ABLE (529A) accounts to provide a tax-advantaged vehicle for saving assets for disabled individuals.
The accounts are sponsored by states, but there are no residency requirements to enroll. Some states offer tax deductions for contributions but amounts and rules vary.
ABLE accounts can be created and managed by the beneficiary, subject to capacity. If they need assistance, the account can be established and/or managed by their parents, conservator/guardian or agent under a power of attorney.
Money in the ABLE account (up to the first $100,000) will not be subject to the $2,000 personal asset limit that determines eligibility for public benefits.
Another major benefit of the 529A account is its taxation. Unlike a Special Needs Trust, money coming out of a 529A account is tax-free if it’s going toward a qualified disability expense.
Qualified disability expenses include basic living expenses, housing, education, transportation, employment training and support, and health care prevention and wellness — but
Something to be aware of is that if the money in the 529A is used for non-qualified disability expenses, the earnings portion of the withdrawal would be subject to regular income tax and a 10% penalty.
In those states that have adopted special state income tax benefits, non-qualified withdrawals might also incur additional state tax penalties.
Which to Choose?
One of the primary aims of the ABLE program was to provide a solution for disabled individuals who do not have the support structure and financial means to create a Special Needs Trust.
ABLE accounts are a less expensive alternative to a Special Needs Trust as the fees are nominal — generally limited to maintenance and charges by financial institutions.
There are also several circumstances in which an ABLE account may be particularly useful. For example, an ABLE account would allow an individual with disabilities to save unspent work earnings or Social Security benefits for a future purchase without violating the general rule that the recipient of SSI and Medicaid cannot accumulate more than $2,000.
However, for most individuals with disabilities, an ABLE account is not a substitute for comprehensive Special Needs Trust planning.
Since they each have their own nuances that seem to pair well the other, the 529A and Special Needs Trust should be used side-by-side for families with disabled children and adults.
For example, a carefully drafted SNT can authorize the trustee to transfer money into the beneficiary’s ABLE account to maximize the benefits of both tools simultaneously.
Obviously, when trying to decide whether to establish a Special Needs Trust or an ABLE account, you should consult a special needs planning attorney about the suitability of these savings tools based on your own circumstances.
For help finding a special needs planning attorney, visit https://www.specialneedsalliance.org/find-an-attorney.