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NY Estate Planning Attorney Discusses Changes to SNTs with Congress and Senate

Published May 20, 2013

This April, members of the Special Needs Alliance (SNA) traveled to Washington D.C. for their annual spring meeting and a “Day on the Hill.” During their visit to Capitol Hill, SNA members briefed their local members in the Congress and Senate on issues regarding public policy, advocacy and special needs trusts (SNTs).

Littman Krooks attorney and SNA member Amy C. O’Hara, Esq., spoke with aides of Rep. Eliot Engel (NY) and Sen. Kristen Gillibrand (NY) to discuss and act on what appears to be a simple drafting error in the writing of the Omnibus Budget Reconciliation Act of 1993.

The drafting error in this bill makes the presumption that that an individual who is disabled lacks the requisite mental capacity to create his or her own first party SNT. The proposed change to 42 USC § 1396p (d)(4)(A) would allow an individual with disabilities, who has the requisite mental capacity, to create a special needs trust by him or herself without petitioning the court to authorize the trust, thereby saving the individual a significant amount of time and money in attorneys’ fees.

Ms. O’Hara also advocated in support of The Disabled Military Child Protection Act (H.R. 4329 of the 112th Congress). This bill, if passed, would ensure that a dependent child who is disabled would continue to qualify for certain government benefits (i.e. Survivor Benefit Plan) by transferring payments to a special needs trust (instead of leaving the benefit directly to the child). Passing this piece of legislature would allow military families to plan for the future of their special needs child and to protect his or her eligibility for means-tested government programs.

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Amy C. O’Hara is an attorney with the law firm of Littman Krooks LLP where she practices in the areas of estate planning and administration, trust administration, guardianships, special needs planning, elder law, and veterans’ benefits. She lectures frequently to advocacy organizations and families on the importance of proper planning for families of children with special needs. To read more about Amy, click here.

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