BY Ed Zetlin & Mark Friese
Understanding the Disabled
Military Child Protection Act
and Special Needs Trusts
F
or many years military members and retirees who had special needs children were
not allowed to select a Special Needs Trust
as a beneficiary under their survivor benefit
plan (SBP). This was a large problem for special
needs children because receipt of their parents’
SBPs could easily disqualify them from SSI
and Medicaid eligibility for developmentally
disabled benefit programs. Under the Military
Child Protection Act, which Congress passed
as part of the National Defense Authorization
Act for 2015, military members and retirees can
now elect to have their pension annuity paid
to a special needs trust for the benefit of a child
satisfying the Social Security’s definition of
“disabled.”
Recently, the Department of Defense (DOD)
released a memorandum on the implementation of the Child Protection Act. A member or
retiree who elects SBP coverage for their dependent child may irrevocably decide to substitute
a first party special needs trust (SNT) through
a written statement that designates future SBP
payments to the SNT. The DOD memorandum
states that the writing must contain the following:
• the trust’s name and tax identification
number, and
•
a statement from a licensed attorney
certifying that the trust satisfies the
requirements of a First Party or Self-Settled
special needs trust pursuant to federal and
state law. In lieu of an attorney’s certification,
a certification from the Social Security
Administration will suffice.
In the event a retiree dies prior to making the
assignment or a member dies in the line of duty
or during inactive duty training, a surviving
parent, a grandparent, or a court appointed
guardian may make such an election.
Among the requirements for a First Party or
Self-Settled special needs trust is the payback
(The following
an edited
of Chapter
of Barb’s
new toIf you isand
yourexcerpt
spouse
were19to
divorce
book, Neurodiversity: A Humorous and Practical Guide
morrow, would you be able to financially
to Living with ADHD, Anxiety, Autism, Dyslexia, HomocareandforEveryone
your autistic
child on your own—
sexuality
Else.)
TION LENS
LEGISLA
provision to Medicaid should any funds remain
in the trust upon the death of the beneficiary.
By requiring attorney certification, the DOD
wants to assure that the member or retiree has
designated the right kind of SNT trust to receive
the SBP. In the event that the trust fails as a
valid SNT, the SBP will revert to the dependent
child, impacting the child’s eligibility for public
benefits.
This will typically mean that a member or retiree with a special needs child may require two
special needs trusts. They will require a Third
Party Special Needs Trust for their own estate
and a First Party Special Needs Trust to receive
the SBP.
Edward Zetlin has a solo practice in the areas of elder &
disability law, guardianship/conservatorship, public benefits,
estate planning and estate administration. He serves on the
Northern Virginia Autism Association Board and is an
Adjunct Professor of Law at the Washington College of
Law of American University.
Mark Friese is the founder of Special Needs Financial Advisors,
based in Washington, D.C. With over 100 years of combined
experience, they help to navigate the many aspects of planning
with special needs family members.
perhaps for your child’s lifetime?
n I Might Be You: An Exploration of Autism and
Connection, I wrote much of the bounty of just
being. Here is an excerpt sharing how just
being can connect you with another without
language: “We are not hiding. You search with
limited senses and, therefore our humanity is
camouflaged to you. Be still. Be quiet. Be. We
notice you on the glacier. We observe you completely. Language presentation is the barrier
to our friendship–not sentience or intellect. We
do not speak your language, but you can speak
ours. Be still. Be quiet. Be. And now be with us.
Our silent and invisible language is that easy
to learn. Feel it? Welcome. Our friendship has
begun.”
CONNER’S
LAW
I have always been good at just being. I know
now that to fully “be,” one must also “do.” This
truth comes with the added bonus that doing
can be a real calorie burner. But wait, there is
more.
Those who are good at just being are fully present and see justly that change is often needed to
be just. (That may read more clearly when held
up to a mirror.)
Change is always a chain reaction. Google tells
us a chain reaction is “a chemical reaction or
other process in which the products themselves
promote or spread the reaction, which under
certain conditions may accelerate dramatically.”
If you seek change, make your move. Humanity
needs exactly you.
WE NEED YOUR HELP!
SB923forConner’s
passedmonk
in VA.
Join our
Consider,
example,Law
Buddhist
Quang
Duc’s self-immolation
on a Saigonwhile
street we
in
advocacy movement
June 1963 that led to the November 1963 overgo state by state, changing laws as needed...
throw of the Diem regime in South Vietnam, a
government that infamously persecuted Buddhists, thus ending the “Buddhist crisis.” Fellow
monk and prolific author Thich Nhat Hanh, in
a conversation with Dr. Martin Luther King,
explained that this was not an act of suicide.
He immolated himself out of love and wanting
equality justice,
not Autism
out of through
despairMany
or self-pity.
ZOOM
Lenses 35
It was hard to be heard in Vietnam at that time,
Because a disability doesn’t stop
on a child’s 18th birthday.
Conquer for Conner
34
ZOOM Autism through Many Lenses