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Government review of special needs trusts in Georgia

Special needs trusts have become a valuable and much-used estate planning tool for Georgia families with special needs children. Many families who want to establish a special needs trust for one or more of their children usually assume that retaining a knowledgeable attorney is the necessary and often the last step in the process. While this assumption may be correct in most situations, many persons who are considering establishing a special needs trust are unaware of the services provided by the state of Georgia to ensure both the legal efficacy of the trust and the effectiveness as an estate planning tool.

Special needs trusts are intended to provide future financial care and stability for persons whose physical or mental disabilities prevent them from tending to their own finances. The unit of government that provides this service is the Trust Unit of the Georgia Department of Community Health.

Four kinds of special needs trusts must be submitted for state review:

  • A special needs trust funded with the beneficiary's own assets or the assets of the person establishing the trust (usually the beneficiary's parents)
  • A Pooled Trust in which assets are pooled with assets from similar trusts
  • A special needs trust established as a testamentary bequest
  • A third-party special needs trust where the beneficiary is receiving Medicaid

Special needs trustees must adhere to a variety of state and federal laws, regulations and policies in order to ensure that the trust beneficiary can use the trust assets without losing eligibility for Medicaid, Supplemental Security Income and other state and federal financial assistance programs. The Trust Unit examines newly drafted trust instruments to ensure that they comply with all applicable laws. If the trust fails to meet any of these requirements, the draft trust instrument is usually returned to the drafter or other person who may have submitted it for review. The instrument may then be amended or revised to eliminate the defects.

Every special needs trustee must submit an annual accounting of trust revenue, expenditures, assets and liabilities. This review is essential to ensuring that the trustee does not inadvertently make accounting or spending errors that can threaten the beneficiary's eligibility for state and federal financial aid programs.

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