Academic journal article Case Western Reserve Law Review

The Growing Need for Third-Party Special Needs Trust Reform

Academic journal article Case Western Reserve Law Review

The Growing Need for Third-Party Special Needs Trust Reform

Article excerpt

"The word 'autism' still conveys a fixed and dreadful meaning to most people--they visualize a child mute, rocking, screaming, inaccessible, cut off from human contact. And we almost always speak of autistic children, never of autistic adults, as if such children never grew up, or were somehow mysteriously spirited off the planet, out of society."

--Oliver Sacks *

CONTENTS

INTRODUCTION
I.    SPECIAL NEEDS TRUSTS
      A.  Definition
      B.  Legislative History
          1.  Self-Settled Special Needs Trusts
          2.  Pooled Special Needs Trusts
          3.  Third-Party Special Needs Trusts
II.   THE PROBLEM OF MAINTAINING MEDICAID ELIGIBILITY
      A.  Beneficiary Access
      B.  Trustee Has Absolute Discretion
          1.  Trustee Power and Duties
          2.  Choice of Trustee
      C.  Use of Funds
      D.  Effects of the Uniform Trust Code
III.  POLICY
      A.  Government Versus Family Interests
      B.  Scientific Evidence of Rise in Diagnosis of Autism-Spectrum
          Disorders
 IV.  SOLUTION
CONCLUSION

INTRODUCTION

On July 8, 2011, emergency room nurses at a hospital in Fort Lauderdale, Florida, found a ten-year-old boy named Benjamin wandering around by himself in the hospital. After trying and failing to find his parents, they called the police. Security footage showed a man in a minivan dropping the boy off at the hospital and leaving. The subsequent investigation revealed that the boy's mother had intentionally abandoned him. She said she was "overwhelmed." She had just lost her job and gotten divorced. Her house was being foreclosed on, and she had two other children to care for. Even though she had "tried everything [she] could" to raise her son, she simply "could not handle" his behavioral and medical issues. (1)

In any normal case, this woman's actions would be appalling. But here, even the police seemed to be on her side. They had no intention of prosecuting her or Benjamin's father. "They're not bad parents," the police department reported. "We're talking about parents who tried everything else and got desperate...." (2) Why were the police so seemingly unconcerned about this case of child abandonment? The answer is simple: because Benjamin is autistic. The police turned the boy over to Florida's Department of Children and Families so that he could be placed in a foster home with experience caring for children with special needs.

In April 2013, a couple from Ottawa, Canada, made the "painful decision" to leave their son Philippe at a social services agency because they "could no longer handle him." (3) They said that their decision was "an act of desperation fuelled by 10 years of frustration." (4) Nonetheless, they felt comfortable giving up their child. "I am so sure about what we're doing," (5) the father said. A camera crew accompanied the mother as she arrived at the agency's office to drop off her son. The agency fully supported the parents' decision. Philippe--who is also autistic--became one of 393 people with developmental disabilities waiting for a place in a group home in Ottawa. (6)

Parents of disabled children face insurmountable hurdles when attempting what should be simple tasks. They may feel powerless to make their children eat, go to sleep, or even stop hurting themselves. In certain situations, the children require constant care and frequent, expensive medical attention. Some parents are overwhelmed by the continuous work and stress, and some in society accept their decisions to give their children up. Others sincerely want to keep caring for their children but require government assistance to do so. In the United States, the very systems designed to help these parents, Social Security and Medicaid, instead present a whole set of new legal problems. This is especially true for parents who want to leave money for the care of their special needs child after they are gone. One of the difficulties they face is creating a trust for a disabled child without the trust's assets being considered "available" to the beneficiary and depriving him or her of Medicaid and Social Security benefits. …

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