For Immediate Release
November 8, 2013
Contact: Abby Matienzo, Communications Associate
NAELA Commends Senators
Nelson, Grassley, Rockefeller, and Enzi for Their Dedication to Improve the
Lives of People with Disabilities With the Special Needs Trust Fairness Act
The National Academy
of Elder Law Attorneys (NAELA) strongly endorsed the introduction of the
Special Needs Trust Fairness Act by Sens. Bill Nelson (D-FL), Chuck Grassley
(R-IA), Jay Rockefeller (D-WV), and Mike Enzi (R-WY) (S.B. 1672). The bill
addresses a problem facing many capable persons with disabilities: the
inability to create their own special needs trust (SNT). Under the current law,
a parent, grandparent, legal guardian of the individual, or a court must
establish the SNT. The Special Needs Trust Fairness Act will help empower
people with disabilities to be responsible for their life decisions. The House
companion is H.R. 2123, introduced by Reps. Glenn Thompson (R-5th-PA) and Frank
Pallone (D-6th-NJ).
The current law is based on an incorrect assumption that a
person with disabilities lacks the mental capacity to enter into a contract.
The disparity in the law creates a fairness and disability rights issue. In
1993, Congress recognized the use of SNTs in the Omnibus Budget Reconciliation
Act of 1993 (OBRA 1993). SNTs allow assets to be held in a trust to supplement
daily living expenses when government benefits alone are insufficient, thus
protecting the individual against the risk of complete impoverishment. However,
the law stipulates that a SNT can only be created by a parent, grandparent,
legal guardian of the individual, or the court.
“The Special Needs Trust Fairness Act is a common-sense
solution that will save individuals with disabilities from unnecessary legal
costs and time spent in petitioning the courts and gives them back their
dignity and constitutional right,” stated NAELA Board Member Michael Amoruso,
Esq.
He continued: “Without this bill, I, a blind and moderately
deaf attorney who regularly drafts SNTs for clients, would not be able to sign
my own SNT in the future.”
NAELA President Howard S. Krooks, CELA, CAP, calls upon
Congress to “make this important and cost-neutral change to USC§1396p (d)(4)(A)
that will allow individuals to create their own special needs trusts by
inserting the phrase ‘the individual’ into the statute so that people with
disabilities can enjoy the dignity they deserve and remove the misplaced
presumption that they lack capacity due to their disabilities.”
Other groups support this proposal, including Easter Seals
and the American Association of People with Disabilities.
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