New York Estate Planning & Elder Law Blog
SPECIAL NEEDS LAWS HELP PROTECT THOSE WHO PROTECT US
For those of us who come from families with many military members, we know the sacrifices and hard work that service members incur for their principles and belief that there are certain obligations in life that precede all else. Unfortunately, until recently, for a select few of those dedicated service members faced a choice between two equally important obligations, their obligations to their country and their obligations to their family. More specifically, service members with special needs children who received benefits publicly funded programs such as Medicaid or Supplemental Security Income knew that if something happened to them and their family received monies through the Military Survivor Benefits pension, their children would lose those vital benefits.
It should be noted that the protections contemplated by the law are even allowed for if a service member retires and collects a pension for retirement but also diverts some of that money for the benefit of their special needs child. This was a choice that was too high for some service members and helped them decide to not reenlist. The military spends a tremendous amount of money on training and maintaining our military. Any lost member is a lost investment to put it in economic terms. To help combat the lose of these soldiers, sailors and airmen Congress created the Disabled Military Child Protection Act (DMPA). The DMPA allows a service member to choose a special needs trusts as the beneficiary of any money given through a Military Survivor Benefits pension. This allows the service member to have peace of mind knowing that if they do pay the ultimate sacrifice, their children and loved ones will not suffer further.
The DMPA was finally signed into law by President Obama December 19, 2014, after a seven year lobbying effort by the Special Needs Alliance, The Military Coalition, the American Bar Association and the National Academy of Elder Law Attorneys. Special needs and supplemental needs trusts are highly regulated entities with many obligations that need to be addressed to properly qualify as a special needs trust. Specifically as it applies to the DMPA, it must be a first party or self settled special needs trust that reimburses Medicaid upon the passing of the beneficiary. Once the service member designates the special needs trust as the beneficiary of any Military Survivors Benefits Pension, the decision is final and cannot be reexamined. Fortunately, the decision to allow the money from the pension to flow through to a special needs trust can be made after the service member passes by the other parent or child’s guardian.
This is not advisable, however, considering the emotional grief and stress that accompany such events. Furthermore, there will be more than enough other obligations for the other parent or guardians to attend to during this time. It is advisable that any military members who take advantage of these new opportunities consult with an experienced special needs or elder law attorney to insure that all needed preparations are put into place so that they can spring into action in the event that there is a need for them.