Marijuana and Your Disability Case

Marijuana use for medicinal purposes is becoming more common, and many people applying for disability use it regularly.  However, this may interfere with getting approved for disability, depending on each individual situation. 

Social Security Disability operates under federal law where marijuana is still considered an illegal substance.  Because of this, marijuana use is generally not viewed favorably.  Social Security experts and judges will evaluate each case to see whether marijuana (or any other illegal drugs and alcohol) are a contributing factor to disabling conditions.  Specifically, would the disabling conditions persist or be as severe if drugs or alcohol were not used?  If they suspect that marijuana is worsening a disabling condition, then benefits will usually be denied.

It is difficult to get benefits for someone who uses marijuana if some of their disabling conditions include the following symptoms, which the Mayo Clinic states can sometimes be caused by marijuana use: 

• Nausea
• Headache
• Dizziness
• Drowsiness
• Fatigue
• Paranoid thinking
• A disconnected state (dissociation)
• Worsened manic symptoms in someone with bipolar disorder
• Worsened depression in someone who has depression
• Psychosis in someone with schizophrenia
• Cannabinoid hyperemesis syndrome (cyclical vomiting, delayed gastric emptying).  See https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3576702/.

See:  https://www.mayoclinic.org/drugs-supplements-marijuana/art-20364974. 

Claimants who are using marijuana are less likely to negatively affect their chances for disability if:

• Their marijuana use is known, approved of, and supervised by a doctor who also treats their disabling conditions. 
• There was a documented extended period without marijuana use when symptoms were no better.
• They have a physical condition that is known to not be worsened marijuana use.
• They do not have mental health issues. 

As always, it is important to be up-front about marijuana use (or any other drug or alcohol use) with your doctor and your attorney so they can advise you. 

The “Achieving a Better Life Experience (ABLE) Account” is now available nationwide.  This account allows people who are disabled to save money tax free, without losing SSI and Medicaid benefits.  The account is much like a checking account and comes with a debit card.

Individuals Who Qualify for an ABLE Account

• Your disability must have had started before turning 26. This must be documented by medical records or a doctor’s certification that you meet the disability rules or by showing proof of SSI/SSDI eligibility when signing up for an account.  Rules on age of disability may be more generous in the future.

How Much You Can Save?

• The disabled person and other people can contribute up to $15,000/ year tax-free. This amount may change from year to year.  The total account value cannot exceed $100,000 without affecting SSI eligibility.   These numbers might change in the future or be different for different plans in different states.

What Can the ABLE Account Pay For?

• ABLE accounts can be used to pay for “Qualified Disability Expenses” (some examples are education, housing, basic living expenses, financial and legal fees, health and wellness). Beneficiaries must keep track of how the money was used and use the money for qualified expenses.  A full list of rules and obligations will be available when you set up an account.

ABLE account vs. a Special Needs Trust (SNT)

A special needs trust (SNT) is another way to save without negative impact on public benefits.  To decide what is best for you, learn all of the facts.  Here are a few ways that ABLE accounts and SNT’s differ:

ABLE Account	Special Needs Trust
You can set it up yourself	You need a lawyer with expertise in SNT’s
Is only for persons disabled before age 26	Is for disabled persons under age 65
Beneficiary has control	Requires a trustee to distribute funds
Can be used for “qualified disability expenses,” including housing	Can be used for anything the trustee thinks is acceptable, except housing and food
Can be used for inheritances less than $15,000	Can be used for inheritances more than $15,000
Contribution limits of $15,000/year, limit of $100,000 total in account	No contribution limits or caps
Upon death of beneficiary, balance of funds go to pay back Medicaid	Upon death of beneficiary, funds may be used to repay Medicaid, balance to  those designated by the trust

 

Financial planning for a disabled person is often complicated.  At Kirsch & Clark we can advise you about which account works best in your situation.  Mr. Clark is able to draft a special needs trust, if needed and advise on its administration.  It is also possible to have an ABLE account and a Special Needs Trust at the same time.

Learning More about ABLE Accounts

     Lots of information and examples about the use of ABLE accounts can be found here:      https://www.able-now.com/

• In Idaho, eligible residents can set up an account with an out-of-state program (at the date of this post, Idaho does not offer an ABLE program). Ohio is a state that allows residents of other states to open an account.  For more information see:

Idaho State Independent Living Council web-site: https://silc.idaho.gov/able-accounts/

Ohio program:  https://www.stableaccount.com/benefits/

• For Washington residents, you can set up an account here: https://www.washingtonstateable.com/