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ETHICAL ISSUES IN ELDER LAW AND SPECIAL NEEDS PLANNING

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					  N s t I t u t E




                           E thical i ssuEs in E ldEr
                           l aw and s pEcial n EEds
                                  p lanning
                                Prepared in connection with a Continuing legal Education course presented
                                 at new York County lawyers’ association, 14 Vesey street, new York, nY
I




                                                      scheduled for october 4, 2011.
N Y C L A - C L E




                                                           ProgrAm Co-sPoNsors:

                                                              nYCla’s Ethics institute

                                                                ProgrAm ChAIrs:
                                                       Bernard a. Krooks, Littman Krooks LLP

                                                                      F A C u Lt Y :
                                               sarah d. Mcshea, Law Offices of Sarah Diane McShea
                                                               ira K. Miller Esq.
                                                     Elizabeth Valentin, Littman Krooks LLP




                                 2 TransiTional and non-TransiTional MClE CrEdiTs:
                    This course has been approved in accordance with the requirements of the New York State Continuing Legal Education
                    Board for a maximum of 2 Transitional and Non-Transitional credit hours: 2 Ethics.
  Information Regarding CLE Credits and Certification
Ethical Issues in Elder Law and Special Needs Planning
          October 4, 2011, 6:00PM to 8:00PM

The New York State CLE Board Regulations require all accredited CLE
providers to provide documentation that CLE course attendees are, in fact,
present during the course. Please review the following NYCLA rules for
MCLE credit allocation and certificate distribution.
      i.     You must sign-in and note the time of arrival to receive your
             course materials and receive MCLE credit. The time will be
             verified by the Program Assistant.

      ii.    You will receive your MCLE certificate as you exit the room at
             the end of the course. The certificates will bear your name and
             will be arranged in alphabetical order on the tables directly outside
             the auditorium.
      iii.   If you arrive after the course has begun, you must sign-in and note
             the time of your arrival. The time will be verified by the Program
             Assistant. If it has been determined that you will still receive
             educational value by attending a portion of the program, you will
             receive a pro-rated CLE certificate.
      iv.    Please note: We can only certify MCLE credit for the actual time
             you are in attendance. If you leave before the end of the course,
             you must sign-out and enter the time you are leaving. The time will
             be verified by the Program Assistant. Again, if it has been
             determined that you received educational value from attending a
             portion of the program, your CLE credits will be pro-rated and the
             certificate will be mailed to you within one week.
      v.     If you leave early and do not sign out, we will assume that you left
             at the midpoint of the course. If it has been determined that you
             received educational value from the portion of the program you
             attended, we will pro-rate the credits accordingly, unless you can
             provide verification of course completion. Your certificate will
             be mailed to you within one week.
     Thank you for choosing NYCLA as your CLE provider!
                   New York County Lawyers’ Association
                    Continuing Legal Education Institute
                       14 Vesey Street, New York, N.Y. 10007 • (212) 267-6646



                  Ethical Issues in Elder Law and Special Needs Planning
                      Tuesday, October 4, 2011, 6:00 PM – 8:00 PM


                                                     AGENDA




5:30PM – 6:00PM              Registration

6:00PM – 6:10PM              Introduction and Announcements

6:10PM -- 8:00PM             Discussion



*** There will be a ten minute break during the program.
    New York County Lawyers Association 
    October 4, 2011 

    Case Study # 1 
     
             Mr. and Mrs. Smith come to the office to speak to you about setting 
    up a Special Needs Trust for JORDAN, who has just turned 18.  JORDAN had 
    a lawsuit settlement when he was injured due to an automobile accident at 
    age 8.  The initial recovery was $67,000, the full policy of the defendant less 
    legal fees.  The funds have been held jointly with an officer of the bank with 
    Mrs. Smith.  They are now valued at $150,000.  The banks have been calling 
    to tell Mrs. Smith to bring JORDAN in so that the bank accounts can be paid 
    to him pursuant to the Infant Compromise Order. 
     
             JORDAN  has  developmental  delays  but  will  graduate  from  high 
    school this year (with a local diploma) and then attend a special program at 
    CUNY to train him in the culinary arts.  He knows how to read and passed 
    the English Regents.  Math is his big problem. 
     
             Mr.  and  Mrs.  Smith  want  JORDAN  to  receive  the  benefits  for  which 
    he  is  eligible.    They  went  down  to  Social  Security  and  were  told  that  they 
    can’t apply for SSI because of the money.  
     
             You tell Mr. and Mrs. Smith that JORDAN can either give them all the 
    money and delay applying for SSI or they can set up a trust for him.  They 
    hate  the  idea  of  the  payback  of  the  SNT,  so  they  prefer  the  gifting  of 
    money.  
     
             They don’t want JORDAN to know how much money he has, because, 
    you know 18 year olds!  You tell them to bring in JORDAN and that you will 
    then be able to implement the plan. 
 
           Whom do you represent? 
           Who will pay for the consultation? Who will pay for any follow‐up? 
 
          Mr. and Mrs. Smith bring JORDAN in.  JORDAN is very close to them, 
    you can tell, and he values their opinion, you can tell. While Mr. and Mrs. 

                                        1
       Smith are in the room, you explain to JORDAN that he has some money in 
       the  bank  that  prevents  him  from  getting  his  own  spending  money  each 
       month.  You tell him that if he lets his parents open a new bank account for 
       him, he will be able to get $761/month to spend as he wishes.  You ask him 
       if this is okay with him.  He says sure.  Is this an ethical discussion? 
                
               You then hand JORDAN a new Power of Attorney with all imaginable 
       powers.  You ask JORDAN if it’s okay with him if he lets his parents handle 
       things for him in case he ever got hurt and couldn’t make his own decisions.  
       He  says  sure.    He  signs  all  of  the  powers,  including  the  Major  Gifts  Rider.  
       You  serve  as  notary.  His  parents  sign  before  you  as  agents.    Your  staff 
       serves as witnesses. Have you acted ethically? 
                
               All  goes  as  planned,  and  JORDAN  gifts  the  money  via  Power  of 
       Attorney.    Then,  when  he  turns  21,  he  falls  in  love  with  someone 
       “unacceptable”  to  his  parents.    They  forbid  him  from  seeing  her.    He 
       decides to get married, and demands his bank book from his parents.  They 
       refuse  to  give  him  the  money.    His  fiancée’s  brother  is  a  lawyer  and  calls 
       you about the transactions.  Are you in trouble? 
                
 
               
Case Study #2  
       POPS first came to  see you  in 1995, when he was an active  70 year old. At that 
time you prepared his Will, but he didn’t want to give a Power of Attorney to anyone. 
He  always  wanted  to  stay  in  control.  He  owned  a  business  and  he  employed  his  son. 
Eventually,  he  advised  that  he  assumed  his  son  would  take  over  the  business  and  he 
would  change  his  will  when  that  occurred  to  leave  the  business  to  him  and  his  liquid 
assets to his 2 daughters. He and MOMS executed mirror wills, providing first for each 
other via disclaimer trusts and then for the children or grandchildren.  

       POPS called every few years to see what was happening with the estate tax laws.  

      In 2000, MOMS passed away. POPS was devastated. He wanted to redo his will, 
but you advised that so long as his distributions to the children hadn’t changed, there 
was  no  need  to  change  anything  in  the  will.  He  decided  not  to  disclaim  any  assets  to 
fund the disclaimer trust, because he wanted to stay in control.  


                                           2
       In  2005,  POPS  suffered  a  stroke  and  needed  care  at  home  to  provide  for  his 
activities  of  daily  living.  LOLA,  someone  a  neighbor  knew  of,  is  the  home  attendant. 
Under her watchful eye, POPS makes a wonderful recovery. After a few months, POPS 
and LOLA are an item.  

       In 2007, his children come to see you because they feel that POPS is under LOLA’s 
spell. SONNY is concerned that the business is not being run well. POPS still shows up 
every day, but SONNY feels that he isn’t making good business decisions. SONNY feels 
that he is being shut out of important decisions. He feels that POPS will run the business 
into  the  ground.  He  asks  you  to  talk  to  POPS  and  see  if  he  wants  to  relinquish  any 
power. He doesn’t want you to tell POPS that he came to see you. May you keep the 
visit confidential from POPS?  

       The children also want to know if there is a Power of Attorney in place. You tell 
them  that  there  is  no  Power  of  Attorney.  Is  this  ethical?  They  tell  you  that  LOLA  has 
taken control of POPS’ life, and that they think his considerable assets have significantly 
diminished. They want to know what they can do about it. You tell them that they can 
bring a Guardianship petition for POPS. Is this ethical?  


       They already knew about Guardianship, but they are afraid that POPS will be very 
angry  if  they  go  to  court.  They  decide  to  speak  with  him  instead.  You  promise  to  call 
POPS under the pretext of checking in, and you will not tell POPS about the visit. Is this 
ethical?  

         POPS is glad to hear from you and makes an appointment to meet with you. He is 
thinking about getting married and even if he doesn’t, he wants to change his will. He 
doesn’t want Sonny managing the business – he thinks he’s way too bossy with the staff 
and  is  sure  he’ll  cause  problems.  LOLA  has  impeccable  judgment  and  gets  along  well 
with everyone. So he really wants to leave all of his estate to LOLA. You tell POPS that 
this  is  not  a  good  idea.  He  insists  on  carrying  out  his  plan.  You  refuse  to  prepare  the 
documents. Is this ethical?  

      POPS leaves the office in a huff and tells you that he will never let you represent 
him again.  

      You hear nothing else from the family until October 2011. The children come in to 
see you. Should you have allowed the appointment to be made?  

       In  short,  POPS  has  had  a  rapid  cognitive  decline  since  2007.  He  has  refused  to 
                                            3
relinquish control over the business and there is no income coming in. All the employees 
have  been  fired.  He  is  barely  lucid  and  often  does  not  recognize  them  or  even  know 
what year it is. Lately, he won’t let the children into the house, and he hangs up on them 
when  they  call.  They  spoke  to  his  accountant,  who  told  them  that  in  2010,  the  only 
income  was  Social  Security  –  no  interest,  no  dividends  and  no  withdrawals  from  IRAs. 
They believe that LOLA must have raided the funds. The house was transferred to LOLA 
via a Power of Attorney purportedly executed by him in her favor in January 2011, but 
they didn’t recognize his signature. They also have hired a private investigator who has 
found that LOLA had married 2 of her former patients, both of whom died shortly after 
the marriage.  

They are now ready to proceed with legal Guardianship. They feel that you are the best 
person to represent them, because you understand the danger to POPS. May, should, 
would you accept to represent them? 



Case Study #3

       Mom,  80  years  of  age,  comes  to  see  you  with  4  of  her  6  children.  
Sonny  lives  with  Mom  and  has  assisted  her  by  shopping,  dispensing  her 
medicines, scheduling doctor’s appointments and providing transportation 
for Mom  for many years – he  returned  back home after Dad died 6  years 
ago. Sonny is divorced and has no children. Mom appreciates the help and 
knows that she couldn’t have lasted in the home without him – Mom has 
post polio syndrome and now walks with a walker.  Her diabetes has been 
acting up and she has already suffered one stroke.  
        
       The family had a pow‐wow over the weekend, and they want to act 
to  make  sure  that  the  house  is  protected  for  generations  to  come.    The 
house is clearly Mom’s most valuable asset – it’s located in Sag Harbor and 
appraised at $1,500,000.  Most of Mom’s savings are gone, just paying the 
taxes on the house.  Because the steps are so steep and the living quarters 
are  upstairs,  and  because  her  blood  pressure  has  been  so  high,  Mom 
believes that she may need a nursing home in the foreseeable future.  Mom 
is okay with this, so long as the house is protected.   
 
       Mom spoke to a social worker at the nursing home who told her that 
the  home  could  be  transferred  to  a  care  giving  child  and  Mom  would  not 

                                          4
have to wait 5 years for the Medicaid program to pay for her in a nursing 
home.  Mom wants to protect the house but also wants to make sure that it 
will  be  there  for  all  of  the  children,  and  the  grandchildren  and  even  the 
great‐grandchildren.    All  of  the  children  (the  4  present  assure  you)  are 
united in the effort to preserve the house. 
 
        1. Mom  wants  to  know  if  you  will  prepare  documents  to  transfer 
             the house to Sonny.   
        2. She wants to know how long  Sonny has to own the house  for it 
             not to count as her asset if she needs a nursing home. 
        3. She wants to know whether you can prepare a Deed in which she 
             transfers the house to Sonny and also a second Deed for him to 
             sign right away in which he will transfer it to his siblings. 
        4. She asks if Sonny won’t agree to this second Deed right away, or 
             if there is a waiting period before which Sonny can re‐convey the 
             Deed, whether you will prepare an agreement: 
                 a. that Sonny will transfer the house to his siblings as soon as 
        he’s owned the house long enough for Medicaid, signed by her and 
        Sonny? 
                 b.  the  same  agreement,  signed  by  Mom  and  Sonny  and  the 
        siblings? 
                 c. the same agreement, signed by Sonny and the siblings, but 
        not Mom? 
        5. She asks if you will prepare a Will for Sonny, to be executed prior 
        to the Deed, in which he will leave the house to his siblings upon his 
        death. If so, she also asks if you will prepare an agreement in which 
        Sonny states that he will not change that provision in his Will.   
         
         
                 You  do  not  prepare  any  of  these  agreements  but  you  do 
        prepare a new Deed from Mom to Sonny.  Two years later, Mom has 
        a  stroke  and  requires  nursing  home  care.    Sonny  is  still  living  in  the 
        house.  He asks you to prepare a Medicaid application.   
                 1. He shows you the original Deed.  What investigation, if any, 
                     do/should/would  you  do  as  to  whether  or  not  any  other 
                     agreements or Deeds have been prepared? 
                 2. He  shows  you  the  original  Deed  as  well  as  a  second  deed 
                     from  him  to  his  siblings  prepared  a  month  after  the  first 
                     Deed  that  you  prepared.    Do  you  ask  him  what  made  him 
                     sign this second Deed? 
                                             5
             3. He tells you that this second Deed was never recorded.  He 
                wants to know which Deed is better to use for the Medicaid 
                application.  How do you respond? 
 
            Mom’s Medicaid has been approved, and the family finds the 
home  too  expensive  to  maintain.    Mom  is  now  mentally  incapacitated.  
Sonny and his siblings want to sell the home.   
            1. Will you represent them at the closing?   
            2. What if Mom is deceased?  
            3. What if Sonny never conveyed the home to his siblings and 
                he alone wants to sell the home and he is the sole owner? 
 
      What if Mom had never come to see you, but Sonny alone had come 
in with a power of attorney that allowed unlimited gift‐giving.  Would you 
prepare the Deed  without meeting  Mom?  What if Mom was already  in  a 
nursing  home?    And  Sonny  told  you  that  he  was  an  only  child,  and  that 
Mom never had made a Will. Would you prepare the Deed?  Should you do 
any independent investigation? 
 




                                        6
                           2010: Ball of Confusion: ELdER LAW


                                   By Bernard A. Krooks & Michael Gilfix




Navigating the System
Changes to both the Medicare and Medicaid programs, as well as recent
court rulings on eligibility, will have a major impact on seniors




A
           dvising clients on Medicare and Medicaid                Generally speaking, the Act requires most U.S.
           planning and eligibility has become increas-        citizens and legal residents to have qualifying health
           ingly complicated. Elder law practitioners          insurance. Those without coverage will pay a penalty,
must struggle to keep up with the ever-changing                which will be phased in over a few years. Exemptions will
health care “wild west” and consider the impact                be granted from the penalty for financial hardship and
of new laws on both the federal and state levels, as           religious reasons, among others.
well as the effect of recent court rulings on program              So, what does this all mean for our senior clients and
eligibility. And advisors must take into account the pos-      those with special needs?
sibility that their state may withdraw from the Medicaid
program as costs to participate increase.                      Improved prescription drug benefit. The passage of
                                                               the Act improved Medicare prescription drug benefits.
Health Care Reform                                             Seniors who enter the “donut hole” in 2010 receive a
Unless you’ve been living under rock, you know that            $250 rebate. The donut hole, which first took effect a
in 2010, Congress passed and the president signed              few years ago, is a coverage gap in Medicare Part D.
into law the Patient Protection and Affordable Care            Basically it means that once your client and his pre-
Act (the Act). The Act contains numerous provisions            scription drug plan have spent a certain amount of
that affect, or will affect, seniors in our country. The       money for covered drugs, your client has to pay all
Act is expected to cost approximately $940 billion over        costs out-of-pocket up to a certain limit. The Act plans
the next decade. To help offset the cost of health             to gradually eliminate the donut hole by 2020, when
care reform, the Act imposes higher taxes, fees and            it’s expected to be fully closed. In addition, the Act
reduced payments to Medicare providers. According              provides that in 2011, pharmaceutical manufacturers
to the Congressional Budget Office, the Act is projected       whose drugs are covered by Part D must provide a
to reduce the federal deficit by about $143 billion over       50 percent discount for brand-name drugs for those
10 years.                                                      in the donut hole. Moreover, federal subsidies are pro-
    The changes to the Tax Code include restrictions on        vided for generic drugs.
the use of flexible spending accounts, limitations on              Payments to Medicare Advantage plans (Part C),
the deductibility of medical expenses, increases in the        the private-plan part of Medicare, will be reduced
Medicare tax on wages and a new tax on unearned income         to make them on par with payments made through
for certain taxpayers. In addition to these increased taxes    traditional Medicare. The excess payments to Part C
for individuals, there will also be new assessments on         plans have allowed these privately run plans to offer
insurance and pharmaceutical companies.                        more benefits than traditional Medicare. So, if your
                                                               clients participate in one of these plans, don’t be
Bernard A. Krooks, far left, is a partner in the New York      surprised if some of their optional benefits such as
               City, White Plains and Fishkill, N.Y. firm      vision or dental are reduced. It’s hoped that these
               of Littman Krooks LLP. Michael Gilfix is        reductions will extend the life of the Medicare Trust
               a partner in the Palo Alto, Calif. firm of      Fund, which according to some estimates is expected
               Gilfix & La Poll Associates LLP                 to go broke in 2017.


JaNuary 2011 	                          truStS & eStateS /    trustsandestates.com                                    39
                          2010: Ball of Confusion: ELdER LAW




Free preventive care services. The Act provides for           income they report to the Internal Revenue Service.
free preventive care services such as mammograms,             The income thresholds have historically gone up based
colon and breast cancer screenings and an annual              on an inflation index. The Act freezes the Medicare
physical exam starting in 2011 for Medicare ben-              Part B premium threshold from 2011 through 2019,
eficiaries. As a result, there will be no co-payment or       which means that more people will be paying higher
deductible for an annual wellness visit, which includes       Part B premiums. Traditionally, Medicare hasn’t been
the creation of a personalized prevention assessment          a means-tested program, although that appears to be
plan. This shift in focus from treatment to prevention        changing.
attempts to reduce Medicare costs in the long term.
Prevention services include referrals to education and        More community-based delivery systems. The Act
preventive counseling or community-based interven-            makes some changes to the way long-term care will be
tions to address risk factors.                                delivered in the United States. The Act attempts to shift
                                                              our health care delivery system away from the current
                                                              institutional bias to a more community-based system.
                                                              Under current law, many seniors are forced into nursing
The spouse of a nursing home                                  homes because they don’t have the resources to stay at
                                                              home and aren’t eligible for long-term care insurance
resident is entitled to more assets                           due to a pre-existing condition. The Act establishes
                                                              the Community First Choice Option, whereby states
than the spouse of an at-home                                 are given more federal money if they set up commu-
                                                              nity services for residents who would otherwise be in
patient.                                                      nursing homes. States will be able to provide commu-
                                                              nity-based services to seniors and other individuals with
                                                              disabilities who are Medicaid-eligible and who require
New advisory board. The Act creates an Independent            an institutional level of care. This program ends in 2016,
Medicare Advisory Board (the Board) that will have            five years after it starts in 2011.
authority to make legislative proposals with recom-
mendations to reduce the cost of Medicare. While              Spousal impoverishment protections. The Act also
there are restrictions on what the Board can propose,         mandates that states include spousal impoverishment
its recommendations will take effect if Congress doesn’t      protections, such as the community spouse resource
enact an alternative proposal that achieves the same cost     allowance, in their home-based waivered Medicaid
savings. Congress is required to re-examine the Board in      programs. Since the late 1980s, spouses of nursing
2017 and has the power to terminate it.                       home residents have been entitled to enhanced pro-
                                                              tections under law. Although the protections vary by
Higher premiums for some. The Act ties Medicare               state, the spouse of a nursing home resident gener-
Part D premiums to income and moves more Part D               ally is entitled to keep more assets and income than
and Part B beneficiaries into higher income catego-           a spouse of someone who is receiving care at home
ries, although the majority of Medicare beneficiaries         paid for by Medicaid. This new program will apply
aren’t affected. Thus, those affected will pay higher         to Medicaid waiver programs and will also end after
premiums due to a freeze on income thresholds. For            five years. A Medicaid waiver program allows states
example, the Medicare Modernization Act of 2003               to provide certain services to their residents, yet still
changed how Medicare Part B premiums are calcu-               receive federal matching funds.
lated for some higher income beneficiaries. This law,
which took effect in 2007, requires higher income             CLASS program. The Act establishes the Community
beneficiaries to pay a higher Part B premium based on         Living Assistance Services and Supports program


	 40                                 truStS & eStateS /     trustsandestates.com                         JaNuary 2011
                           2010: Ball of Confusion: ELdER LAW




(CLASS). CLASS is akin to a national long-term care                  One of the biggest questions regarding the implemen-
insurance plan in many respects. This was the brainchild        tation of CLASS is, “Who will participate?” According
of the late Sen. Edward M. Kennedy (D-Mass.) and had            to some estimates, only about 5 percent of eligible
been in the works for several years. CLASS is intended          employees choose to participate in employers’ private
to allow seniors and those with disabilities to maintain        long-term care insurance benefit programs, and only
their independence and alleviate the burden on caregiv-         about 7 million Americans own private long-term care
ers, while reducing the institutional bias in our health        policies. Initially, the long-term care insurance industry
care system. Another goal is to ease the strain on the          lobbied against CLASS, fearing that it would reduce
Medicaid program by attempting to get more Americans            people’s incentives to purchase private long-term care
to recognize the need to plan for long-term care at an          insurance. Others argue that it will heighten people’s
earlier age and to contribute towards the cost of that care.    awareness about the need to plan for long-term care and
CLASS is set to take effect in 2011, although it’s unlikely     actually increase sales of long-term care insurance since
to be fully implemented until the Secretary of Health           the CLASS daily cash benefit may be in the $50-to-$75
and Human Services (HHS) has issued regulations,                range. The average cost of long-term care in the United
since many of its provisions are subject to interpreta-         States is significantly higher than that. In fact, in some
tion, such as setting the premium and benefit levels and        major metropolitan areas, the cost can exceed $200,000
the disability triggers for receiving benefits. HHS isn’t       per year. Perhaps long-term care insurance can be used to
expected to issue regulations until 2012; therefore, the        fill in some of the gaps in the CLASS program similar to
CLASS program might not take effect until 2013.                 the way Medigap policies fill in the gaps in Medicare.
    Under the program, employees may make vol-                       Under the Act, CLASS is supposed to pay for itself
untary payroll deductions as determined by HHS,                 through premiums; the government can’t subsidize it.
in exchange for the right to receive cash payments if           During the first five years CLASS is in effect, this
they’re unable to perform daily living activities (that         shouldn’t be a problem since no participants will be
is, toileting, dressing, transferring, eating and bathing)      entitled to cash benefits during this time. However, after
or suffer from cognitive impairment. The cash benefits          the first five years, the long-term viability of CLASS
are to be used for the purchase of community living             will depend upon whether enough people participate.
assistance services and supports such as a home health          Will enough young, healthy people contribute so the sys-
aide, transportation, wheelchair, lift, adult day care          tem isn’t financially strained by significant payments to
and respite care or to pay for care in an assisted living       people who need the benefits? We won’t know the answer
facility or a nursing home. Only working individuals            to this question until CLASS develops a track record.
are eligible. Retired individuals (unless they work part-       According to one government estimate, only 5 percent to
time), non-working spouses and unemployed indi-                 6 percent of those eligible to participate would actually
viduals aren’t eligible to participate. The premiums            sign up for the CLASS program. Other estimates predict
and benefits will be determined by age, with younger            even lower participation. To attract healthy employees,
people paying less than older individuals. Participants         the government is hopeful that the CLASS regulations
will be required to pay premiums for five years (the so-        will provide for a streamlined sign-up process and make
called “vesting period”) before they can receive any cash       it easy to have the premiums deducted from employees’
benefits. The daily benefit hasn’t been set but won’t be        paychecks. One way of doing this is to offer employees
less than $50, with no lifetime limit. The Congressional        the opportunity to pay their premiums through payroll
Budget Office assumed a daily cash benefit of $75 and a         deductions. In that case, all employees must be automati-
monthly premium of $123 in one of its cost estimates.           cally enrolled in the program unless they opt out, similar
The premiums are expected to remain constant, unless            to the way some firms administer their 401(k) plans. It’s
an increase is needed to maintain the solvency of the           hoped that automatic enrollment will increase participa-
program. There are no underwriting requirements and             tion by employees, which in turn, would strengthen the
those with pre-existing conditions are accepted.                financial condition of the CLASS program.


JaNuary 2011	                           truStS & eStateS /     trustsandestates.com                                    41
                           2010: Ball of Confusion: ELdER LAW




Other provisions. While there are many other provisions         by legislation, regulation or other state (or District of
in the voluminous Act, including insurance reforms,             Columbia) Medicaid program process.
nursing home staffing, quality of care provisions and
elder abuse protections, the foregoing is a summary of          Withdrawal From Medicaid
some of the more salient provisions affecting seniors           Medicaid is a program funded in part by the fed-
and those with disabilities. Of course, with the mid-term       eral government and in part by state governments.
elections now behind us, it’s possible that some of the         The cost of the Medicaid program at the state level
provisions of the Act could be modified or even elimi-          has increased consistently to the point where it con-
nated. Only time will tell.                                     sumes enormous portions of state budgets. In Texas,
                                                                for example, Medicaid consumes 20 percent of the
State Application of dRA                                        annual budget. This percentage is even higher in other
The Deficit Reduction Act of 2005 (DRA) was signed              states. Nationally, the federal government covers only
into law on Feb. 8, 2006. It substantially changed and          57 percent of the program’s cost.
restricted planning steps that can be taken to protect              Many state governors have begun expressing
assets and achieve Medicaid eligibility for skilled nursing     concern about mandates contained in the Act for
                                                                Medicaid expansion, slated for 2014. States will then
                                                                be required to expand Medicaid to cover all non-elderly
 Many states are considering                                    who have family incomes below 136 percent of the fed-
                                                                eral poverty level. For three years, the federal govern-
 withdrawal from the Medicaid                                   ment will subsidize the cost of expansion. In 2017,
                                                                states will be required to contribute additional dollars
 program.                                                       to cover the cost. Importantly, the federal government
                                                                won’t subsidize the cost of administering an expanded
                                                                Medicaid program at the state level.
facility services, in particular. These changes affected            As a result, many states (with both Republican
the treatment of annuities, residences, the lookback            and Democratic governors) are considering withdrawal
period, periods of ineligibility flowing from gifts and         from the Medicaid program. Withdrawal is most seri-
contracts with continuing care retirement commu-                ously being considered in Nevada, South Carolina,
nities.1 While the DRA’s provisions are relatively clear,       Texas, Washington and Wyoming. The stated goal is
implementation at the state level has been sporadic             to consider replacing Medicaid and its many mandates
and inconsistent. Some states implemented the DRA               with state programs that are more flexible and presum-
immediately after it became law. California, the                ably employ stricter eligibility criteria.
lone holdout, still hasn’t implemented it. Some states              Since Medicaid is the primary source of payment
made its new terms effective as of the date specified in        for nursing home care, these developments are a
implementing state legislation or regulations. Other            source of worry for millions of Americans. Should
states, such as Illinois, have applied DRA restrictions         Medicaid become unavailable or subject to restric-
and policies retroactive to Feb. 8, 2006, which is the ear-     tions in your state, planning will be compromised
liest possible retroactive implementation date. There are       and more challenging.
significant variations in how provisions relating to the            Keep a careful eye on these developments, particu-
exempt residence are incorporated at the state level.           larly if you practice in one of the identified states. Most
    Here’s the most important lesson: Don’t assume              observers agree: Something has to give.
that just because you understand the DRA’s provi-
sions, you also understand how your jurisdiction                A Step in the Right direction
implements the DRA. You must be familiar with how               On Aug. 15, 2010, New York Governor David Paterson
your jurisdiction interprets and applies the DRA, be it         signed into law the Palliative Care Information Act.


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                           2010: Ball of Confusion: ELdER LAW




This “right to know” legislation requires that physi-           to [Shoemaker] after their deaths,” because “she’s like a
cians and nurse practitioners provide terminally ill            daughter to us.” Given Donna’s incapacity to make a new
patients with information and counseling regarding              will, the attorney drafted a joint trust, naming Ollie and
palliative care and end-of-life options appropriate             Donna as grantors and initial primary beneficiaries, Ollie
to the patient. The information may be provided ver-            as initial trustee and Shoemaker as successor trustee and
bally or in writing. If a patient lacks capacity to make        remainder beneficiary. The attorney reviewed the trust
informed choices relating to palliative care, the infor-        with Ollie and Donna several times over a four-month
mation will be provided to the person with health care          period before the trust was executed. On Feb. 11, 2008,
decision-making authority.                                      Ollie executed the joint trust, signing his name and
   The bill was modeled after similar legislation in            Donna’s name by his power of attorney.
California. It’s hoped that the legislation will result             Ollie died on Dec. 26, 2008. A family friend was
in a higher quality of life for patients and increase           appointed to serve as the guardian of Donna’s person
the patients’ ability to forego aggressive but unnec-           and estate. The guardian filed a petition to revoke the
essary interventions, as well as result in substantial          joint trust. The trial court denied the guardian’s petition,
cost savings.                                                   holding that Ollie’s creation of the joint trust was consis-
   End-of-life discussions with physicians can be very          tent with Donna’s intentions and its revocation wouldn’t
powerful and influential. Research published in the             be in Donna’s best interests. The guardian appealed and
Oct. 8, 2008 issue of JAMA, the Journal of the American         the Court of Appeals affirmed the trial court’s ruling.
Medical Association, showed that terminally ill patients            Despite some indications of incapacity, further
who discuss end-of-life care with their physicians              estate planning could still take place in certain cir-
are more likely to sign a do-not-resuscitate order and          cumstances through the use of a durable power of
receive hospice care. The study also found that the dis-        attorney. In situations in which an attorney is able to
cussion doesn’t make patients more anxious or fearful.2         establish and document an elder’s wishes, it may be pos-
                                                                sible for the attorney-in-fact to carry out those wishes.
Powers of Attorney
In Matter of Phillips,3 an Indiana appeals court affirmed       Annuities and “Income First”
the validity of a joint trust that was based on a durable       Much is said and written about the DRA because of
power of attorney in arguably questionable circum-              its limiting impact on asset protection planning for
stances. The lessons: draft powers of attorney with             individuals facing the cost of long-term care. Johnson
care and respect for their potential power; less explic-        v. Lodge4 is interesting because it employs a strategy of
itly, include specific powers with purpose and avoid            Medicaid planning to increase the amount of money the
simple forms.                                                   “community spouse” may retain that’s not affected by
    In 1992, Donna and Ollie Phillips executed recipro-         the DRA. The result, however, is disappointing.
cal wills that provided their entire estate would pass first        Benjamin and Wilma Johnson applied for, and were
to the surviving spouse and the remainder to the Riley          denied, Tennessee Medicaid benefits while Benjamin
Hospital for Children. The Phillips had no children.            was a nursing home resident. The Johnsons had com-
They also set up durable powers of attorney naming each         bined non-exempt assets of $164,694, twice the amount
other as attorney-in-fact. In 2003, the couple befriended       of Wilma’s $82,347 community spouse resource allow-
Elizabeth Shoemaker, who helped manage their house-             ance (CSRA). The CSRA is the amount the community
hold affairs. Donna was diagnosed with Alzheimer’s              spouse may retain while the institutionalized spouse
disease in mid-2006, and by late 2007, her condition had        achieves Medicaid eligibility.
deteriorated to the point that her physician deemed her             The Johnsons’ combined monthly income was about
no longer able to manage her own affairs.                       $1,358, which fell short of the minimum monthly main-
    The couple contacted their long-time attorney in            tenance needs allowance (MMMNA) by $432 per month.
late 2007 and stated that they “wanted everything to go         (The MMMNA is the minimum income the community


JaNuary 2011	                           truStS & eStateS /     trustsandestates.com                                     43
                           2010: Ball of Confusion: ELdER LAW




spouse is able to retain after the institutionalized spouse     transfer funds into Medicaid pooled trusts. Program
becomes Medicaid-eligible.) The Johnsons appealed the           Operations Manual System, Supplemental Security
denial, arguing that Wilma’s CSRA should be raised to           Income 01120.203.B.2.b provides that individuals who
account for the MMMNA income shortfall, pursuant to             use Medicaid pooled trusts, including those who qual-
42 U.S.C. 1396r-5(e)(2)(C). They claimed that a CSRA of         ify for supplemental security income on the basis of
$172,800 would provide Wilma with income of $432 per            age, must “meet the definition of disabled.” The State
month at a 3 percent interest rate.                             Medicaid Manual states that, if an individual isn’t receiv-
   The district court rejected their argument. The court        ing disability benefits, a determination must be made
                                                                concerning the individual’s disability.5
                                                                    Considering these authorities, the Wisconsin
Transfers from an institutionalized                             Division of Hearings and Appeals ultimately ruled
                                                                that transfers to the pooled trust by disabled persons
spouse eligible for Medicaid to                                 age 65-and-over aren’t divestments.6 Applicants age
                                                                65-and-older must arrange a disability determination
another spouse may result in                                    process with the Wisconsin Disability Determination
                                                                Bureau to determine whether Social Security disability
ineligibility.                                                  standards are met. If so, the elder’s transfer to the pooled
                                                                trust isn’t a divestment.

held that the couple could cover the income shortfall           Post-Medicaid Eligibility
of the community spouse by liquidating the current              Generally speaking, asset transfers from one spouse
CSRA and purchasing a single premium immediate                  to another don’t create problems with Medicaid eli-
annuity. That way, an increase in the CSRA wouldn’t             gibility when one spouse is institutionalized. This
be necessary.                                                   continues to be the case when transfers are made before
   This holding doesn’t bode well for asset preservation        Medicaid eligibility is established, since all assets held by
for community spouses. As the court acknowledged,               a non-institutionalized spouse are counted in determin-
when the person covered by the annuity dies, the                ing eligibility. If eligibility has already been established,
insurance company typically keeps the remaining                 however, transfers from the institutionalized spouse to
principal, if any. The remaining principal is thus lost to      the community spouse can result in ineligibility. This
future generations.                                             happened in two recent cases—one in Ohio and the
                                                                other in Oklahoma.
Implications of “Self-funding”                                      In Burkholder v. Lumpkin,7 Rex Burkholder became
Concerning Medicaid eligibility, will a transfer pen-           eligible for Medicaid in October 2007. One year later,
alty be imposed on beneficiaries over age 65 who join a         Rex inherited from his mother’s trust a deed to real
pooled trust? In Wisconsin, an 86-year old beneficiary          property, as well as $17,810 in the form of an annu-
transferred about $5,000 into a pooled self-funded spe-         ity payment. During that same month, Rex transferred
cial needs trust while applying for Medicaid. She was           the real property to his wife, Linda, in the form of a
receiving Social Security retirement benefits, but had          quitclaim deed and transferred the annuity payment to
never received a disability determination from any              Linda’s bank account. At the time of transfer, Rex was
government program. The local agency denied her                 living in a nursing home, the cost of which was being
Medicaid benefits, holding that the transfer of funds by a      paid for by Medicaid. In February 2009, Linda sold the
non-disabled person was a divestiture. The beneficiary’s        real property and used the money to pay off her home
agent appealed on her behalf.                                   and her car and to remodel her home.
    Several authorities provide that a finding of dis-              In April 2009, the Ohio Medicaid agency mailed Rex
ability is necessary for beneficiaries of any age who           a notice of restricted coverage, indicating its intent to


	 44                                   truStS & eStateS /     trustsandestates.com                           JaNuary 2011
                                      2010: Ball of Confusion: ELdER LAW




stop paying for the nursing home from May 1, 2009 to                                        Adjustment,” JAMA (Oct. 8, 2008), available at http://jama.ama-assn.org/con-
April 30, 2011. Rex asked the court to enjoin the agency                                    tent/300/14/1665.full.
from continuing its suspension of Medicaid payments                                    3.   Matter of Phillips, 926 N.E.2d 1103, 1108 (Ind. App. 2010).
to the nursing home. The court granted the agency’s                                    4.   Johnson v. Lodge, 673 F. Supp.2d 613 (M.D. Tenn. 2009).
motion to dismiss.                                                                     5.   See State Medicaid Manual 3259.7.B.
    The court held that, for post-eligibility transfers,                               6.   DHA Case No. MDV 38/87937 (Wis. Div. Hearings & Appeals June 9, 2008).
42 U.S.C. 1396r-5(a)(1) only permits transfers for                                     7.   Burkholder v. Lumpkin, 2010 WL 522843 (N.D. Ohio Feb. 9, 2010).
less than fair market value from the institutional-                                    8.   Morris v. Oklahoma Department of Human Services, 2010 WL 3790596 (W.D.
ized spouse to the community spouse up to the                                               Okla. Sept. 24, 2010).
CSRA amount. The court rejected Rex’s argument that                                    9.   Ibid. at *4.
42 U.S.C. 1396p(c)(2)(B)(i) allows post-eligibility trans-
fers between spouses in excess of the CSRA.
    In Morris v. Oklahoma Department of Human
Services,8 Glenda Morris applied for Medicaid ben-
efits for in-home care. As of the application date,
Glenda and her husband Morris’ assets equaled about
$108,000. To spend down Glenda’s $57,000 spousal
share of the assets to $2,000, Leroy used about $18,000
of Glenda’s assets to purchase an irrevocable annuity,
which provided an income stream for Leroy alone. The
Oklahoma Department of Human Services (DHS)
denied Glenda’s claim for Medicaid, finding that the
annuity exceeded Leroy’s CSRA, that the purchase of
the annuity resulted in a transfer penalty and that the
annuity’s income stream could be sold in a secondary
market, making it a countable asset. Glenda appealed
the decision.
    The Oklahoma federal court upheld the DHS’ deci-
sion. The court held that assets attributed to the
institutionalized spouse couldn’t be transferred, after
an initial determination of eligibility, to the commu-
nity spouse. Citing Burkholder, the court stated, “If an
institutionalized spouse can ‘spend down’ that spouse’s
share by transmogrifying spousal share resources into
community-spouse income, the provisions dividing and
limiting the spousal resources are superfluous.”9
    A lesson, therefore, is the usual: “Timing is every-
thing.”                                                 Te
                                                                                       Spot                        All Together, Now!
                                                                                                                   This Polish version of the “Zolta Lodz
Endnotes                                                                               light                       Podwodna”(“Yellow Submarine”) (81 cm. by
1. For a discussion of the Deficit Reduction Act of 2005’s specific provisions, see                                58.5 cm.) movie poster was sold at Christie’s
   Michael Gilfix and Bernard A. Krooks, “Throw Momma from the Train,” Trusts                                      Vintage Film Posters Auction in London on Dec.
   & Estates (March 2006) at p. 36.                                                                                1, 2010 for $1,264. The real Beatles participated
2. Alexi A. Wright, M.D. et. al., “Associations Between End-of-Life Discussions,                                   only in the closing scene of the film; other
   Patient Mental Health, Medical Care Near Death, and Caregiver Bereavement                                       actors voiced the rest of their lines.


JaNuary 2011	                                           truStS & eStateS /            trustsandestates.com                                                          45
                           Feature: Estate Planning & Taxation


                                             By Bernard A. Krooks




Individuals With Special Needs
A variety of options are available to help families handle the
complex planning issues they face




A
            lthough the Tax Relief, Unemployment               est possible quality of life for the individual with
            Insurance Reauthorization and Job Creation         special needs and other family members. Often, this
            Act of 2010 reduced the importance of estate       involves securing eligibility for government-financed
tax planning for many, it didn’t obviate the need for          programs and supplementing those programs with
estate plans for non-tax reasons such as asset protec-         private funds.
tion, guardianship, elder law and special needs planning.         Although some parents are aware of the array of
For families who have members with special needs (for          legal issues they must confront, many arrive at the
example, an individual who has physical or mental dis-         attorney’s office concerned only about what will happen
abilities), the estate planning concerns are magnified.        on their deaths and perhaps wondering about a “special
These families face many difficult and complex plan-           needs” trust. Simply put: these are discretionary trusts
ning issues in addition to the typical issues faced by all     drafted so that the income and assets aren’t counted
families. After all, what could be more important than         as resources of the beneficiary with disabilities for
making sure the future of a family member with special         purposes of establishing eligibility for means-tested
needs is secure?                                               government benefits. Various types of these trusts exist
    Planning must assure appropriate management of             and each one has its advantages and disadvantages.
finances and personal decisions in the event both par-
ents become disabled or die, with a goal towards avoid-        Other Considerations
ing future problems. Parents might also need to con-           Before deciding on a particular planning option, practi-
tinue making decisions for an individual with special          tioners should consider two issues:
needs during adulthood, provide for future residential
needs and find someone to care for the individual when         1. Using a team approach. Many support groups and
they’re no longer able.                                           community services are available to assist families who
    Unfortunately, there’s no “training manual” on how            have members with special needs. But at some point,
to do things the “right way.” In fact, there’s probably no        it becomes necessary to obtain help from competent
single “right” way as the needs and concerns of each              professionals. In my experience, the best estate plans
individual with special needs are different. Nevertheless,        developed for families who have members with special
as part of this process, all parents likely need to find          needs arise from a team approach. In addition to the
necessary care and services, foster the development               special needs planning attorney, it’s critical that the
of independent living skills and make sure their child            family’s accountant and its insurance and financial
receives an appropriate education. In addition, they              advisors be involved in the process. Of course, the
also should maximize financial resources for present              family is an integral part of this process as well. If
and future expenses, which will allow for the high-               appropriate, the individual with special needs should
                                                                  be included in these discussions to the extent possible.
                                                                  In these types of situations, practitioners must listen to
           Bernard A. Krooks is a partner in the New              the needs and concerns of the family and individual
           York City, White Plains and Fishkill, N.Y. firm        with special needs. Only after hearing these needs and
           of Littman Krooks LLP                                  concerns can they design an appropriate estate plan.


30                                    truStS & eStateS /     trustsandestates.com                                 july 2011
                            Feature: Estate Planning & Taxation




2. Applying for government benefits. When review-               93). Only an individual with special needs under age
   ing the individual’s need for governmental benefits,         65 can be the beneficiary of an SNT, which must be
   practitioners should distinguish between those that          established by a guardian, parent or grandparent. Thus,
   are means-tested and those that aren’t based on the          without a living parent or grandparent, court interven-
   individual’s income or assets. Means-tested benefits         tion is necessary to establish an SNT. Many states have
   are reduced or denied when income or assets are              expedited court proceedings so that the trust can be
   above certain limits. The two primary means-tested           established without a plenary guardianship proceeding.
   benefits that will be important in most instances are        This is the preferred approach if there’s no other reason
   Supplemental Security Income (SSI) and Medicaid.             to appoint a guardian for the individual with special
   Both have strict asset and income requirements to            needs. For example, an SNT can be for a 45-year-old
   qualify. If your client is eligible for Medicaid, it will    who has multiple sclerosis with accompanying physical
   cover long-term health care, which can be extremely          disabilities but wouldn’t otherwise need a guardian. If
   important for an individual with special needs. SSI is       a guardian is necessary because the individual doesn’t
   a federal program, which provides a monthly income           have legal capacity (as would typically be true in the case
   supplement to meet basic needs such as food, cloth-          of a minor with special needs), then an SNT may be
   ing and shelter. The various programs have different         established as part of that proceeding.
   rules regarding the treatment of unearned income and             Although a parent, grandparent, court or guard-
   in-kind support from third parties. These differences        ian establishes the SNT, the trust is funded with assets
   often dictate the provisions that should be included         belonging to the individual with special needs. That’s
   in the client’s estate planning documents. The goal is       why many call this a “first-party trust”—it’s funded with
   to assure that the individual with special needs isn’t       the assets of the individual with special needs as opposed
   disqualified from these programs because of assets           to someone else such as a third party (for example, a par-
   placed in his name.                                          ent). In many cases, the individual receives these funds
                                                                as a result of a personal injury or medical malpractice
What’s in a Name?                                               lawsuit pursued on his behalf, an inheritance or as child
First, let’s start with a little nomenclature. If the assets    support payments as a result of a matrimonial action. In
used to fund the trust belong to the individual with            other cases, when the disability occurs later in life, the
special needs, I’ll refer to that type of trust as a special    individual may have accumulated the assets used to fund
needs trust (SNT).1 A variation of the SNT is a “pooled         the trust before he had special needs.
trust.” This is an SNT in which a non-profit organiza-              Pursuant to OBRA-93, the funding of an SNT doesn’t
tion typically serves as trustee. It has slightly different     trigger a penalty period with respect to the individual’s
requirements than an SNT.                                       eligibility for Medicaid or SSI. Generally, transfers of
     If the assets used to fund the trust belong to any per-    assets within the 60-month look-back period will result
son other than the individual with special needs, then          in a period of ineligibility for Medicaid, and transfers
I’ll refer to that type of trust as a “supplemental needs       within a 36-month look-back period will result in a peri-
trust.” Some practitioners refer to these types of trusts       od of ineligibility for SSI. However, there’s an exception
as “third-party trusts.” Keep in mind that there’s no one       for transfers to SNTs under OBRA-93. Those transfers
correct name for each of these trusts and that the ver-         aren’t subject to the transfer-of-asset provisions; there-
biage may differ among advisors. The most important             fore, there’s no period of ineligibility with respect to SSI
factor, as we shall discuss below, is whose assets are being    or Medicaid as long as the assets are transferred into the
used to fund the trust.                                         SNT while the individual is under age 65. In addition,
                                                                assets held in an SNT don’t count as a resource of the
SNTs                                                            individual with respect to his eligibility for Medicaid
An SNT is a discretionary trust authorized by                   or SSI.
42 U.S.C. Section 1396p(d)(4)(A), enacted as part of the            In exchange for the foregoing exceptions, an SNT
Omnibus Budget Reconciliation Act of 1993 (OBRA-                must contain a payback provision requiring that the


july 2011                               truStS & eStateS /     trustsandestates.com                                      31
                            Feature: Estate Planning & Taxation




trustee, upon the death (or earlier termination of the           Pooled Trusts
trust) of the beneficiary, reimburse the Medicaid pro-           A pooled trust also is a discretionary trust created under
gram out of trust assets the amount of Medicaid                  OBRA-93. It’s created and managed by a non-profit
expended on behalf of the beneficiary of the trust. The          organization. Basically, there’s a master pooled trust,
Medicaid payback takes priority over other items                 and separate sub-accounts are set up to manage the
such as funeral expenses, claims against the trust estate        finances of each particular beneficiary. To become
and residuary beneficiaries. However, trust administra-          part of a pooled trust, the beneficiary typically signs an
tion expenses and taxes may be paid prior to satisfying          agreement and transfers his funds to the trust. The funds
the Medicaid payback. The payback provision doesn’t              are pooled together for investment and management
apply to SSI benefits. It should be noted that there’s no        purposes, but each person’s assets are accounted for in
requirement that the trust have sufficient assets on the         his separate sub-account.
death of the beneficiary to fully reimburse Medicaid. The            Similar to SNTs, transfers of funds to a pooled trust
payback is limited to the lesser of the amount of money          are exempt from the Medicaid and SSI transfer-of-asset
remaining in the trust or the amount of Medicaid paid            and look-back provisions, and the assets held by the
on behalf of the beneficiary. In fact, one might argue that      pooled trust aren’t considered available with respect to
in a perfectly administered SNT, the trustee spends the          the beneficiary’s eligibility for Medicaid or SSI. However,
last trust dollar on behalf of the beneficiary just prior to     important distinctions exist between pooled trusts
his death.                                                       and SNTs: (1) the individual with special needs may
    Federal law requires that all SNTs be irrevocable            establish the pooled trust himself. Thus, there’s no
and that the individual with special needs be the sole           need to involve a parent, grandparent, guardian or court
beneficiary of the SNT during his lifetime. Upon the             as is necessary for an SNT; (2) there’s no age require-
death of the beneficiary and the satisfaction of all claims,     ment for a pooled trust. Thus, an individual age 65 or
including the Medicaid payback, residual beneficiaries           over may join a pooled trust, whereas SNTs may only
may inherit trust property. Many states also impose              be created by individuals under age 65. While someone
bonding and accounting requirements for the trustee              over age 65 may join a pooled trust, the states have vary-
of the SNT. These requirements exist to protect the              ing interpretations as to whether the exemption from
state’s interest in the remainder of the trust. For example,     the Medicaid and SSI transfer-of-asset provisions apply
it isn’t uncommon for states to require the trustee to           in those instances; (3) pooled trusts have a modified
notify Medicaid when substantial distributions are made          payback, which allows the remaining trust funds, upon
from the trust.                                                  the death of the beneficiary, to continue to be held in
    Despite the payback, an SNT makes a lot of sense in          trust for the benefit of the remaining pooled trust ben-
many cases since the assets in the trust can be used to          eficiaries, as opposed to being repaid to Medicaid.
improve the quality of life of the individual with special           Pooled trusts are generally a good option for indi-
needs. Without an SNT, those assets would have to be             viduals age 65 or over or those who aren’t transferring
spent down on the cost of his care prior to qualifying           significant funds to the trust and don’t want to incur the
for Medicaid and SSI. With an SNT in place, these assets         expense of setting one up and having it administered.
can be used to supplement what benefits are available            With a pooled trust, these tasks are taken care of by
from the government. In addition, the money is paid              the non-profit organization, which also professionally
back to Medicaid without interest. Thus, if the trustee          manages the funds as trustee. Of course, the individual
purchases an item today for $5,000 and the beneficiary           has more flexibility to select his own trustee when opt-
dies in 2040, when that same item would cost $20,000,            ing for an SNT.
the Medicaid payback is $5,000.
    Finally, some services aren’t readily available with-        Supplemental Needs Trusts
out prior qualification for government benefits. For             Supplemental needs trusts, like SNTs and pooled trusts,
example, there may be group homes or other residential           are discretionary trusts created for the benefit of an
placement services that accept only SSI as payment. In           individual with special needs. However, unlike SNTs
these cases, it may be very important for the individual         and pooled trusts, supplemental needs trusts are funded
to have an SNT as that may be the only way to imme-              by anyone other than the individual with special needs.
diately qualify for SSI due to excess resources in the           Although there’s no federal statute authorizing the use
individual’s name.                                               of supplemental needs trusts, many states have their


32                                     truStS & eStateS /      trustsandestates.com                               july 2011
                             Feature: Estate Planning & Taxation




own statutes or case law authorizing them.                        parents or others can make contributions during their
    If an individual needs—and qualifies for—means-               lifetimes or at death. The inter vivos supplemental
tested benefits, an outright distribution to him or a             needs trust can thus act as a receptacle for gifts from
bequest to a support trust will make him ineligible for           others who won’t be required to incur the expense of
Medicaid or SSI. Property held in a properly drafted              creating a supplemental needs trust as part of their
supplemental needs trust, on the other hand, won’t                estate plans. Moreover, the funds available to assist the
affect the individual’s eligibility. The income and               individual with special needs will all be part of a single
assets of the trust can thus be devoted to improving his          trust. Many families find this to be a very attractive
quality of life and supplementing what he receives from           option. Although an inter vivos supplemental needs
government benefit programs. A supplemental needs                 trust can be irrevocable or revocable, it should prob-
trust is a completely discretionary trust and the benefi-         ably be irrevocable as other donors may be disinclined
ciary can’t have any right to compel distributions from           to make gifts to a supplemental needs trust if the par-
the trust. In addition, the trust should prohibit the trust-      ents can revoke it at any time.
ee from making any payments directly to the beneficiary,
as this may result in reduction or disqualification from          Caveat Emptor
government benefits.                                              Special needs planning is an extremely complex area of
    If you’re working with a client who has a child with          the law. Practitioners must be familiar with federal and
special needs, the client can: (1) include the child in the       state statutes and regulations, as well as local practices. A
estate plan through an outright distribution, (2) disinherit      lot can go wrong, resulting in grave consequences to the
the child, (3) distribute the share of the child with special     family and individual with special needs. Here are two
needs to his sibling and rely on moral commitment of              tips to help you avoid some minefields:
that sibling to “take care of the child,” or (4) create a sup-         (1) No one other than the individual with special
plemental needs trust. Making an outright distribution to         needs should ever contribute assets to an SNT. If a
the child with special needs will result in disqualification      third party wants to set aside funds for an individual
for Medicaid and SSI. Disinheriting the child, while solv-        with special needs, he should set up a supplemental
ing the Medicaid and SSI problem, doesn’t improve his             needs trust and contribute the assets to that trust. This
quality of life, which is likely to be very important to the      way, those assets aren’t subject to the Medicaid payback
parents. Leaving the share of a child with special needs          contained in the SNT.
to a sibling may seem appropriate in theory, but often                (2) If an individual is the beneficiary of both an
doesn’t work in practice. The best laid plans of relying          SNT and a supplemental needs trust and you’re the
on “moral commitment” often go astray, especially after           trustee or you’re advising the trustee, make sure that
the parents die and new parties become involved in the            you spend the assets of the SNT prior to tapping into
process (for example, through marriage). Thus, the surest         the supplemental needs trust. That’s because the assets
way to provide a good quality of life for the child with          in the SNT are subject to the Medicaid payback while
special needs is through a supplemental needs trust.              those in the supplemental needs trust aren’t.
    A supplemental needs trust may be established by
any adult with capacity. Unlike an SNT, the beneficiary           Rewarding Process
needn’t be under age 65. Moreover, upon the death of the          While this may be a complex area of practice, it’s also
beneficiary, there’s no requirement that Medicaid be paid         very rewarding. When we work with parents who are
back for the cost of care expended on behalf of the ben-          raising a child with special needs, they’ve shared with
eficiary. The reason there’s no Medicaid payback required         us that they feel like a huge weight has been lifted off
is that the assets used to fund the trust don’t belong to the     their shoulders after they’ve gone through this process.
individual with special needs. Unlike an SNT, the parent is       While parents can’t predict the future for their child with
typically not relying on an exception to the Medicaid and         special needs, they take great comfort in knowing that
SSI transfer-of-asset provisions to fund the trust.               they’ve done what they can do to ensure the best quality
    A supplemental needs trust may be set up as a                 of life for their child.                                  Te
testamentary trust in a client’s will or as an inter vivos
trust during his lifetime. A testamentary trust can be            Endnote
used when gifts to the trust won’t be made until the              1.	 Other	 names	 for	 this	 type	 of	 trust	 include	 “first-party	 trust,”	 “self-settled	
parents’ death. A benefit of an inter vivos trust is that             special	needs	trust,”	“payback	trust”	or	“(d)(4)(A)	trust.”


july 2011                                 truStS & eStateS /     trustsandestates.com                                                                    33
Faculty Biographies
BERNARD A. KROOKS

Bernard A. Krooks is a founding partner of the law firm Littman Krooks LLP and Chair
of its Elder Law and Special Needs Department. Mr. Krooks is a nationally-recognized
expert in all aspects of elder law and special needs planning. He has been accredited by
the U.S. Department of Veterans Affairs to present and prosecute claims for veterans’
benefits.

Mr. Krooks is immediate-past President of the Special Needs Alliance, a national,
invitation-only, not-for-profit organization dedicated to assisting families with special
needs planning. Mr. Krooks is past President of the National Academy of Elder Law
Attorneys (NAELA), a Fellow of NAELA, past Chair of the NAELA Tax Section and
past Editor-in-Chief of the NAELA News. In addition, he is certified as an Elder Law
Attorney by the National Elder Law Foundation. He is a founding member and past
President of the New York Chapter of NAELA. In 2008, he received the Chapter’s
Outstanding Achievement Award for his lifelong work on behalf of seniors and those
with disabilities.

Mr. Krooks is past Chair of the Elder Law Section of the New York State Bar
Association (NYSBA) and past Editor-in-Chief of the Elder Law Attorney, the newsletter
of the NYSBA Elder Law Section. Mr. Krooks is a member of the Trusts and Estates
Law Section and Tax Section of the NYSBA. In addition, he is a former member of the
NYSBA House of Delegates and he served on the NYSBA special committee on Multi-
Disciplinary Practice. Mr. Krooks co-authors (1) a chapter in the NYSBA publication
Guardianship Practice in New York State entitled “Creative Advocacy in Guardianship
Settings: Medicaid and Estate Planning, Including Transfer of Assets, Supplemental
Needs Trusts & Protection of Disabled Family Members.”; and (2) the NYSBA
publication Elder Law and Will Drafting. He serves on the Editorial Boards of
Exceptional Parent Magazine, Trusts & Estates Magazine, and Leimberg Information
Services.

Mr. Krooks, a sought-after expert on elder law, special needs planning and estate
planning matters, has been quoted in The Wall Street Journal, The New York Times,
Newsweek, Forbes, Investment News, Financial Times, Money Magazine, Smart Money,
Worth Magazine, Kiplinger’s, Bloomberg, Consumer Reports, Wealth Manager, CBS
Marketwatch.com, Lawyer’s Weekly USA, Reader’s Digest, Bottom Line, The Journal of
Financial Planning, The New York Law Journal, The Daily News, New York Post and
Newsday, among others. He has testified before the United States House of
Representatives and the New York City Council on long-term care issues. He also has
appeared on Good Morning America Now, National Public Radio, CNN, PBS, NBC, and
CBS evening news, as well as numerous cable television and radio shows.

Mr. Krooks is President of the Westchester Estate Planning Council, a member or the
Advisory Board of the National Association of Estate Planning Councils, and a member
of the New York City and Hudson Valley Estate Planning Councils. Mr. Krooks recently
received his AEP accreditation from the National Association of Estate Planners &
Councils He also is a member of the Real Property, Probate & Trust Law Section and
Tax Section of the American Bar Association; a member of the Bar of the Supreme Court
of the United States, and a member of the American Institute of CPAs. Mr. Krooks also is
a Fellow of the American College of Trust and Estate Counsel (ACTEC) and serves on
its Elder Law Committee. He is an Adjunct Professor at NYU Center for Finance, Law &
Taxation and is a member of the NYU Institute on Federal Taxation Advisory Board.

Mr. Krooks has served on the Board of Directors of the Alzheimer’s Association
Westchester/Putnam Chapter and the Bioethics Advisory Committee of New York
Hospital. He is a member of the board of directors of Westchester ARC, a member of the
Blythedale Children’s Hospital Planned Giving Professional Advisory Board, a member
of the Trusts & Estates Group of the Lawyer’s Division of the UJA-Federation of New
York, and a member of the legal advisory committee of the Evelyn Frank Legal
Resources Program of Selfhelp Community Services, Inc. He is listed in the Best
Lawyers in America, Who’s Who in America, The New York Area’s Best Lawyers, New
York Magazine and New York Times, and the Top 25 Westchester, New York Super
Lawyers.

Mr. Krooks is married and has four children. He is an AYSO certified soccer coach and
an NYSCA certified baseball coach.
Sarah Diane McShea

Sarah Diane McShea has practiced in the “law of lawyering” field in New York since
1980. Her private practice is devoted to advising lawyers, law firms, government
agencies and corporate law departments on a wide variety of legal ethics and
professional practice issues. She represents lawyers in disciplinary matters, litigates
sanctions and disqualification motions, provides risk management and advisory ethics
opinions, consults on partnership disputes, advises lawyers and clients on billing and fee
issues, represents bar applicants and serves as an expert witness on professional
responsibility issues. McShea is a member of the Editorial Board of the ABA/BNA
Lawyers' Manual on Professional Conduct and a Trustee of the New York State Lawyer
Assistance Trust. She is Chair of the NYSBA Law Practice Continuity Committee, Co-
Chair of the NYSBA Professional Discipline Committee, and a member of the NYSBA
Committee on Standards of Attorney Conduct, which has proposed major revisions to
the New York Code of Professional Responsibility. McShea is a past President of the
Association of Professional Responsibility Lawyers. She writes regularly on legal ethics
issues and lectures frequently on professional practice issues. McShea taught
professional responsibility as an adjunct professor at Columbia University School of Law
(1989-1992), St. John’s University School of Law (1999), and Brooklyn Law School
(2001-2007). She served as Deputy Chief Counsel and staff counsel to the
Departmental Disciplinary Committee, Appellate Division, First Department (1980-1989)
and Chief of the Public Corruption Bureau, Kings County District Attorney’s Office (1990-
1993). She is a graduate of Yale College (1975) and Boston University School of Law
(1979).
Ira K. Miller
1. Graduated SUNY Plattsburgh with a B.S. in 1975.
2. Received his J.D. from Brooklyn Law School in 1979.
3. Founding Chair of the Elder Law Committee of the Brooklyn Bar Association and
acted as same for 1993 and 1994.
4. Vice Chair of the Elder Law Committee of the Brooklyn Bar Association 1995, 1996
and 1997.
5. Executive Board of the New York State Elder Law Section from 1993 through 2010.
6. Secretary of New York State Elder Law Section elected January 2000.
7. Vice Chair of New York State Elder Law Section elected January 2001 & 2002.
8. Published articles in the New York State Bar Association Elder Law Attorney.
9. Published articles in One on One Newsletter of the General Practice Section of the
New York State Bar.
10. He has lectured frequently for the New York State Elder Law Section and the
Brooklyn Bar Association.
11. He was the Chairperson and a speaker at New York Bar CLE Basics of Elder Law.
12. He was the Chairperson at the New York State Bar Association Elder Law’s Advance
Institute for 2000, 2001 and 2002.
13. He was the Chairperson of 2002 Summer Meeting of the Elder Law Section of New
York State Bar, Toronto, Canada.
14. Mentor Attorney for New York Law School 2005.2006, 2007, 2008, 2009, 2010, and
2011.
15. Conservator, Committee and Guardian for over 100 incapacitated persons in his
career including numerous pro- bono actions.
16. He was a speaker at the Practical Skills program of the New York State Bar, May
2011.
   littmankrooks.com                                        http://www.littmankrooks.com/attorneys/elizabeth-valentin/


Elizabeth Valentin | Littman Krooks LLP
Elizabeth Valentin
Attorney
Contact Me
Elizabeth Valentin is an attorney with the law firm of Littman Krooks LLP. Ms. Valentin’s
practice focuses on elder law, Medicaid planning, special needs planning,
guardianships, asset protection planning, real estate, trust and estate administration,
and estate planning.

Elizabeth received her undergraduate degree from the University of Pennsylvania and
her Juris Doctor degree from the City University of New York School of Law.

Ms. Valentin is admitted to practice in both New York and New Jersey. She is a member of the New York
State Bar Association (NYSBA), the Elder Law and Trusts & Estates Sections of the NYSBA, the New York
County Lawyer’s Association and Dominican Bar Association. Ms. Valentin is currently serving on the
Executive Committee of the Elder Law Section of the NYSBA as Co-Chair of the Client and Consumer Issues
Committee, Co-Chair of the Diversity Committee and as a District Delegate.

Elizabeth is a frequent presenter to consumer and professional groups as well as advocacy organizations
addressing the legal, financial and other related issues which affect our senior population.

Ms. Valentin speaks fluent Spanish.

Elizabeth is also a freelance photographer. She founded the not-for-profit organization Ojitos, which teaches
photography to inner city children who are survivors of domestic violence.

				
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