Randy F. Boggio Attends Annual Special Needs Planning Meeting

Randy F. Boggio, Maser, Amundson, Boggio & Hendricks Shareholder, attended the 10th annual meeting of the Academy of Special Needs Planners, held in Tucson, Arizona, March 10 – 12.  The 235-member Academy is the nation’s leading organization of special needs planning professionals.  Members of the Academy devote a significant part of their practices to working with individuals with special needs and their families to plan for the future and ensure that children with special needs receive ample financial protection.

The Academy’s annual meeting featured presentations by some of the nation’s leading experts in special needs planning, who kept attendees current on the latest regulatory changes and legal decisions and shared strategies for better serving clients and their families in this fast-growing legal field.  Meeting sessions included “An Update on SSI Rules,” “Special Needs Trusts and Retirement Benefits,” “Recent Trends in Special Needs Planning,” “Identifying and Handling ‘Tricky Issues’ in SNT Administration,” as well as an “Ask the Experts” panel discussion.  Perhaps most importantly, the meeting afforded the chance for attendees to exchange planning ideas and strategies with fellow members working in special needs planning around the nation.

This year’s meeting was held concurrently with the Society of Settlement Planners, giving attendees invaluable insights into how to best work with these key players in the special needs arena.

Guardianships/Conservatorships

If your loved one is having trouble managing her affairs because of a mental or physical disability, consider consulting an elder law attorney about establishing a guardianship, conservatorship, or both. An example of a prime candidate for a guardianship or conservatorship would be an elderly man or woman diagnosed with dementia who needs help managing health care, paying bills, or is being unduly influenced by others. However, there are many other scenarios that call for the help of a guardian or conservator. Contact the office of a local elder law attorney for more information.

Even though the legal definitions vary from state to state, there is a general distinction between the terms, “guardian” and “conservator.” A guardian has a broad scope of responsibility for the interests of the ward, which is the title given to an individual with a guardian. These responsibilities include health care management and involvement in the protected person’s daily affairs. Conservators are appointed mainly for money management, which means they have a less active role in the day-to-day activities of the protected person (an individual with a conservator). In many instances, guardian/conservator is a joint role held by one person or entity, such as a spouse, adult child, or even a non-profit or fiduciary corporation. However, different people may be appointed to these respective roles. In other cases, there may be a conservator but no guardian.

Guardians and conservators must be appointed by the court. The process begins with any person interested in the well-being of the potential ward or protected person hiring an elder law attorney to draft a petition to the court for guardianship or conservatorship. This petition lists the reasons why a guardian or conservator is needed and nominates one or more candidates to fill the role. A Physician Statement from a doctor indicating the potential ward or protected person is unable to manage their medical decisions or finances should be submitted, as well. After the petition and Physician Statement are filed, the court and the attorney’s office schedule a hearing. The potential ward or protected person is entitled to attend, either alone or with her own legal representation. The judge considers many factors when deciding whether somebody needs a guardian or conservator. To name a few, he or she reads the initial petition and Physician Statement, any additional information submitted by a court visitor (who meets with a potential ward and writes a report for the judge), and the testimony that a potential ward or protected person, petitioner, and witnesses provide on the day of the hearing. The judge will then issue a decision and appoint a guardian or conservator if the evidence supports that decision.

Here is something to consider before petitioning for guardianship or conservatorship. Are there already other legal documents in place, such as a Durable Power of Attorney or a Revocable Trust? These types of documents appoint individuals to fill similar roles to guardians and conservators. If there are documents in place, to what extent do they protect the individual? Are the people appointed in the documents working for the best interests of the ward or protected person?

To learn more about whether a guardianship or conservatorship is appropriate, or to find out how a guardianship or conservatorship relate to previously established legal documents, contact the office of an attorney in your state who specializes in elder law. This attorney will be knowledgeable of your state’s specific laws and provide you with the information you need to arrive at a proper decision, one that should not be made without the advice of legal counsel.

Caring for Our Loved Ones – and Taking Care of Ourselves

Because we are living longer than ever before, we are also seeing a swell in the number of people who are caregivers for their aging loved ones. There are around 15 million individuals in the United States who spend time providing unpaid care to someone with mild cognitive impairment, Alzheimer’s, or another type of condition that affects memory. What’s more, there are 3 million people over the age of 75 who are caregivers for other seniors, helping them with daily tasks such as eating, bathing, and going to the bathroom. On average, these caretakers over age 75 spend 34 hours per week in their role, according to a study conducted by the National Alliance for Caregiving and the AARP Public Policy Institute.

As these statistics suggest, people in the United States invest amazing amounts of time, energy, money, and lost wages in caring for aging loved ones. The work is often more taxing than first anticipated. If you are caring for an aging adult, you must monitor your stress level. Stress affects not only the quality of care you provide, but your well-being, too. Caregivers commonly experience bouts with exhaustion, depression, weight loss or weight gain, and troubles with sleep because they put the needs of their loved one first without attending to their own. Being a caregiver can take such a toll that when one spouse serves as caregiver to the other, the spouse receiving care outlives the caregiving spouse 67% of the time.

Thankfully, there are ways to alleviate some major challenges of providing care. First, be sure to plan. Meet with an Elder Law attorney about Long-term Care Planning. It is best to do so before you or a loved one need care, but no matter what stage you are in, the attorney stands ready to work with you in developing a plan for care and to help you navigate the coinciding financial and personal costs. Speaking with an Elder Law attorney and following through with a Long-term Care Plan will help overcome a second obstacle: managing stress as a caregiver. Remember, it is important for caregivers to care for themselves, too. Do something you enjoy every day, do not skip your doctor appointments, and be okay with asking for and accepting help.

What Is A Letter Of Intent?

A Letter of Intent is a document that goes hand-in-hand with a Special Needs Trust or a Supplemental Needs Trust. Also known by the names “Plan of Care,” “Memorandum of Care,” and “Memorandum of Intent,” the purpose for writing a Letter of Intent is to provide instructions and information to new caretakers when a person with special needs is transitioning out of the direct care of a parent or legal guardian. Since the parent or guardian is the ideal source of details about a beneficiary’s specific needs, preferences, and personality traits, writing a Letter of Intent is key for preserving the beneficiary’s quality of life.

As you can imagine, Letters of Intent often take some time to write because there is much information to record. Not only should the names and addresses of doctors, financial advisors, and close family members be provided, it is also crucial to include the Beneficiary’s favorite foods, entertainment preferences, daily habits, future goals, and friends. Making this information available will help enhance the Beneficiary’s ability to adjust to the change of scenery and caretaker. It will also assist the new caretaker with supplanting a personal connection with the Beneficiary. Since Letters of Intent are not legal documents and do not need to be notarized, keep in mind that they are malleable. A Letter of Intent should be edited and re-printed as the Beneficiary’s needs and preferences evolve. Remember, if you are the guardian, review the Letter of Intent with the Beneficiary and other members of his or her network of support on a regular basis and make sure that the most current edition travels with the legal documents.

For more information about Letters of Intent and transitions of care for your child with special needs, consult an attorney or visit www.pacer.org and www.thearc.org.

Why Parents And Guardians Of Children With Special Needs Should Have A Will In Place

Parents and guardians of children with special needs can do everything perfectly from qualifying their child for government assistance, to establishing a trust, to ensuring that their daily needs are fully met. However, not having a legal Will in place may jeopardize much of the effort that you and your family invest into the care for your child.

When somebody without a Will passes away, the government determines how the estate is distributed. If the decedent is not survived by a spouse but is survived by children, the assets will pass to the children. If one or more of these children has special needs and has been receiving government benefits, assets from the estate provided directly in the child’s name may disqualify them from receiving the public assistance funding.

This is why having a legal Will in place is crucial. The Will can be used to designate any distribution from the estate for the benefit of a special needs child to be put in a Supplemental Needs Trust. Not only will executing a Will go a long way in preventing government involvement with estate distribution, it can assure that assets will be provided to your child with special needs in a way that will not affect his or her qualification for public assistance. The key is to make sure that you do not leave money directly in the child’s name. The distribution should instead be made to the Trustee of the child’s Supplemental Needs Trust. Along the same lines, be sure that the portion of your life insurance proceeds to be paid out for your child with special needs is held in the trust, as well. Remember, you should consult with an Elder Law attorney to discuss the best way for your Will to be drafted according to your unique situation.

When Should I Establish My Child’s Supplemental Needs Trust?

For parents of a child with a disability, it is important to establish a Supplemental Needs Trust when their child is still young. Even though eligibility for many government assistance programs does not begin until a child is at least 18, it is beneficial to establish a trust before the child is old enough to qualify because it is a preemptive measure that goes a long way in protecting the child’s future.

One major benefit of establishing a Supplemental Needs Trust at a child’s young age is providing a destination for gifts. Once the trust is created, family members may begin providing funds for the trust and designating it as the recipient of an inheritance. This way, collection of trust funds may begin early in life, and the child’s eligibility for government benefits will not be jeopardized should he or she receive a large gift later in life, whatever the age of the Beneficiary.

Another reason for establishing a trust while the child is young is that it provides parents with peace of mind that the child’s needs will be met if something were to happen to them. Having assets secured in a trust ensures that there will be funds available for the child if it is ever unexpectedly needed. In conjunction with establishing the Supplemental Needs Trust, many parents choose to execute their own estate planning documents, which grant assets such as money, stocks, and even a home to the trust.  In addition, they may purchase a life insurance plan to be held in the trust. Following these steps are a great way to maximize the amount of funding available to a child with special needs. For more information about establishing a Supplemental Needs Trust for your child, be sure to consult with an attorney in your state who specializes in Special and Supplemental Needs Trusts.

What Can Be Paid For With Trust Funds?

One of the most important and common questions that Trustees ask is regarding the specific sorts of items that funds from a Special Needs Trust and Supplemental Needs Trust may purchase for the Beneficiary. Generally speaking, there are three important questions to keep in mind when making this decision: 1) Is the good or service provided by government benefits? 2) Is the distribution allowed by the Trust Agreement? 3) Is the distribution for the sole benefit of the Beneficiary?

Let’s say, for example, that the Beneficiary’s transport vehicle needs a repair to its accessible ramp. This repair cost can paid with trust funds if it is not covered through government assistance, if  this type of expense is allowed in the Trust Agreement, and if the distribution is for the sole benefit of the Beneficiary. In most cases, an accessible ramp repair fits the bill. Some other examples of common trust purchases are a new TV for the Beneficiary’s room, a hotel room rental on vacation, a class at a local community college, or non-government funded medical expenses such as massage therapy.

Things may get a little bit more confusing when it comes to paying for food and shelter. Government assistance is intended to cover housing and food, so in order for the Beneficiary to continue receiving all of his or her available funding, it is important to make sure that trust funds do not pay for groceries, regular restaurant meals, rent, utilities, or home insurance. Also, the Beneficiary should not receive cash directly from the trust. Legally speaking, these types of expenditures are an increase to the Beneficiary’s personal income, which triggers a reduction in government funding. However, one caveat to keep in mind is that when trust funds are used for food and shelter costs, there is a reduction of only $1 dollar to SSI benefits for every $3 dollars spent. For some beneficiaries, this tradeoff may actually be the best course of action. That is why it is helpful to consult with an attorney who specializes in Special and Supplemental Needs Trusts. Not only will the attorney explain the full range of goods and services that the trust may provide, he or she will also be able to hash out the best spending options for your given situation.

Important Issues For Trustees

Taking on the role of Trustee of a Special Needs Trust or Supplemental Needs Trust is an important responsibility. It is a Trustee’s duty to manage trust funds with careful discretion and disburse the funds for the sole benefit of the Beneficiary. The Trustee has the additional responsibility of seeing that the trust funds are properly invested and protected. Considering the scope of the undertaking, there are a few things potential Trustees should consider before accepting the role.

First, make sure that you have the opportunity to read the trust agreement and learn the specific duties unique to the trust nominating you as Trustee, such as what sorts of expenditures can be funded with trust assets, what are the legal responsibilities and duties you assume in the Trustee role, and whether the Trust provides for financial compensation for your role as Trustee. In addition, you should also establish the Grantor’s objective for creating the trust, the personal goals that you can help the Beneficiary achieve while you serve as Trustee, and how long your services as Trustee will be needed. Finally, taking time to become familiar with the Beneficiary’s needs, habits, and preferences is very important since it is the Trustee’s job to provide distributions to meet the Beneficiary’s supplemental needs.

If you are nominated as the Trustee in a Special Needs Trust or Supplemental Needs Trust, it is a good idea to consult with the attorney who drafted the trust agreement so the ins and outs of your duties may be fully clarified. As drafters of the trust, attorneys are ultimately your best source of answers for your preliminary questions. Keep in mind that it is important to be honest with yourself as you consider becoming a Trustee. If the trust agreement is unavailable for your review or if you do not feel that you have the time to undertake the Trustee role, it is wise to reconsider for your own good and the good of the Beneficiary.

What Is A Supplemental Needs Trust?

What Is A Supplemental Needs Trust?

A Supplemental Needs Trust is established for the benefit of a person with special needs as long as the Beneficiary is not over the age of 65. and residing in long-term care without a reasonable expectation of discharge. Use of a Supplemental Needs Trust allows the Beneficiaries, to retain their government assistance and also have funds available for opportunities like advanced medical treatments, education, and leisure activities. The objective behind establishing a Supplemental Needs Trust is similar to that of a Special Needs Trust, which the subject of a previous blog article.

The trust’s “Grantor,” which is the title given to the person who establishes the Supplemental Needs Trust, may be a parent, grandparent, actually anyone other than the Beneficiary or the Beneficiary’s spouse. Similarly, funds in the trust may come from anyone other than the Beneficiary or the Beneficiary’s spouse. Grantors typically establish the Supplemental Needs Trust with their own assets through a Will or through a “stand-alone” Supplemental Needs Trust. In doing so, the Grantor may appoint herself or another person as the Trustee, who has the responsibility to disburse funds to pay for expenses of the Beneficiary not covered by government assistance. Funds from the trust are not allowed to be disbursed directly to the Beneficiary. Disbursements from the Supplemental Needs Trust can be made only to the person or entity providing the goods or services to the Beneficiary. When the Beneficiary passes away, the funds or assets in the trust are not subject to claim by the government; it is disbursed according to the terms of the trust agreement; i.e., to family members, friends, non-profits, or whomever the Grantor designates.

The information in this article just is a short overview of what there is to know about Supplemental Needs Trusts. The best way to learn more about a Supplemental Needs Trust offers is to schedule a consultation with an attorney in your state who specializes in this area of practice.

What Is A Special Needs Trust?

A Special Needs Trust is a trust established to meet the supplemental needs of a person with a legally defined disability who is under the age of 65. The trust is funded with funds or assets which already legally belong to the disabled individual. These can be assets that are already in their name, a cause of action on behalf of the beneficiary which will provide a settlement amount or jury award to the beneficiary from a personal injury or medical malpractice action; accounts on which the beneficiary is already named as a beneficiary payee or joint tenant; or the beneficiary’s interest in a property settlement in a divorce action. A Special Needs Trust is commonly called a “first party trust” because the trust is funded with assets which belong to the beneficiary.

The Special Needs Trust may only be established by the beneficiary’s parents, Guardian or conservator or by court order. Whoever is establishing the trust is called the Grantor. Once funded the trust can be used to supplement the government assistance provided to the beneficiary. These benefits can include advanced medical treatments, education, leisure, furniture, appliances and activities. Once the trust is funded the Trustee is the person who manages the trust funds and makes disbursements on behalf of the beneficiary. Disbursements can only be made for the benefit of the beneficiary and not for the beneficiary’s spouse or family members. Because the funds belong to the beneficiary prior to their placement into the trust a Special Needs Trust must contain a “payback provision”. This provision provides that upon the death of the beneficiary the trustee must first satisfy any claim by the state for medical assistance benefits provided to the beneficiary.

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