Expecting a Mesh Settlement? Will a Special Needs Trust Work for You?
Many women find themselves in this situation – they are about to receive a settlement as a result of a personal injury lawsuit, in this case a pelvic mesh injury. But if she also receives any means-tested government disability benefits, this settlement might not seem like good news at all. Settlement proceeds payable either as a lump-sum or as an annuity payment could cause those benefits to be reduced or lost entirely.
So what can you do to keep your benefits, but still take advantage of the settlement you are entitled to?
Mesh News Desk editor, Jane Akre interviews Bryan Clontz of Charitable Solutions LLC, a consulting firm that specializes in charitable giving, about options for women facing this dilemma. The company is not sponsoring this content or this website.
Akre: This is a common problem, a woman receives or is about to receive a lump sum settlement which is the good news however any dollars could reduce her other benefits such as Social Security Disability or Medicaid. That’s what Trudy Thomas told Mesh News Desk happened to her. (See Patient Profile on Trudy). Explain how a special needs trust may help avoid this problem?
Clontz: “Luckily, there is a solution. The special needs trust (“SNT,” and sometimes called a supplemental needs trust) is a government-approved way to supplement the benefits you receive. If you receive a settlement from your mesh injuries, Social Security Disability benefits (and Medicare for that matter) are not impacted as they aren’t financially means tested. If there is no income or asset test, then the claimants are fine. But SSI (Supplemental Security Income), Medicaid, SNAP Food Assistance and Subsidized Housing (HUD/ Section 8) are all asset/income based and can be lost in light of a settlement.”
Akre: Do you still get the settlement monies?
Clontz: “First, your settlement will go into a trust instead of directly to you. A trust is a legal relationship where one party (the trustee) holds money, property, or other assets for the benefit of another party (the beneficiary).
“In the case of a SNT, the proceeds of your settlement are held irrevocably (meaning you cannot undo the transfer) by the trustee, who can pay for your supplemental needs. You keep receiving government benefits for your basic needs. The assets in the SNT are not counted as your personal assets, and will not disqualify you from benefits. The trustee can pay for living expenses which your benefits do not cover.”
Akre: When you say it pays for your supplemental needs what do you mean and who is the trustee?
Clontz: “Generally speaking, these expenses are considered “comforts.” For example, basic medical care, food, shelter, and utilities might be covered by your benefits, but personal care services, electronics, clothing, furniture, and many other categories are not. The list of approved expenses is long and complicated, so you should talk to an attorney to see if an SNT could provide for your needs. If your settlement is more modest, you may be better suited to a pooled disability trust, discussed in the PDT article below.”
Akre: How do I know my money is secured?
Clontz: “In 1993, Congress created exemptions allowing disabled persons to exclude certain resources that would otherwise disqualify them for benefits, including settlement proceeds, if those resources were placed in trust. Today, that authorization is found in Title 42 of the U.S. Code at Section 1396p(d)(4).
“States and benefits agencies may have their own laws, rules, and regulations dealing with SNTs as well, and these can affect how your SNT works. However, if you, someone you know, or someone you represent receives government benefits and may also be receiving a settlement, a SNT is definitely a possible solution that will ensure a comfortable lifestyle.”
Disclaimer: This information should not be relied on as tax or legal advice. You should seek your own counsel for such advice.
Akre: Many women may find a pooled disability trust might be the way to avoid having your assets reduced IF the amount of settlement is a smaller, yet you need to rely on government assistance. Ryan Raffin, JD of Emergency Assistance Foundation, Inc. a nonprofit organization, discussed Pooled Disability Trusts in the following article. He will be available to answer questions in the comments section below.
An Introduction to Pooled Disability Trusts
A pooled disability trust (“PDT”) is a cousin of the special or supplemental needs trust (“SNT”). The SNT was discussed in an earlier post, which has important background information on this topic. If you are disabled, receiving government benefits, and have received or will receive a settlement from a personal injury lawsuit, then a PDT may be an appealing option for you.
What is a PDT? Like a SNT, it is a way for you to preserve your government benefits while still allowing you to receive some comforts beyond what those benefits allow.
A PDT is a type of trust, which is a legal relationship where another party (the trustee) irrevocably holds the assets for your benefit (you are the beneficiary of the trust). Congress authorized it at the same time as the SNT, and it is found in the same section of Title 42 of the U.S. code – section 1396p. However, it is different from a SNT in some important ways.
First, as the PDT’s title implies, it is actually a pool of many trust subaccounts. Each subaccount is for the benefit of a disabled individual. By pooling their assets together into the larger PDT, they can reduce their share of trust administration expenses while maximizing returns on investments. Like with an SNT, the trustees make payments for the expenses that government benefits do not – additional medical services or therapy, household care, electronics, clothing, furniture, and many more.
The reduced expenses point towards the other main distinguishing feature of the PDT. PDTs are typically more appealing to people with fewer assets to contribute. If your settlement is less than $100,000, it might be difficult to find a qualified trustee willing to administer it.
Luckily, most PDTs are not as strict in their minimum requirements. Even better, most are nonetheless experienced in administering disability trusts. Further, the law states that only nonprofits can run PDTs, so you know that the trustees will not be charging huge fees for their services.
Another important consideration is that not every PDT is the same. They have different requirements for who can join. For example, they may prefer specific disabilities, have different minimum contributions to the PDT, and often, they have different geographic requirements. Like SNTs, state laws and regulations can affect PDT administration, so PDTs may be state- or region-specific.
With these considerations in mind, a PDT is often a cost-effective way for a disabled person to move a more limited amount of assets into trust to pay for expenses which their government benefits will not cover.
This information should not be relied on as tax or legal advice. You should seek your own counsel for such advice.