Special Needs Trust Fairness Act passes!

Forming a first party Special Needs Trust has, up until now, required a parent, grandparent or a guardian to establish the trust. When the original law allowing First Party Special Needs Trusts was passed, it did not contemplate that many disabled people were perfectly capable of setting up their own trusts. Instead, if someone no longer had a parent and was not in need of a guardian, they had to seek permission from the court.

The Special Needs Trust Fairness Act eliminates that requirement. No longer will disabled people without parents or grandparents face lengthy legal proceedings.

The President still has to sign the Act into law, but is expected to do so. Many states will start following the new law immediately, but it is possible that New York, among other states, to seek further approval from the New York legislature before implementing the Act.

New Long Island Special Needs Radio Show

Monday Evenings at 6:30PM EST

Special Needs Long Island is a weekly radio program dedicated to the special needs community on Long Island.  It is a forum where the latest information involving special needs will be provided.  Featured guests are from special needs organizations, professionals practicing in the field, families and individuals with special needs. The program is hosted by Jeff Silverman, Director of Special Needs Planning for the Center for Wealth Preservation in Syosset, New York. He can be reached by e-mail at [email protected] or at (516) 682-3363

Tonight’s Special Guest is Me!

Join “Special Needs Long Island,” the radio program focused on the Special Needs Community, as we interview special needs planning attorney Ellen Victor, Esq., this Monday, October 11 at 6:30 p.m!

Questions can be called into Ellen during the show at (631)888-8811.

Ellen is uniquely qualified to answer your questions, as a special needs attorney (http://www.victorlawfirm.com/), blogger (http://longislandspecialneedslawyer.com/), and mother of a special needs child.

Here’s your chance to ask your special needs question of an attorney who focuses on this area of the law — for free.

Questions like:

• Why do I need a special needs trust?

• How do I choose a trustee for my special needs trust?

•Do I still need an SNT if my child isn’t on public benefits?

So be sure to tune in at 6:30 p.m. on Long Island’s WGBB 1240 AM.  For those out of the local broadcast range, or wanting the best clarity, the program is simulcast on the internet at www.am1240wgbb.com

The Difference between Medicaid and Medicare

Previously, I discussed the differences between Social Security Disability Income (SSDI) and Supplemental Security Income (SSI) .  Two other government programs that frequently confuse people, including professionals, are the differences between Medicaid and Medicare.


Medicare is a health insurance program for persons over the age of  65 and for those with certain disabilities who receive SSDI. A person must have entered the United States legally and have lived here for five years before becoming eligible for these benefits.

It is extremely important to understand that Medicare does not cover long-term nursing home care.


Medicaid is funded jointly by the federal and state governments.   Under certain circumstances, Medicaid will provide benefits for nursing home care.  In New York and a number of other states Medicaid will pay for home health care for those in need.

Medicaid is for those with low income and minimum resources.  Among those with low income who are eligible are:

  • pregnant women
  • children under 19 years of age
  • people 65 and older, blind or disabled
  • in need of nursing home care

A disabled person in New York would apply for Medicaid through the state agency.  Here in Nassau or Suffolk County, the application is available from the Department of Social Services.

It is a very complex and difficult application.  Many people retain the help of an elder care attorney to aid them in applying for Medicaid.  If you need assistance, please contact me by calling  (516) 223-4800 or by filling out the contact form on this website.

The Difference Between SSI and SSDI is More than Just a Letter

Many people, including lawyers, confuse two very different government programs for disabled persons.  Although both are overseen by the Social Security Administration (SSA), there are some significant differences  both in how the programs are funded, and to whom  the money is distributed.

Social Security Disability Income (SSDI)

SSDI is a program for disabled persons.  It has no means test.  In other words, there is no investigation into, or requirement based on, your finances to determine if  you qualify for the program based on your income. You can receive SSDI if you have a physical or mental condition which prevents you from working for at least 12 months, or a disabling condition likely to lead to your death.  Eligible candidates must be younger than 65 and have worked 5 out of the last 10 years.

A disabled person is eligible to receive Medicare after two years of receiving  SSDI.

A person’s dependents are eligible to receive dependent’s benefits under SSDI.

Supplemental Security Income (SSI)

SSI is a means-tested program, which means qualifying for SSI is based on financial need and not work history.  You must be blind, disabled or over the age of 65 to qualify.  Additionally, you must have under $2,000 in assets and limited income.  Children who are blind or disabled may also be eligible to receive SSI.

A disabled person on SSI is entitled to also receive Medicaid.

A person’s dependents are NOT eligible to receive SSI.

Dual SSDI and SSI

If a disabled person has worked enough to receive SSDI, but the benefit amount is less than the SSI amount, SSI will give you enough to equal the SSI monthly amount.

You can own your own home under both programs, however under SSI you must live in it, and you will not be paid the part of your SSI earmarked to go towards housing expenses.

You can work under either program,  but the rules are very different for each program.  It is especially important to know how many hours you can work under SSI before you lose your benefits since most people who receive SSI also receive Medicaid and cannot afford to lose their  medical benefits.

Special Needs Trusts and SSI

If a disabled person is receiving SSI and receives a windfall by either a personal injury settlement or an inheritance, that beneficiary must establish a Supplemental Needs Trust to protect the SSI government benefit.  Since SSDI is not means-tested, an SNT is unnecessary to protect you from losing your SSDI in the event of receiving a lump sum payout.