POMS SI 01120.203 sets forth exceptions to counting trusts, established on or after January 1, 2000, as resources for SSI purposes. To qualify for the special-needs trust exception, the trust, among other requirements, must have been established by the disabled individual's parent(s), grandparent(s), legal guardian(s), or a court.

In New York State a legal guardian may include directors of State-operated facilities run by the New York State Office of Mental Retardation and Developmental Disabilities (OMRDD) or New York State Office of Mental Health (OMH). This clarification shall be applicable to all cases administratively pending before the Agency or pending in Federal court.

Under New York law, directors of State-operated facilities run by New York State OMRDD or New York State OMH are granted certain statutory powers and responsibilities with respect to patients in their facilities. These include fiduciary responsibilities over funds and personal property of a patient, as well as certain powers and responsibilities with respect to the care and treatment of patients. Such powers and responsibilities as set forth by statute provide a sufficient basis for treating a State-operated OMRDD or State-operated OMH facility director as a legal guardian of a patient admitted to the facility for purposes of POMS SI 01120.203.