In December 2011, the Board approved the request that NAELA join the Special Needs Alliance and the Pennsylvania Association of Elder Law Attorneys in filing an amicus curiae brief in support of appellees Zackery D. Lewis, et al., against the Pennsylvania Department of Public Welfare in Lewis v. Alexander, involving pooled special needs trusts.

In Lewis v. Alexander, Pennsylvania tried to limit the use of pooled special needs trusts in 2005 legislation. It would have prohibited anyone age 65 or older from having a pooled special needs trust account, as well as limited pooled special needs trusts to retaining 50 percent of the balance of any deceased beneficiary’s account. This legislation also would have limited expenditures from trust accounts for treatment of the person’s disabling condition, and nothing else.

The Third Circuit Court held that all of the limitations that were more restrictive than Congress’ rules for pooled special needs trusts were improper. The federal statute enacted by Congress permits pooled special needs trusts to retain any amount, does not limit how money is spent so long as it is for the welfare of the beneficiary, and allows people over age 65 to have such accounts.

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