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Special Needs Trusts In Colorado

Special needs trusts can be complicated to understand, but by consulting with a knowledgeable special needs trust attorney who can clearly share the different areas of the law, you can plan for the future with confidence. We are lawyers for special needs children and adults and their families in Englewood and Lafayette, Colorado, and the surrounding areas.

What Is A Special Needs Trust?

A special needs trust (also known as a supplemental care trust or supplemental needs trust) is a discretionary trust designed to provide for a disabled individual’s supplemental care (i.e., those things that are not provided under public benefit programs) while maintaining their eligibility for public benefits.

Its primary purpose is to preserve inheritances, personal injury settlements and awards, and other assets for use by an individual with special needs without disqualifying them from eligibility for public benefits.

In order to obtain financial and medical benefits under most public benefit programs, such as Supplemental Security Income (SSI) or Home and Community-Based Services (HCBS)/Health First Colorado (Medicaid), an individual must meet the following qualifications:

  1. Have a disability as defined under the Social Security Act
  2. Have limited income
  3. Have no more than $2,000 in countable or nonexempt assets

In determining whether an individual has more than $2,000 in countable assets, the Social Security Administration and the state disregard certain exempt assets – such as a home, one automobile, personal property and a few other items – and count virtually everything else.

Benefits Of Special Needs Planning In Colorado

Probably the best thing that special needs planning can do for your family is give you the chance to financially support your child without potentially jeopardizing their eligibility for essential programs like Medicaid and Supplemental Security Income. Many public relief programs designed to help disabled adults contain income and asset limits for eligibility. However assets placed in a special needs trust created for the benefit of the child are not counted toward qualifying.

Other advantages that working with a special needs planning attorney can provide include:

  • Asset management by the trustee in your child’s best interests
  • Helps protect your child from financial exploitation
  • Easily customizable
  • A vital part of your estate planning and how your child will inherit their share of your legacy

Potential Drawbacks Of Special Needs Trusts

However, a special needs trust is not always the best solution, and there are issues you should be aware of before setting one up. These include:

  • They can be expensive to set up
  • They can be complex to create, usually requiring help from a special needs trust attorney
  • Some special needs trusts are irrevocable, meaning once you place ownership of an asset into the trust, you cannot change your mind
  • The trust might have to pay income taxes each year
  • If established with the child’s own funds (rather than with the parents’), the trust might owe money to Medicaid upon the beneficiary’s death, which is known as Medicaid payback

Who Should Consider A Special Needs Trust?

Special needs trusts are very appropriate for parents of adults or minor children with disabilities who wish to leave their children more than $2,000 in countable assets. These parents are concerned about who will care for their child and how that child will be provided for once their parents pass away. If a parent leaves all their assets directly to the disabled child, that child will not be financially eligible for public benefits until the inheritance is spent down. Once spent down, public benefit programs may then provide for the basic needs of the child with a disability. There will not, however, be any funds available to supplement the child’s basic needs. In some circumstances, the parent may choose to leave an inheritance with a brother or sister of the child with a disability, hoping that they will use the money for their disabled sibling. Unfortunately, however, those funds may not benefit the disabled child if the brother or sister has creditor problems, predeceases or divorces.

By utilizing a properly drafted special needs trust, these results can be avoided. In essence, a special needs trust allows the disabled individual to keep both the inheritance as well as the public benefits. A special needs trust is a mechanism that provides for those extras that can make the difference between subsisting and thriving.

How Does A Special Needs Trust Preserve Eligibility For Public Benefits?

A trust is a separate legal entity. Funds are transferred into the trust to a person, called the trustee, who is responsible for managing, investing and distributing the assets or property of the trust. The trustee holds the funds for the benefit of the disabled person, who is called the beneficiary of the trust. The person who establishes the trust and who initially transfers the property or causes the property to be transferred to the trust is called the grantor or settlor. This is often the parent.

In order to understand how the special needs trust can shelter inheritances and personal injury funds, it is necessary to understand the concept of availability. Availability is the standard used by governmental agencies to determine whether assets (including trust funds) will be counted for purposes of determining asset or resource eligibility for public benefits. As indicated above, an individual cannot have more than $2,000 in nonexempt assets to qualify for Supplemental Security Income (SSI) and most Medicaid programs. In general, if an applicant or recipient can gain access to an asset or resource, it will be deemed available to that individual for purposes of resource eligibility and, therefore, will be countable against the $2,000 maximum. If, however, access to such funds is restricted so that only the trustee, a court or a third person (and not the disabled child beneficiary) has the authority to make distributions from the trust, then such funds are deemed legally unavailable to the beneficiary and are not counted for public benefit eligibility purposes. Simply put, special needs trusts are drafted so as to make the trust funds unavailable for purposes of Medicaid eligibility.

What Types Of Distributions May Be Made From Special Needs Trusts?

Special needs trusts are designed to supplement – rather than to supplant or replace – goods and services already provided under a public benefit program such as Medicaid. A properly drafted special needs trust should therefore make it clear that:

  • Trust funds are not legally available to the beneficiary in the sense that the individual cannot compel or require a distribution.
  • Trust funds should not be used for food or shelter-related items or for services already provided by a public or private benefit program. For third party-funded trusts (see discussion below), there may be more flexibility.

Examples of acceptable special or supplemental needs that can be paid for by the trustee of the special needs trust include but are not limited to the following:

  • Support services, dental care, physical therapy, massage and other medical costs to the extent not covered by some other public benefit program
  • Payments for tuition, books and supplies
  • Transportation to and from school
  • Health and life insurance premiums
  • Books, magazines and video games
  • Season tickets for plays, museums and sporting events
  • Televisions, VCRs, CDs, sound systems and computers
  • Hobbies
  • Vacations
  • Costs for travel companions
  • Automobiles
  • Automobile maintenance expenses, car insurance and gasoline
  • Cleaning supplies and paper products
  • Bus passes
  • Telephone, cable television and internet
  • A prepaid burial/cremation and funeral plan: If it’s $1,500 or less, it can be revocable; if it’s more than $1,500, it should be irrevocable
  • Cost differentials between private and semi-private rooms in institutional settings
  • Clothing

Examples of distributions from a special needs trust that can adversely affect public benefits include the following:

  • Payment of rent, mortgage or real property taxes
  • Heating and cooling bills
  • Electricity, water, sewage and garbage collection
  • Payments for groceries or meals
  • Cash distributions directly to the beneficiary (with the exception of the $20 unearned income disregard under the SSI program).

Such items should usually be purchased by the beneficiary using their SSI payments or other public benefits such as food stamps.
Trustees of special needs trusts should be granted full discretion, meaning that they have the absolute right to decide whether to distribute funds. If the trustee is required to distribute income or principal rather than being granted the choice to do so, the amounts subject to mandatory distribution will be deemed countable regardless of whether they were actually distributed.

Alternatives To A Special Needs Trust

Special needs trusts have helped many families in Colorado, but they are not for everybody. Other options could better serve the child in some cases. These alternatives include:

  • The Medicaid spend-down program
  • An ABLE Account is a special type of savings account that is flexible and more suited for smaller contributions
  • Prepaying certain life costs

One of our special needs planning attorneys will review your financial situation and child’s needs to develop a custom-made strategy to ensure your son or daughter’s financial security for years to come.

Types Of Supplemental Care Trusts

A third party-funded special needs trust is a trust that contains assets belonging to someone other than the beneficiary, such as a parent or other relative. This type of trust is typically established under the last will and testament of the parent.

The will provides that upon the parent’s death, any assets that are to go to the disabled child are to be held in a special needs trust, the terms of which are contained either within the will or in a separate trust document that is cross-referenced in the will. Third party-funded special needs trusts can be very flexible and, unlike the self-settled disability trusts (discussed below), they can contain provisions allowing funds remaining in the disabled child’s trust to pass to the parent’s other children or grandchildren upon the disabled child’s death. This is in contrast to the disability trust, which must provide that the remaining funds first be used to repay Medicaid expenses incurred by the state.

A self-settled special needs trust is a trust that contains assets that the disabled child already owns or is legally entitled to. These assets include the disabled individuals’ own savings, personal injury settlement and, more commonly, inheritances that the disabled child is entitled to receive outright – for example, when the parent fails to set up a third party-funded special needs trust in their will and the inheritance goes directly to the disabled child.

In order to shelter assets that already belong to the disabled child or to which they are already legally entitled, there are only two types of trusts that can be used to maintain Medicaid eligibility: a disability trust, and a pooled trust, both of which are described in more detail below.

Self-Settled Disability Trust

In order to be a qualified disability trust:

  • The beneficiary must be disabled, as that term is defined by Social Security law.
  • The beneficiary must be under age 65.
  • The state must be designated as the remainderman, thereby entitling it to any funds remaining in the trust at the beneficiary’s death.
  • The trust must be established by the beneficiary, a parent, grandparent, legal guardian or court;
  • The trust must be reviewed and approved by the Colorado Department of Health Care Policy and Financing (unless already approved by the federal Social Security Administration).
  • The trust must be drafted as a special needs trust (i.e., funds must be legally unavailable to the beneficiary).

Self-Settled Pooled Trusts

The second type of permissible self-settled trust is a pooled trust. This form of trust is very similar to the disability trust, except that it is run by a nonprofit agency. In order to be a qualified pooled trust, the following requirements must be met:

  • The beneficiary must be disabled as defined under the Social Security Act and, unless waived by the state, under the age of 65.
  • The trust must maintain a separate subaccount for each beneficiary.
  • The trust must be established and managed by a nonprofit association (e.g., Colorado Fund for People With Disabilities).
  • The trust must be established by a parent, a grandparent, the court, a guardian or the individual.
  • The state must be designated as the remainderman except to the extent that the pooled trust retains the funds (the trust will almost invariably retain.
  • The trust must be reviewed and approved by the Colorado Department of Health Care Policy and Financing.
  • The trust must be drafted as a special needs trust (i.e., funds must be legally unavailable to the beneficiary).

When Should You Set Up A Special Needs Trust?

If you are contemplating leaving anything to your loved one with special needs, then you need to set it up now. As discussed above, if you fail to do so, then the only choices left to your disabled child are to immediately spend down the inheritance or place it in a disability trust or pooled trust, which are less flexible and contain provisions that require any funds remaining in the trust at death to either be paid to the state or remain with the pooled trust, instead of passing it on to other heirs.


Special needs trusts are not for everyone. When the amount of trust funds is small or the medical needs of the disabled loved one are limited, the cost of establishing and administering the special needs trust may not warrant its establishment. When such medical costs are higher or there is a need for oversight and management of an inheritance, settlement or other assets, then the special needs trust can provide significant benefits.

To speak to a special needs trust attorney about your options for financial planning, please reach out to our firm online or call the Denver office at 303-500-5859 or the Boulder office at 303-720-7260.