Special Needs Trusts Handbook (1-year Online Subscription)

Chapter 1. PLANNING FOR PEOPLE WITH DISABILITIES

• 1.01 Special Needs Planning/General
• 1.02 Common Disabilities and Support Groups
• 1.03 Americans with Disabilities Act
• 1.04 Life Care Planning
• 1.05 Residential Alternatives
• 1.06 College
• 1.07 Employment
• 1.08 Miscellaneous Tax Considerations—Families of Disabled Persons
• 1.09 Representative Payee
• 1.10 Adoption Assistance
• 1.11 Commitment/Mental Illness
• 1.12 Worker's Compensation
• 1.13 Vacations

Chapter 2. PUBLIC AND PRIVATE BENEFIT PROGRAMS FOR PEOPLE WITH DISABILITIES

• 2.01 Introduction
• 2.02 Supplemental Security Income (SSI)
• 2.03 Medicaid
• 2.04 Medicaid Waiver Programs
• 2.05 Social Security Benefits, Including Disability Income (SSDI)
• 2.06 Medicare
• 2.07 Federally Assisted Housing
• 2.08 Supplemental Nutrition Assistance Program (SNAP)
• 2.09 Veterans Benefits
• 2.10 Temporary Assistance for Needy Families (TANF)
• 2.11 Children's Health Insurance Program (CHIP and CHIPRA)
• 2.12 High-Risk Insurance Pools § 2.13 Private Programs Assisting Persons with Disabilities
• 2.14 Public Benefits Comparison Chart
• Appendix 2-1 (A) Business Arrangement Form (B) Room and Board Contract
• Appendix 2-2 Work Rules for Title II and SSI—Comparison of Terms

Chapter 2A. HEALTH CARE REFORM

• 2A.01 Introduction
• 2A.02 Private Insurance Reform
• 2A.03 Medicare Provisions
• 2A.04 Medicaid
• 2A.05 The Impact of the ACA on Special Needs Clients
• 2A.06 The Impact of the ACA on Special Needs Trusts
• Appendix 2A-1 Timeline of Major Medicaid Provisions in the Affordable Care Act
• Appendix 2A-2 Closing the Doughnut Hole Chart

Chapter 3. ESTATE PLANNING

• 3.01 The Basics
• 3.02 Lifetime Gifts
• 3.03 Federal Estate Tax
• 3.04 State Estate Taxes
• 3.05 State Inheritance Taxes
• 3.06 Chart of Estate, Inheritance, and Similar Tax Laws for All 50 States and the District of Columbia
• 3.07 Planning to Avoid State Death Taxes
• 3.08 Estate Planning for Married Same-Sex Couples
• 3.09 Financial Plan
• 3.10 Effect of Bankruptcy on Inheritance of Heir
• Appendix 3-1 Washington Will
• Appendix 3-2 Advance Directive
• Appendix 3-3 POLST Order
• Appendix 3-4 General Durable Power of Attorney
• Appendix 3-5 Psychiatric Advance Directive
• Appendix 3-6 Organ Donation Form
• Appendix 3-7 Disposition of Remains
• Appendix 3-8 Authorization for Final Disposition Instructions
• Appendix 3-9 Spousal Lifetime Access Trust (SLAT)

Chapter 4. SPECIAL NEEDS TRUSTS: GENERAL

• 4.01 Two Types of Special Needs Trusts
• 4.02 Special Needs Trusts Compared to Other Trusts
• 4.03 POMS Considerations When Drafting a Special Needs Trust
• 4.04 Some Major Issues Involved in a Special Needs Trust
• 4.05 The Decoupling of SSI and Medicaid
• 4.06 Comparability Between the SSI and the MA Eligibility Rules
• 4.07 Trustee Provisions
• 4.08 Written Advice to Parties
• 4.09 Establishing or Reforming a Trust Through Court Intervention
• Appendix 4-1 Memorandum Explaining Special Needs Trust
• Appendix 4-2 SSI Program Circular
• Appendix 4-3 Special Report—2009 Revisions to the Social Security Administration POMS Relating to Special Needs Trusts
• Appendix 4-4 The Begley Lawyer Alert
• Appendix 4-5 Chart Comparing Trustees and Trust Protectors

Chapter 5. THIRD-PARTY SPECIAL NEEDS TRUSTS

• 5.01 Third-Party Special Needs Trusts
• 5.02 POMS Considerations
• 5.03 Tax Considerations
• 5.04 Qualified Disability Trust
• 5.05 Special Considerations
• 5.06 Funding
• 5.07 Letter of Intent
• 5.08 Community Fund Raisers
• 5.09 Anatomy of a Third-Party Special Needs Trust
• 5.10 How to Use the Appendix
• Appendix 5-1 Third-Party Special Needs Trust
• Appendix 5-2 Third Party Support Trust with Special Needs Provisions
• Appendix 5-3 Letter of Intent
• Appendix 5-4 Memorandum to Trustee Explaining Special Needs Trust

Chapter 6. SELF-SETTLED SPECIAL NEEDS TRUSTS

• 6.01 Practical Considerations
• 6.02 Drafting Issues
• 6.03 Matrimonial Actions
• 6.04 Pre-OBRA Self-Settled Special Needs Trusts
• 6.05 Funding Issues with Respect to Self-Settled Special Needs Trust
• 6.06 How to Use the Appendix
• Appendix 6-1 PI System Check Plan
• Appendix 6-2 Quick Screen
• Appendix 6-3 Self-Settled Special Needs Trusts Questionnaire
• Appendix 6-4 Initial Letter to PI Attorney
• Appendix 6-5 Engagement Letter
• Appendix 6-6 Self-Settled Special Needs Trust
• Appendix 6-7 Invoice
• Appendix 6-8 Letter to Trustee: Sign Trust
• Appendix 6-9 Memorandum Explaining Special Needs Trust
• Appendix 6-10 Letter to Social Security Administration Requesting Approval of Trust
• Appendix 6-11 Letter to State Medicaid Agency Requesting Trust Approval
• Appendix 6-12 Letter to State Medicaid Agency Filing Trust
• Appendix 6-13 Brief
• Appendix 6-14 Letter to Medicaid Requesting Payoff of Medicaid Lien
• Appendix 6-15 Letter to Medicaid Enclosing Payoff of Medicaid Lien

Chapter 7. STRUCTURED SETTLEMENTS

• 7.01 How Does a Structured Settlement Work?
• 7.02 Taxation
• 7.03 When Should a Structured Settlement Be Considered?
• 7.04 Advantages of Structured Settlement to the Parties
• 7.05 Disadvantages of Structured Settlement
• 7.06 Designing the Structure
• 7.07 Social Security Administration Treatment of Structured Settlements
• 7.08 Commutation of a Structured Settlement
• 7.09 Factoring a Structured Settlement
• 7.10 Structuring Attorneys' Fees
• 7.11 Structured Settlements in CasesNot Involving Physical Injuries
• 7.12 The Effect of the Deficit Reduction Act of 2005 on Structured Settlements
• 7.13 Estate Taxation of Structured Settlements
• 7.14 Rated Age
• 7.15 Quality of Insurance Company
• 7.16 Government Bond Funds
• 7.17 The Settlement Planner
• 7.18 Structured Settlements Involving Minors and Incapacitated Persons
• 7.19 Issues Arising After Issuance of Structure
• 7.20 Structured Settlement vs. Lump Sum in Special Needs Trusts
• 7.21 The Dark Side of Structured Settlements
• 7.22 Chart—Impact of Structured Settlements on Public Benefits
• 7.23 Estate Planning with Structured Settlements
• 7.24 Commonly Asked Questions for Structured Settlements
• 7.25 Structured Settlement/Settlement Trust
• 7.26 Trade Associations
• Appendix 7-1 Chart—Impact of Structured Settlements on Public Benefits

Chapter 8. GUARDIANSHIP OF A MINOR OR A PERSON WITH DISABILITIES

• 8.01 Introduction
• 8.02 General Provisions
• 8.03 Guardianship of Minors
• 8.04 Guardianships for Incapacitated Persons
• 8.05 Protection of Property
• 8.06 Uniform Adult Guardianship and Protective Proceedings Jurisdictional Act
• 8.07 Alternatives to Guardianships
• 8.08 Specific State Changes
• 8.09 National Guardianship Association
• Appendix 8-1 Adult Guardianship Statutory Table of Authorities (6/11)

Chapter 9. ADMINISTRATION OF A SPECIAL NEEDS TRUST

• 9.01 Preliminary Matters
• 9.02 Trustee Duties
• 9.03 Uniform Prudent Investor Act
• 9.04 Distribution
• 9.05 Special Assets
• 9.06 Loans to the Beneficiary with Disabilities
• 9.07 Termination of Trust
• 9.08 Reporting Requirements
• 9.09 Taxpayer Responsibilities
• 9.10 Special Trustee Challenges
• Appendix 9-1 Caregiver Employment Agreement
• Appendix 9-2 Sample Loan Agreement for Motor Vehicle

Chapter 10. OVERVIEW OF ETHICAL ISSUES IN SPECIAL NEEDS PLANNING

• 10.01 Client-Lawyer Relationship
• 10.02 ABA Model Rules of Professional Conduct
• 10.03 Transactions with Persons Other than Clients
• 10.04 Ethical and Malpractice Issues Related to the Establishment of Supplemental Needs Trusts (SNTs)
• 10.05 Other Related Ethical Issues

Chapter 11. THE PERSONAL INJURY SETTLEMENT CONSULTANT

• 11.01 Introduction
• 11.02 How the Settlement Is Achieved
• 11.03 The Life Care Plan
• 11.04 The Personal Injury Settlement Consultant
• 11.05 Counseling Session
• 11.06 The Effect of Bankruptcy on aPersonal Injury Settlement
• 11.07 Pre-Settlement Lending in Personal Injury Cases
• 11.08 The Interplay Between the Worker's Compensation Settlement and the Settlement of the Third PartyLiability Case
• 11.09 Probate Issues in Personal Injury Matters
• 11.10 How Special Needs Trusts, Settlement Preservation Trusts, and Structured Settlements Impact Public Benefits
• Appendix 11-1 Agenda for Counseling Session
• Appendix 11-2 Budget
• Appendix 11-3 Letter to Client and Trustee Confirming Counseling Session
• Appendix 11-4 Letter to PI Attorney Memorializing Counseling Session
• Appendix 11-5 Questionnaire—Personal Injury Settlement Consultant
• Appendix 11-6 Settlement Trust
• Appendix 11-7 Settlement Trust with Special Needs Trust Provisions
• Appendix 11-8 Settlement Trust with Special Needs and Medicare Set-Aside Provisions
• Appendix 11-9 Effect of Personal Injury Settlement on Public Benefits/Cash, Structure, Special Needs Trust, Settlement Trust
• Appendix 11-10 Medicare and Medicaid/Lien/MSA Chart
• Appendix 11-11 Court Order Establishing Special Needs Trust

Chapter 12. MEDICARE SET-ASIDE ARRANGEMENTS

• 12.01 Medicare Secondary Payer Act
• 12.02 Medicare Set-Aside (MSA) Arrangements
• 12.03 Medicare, Medicaid, and SCHIP Extension Act of 2007
• 12.04 When is an MSA Required?
• 12.05 Reporting and Submission
• 12.06 What Cases Should Be Submitted for Review?
• 12.07 Prescription Drugs
• 12.08 Appeal
• 12.09 Administration of Medicare Set-Aside Arrangements
• 12.10 Countable Asset for SSI and Medicaid
• 12.11 National Alliance of Medicare Set-Aside Professionals, Inc.
• Appendix 12-1 Letter from CMS Re: Rated Age, May 20, 2008
• Appendix 12-2 MSA in Third Party Liability Cases—CMS Information by Region
• Appendix 12-3 Letter from CMS Re: Administering Your Medicare Set-Aside Arrangement (MSA)
• Form 12-1 MSA System Check Plan
• Form 12-2 Engagement Letter—Medicare Set-Aside Arrangement
• Form 12-3 MSA Quick Screen
• Form 12-4 Plan Point MSA Intake Form
• Form 12-5 Self-Settled Special Needs Trust with Medicare Set-Aside Provisions
• Form 12-6 Medivest Services and Fee Schedule
• Form 12-7 Letter to Client Re: Medicare Secondary Payer Statute

Chapter 13. INCOME TAXATION OF LITIGATION PROCEEDS

• 13.01 Origin of the Claim Test
• 13.02 Personal Injury Cases
• 13.03 Matrimonial
• 13.04 Employment Recoveries
• 13.05 Will Contests
• 13.06 Confidentiality Agreements
• 13.07 Attorney's Fees
• 13.08 Medicare Surtax
• Appendix 13-1 Chart—Income Taxation of Litigation Proceeds

Chapter 14. LIEN RESOLUTION IN PERSONAL INJURY CASES

• 14.01 Introduction
• 14.02 Medicaid Liens
• 14.03 The Medicare Lien
• 14.04 Medicare Advantage/Medicare Part D
• 14.05 ERISA Medical Insurance/Subrogation
• 14.06 State Workers' Compensation
• 14.07 Federal Employee Compensation Act
• 14.08 Hospital Liens
• 14.09 Veterans Administrative Claims
• 14.10 Federal Employee Health Benefit Act
• 14.11 U.S. Medical Care Recovery Act
• 14.12 Welfare Liens
• 14.13 Mental Health Liens
• 14.14 Charity Care
• 14.15 Victims of Crime Compensation
• 14.16 Child Support
• 14.17 Federal Tort Claims Act
• 14.18 Vaccine Settlements
• 14.19 Derivative Claims
• 14.20 Future Benefits
• 14.21 Private Insurance Subrogation Claims
• Appendix 14-1 Medicaid Lien Reduction Check Plan
• Appendix 14-2 Medicaid Lien Reduction Supplemental Intake Form
• Appendix 14-3 Medicaid Lien Reduction Calculation
• Appendix 14-4 Letter to State Medicaid Agency
• Appendix 14-5 Consent to Release Form (see last page of document)
• Appendix 14-6 CMS Memorandum—Asbestos Claims
• Appendix 14-7 Quick Guide to Medicare Lien Resolution

Chapter 15. QUALIFIED SETTLEMENT FUNDS (QSFs)

• 15.01 What Is a Qualified Settlement Fund?
• 15.02 Advantages
• 15.03 Code Requirements
• 15.04 Types of Claims
• 15.05 Income Tax Considerations
• 15.06 Single Claimant
• 15.07 Using a Special Needs Trust with a Qualified Settlement Fund (QSF)
• 15.08 State Taxation
• 15.09 The 468B Trustee/Trust Administrator
• 15.10 Distributions
• 15.11 Structured Settlements
• 15.12 FDIC Insurance
• 15.13 Drafting § 15.14 Termination of a QSF APPENDIXES
• Appendix 15-1 QSF Checkplan
• Appendix 15-2 Qualified Settlement Fund (QSF) Questionnaire
• Appendix 15-3 468b Trust Agreement/Qualified Settlement Fund
• Appendix 15-4 Order Establishing QSF
• Appendix 15-5 Order Authorizing Distributions from QSF
• Appendix 15-6 Order Terminating QSF

Chapter 16. POOLED TRUSTS

• 16.01 Pooled Trusts
• Appendix 16-1 CMS Memorandum Re: Transfer of Assets to Pooled Trust by Individuals over Age 65
• Appendix 16-2 Wisconsin Decision on Transfers to Pooled Trusts
• Appendix 16-3 Maryland Decision on Transfers to Pooled Trusts
• Appendix 16-4 List of Pooled Trusts
• Appendix 16-5 Trusts—Special Needs, Supplemental Needs, or Pooled Asset Special Needs Trusts—Public Benefits
• Appendix 16-6 Durable Power of Attorney Provisions and Trust Provisions

Table of Cases

Table of Statutes

Index

Thomas D. Begley, Jr. is a member of the firm of Begley & Bookbinder, P.C., with offices in Moorestown, Stone Harbor, and Lawrenceville, New Jersey, where he concentrates on elder law and estate planning. Mr. Begley is a Certified Elder Law Attorney and a Fellow of the National Academy of Elder Law Attorneys, and past chair of the Elder Law and Real Property, Probate, and Trust Law Sections of the New Jersey State Bar Association. He received his B.S. and his J.D. from Georgetown University.

Angela E. Canellos is an attorney in private practice, concentrating on the areas of law affecting the elderly and disabled, with an emphasis on Special Needs Trusts, Supplemental Security Income Law, Medicaid, Guardianships, and Probate. She is a Certified Elder Law Attorney, and is a member of the National Academy of Elder Law Attorneys. She received her B.A. and J.D. from the University of Wisconsin—Madison.