Medicaid, Supplemental Security Income (SSI), Social Security Disability Income (SSDI), and, to a lesser extent, Medicare are the best-known public sources of support for those who cannot provide for their own medical care or income needs as a result of disability. But there are other programs, some of which provide benefits just as important as the better-known programs. Unfortunately, these programs are regulated by different agencies, and they do not always make allowances for the special circumstances of Disability Trusts.
Housing subsidies are increasingly important, and in increasingly short supply, for those who rely on public benefits for medical and income needs. Average rent for an apartment in most parts of Massachusetts today is about twice the amount of the entire income benefit provided by SSI. Without public housing support, all but the very largest of Disability Trusts do not have nearly enough resources to provide housing for their beneficiaries. The most common forms of housing subsidy are—
|Program Name or Type||Typical Wait for Availability|
|Section 8 Housing Subsidies||Ten years|
|Federal Public Housing (project-based)||Five to ten years|
|State Public Housing (project-based)||One to three years|
|“Affordable” Housing (low-income tax credit supported)||Unknown|
While there are many variations of housing programs, as a general rule most housing subsidies require the individual to pay 30% of their income for housing. In the case of Section 8, the program pays the landlord the difference between the individual’s payment and the full rent, provided the landlord agrees to the full rent amount that Section 8 allows. In the case of project-based housing subsidies, the program owns the building, and makes up for the difference between the rent that it receives and its costs of ownership through its annual budget requests to the federal or state authority that funds it.
Interaction with Disability Trusts
Most housing subsidies are administered by local housing authorities (LHA) as agents for the program that provides the benefits. Different LHA’s, however, can have different views of Disability Trusts, and different ways of treating benefits. It is important to find out how your local LHA treats these resources.
Individuals must report to the LHA both the existence of the trust, and the amount of assets. As a general rule, having a trust will not disqualify an individual from a housing subsidy. The LHA is likely, however, to attribute a certain amount of income to the individual, based on a percentage of the amount in the trust. The 30%-of-income standard will include this income, whether or not the individual actually receives it from the trust.
Some LHAs will consider any “recurring” payment from a Disability Trust to be income, and will add 30% of the amount of such distributions to the individual’s rent obligation. Thus, paying a monthly internet and phone bill of $160 will cause the beneficiary’s rent to increase by $48 per month.
Such treatment might be illegal in Massachusetts, under a case decided in the First Federal Circuit Court of Appeals in 2016, DeCambre v. Brookline Housing Authority, 826 F. 3d 1 (1stCirc. 2016), cert. den’d.137 S.Ct. 813, 196 L.Ed.2d 599 (2017). That case determined that, if the funds that are in the trust consist of a lump sum of assets that the individual received, the LHA cannot treat distributions as “income.” The Court’s reasoning was that, if the individual had kept the resources in his or her own name, taking money from savings to live on would not represent income. It felt that the payments should not be treated differently for the sole reason that they had to be held in a trust in order to remain eligible for other public benefits.
It is not clear whether DeCambre applies to all lump sums, such as an inheritance, or savings that may have existed before the individual applied for housing. It is an important case, however, and individuals who encounter problems with an LHA as a result of receiving support from a Disability Trust may find some support from this precedent.
Many individuals who have Disability Trusts receive food stamps, in connection with Medicaid and/or SSI eligibility. Massachusetts does not disqualify individuals from Food Stamps as a result of the assets in a Disability Trust, nor does it reduce benefits as a result of non-cash benefits received from the trust. Cash distributions, however, would affect Food Stamp eligibility, similar to SSI.
Finding Help with Public Benefits
For legal questions, including representation to draft a Disability Trust, join a Pooled Trust program, apply for public benefits or related legal matters:
(a) Massachusetts Chapter of the National Association of Elder Law Attorneys
(b) Massachusetts Bar Association Lawyer Referral Service (choose “Probate” for Area of Law and “Special Needs Trust” for Specific Legal Issue)
For case management, or clinical help, such as a home visit or assessment of the needs and care options for a loved one who is disabled:
(a) 800AgeInfo for Massachusetts Elders & Their Families (enter Keyword, “case manager,” then enter your Zip Code and preferred search radius)
(b) Aging Life Care Association (enter zip code to search)
* In providing these referral contacts, Community Trust does not specifically endorse any person to whom you may be referred thereby. We do not know and cannot certify the knowledge or ability of any particular member of any referral network. We believe these referral sources to be of the highest quality, but you are advised to do your own background checks, and to exercise your own discretion in retaining any professional through any referral network. Public information about attorneys can be obtained from the Massachusetts Board of Bar Overseers, and for Case Managers or other kinds of professionals, from the Massachusetts Division of Professional Licensure.