Special Needs Estate Planning
State Reporter: Edward V. Wilcenski, Esq.
Education: Siena College, Albany Law School
Current Position: Co-Owner, Jones & Wilcenski, PLLC
Certifications: Vice Chair, NYS Bar Association; Elder Law Section Medicaid Committee; Trustee, NYS Arc Inc. Pooled Trust.
Memberships: National Academy of Elder Law Attorneys(NAELA);
Community Involvement: Volunteer for the New York State Commission on Quality of Care's Surrogate Decision Making Committee, serves as a panel member for the New York State Office of Mental Retardation and Developmental Disabilities task force on using SNT's to create more housing options for the disabled.
Articles: Contributing Author/Editor Frequently Asked Questions About SNT's
Your State's Social Security Region: Region Two
Your State's Federal Circuit: Second
Does your State Have a Specific Special Needs Trust Statute or Discretionary Trust Statute? New York Estates Powers & Trusts Law Sec. 7-1.12
Are there State-Specific:
Manuals/Standardized Forms: Case Law Driven, Not universally followed.
Important Case Holdings: Matter of Escher; Matter of Gold Blatt; Cricheio v. Pennisi
Interpretations/Unusual interpretations of the law:
Does the State run a tab? I.e., does the State track the cost of services to the beneficiary and present a bill if the individual inherits funds or otherwise acquires funds? No.
Does the State have specific statutes or regulations on County medical services and reimbursement of costs? Yes
Have You Seen Creative Uses of Charitable Remainder Trusts and SNT Receptacle Trusts? Yes
Do you have a pooled trust in your state? Yes, a number of them.
Social Security Rules: SSA POMS
When a third party (such as a parent or other individual) funds a trust for another person (the "beneficiary") with the third party’s funds, what special rules does your SSA region have on:
Generally, treatment is very inconsistent, with variations from local office to local office.
Housing: Payment of the presumed maximum value as rent will not reduce SSI benefit.
When an individual funds a trust with his or her own funds, using the authority provided under 42 U.S.C 1396p(d)(4)(A), what special rules does your SSA region have on:
Remainder Beneficiaries: "Revocability" problem (Doctrine of Worthier Title) can be avoided when state is primary creditor upon death.
Are you aware of specific issues regarding housing (purchase, maintenance, utilities, gifts of housing, rentals) that have raised questions or caused problems with your state agencies or SSA office?
Are you aware of certain types of distributions that are likely to raise questions or cause problems with one of your state agencies or SSA office?
Medicaid Rules: (See Article by David Golfarb)
When a third party (such as a parent or other individual) funds a trust for another person (the "beneficiary") with the third party’s funds, what Medicaid related considerations are involved?
Distribution terms: Under New York's Escher Case, fully discretionary trusts are generally honored, even if statute is not followed.
Remainder Beneficiaries: None
When an individual funds a trust with his or her own funds, using the authority provided under 42 U.S.C 1396p(d)(4)(A), what Medicaid related considerations are involved?
All of the items below will become subject of negotiation when county social services office appears in court settled SNT situations. Outside of court, the safest route is to follow statutory language in EPTL 7-1.12
Department of Mental Health and Mental Retardation Rules:
When a third party (such as a parent or other individual) funds a trust for another person (the "beneficiary") with the third party’s funds, what requirements does the Department of Mental Health and Mental Retardation have for:
There are no fixed state rules for third party SNT's; There are brief regulations for d(4)(A) trusts in our Social Services Regulations
Distribution terms: None.
Remainder Beneficiaries: None.
Are third-party trusts liable for services provided by State Schools or State Hospitals?
How does the State Mental health, Mental retardation agency treat self-settled trusts?
State Reporters are not sponsored nor endorsed by NAMI, but have volunteered to provide information. Many of the State Reporters are members of the National Academy of Elder Law Attorneys (NAELA) and the American Bar Association. Several are members of ACTEC (the American College of Trust and Estate Counsel). Many have children and other family members with disabilities. Most have been selected by other attorneys involved with this project, because of their recognized long-term involvement with special needs trusts.
NAMI does not, however, certify all information provided here is accurate. Further, the State Reporters do not certify that information provided by others is accurate. As for the State-specific information, each State Reporter has agreed to provide reasonable updates of information that they believe to be accurate.
Also, there is no coverage here of federal laws, veterans administrations rules, Section 8 housing rules, special education, or special county rules.