OKDHS.org - OAC 340:75-13-30. Special needs trust

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340:75-13-30. Special needs trust

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Issued 5-26-05

When a child in Oklahoma Department of Human Services (OKDHS) custody does not use all of the Supplemental Security Income (SSI) received, per OAC 340:75-13-29, the accrued funds may be transferred into a special needs trust (SNT), per OAC 317:35-5-41.

(1) The assets in an SNT do not count toward the Medicaid or SSI resource limits when:
- (A) the trust established is irrevocable and may only be amended with the agreement of OKDHS;
- (B) the beneficiary of the trust is disabled and younger than age 65 when the trust is created and funded;
- (C) the trust beneficiary meets the SSI definition of a disabled person;
- (D) the trust is created by the beneficiary's parent, grandparent, legal guardian, or a court; and
- (E) Medicaid is reimbursed after the beneficiary dies, to the extent of Medicaid funds spent on the beneficiary.
(2) The Child Welfare (CW) worker notifies the child's attorney of the requirements for creating an SNT, as described in (A) through (F).
- (A) Designate a trustee. The trustee is a bank or any adult who will take care of the child's money appropriately. Except for a bank, the trustee may not be an organization.
- (B) Designate an attorney. The attorney fills out documents, customizes the trust, and submits to the court for approval. If the child's attorney cannot do the trust, the child's attorney or CW worker uses community contacts to locate an attorney. Payment for the attorney is made with the child's money or with money from the trust.
- (C) Request assistance from OKDHS, if needed. Forms and samples of the SNT are available through OKDHS Legal Division. • 1
- (D) Secure an order from the juvenile judge. The attorney approaches the juvenile assistant district attorney before addressing the judge. The judge establishes the trust by signing an order or appoints someone to establish the trust.
- (E) Apply for the trust employer identification number (EIN) required by the bank using Internal Revenue Service (IRS) Form SS-4, Employer Identification Number (EIN), available at www.irs.gov.
- (F) Open a bank account, named "(trustee's name), Trustee of the (beneficiary's name) Irrevocable Trust." • 2

INSTRUCTIONS TO STAFF 340:75-13-30

1. Assistance from Legal Division. Travis Smith, travis.smith@okdhs.org, of the Legal Division is available to assist the trust attorney by:

(1) reviewing the final draft documents before presenting to the judge;

(2) correcting any errors;

(3) sending the attorney a letter confirming that the document meets Medicaid and SSI requirements necessary to exempt the trust corpus and income when determining Medicaid and SSI eligibility; and

(4) signing any pleading the judge deems necessary.

2. Name of the bank account of a special needs trust. For example, if John Doe is the trustee for Jane Smith's trust, the bank account is titled, "John Doe, Trustee of the Jane Smith Irrevocable Trust."

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