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If you care for someone with a disability, planning for their long-term financial stability is one of the most important things you can do. But there’s a catch—giving them direct access to money can interfere with critical public benefits like Medicaid or Supplemental Security Income (SSI). That’s why many families turn to a special needs trust. However, creating one that meets both federal guidelines and Texas-specific rules can be complicated. That’s where a qualified special needs trust attorney becomes essential.
A special needs trust attorney helps you structure the trust correctly, select responsible trustees, and ensure the trust doesn’t disqualify your loved one from vital services. While it’s possible to find templates online, those often fall short of meeting legal standards. In Texas, mistakes can lead to denied benefits, unnecessary estate recovery claims, or misused trust funds.
Let’s explore how the right Special Needs Trust Attorney can make a difference for your family’s future:
- What Does a Special Needs Trust Attorney Do?
- Why Would You Need a Special Needs Trust Attorney?
- Types of Trusts a Special Needs Trust Attorney Can Help You Set Up
- How a Special Needs Trust Attorney Ensures Compliance with Texas Law
- Choosing the Right Special Needs Trust Attorney
- What Happens After You Set Up the Trust?
- Costs of Hiring a Special Needs Trust Attorney
- What Happens If You Don’t Use a Special Needs Trust Attorney?
What Does a Special Needs Trust Attorney Do?
A special needs trust attorney is a lawyer who focuses on helping families create and manage trusts for individuals with disabilities. Their job is to ensure the trust complies with federal and state laws so that the person with special needs can keep their government benefits while also benefiting from additional resources.
A few specific tasks your attorney can help with include:
- Drafting a trust document that meets Social Security and Medicaid requirements
- Making sure the funds in the trust are used for allowable purposes
- Setting up proper trusteeship and succession planning
- Filing the trust with the correct Texas state agencies, when required
- Advising you on how to fund the trust appropriately
In Texas, special needs trust attorneys must also ensure that any trust aligns with the rules of the Texas Property Code and Medicaid Estate Recovery Program (MERP) provisions. They should help you avoid creating a trust that could accidentally disqualify your loved one from critical programs like Supplemental Security Income (SSI) or STAR+PLUS Medicaid.
Why Would You Need a Special Needs Trust Attorney?
Setting up a trust involves more than filling out a form. Without a deep understanding of SSI and Medicaid asset limits, you could create a trust that unintentionally disqualifies your child or dependent from public assistance.
You may need a special needs trust attorney if:
- Your loved one is receiving, or may receive, SSI or Medicaid
- You plan to leave an inheritance or settlement to someone with a disability
- You want to appoint a professional or corporate trustee
You’re confused about how to legally protect assets without losing benefits - You want to create a first-party or third-party special needs trust that meets Texas and federal guidelines
Attorneys can also help if your trust was created years ago and may no longer comply with updated rules. They’ll review the document and make necessary revisions.
Types of Trusts a Special Needs Trust Attorney Can Help You Set Up
There are different types of special needs trusts, and a skilled attorney can help you determine which one fits your circumstances.
First-Party Special Needs Trust
Funded with the beneficiary’s own assets, such as a personal injury settlement or inheritance. Under 42 U.S.C. § 1396p(d)(4)(A), these trusts must be created before the beneficiary turns 65 and must include a payback provision to the state Medicaid agency.
Third-Party Special Needs Trust
Funded by family members or other third parties. This type of trust does not require a Medicaid payback provision. It can be set up during life or through a will.
Pooled Trust
Managed by nonprofit organizations. Pooled trusts combine the assets of several beneficiaries but keep separate accounts. These are usually easier to set up for smaller amounts.
Texas allows for all of these trust types, provided the trust meets eligibility and compliance requirements under both federal law and the Texas Estates Code.
How a Special Needs Trust Attorney Ensures Compliance with Texas Law
In Texas, one of the biggest legal risks when drafting a trust is triggering disqualification for state Medicaid programs. A special needs trust attorney understands how to tailor the document so it avoids the appearance of giving the beneficiary direct control over the assets.
Your attorney will:
- Ensure the trust complies with Title 1, Chapter 142 of the Texas Property Code if the trust involves minor or incapacitated persons
- Make sure the distribution clauses avoid giving the beneficiary cash or items that count as income for SSI or Medicaid
- Guide you through selecting a trustee who understands their fiduciary responsibilities under Texas trust law
- Review whether the Texas Medicaid Estate Recovery Program (MERP) could affect the trust assets after the beneficiary passes
A common issue that attorneys help avoid is having trust disbursements used for food or shelter, which could reduce SSI payments. Your attorney will explain what counts as an “in-kind support and maintenance” (ISM) issue and how to work around it.
Choosing the Right Special Needs Trust Attorney
Not every estate planning lawyer is equipped to handle special needs trusts. You need someone with experience in public benefits planning and trust structuring.
When looking for a special needs trust attorney, ask:
- Do you regularly work with SSI and Medicaid rules in trust planning?
- Have you worked with clients who have disabilities similar to my loved one’s?
- Are you familiar with first-party and third-party trusts under federal and Texas law?
- Can you help with trustee selection and education?
- Do you offer ongoing trust administration guidance?
It’s also a good idea to choose an attorney who will collaborate with your financial advisor, care manager, or accountant. Special needs planning is rarely a one-person job.
What Happens After You Set Up the Trust?
Once the trust is signed and funded, your special needs trust attorney can continue supporting you by:
- Assisting trustees in making compliant distributions
- Amending the trust when laws change or life circumstances shift
- Helping with annual reports or trustee accountings, if required
- Advising you on how to add future funds without jeopardizing benefits
Keep in mind that once your loved one starts receiving benefits, certain distributions—such as rent, groceries, or utility bills—could lower those payments if not handled correctly. Your attorney’s continued role may include reviewing purchases before they’re made.
Costs of Hiring a Special Needs Trust Attorney
The cost of hiring a special needs trust attorneyin Texas can vary based on how complex the trust is. You can expect flat fees for simple third-party trusts, while more customized setups might involve hourly billing. Be sure to request an estimate in writing before committing.
Some attorneys offer package deals that include future reviews and support for trustees. This may be helpful if you want peace of mind for years to come.
What Happens If You Don’t Use a Special Needs Trust Attorney?
You might think you can save time or money by using a template online. But if that trust leads to a denial of SSI or Medicaid benefits, fixing the issue later can be time-consuming and costly. Worse, it could delay access to care or housing for your loved one.
A trust that lacks legal accuracy may:
- Be considered a countable resource by Medicaid or SSI
- Trigger a reduction or suspension of benefits
- Result in a state Medicaid payback when it’s not required
- Lack proper trustee instructions, leading to misuse of funds
That’s why working with a qualified attorney at the start can prevent errors that are hard to undo.
How a Special Needs Trust Attorney Safeguards Your Loved One’s FutureConclusion
A special needs trust attorney helps protect your loved one’s future without risking public benefits. From selecting the right trust structure to ensuring legal compliance, your attorney brings essential insight to a highly personal and technical matter. The right support now can prevent serious legal and financial problems later.
Whether you’re a parent, sibling, or guardian, working with a knowledgeable professional helps you take the right steps toward long-term security and support for someone who depends on you.
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Frequently Asked Questions
Yes. Even if your child is already receiving benefits, an attorney can ensure the trust does not interfere with their eligibility and is structured correctly under federal and state rules.
Some attorneys provide this service. Others may refer you to a benefits advocate. It’s best to ask upfront if you need help applying for SSI or Medicaid.
The trustee must follow strict rules about how funds are used. Your attorney can educate them about acceptable expenses and how to avoid reductions in benefits.
Yes, most trusts include language that allows you to change trustees. Your attorney will include this flexibility when drafting the document.
No. A regular trust can disqualify someone from public benefits. A special needs trust is specifically designed to preserve eligibility while providing extra financial support.
