Southwest Florida

Administering a Special Needs Trust

Administering a special needs trust isn't for the faint of heart or the disorganized.
Administering a special needs trust isn’t for the faint of heart or the disorganized.

So, you’ve been asked to be the Trustee of a family member’s special needs trust (SNT). Of course, you said yes. But do you really have any idea what your responsibilities will be?

Acting as a trustee of a plain vanilla revocable living trust is pretty easy – you handle bank and investment accounts, sell real estate, and distribute income property to the people named in the document just as you would do in your normal life. There are no special rules or taxes you have to worry about.

But when you’re the trustee of a special needs trust, you have complete responsibility to know Social Security laws inside and out, and you could be held legally and financially responsible if you make a distribution that causes the beneficiary to be kicked off a needs-based government program, such as Medicaid or SSI. If the beneficiary’s medications, without Medicaid, cost $30,000/month, even losing one month of coverage could be financially devastating.

So, are you wondering what you, as a SNT Trustee, can and can’t do? Well, as Trustee, you must control every single cent in the SNT. You mustn’t give the beneficiary of the SNT any money to make purchases for him or herself. Payments for goods and services should be made by you directly to the vendor or provider. A non-refundable, prepaid gift card is permitted as it allows the beneficiary the right to obtain goods or services. In keeping with this principle, a non-refundable airline ticket, or a non-refundable ticket to a show or sporting event would also be permitted. You, as Trustee, may purchase a specific service for the beneficiary, since the service is not easily convertible to cash. For example, payment for any special therapy or training is acceptable.

But an SSI and/or Medicaid recipient may use funds in the SNT to pay for household emergencies such as the repair of a roof or payment of a telephone bill. The Trustee should purchase any household goods or items in the name of the trust and not in the name of the beneficiary. This avoids the possibility that the beneficiary could have control over the goods or items; the appearance of such control could result in a loss of benefits. If a beneficiary receives ownership or control of an asset as the result of the Trustee paying the bill for said asset, this could be deemed as income to the beneficiary, which may disqualify him or her from benefits in the months received.

Here are some types of purchases that can be made by the Trustee of an SNT for the beneficiary and how they would affect the beneficiary’s eligibility for Medicaid and/or SSI:

(a) The purchase of a home, by the Trustee of the SNT, for the beneficiary will not affect his or her benefits if the title to the house is held in the name of the trust. The house will not be deemed a resource of the beneficiary, and would not affect his or her eligibility for benefits. The beneficiary is treated as if he or she is residing in his or her home, and not deemed to be receiving shelter, which would impact eligibility for benefits.

Payments made by the Trustee for the expenses associated with the real property, such as taxes, rent, heat, gas, water, electricity, mortgage, garbage removal and sewer would affect the beneficiary’s eligibility for benefits as they would be considered income to the beneficiary. So, the beneficiary should be able to afford those expenses with his or her other income; consider that when purchasing a home. However, home improvements or renovations are not considered income, and would not affect the beneficiary’s eligibility for benefits;

(b) The Trustee’s purchase of cable TV or satellite TV services, cell or home telephone service, internet service, newspaper and other news related magazines and periodicals will not impact the beneficiary’s eligibility for benefits. The Trustees purchase of computers, computer software and any upgrades for the computer are also permissible expenditures;

(c) The purchase of an automobile for the beneficiary of the SNT will not impact his or her eligibility for benefits.  Additionally, the expenses for the automobile insurance, maintenance and fuel are permitted. However, the purchase of fuel for the automobile can be problematic depending on how payment of the fuel is made. It is recommended that Trustee open a gas company credit card in the name of the SNT that can only be used by the beneficiary for gas purchases;

(d) The Trustee can make unlimited expenditures for the travel and entertainment expenses of the beneficiary. If the beneficiary is unable to travel alone, distributions from the SNT for a travel companion are permitted. However, the payment of a beneficiary’s hotel expenses can be problematic as the argument could be made that they are shelter expenses. However, the argument can be countered if the beneficiary maintains a home;

(e) Household furnishings and furniture, and personal effects can be purchased by the trust; there is no bright-line limit. If the beneficiary wants leather furniture, a 110″ Ultra HDTV, and a surround sound system, the Trustee can purchase those;

(f) Pre-Paid funeral and burial arrangements can be owned by the trust for the benefit of the beneficiary. The arrangements should not be owned by the beneficiary as it could impact SSI benefits;

(g) Legal and Accounting Fees can be paid by the Trustee without impacting the beneficiary’s eligibility for benefits;

(h) The Trustee can purchase clothing for the beneficiary without effecting the beneficiary’s eligibility for benefits. Again, there’s no monetary limit – clothing can be purchased at Goodwill or Saks Fifth Avenue;

(i) The Trustee, without any limitations, can purchase and make payment of durable medical equipment, therapy, medication, alternative treatments, tuition, books, tutoring, and care management – as long as no government program would provide those particular things.

(j) The Trustee can pay the beneficiary’s taxes.

This is NOT a detailed and all-inclusive list; the Trustee is completely responsible for researching Social Security rules and/or hiring professionals or a corporate co-trustee to make sure all the t’s are crossed and i’s dotted. But this should provide you with a better understanding of what the Trustee of a SNT is generally permitted and not permitted to do without affecting the beneficiary’s eligibility for Medicaid and/or SSI as part of the day to day administrator of a SNT.

Being the Trustee of a SNT is a challenging and complicated task; be sure you’re up to it before you agree to serve. If this isn’t for you, make sure the person naming you knows now so he or she can appoint another family member or, better yet, a corporate trustee that handles these SNTs all the time.

Other articles you may find interesting:

Tax Implications of a Medicaid Personal Service Contract

Should I Use a Bank as My Executor Instead of a Family Member?

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