Setting Up a Special Needs Trust in New York
How to do it, with help from an estate planning attorneyBy Jim Walsh | Reviewed by Canaan Suitt, J.D. | Last updated on October 12, 2023 Featuring practical insights from contributing attorneys Moira S. Laidlaw and Robert D. Steele
Use these links to jump to different sections:
- It’s Important to Plan Ahead for Success
- State Law Sets the Rules for Setting Up Special Needs Trusts
- What Can Special Needs Trust Funds Be Used For?
- Who Can Set Up a Special Needs Trust?
- Coordinating the Special Needs Trust With Your Overall Estate Plan
- Getting Legal Advice from an Experienced New York Estates Lawyer
For parents and other caregivers, creating a trust for a child or adult loved one with special needs can bring peace of mind and security.
But setting one up is more difficult than a basic trust fund.
It’s Important to Plan Ahead for Success
“We have a phrase at our practice: ‘planners win,’” says Moira Laidlaw, a certified elder law attorney with Hollis Laidlaw & Simon, who handles trusts and estates, Medicaid planning, and special needs planning.
“It’s particularly true in the area of special needs planning. Because when parents or grandparents give inheritance to a person with special needs, it’s really important that they plan ahead of time in their estate plan for that money to go to trust rather than to go directly to the person with special needs.”
State Law Sets the Rules for Setting Up Special Needs Trusts
“First of all,” says Robert Steele, an estate planning partner with Schwartz Sladkus Reich Greenberg Atlas in New York City, “I strongly recommend that you engage an estate planning lawyer who is an expert, and who knows what he or she is doing.”
All the requirements for standard trusts also apply to special needs trusts, which are sometimes also called supplemental needs trusts (SNT). “New York has a statutory SNT,” says Steele, “which has specific language that is required. This also makes compliance easier since the language is set forth in the statute.
What Can Special Needs Trust Funds Be Used For?
“The funds can only be used for certain purposes,” adds Steele, “and it can’t be used for anything that would disqualify the trust beneficiary from benefits.”
Acceptable uses of trust assets include:
- Recreational experiences; and
- Items or services not covered by Medicaid benefits, such as wheelchairs and accessible vehicles.
Who Can Set Up a Special Needs Trust?
Parents might be the most likely creators of an SNT. However, according to the State Bar, New York state law allows anyone to set one up, whether they’re a grandparent, another family member, or simply a third party concerned about the person’s quality of life and longterm care.
The most effective SNTs are done ahead of time, rather than as a direct inheritance, adds Laidlaw: “If the money goes directly to the person with special needs, at least in New York, at that moment the options that the person has to protect that money is far more restrictive. It can still be protected, so all is not lost. It’s just that that money is now what’s known as a ‘first-party special needs trust’ as opposed to a ‘third-party special needs trust.’”
Coordinating the Special Needs Trust With Your Overall Estate Plan
An SNT can coordinate with the overall estate tax plan strategy. Steele and Laidlaw say that a good attorney can help caregivers determine if a trust is the best path forward. And as with any estate plan, sooner is better than later.
Laidlaw urges parents to make an SNT part of a larger effort. “In terms of setting up their estate plan, [caregivers] should also be focused on their own advanced directives in case they lose capacity at any point in their own lifetimes. We’re a very youth-based culture, a very ableist culture. We’re all geared toward thinking that we’re going to live our complete, best life—but the reality is, there’s a chapter in between living our best life and our death that may involve steady cognitive decline.”
The bottom line is that “[during] that chapter, people really need to come up with a care plan for their child with special needs. They need to do their own powers of attorney, health care proxies, and living wills because those documents are less restrictive alternatives to guardianship for themselves.”
Without a plan in place, if the caregiver of a person with special needs has, for example, a stroke, the complications can pile up while the decisions related to the care of the caregiver are ironed out.
“It’s important for them to get the basic estate planning issues solved correctly and proactively,” says Laidlaw. “You don’t want to create added unnecessary legal complexity where there’s already complexity that’s part of your family picture.”
Getting Legal Advice from an Experienced New York Estates Lawyer
If you want to set up a special needs trust or have other estate planning needs, consider using the Super Lawyers directory to find an experienced trust lawyer in your area sooner rather than later. An attorney can answer questions about your specific circumstances and the types of special needs trusts, including how trusts interact with other parts of an estate plan, plus public benefits and social security.
For more general information about this important area of law, see our overview of trusts and estates and related content.
Additional Trusts articles
Find top lawyers with confidence
The Super Lawyers patented selection process is peer influenced and research driven, selecting the top 5% of attorneys to the Super Lawyers lists each year. We know lawyers and make it easy to connect with them.Find a lawyer near you