The President Signs the Special Needs Trust Fairness Act into Law

December 13, 2016 law allows mentally competent adults with a disability to establish their own special needs trust

It is a peculiarity of the Federal Statute, in force for decades, that a mentally competent adult with a disability cannot establish his or her own first party special needs trust. Instead, he or she must “rely upon the kindness of others;” i.e., a parent, grandparent, guardian or the Court. This makes it unnecessarily difficult for individuals with limited access to the Courts or a meager family infrastructure to take advantage of this useful, and sometimes necessary, element of special needs planning. Given the increasing focus on empowering individuals with special needs and a growing self-advocacy movement, the policy of this Federal Statute is both insulting and uninformed. In response to this outdated policy, the “Special Needs Trust Fairness Act” was introduced in Congress. The change it will make is both simple and profound. The Act would add “. . . the individual. . . ” to the list of those authorized to establish a first party special needs trust; thereby insuring that a mentally competent adult with a disability can establish his or her own trust.

On December 07, 2016, the US Senate passed a package of bills, previously passed by the House of Representatives, which included the “Special Needs Trust Fairness Act.” On December 13, 2016 President Obama signed the Act into Law; thereby correcting an error in the law which presumed that all persons with disabilities lack the mental capacity to handle their own affairs. The Act will take effect immediately.