Top Three Questions: February 2019

February 8, 2019

Can I have a special needs trust (SNT) AND an ABLE account?

The good news is that you can have both a special needs trust (SNT) AND an ABLE account. There are no restrictions! There are lots of advantages to an SNT and to an ABLE account. They are different but can be used to complement one another.

If you are an ABLE-eligible individual and you meet any applicable state residency requirements, you can easily open an ABLE account. You may wish to compare state options and view your choices across the country by using the state comparison tool on the ABLE National Resource Center (ANRC) website.

ABLE account owners and ABLE-eligible individuals can also open an SNT, but it is important to consult a trained professional who can talk to you about both planning tools, the advantages and disadvantages of each and how these two tools can work well together.

To learn more, view our January 31, 2019 archived webinar, “ABLE Accounts and Special Needs Trusts,” and review Attorney Jim Sheldon’s ABLE Case Summary “ABLE Accounts Compared to Special Needs Trusts.”

If I have an “in trust for” representative payee account for my child at a bank, is this a special needs trust account, and will it affect means-tested benefits?

Yes, it will affect means-tested benefits because it is not a “special needs trust.” A representative payee is someone who manages the Social Security benefits of an individual who has been determined to be incapable of handling their own benefits. While the title of the savings or checking account may suggest this, the actual account owner is the beneficiary even though he or she does not have control over the account. The funds in this type of account are counted as a resource for that beneficiary.

My disability began before the age of 26, and I do not receive public benefits. I would like to find a list of diagnoses to see if I am ABLE-eligible. Can you point me in the right direction?

A diagnosis alone may not indicate that you qualify for an ABLE account.

The ABLE Act contains two requirements for eligibility:

  1. Your disability must have an onset prior to the age of 26 AND
  2. You must be receiving Supplemental Security Income (SSI) or Social Security Disability Insurance (SSDI) benefits.

If you are not receiving SSI or SSDI, you must have a disability certification document from a licensed physician, a M.D. or D.O., that indicates that you have a qualifying physical/mental disability or blindness which results in marked and severe functional limitations and has lasted, or can be expected to last, for at least 12 months or results in death.

Your level of severity must “meet, medically equal or functionally equal” a listing in the Listing of Impairments in Appendix 1 of Subpart P of 20 CFR Part 404. The listings categorize impairments by body system, and they contain the criteria needed to satisfy that listing.

The Social Security Administration (SSA) maintains a list of “compassionate allowance conditions” which are so severe that they are deemed to meet the requirements of an impairment sufficient for a disability certification, provided the condition was present before age 26.

Scroll Up