I recieve SSI and Medicaide. I was awarded a settlement from an accident. Will this reduce the amount of benefits I recieve?

My father is 58 years old, disabled and retired on SSI and Medicaid.  He recently was awarded a small monetary settlement from being a passenger in a car accident I had.  He just got a few thousand dollars, but I’m afraid that he might lose his disability and health care benefits if I don’t hide that money in my name, which would probably be illegal. He still has not received the money – is there another way we can protect his benefits and let him keep the money in his name? Should a “special needs trust” be established when an elderly person who receives government benefits is awarded a civil judgment or settlement?


Answers (1)

Yes.  If your father’s personal injury attorney does not have expertise in this area, you need to immediately retain a second attorney specializing in elder/disability law and/or estate planning.  This individual should have specific experience in preparing a “special needs” or “payback” trust authorized by the federal Omnibus Budget Reconciliation Act of 1993 (OBRA).  The attorney(s) will need to deal with any potential claims or liens which Medicaid or the Social Security Administration may have against your father’s settlement money and, prior to establishment of the trust, determine your father’s needs and ensure that the trustee of the funds – presumably you – understands how to the trust works.

These trusts are extremely complex and involve sophisticated legal issues relating to trust law, public benefits law and tax law.   But, the basic requirements for a special needs trust are as follows: the trust must funded with assets of the individual; the individual must be under 65 years of age at the time the trust is funded; the individual must be disabled; the trust must be established by a parent, grandparent, legal guardian of the individual or a court (this would be your father’s course of action); any state which paid medical assistance on behalf of the individual must be reimbursed from any amounts remaining in the trust upon the death of the individual; and reimbursement must be up to an amount equal to the total medical assistance paid on behalf of the individual.  The definition of disability for special needs trusts is the same definition contained in the Social Security Act which is applied for determining eligibility for SSI or SSD.

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