There is some confusion in the disability community about the terms to use for a third-party established trust created to provide resources to supplement governmental benefits, such as Supplemental Security Income (SSI) and Medicaid. Many use the term "special needs trust." This may cause some confusion, because the federal government has used that term to mean a "self-settled" trust, that is, using the beneficiary's own resources to establish the trust. This most frequently occurs when an individual is injured in some manner and settles his legal claim. The tax consequences of this type of trust are defined in section 468B of the Internal Revenue Code and is provided for in legislation adopted by Congress amending the Social Security laws.

Some find it more helpful to use the term "Supplemental Services Trust" to focus on the purpose for creating the trust. A Supplemental Services Trust is a third-party created trust and cannot have any of the beneficiary's assets. This means that parents, grandparents, other relatives or involved persons can create a trust to provide services which are not available to a person with a disability from government benefits. The trust's income or principal or both can be used to provide vacations for the individual and a caregiver, for example. Better furniture, better health care, a more comfortable life are "supplemental" vis-a-vis benefits from SSI or Medicaid.

At the same time, it is very important to be sure that the attorney drafting the trust, whatever it's called, has experience with these trusts and knows what language is required to be included to ensure that the assets of the trust are not deemed available by the government as an excuse to terminate eligibility for benefits. Not all attorneys who do estate planning are aware of the different options for drafting a special needs trust. Some simply go to the state statutes which may provide a "safe harbor" trust, without realizing that there are other ways to structure a trust which need to be discussed with the client. Certainly some of the ways carry more risk to potentially be counted as an asset, but these are issues for clients to decide with the help of a properly experienced attorney.