I have written this article for information purposes, and I hope you learn something from it. Though I would like to state it is current and up to date, in all candor, I can't. In most cases, the concepts are relatively accurate (except for obviously old and dated materials, primarily related to taxes). You should confer with your own lawyer about issues that affect you and your family.

SPECIAL NEEDS AND DISABILITY TRUSTS

 

 

Those who have known me for several years realize that I write articles in two instances:  first, when I have participated in a seminar, and reduce my lecture notes to writing; and second, whenever I have been asked the same question dozens of times, and need to relate some of my thoughts on the subject.

 

Based on that criteria, an article on special needs trusts could have been written years ago.  However, I avoided writing about special needs trusts for several reasons.  First, the law changes constantly, and I do not want to update my articles on a quarterly basis (and I generally do not do so).  Second, there are other lawyers who prepare more special needs trusts than I, and I assume they probably know more about the subject than I do.  Finally, there are no easy answers in estate planning for relatives who are disabled.

 

With those qualifications in mind, I will discuss the topics of “How to Avoid Becoming Disqualified for Benefits” and “Medicaid Recovery”.  After these sections, I will mention what some of my clients have done (the section labeled “Miscellaneous”).  The final part of this article is a questionnaire, which should be completed, in order to assist your estate planner, and to force you to think about what sort of inheritance you want your child to receive.

 

HOW TO AVOID BECOMING DISQUALIFIED FOR BENEFITS

 

Let me begin with finances, because that’s the major concern of all parents.  Since most children who are disabled, regardless of age, are receiving some sort of disability payment from social security disability or from DHS, the question is, will my child be able to inherit anything from me, and if so, how much?  The general rule of thumb is that persons receiving disability payments can own no more than $2,000 in property, and can generally earn (W-2 earnings) no more than $810 a month.  In some instances, the child can own a car, a home, and other “exempt” assets.  In other instances, the child cannot own anything. If the parents leave resources for the child via a special needs trust, the child may be disqualified from receiving benefits, if the trust provides for things other than food, clothing and shelter.

 

At this point, let me state that there are solutions available for disabled children, and there are answers to the conflicting provisions of the law.  But every estate planner, including me, needs to know specific information about the child in question.  I have attached a questionnaire, which should be completed in full (or at least those portions that are applicable to your situation), and given to the estate planner, before you consider available option).

 

If an inheritance is left to a disabled person who is receiving government assistance, the person may become disqualified from receiving government benefits if the inheritance is given in the wrong manner, or too much money or property is given. To avoid disqualification, you should consider the safe harbor Congress created in 1993, as part of the Omnibus Budget Reconciliation Act:  the safe harbor permits gifts to disabled persons, if the gifts are made through the conduit of a Special Needs Trust. The trusts must be carefully drafted to comply with the requirements of the Social Security Administration Program Operating Manuals (POMs), and should be clear as to the types of distributions the trustee may make, so that the trustee does not unknowingly disqualify the beneficiary from public benefits.

 

            Here is the resource for the safe harbor: the Omnibus Budget Reconciliation Act of 1993 contains a provision, at 42 U.S.C. Sec.13996p (d)(4)(A),  that permits people who receive disability benefits from Social Security to retain eligibility for Medicaid, in the form of a Special Needs Trust (which is also known as a (d)(4)(A) trust, or a disability trust)..  The trust will contain the following provisions:

 

            1.  When the trust is established and funded, it must solely benefit a disabled person who is under 65 years of age,;

 

            2.  The trust must be established by the beneficiary’s parent, grandparent, guardian or a court (presumably an aunt, uncle, or sibling could establish such a trust, which would not be subject to the pay-back rules mentioned in paragraph 6);

 

            3.  The trust must contain only the beneficiary’s money;

 

            4.  The trust must be irrevocable;

 

            5.  Under the provisions of the trust, the beneficiary must not be permitted to invade any portion of the trust;

 

            6.   The trust must provide that upon the beneficiary’s death, the Medicaid program will be paid back for funds expended after the establishment of the trust.

 

If a trust meets these requirements, and for the purpose of determining Medicaid and SSI (Supplemental Security Income) eligibility, income and undistributed corpus will not considered as being available resources (assets) for the beneficiary,.  These trusts are known as Special Needs Trusts, Medicaid Disability Trusts, or (d)(4)(A) Trusts.

 

Most of these trusts contain lots of “boiler-plate” language, which prohibits the trustee from making any distribution which would disqualify the beneficiary from receiving government benefits. The trusts generally permit distributions for things which are not covered by the government, such as, dental care, telephone services, and the like (there are probably close to 30 categories of distributions the Trustee can make, without disqualifying the beneficiary from receiving government payments).  When the disabled child dies, the remaining balance of the funds in the trust must be paid to DHS.

 

If the beneficiary receives too much income, and is no longer qualified to receive government benefits, the beneficiary might consider creating a Miller trust, which in effect takes all excess income and assigns it to a special needs trust; when the beneficiary dies, whatever is left in the trust will be paid to DHS.

 

In sum, consider using a special needs trust as a means of allowing your child to continue receiving government benefits.

 

MEDICAID RECOVERY

 

 This portion of the article deals with disabled children who are receiving payments through Medicaid (not through Supplemental Security Income (SSI), Social Security Disability Income (SSDI), or other government programs). One of the requirements of the Omnibus Budget Reconciliation Act of 1993 is that states are required to recover the costs of nursing homes and other long-term care services from the estates of Medicaid beneficiaries. Simply put, states must attempt to be reimbursed for money spent through Medicaid programs, after the disabled child dies.

 

Every state is required to adopt its own set of rules, and delineate in what instances the state agencies will seek recovery of Medicaid payments that have been made to deceased beneficiaries.  The concept of Medicaid recovery is explained in greater detail in a web article published by our government, http://www.medicaid.gov/Medicaid-CHIP-Program-Information/By-Topics/Eligibility/Estate-Recovery.html.

 

Each state has its own set of rules.  You should read these rules.

 

The web address where this information is located is rather long, but here it is: http://www.okdhs.org/library/policy/oac317/035/19/0004000.htm?&MSHiC=65001&L=10&W=RECOVER%20RECOVERED%20RECOVERIES%20RECOVERING%20RECOVERS%20medicaid%20recovery%20&Pre=%3CFONT%20STYLE%3D%22color%3A%20%23000000%3B%20background-color%3A%20%23FFFF00%22%3E&Post=%3C/FONT%3E  You should go to this website for updates.

 

MISCELLANEOUS

 

With the foregoing information in mind, let me mention some techniques my clients have used, in dealing with disabled children.  Their primary concern is, if a special needs trust is created and all of the trust funds are not used for the benefit of their child, the residue of the trust funds must be paid to DHS – and very few of my clients want unused funds to be paid to a government agency.

 

One solution, which seems to be used more than any other, is for the parents to disinherit the disabled child, in the hope that the siblings or other heirs will use their inheritances to take care of the disabled child.  There are many risks in doing this sort of thing, but this technique does keep the estate from winding up in the hands of DHS.  The drawback to this technique is that all of needs of the disabled child might not be met.

 

            Another technique is to allot a sum of money for the special needs trust (or to buy life insurance to be placed in the special needs trust, when the parents die).  The parents have the satisfaction of providing for the disabled child, and perhaps this is the best of all solutions.  The Trustee of the special needs trust will have the discretion to make payments to or for the benefit of the disabled child, for things not covered by SSI or other government benefit programs (such as vacations, sports equipment, over the counter drugs, etc.).

 

A trust is an agreement made between the settlor (grantor, trustor) and the trustee, for the benefit of a beneficiary.  One very important issue a parent must decide is, who will serve as trustee of the special needs trust when both parents die?  Siblings or trusted relatives can certainly serve, but if they are incapacitated, who will be the successor trustee?  Trust companies are willing to serve as trustee, but they charge minimum fees, and if the special needs trust is less than $125,000, the annual fees charged (which are usually no less than $5,000) may make the trust uneconomical.

 

There are several web based resources that might shed more light on these topics: the National Special Needs Network (www.nsnn.com) is an informational site (apparently penned by a Florida lawyer), which contains some basic information relating to special needs families.  Some states have developed their own special needs network.  These resources may help in the following respects:

 

            ·  Applying for estate and federal government programs on behalf of family members with disabilities.

 

            ·  Making certain there are adequate funds to provide for family members, and safeguarding assets so that government benefits will not be jeopardized or depleted.

 

            ·  Selecting future living accommodations.

 

            ·  Designating in writing an advocate/guardian.

 

The National Institutes of Health (NIH) also provides significant resources and informative links on their website, www.nih.gov, as well as the Social Security web-site, www.ssa.gov, which  offers a comprehensive guide on available programs guidelines and eligibility, and how to apply for benefits.

 

Medicaid and Medicare may provide options.  Medicaid is designed for people who satisfy income eligibility requirements and, although the program is federally subsidized, it is administered by DHS.  Medicare, on the other hand, is run by the Social Security Administration and may pay health costs of people older than 65, as well as those younger than 65 who have received Social Security benefits for at least two years.

 

This article does not mention the Aid and Attendance Program, offered as an income supplement program for disabled Veterans, who have served during specified periods of war (the veteran must have something other than a dishonorable discharge, and must be medically disabled; if he or she qualifies, then his or her spouse may also qualify for income payments, if the spouse is also disabled). For more information on this topic, I suggest you buy the book, Checks for Vets (http://www.amazon.com/Guidebook-Wartime-Veterans-Surviving-Pensions/dp/0982035128/ref=sr_1_1?ie=UTF8&qid=1393783109&sr=8-1&keywords=checks+for+vets).

 

To develop a comprehensive plan for the care of disabled children, you will probably have to assemble a group of professionals, including lawyers, accountants, health professionals, and/or financial advisers.  I hope this article has at least given you some information you might not have otherwise had.

 

QUESTIONNAIRE

 

When a disabled person receives money as a result of a tort recovery or through equitable distribution or an inheritance, the funds may cause the individual to lose eligibility for public benefits.  This questionnaire will provide basic information for an estate planner.

 

 

 

A.  CONTACT PERSON

 

Name Date ____________________

 

Address ____________________

 

City State Zip ____________________

 

Home Phone No. Business Phone No. ____________________

 

E-Mail Address Fax No. ____________________

 

B.  PERSONAL INFORMATION ABOUT DISABLED PERSON

 

Name: ____________________

 

Address ____________________

 

City State Zip ____________________

 

Phone No. Social Security No. ____________________

 

Birth Date ____________________ Gender: □ Male □ Female

 

Supplemental Security Income (SSI) payments: __________________

 

Social Security Disability Income (SSDI) payments: ____________________

 

Other government benefit payments: _____________________

 

Other private benefit payments: _____________________

 

Required medications: __________________

 

Dietary restrictions: ___________________

 

Physical requirements (special equipment, therapy, etc.): __________________

 

Known monthly expenses: _____________________

 

C.  MISCELLANEOUS INFORMATION

 

    1.   Is the disabled person living at home or in an institution?  □ Home □ Institution  If in an institution, please list:

 

Name of Institution ____________________

 

Address ____________________

 

City State Zip ____________________

 

Telephone No. ____________________

 

Name of Contact Person ____________________

 

    2.   If the disabled person is living with either of his/her parents, what is the marital status of the disabled person's parents? ____________________

 

    3.   Is the disabled person a U.S. citizen?    Yes □  No □

 

    4.   If the disabled person is not a U.S. citizen, is he/she a qualified alien? □ Yes □  No □ Don't Know

 

 

    5.   Has a guardian been appointed for the disabled person?

 

□ Yes □ No  If so, please list:

 

Name of Guardian ____________________

 

Address ____________________

 

City State Zip ____________________

 

Telephone No. ____________________

 

If so, please attach court orders, guardianship letters, and relative pleadings.

 

D.  PERSONAL INJURY ATTORNEY

 

Name of Attorney ____________________

 

Address ____________________

 

City State Zip ____________________

 

Telephone No. Fax No. ____________________

 

Email Address ____________________

 

E.  INSURANCE COMPANIES

 

(1) □ Health □ Auto □ Other

 

Name of Company ____________________

 

Address ____________________

 

City State Zip ____________________

 

Telephone No. Fax No. ____________________

 

Name of Contact Person ____________________

 

Name of Policy owner ____________________

 

(2) □ Health □ Auto □ Other

Name of Company ____________________

 

Address ____________________

 

City State Zip ____________________

 

Telephone No. Fax No. ____________________

 

Name of Contact Person ____________________

 

Name of Policy owner ____________________

 

F.  RIGHT OF SUBROGATION?    □ Yes  □ No

 

G.   Name of Initial Trustee ____________________

 

Address ____________________

 

City State Zip ____________________

 

Telephone No. Fax No. ____________________

 

Name of Alternate Trustee ____________________

 

Address ____________________

 

City State Zip ____________________

 

Telephone No. Fax No. ____________________

 

Name of Second Alternate Trustee ____________________

 

Address ____________________

 

City State Zip ____________________

 

Telephone No. Fax No. ____________________

 

H.  BACKGROUND OF INJURY

 

1. What was the date of the injury and how did it occur?

____________________

 

____________________

 

2. Describe the nature and extent of the injuries.

____________________

 

____________________

 

____________________

 

3. Describe the disabled person's current physical, mental, and emotional condition.

____________________

 

____________________

 

____________________

 

4. Where does the disabled person live and with whom?

____________________

 

____________________

 

5. What type of medical services is the disabled person receiving?

____________________

 

____________________

 

____________________

 

6. What type of social services is the disabled person receiving?

____________________

 

____________________

 

____________________

 

7. What is the disabled person's prognosis?

____________________

 

____________________

 

8. Where will the disabled person likely reside in the future?

____________________

 

____________________

 

9. Will nursing home care probably be required?    Yes □  No □

 

10. What is the disabled person's life expectancy? ____________________

 

11. Who are the disabled person's present caregivers? Please describe them.

____________________

 

____________________

 

11.1. From whom is the disabled person receiving home health care? □ Agency □ Family Members

 

 

 

11.2. If from an agency, please list:

Name of Agency ____________________

 

Address ____________________

 

City State Zip ____________________

 

Telephone No. Fax No. ____________________

 

Name of Contact Person ____________________

 

11.3. If the disabled person is receiving care from family members, please list the following:

 

Name of Family Member ____________________

 

Address ____________________

 

City State Zip ____________________

 

Telephone No. ____________________

 

Is the family member a certified health-care provider?    Yes □  No □

 

12. Is the disabled person mentally competent?    Yes □  No □

 

13. Does the disabled person have other significant health conditions (related or not)?    Yes □  No □

If yes, please attach a copy of pertinent past history.

 

14. Please attach any accident reports.

 

15. Please attach any medical reports of the disabled person relating to the accident. Be sure to include the following:

·         Discharge summary from original hospital, if applicable

·         Report from a medical examination at the time of the diagnosis or injury

·         Report of the most recent medical examination by a physician, preferably within six months

·         Reports of significant hospitalization, surgeries, or rehabilitation from the date of the accident

 

I.  THE PLAINTIFFS

 

1. Is there more than one plaintiff?    Yes □  No □ If so, who are they?

____________________

 

____________________

 

2. What is the nature of their claims?

____________________

 

____________________

 

____________________

 

3. What are their damages?

____________________

 

____________________

 

____________________

 

4. If the plaintiff is a parent, does he or she have reimbursable costs?    □ Yes□ No     If so, for what?

____________________

 

____________________

 

5. Who is the tortfeasor? ____________________ Is there a qualified assignment?    Yes □  No □

 

J.  THE SETTLEMENT

 

1. How much is the overall settlement or judgment? ____________________

 

2. What are the costs? ____________________

 

3. What is the contingency fee? ____________________

 

4. Are fees owed to more than one lawyer?    Yes □  No □

 

5. Will there be any attorney liens filed in the case? □ Yes □ No

 

6. Will the amount of the settlement or judgment make the Plaintiff whole or will Plaintiff's injuries be permanent?

____________________

 

____________________

 

7. Is the settlement:

a lump sum?        □ Yes □ No

a structured settlement?        □ Yes □ No

 

8. If there is no settlement, is there an offer?    Yes □  No □    If yes, how much is the offer? ____________________ What does plaintiff's attorney realistically think the case is worth? ____________________

 

9. How much of the settlement is allocated to medical claims of the disabled person? ____________________

 

10. What is the allocation of that portion of the settlement not allocated to medical claims of the disabled person?

____________________

 

11. Has a lifecare plan been prepared for the disabled person?

□ Yes□ No

 

If yes, please attach a copy of any plan prepared for plaintiff's counsel and a copy of any plan prepared for the defense.

 

K.  MEDICAID LIENS, MEDICARE CLAIMS, AND SUBROGATION CLAIMS

 

1. Was the plaintiff receiving Medicaid at any time since the accident?    Yes □  No □

 

2. Is there a Medicaid lien?    Yes □  No □ If so, how much is the Medicaid lien? ____________________

 

3. Has Medicaid been notified of the commencement of the action or of the proposed settlement, arbitration award, or jury verdict?    Yes □  No □    If so, please attach a copy of the notice.

 

4. Has the Medicaid lien already been negotiated?    Yes □  No □    Have any releases been signed?    Yes □  No □

 

5. Was the plaintiff receiving Medicare at any time since the accident?    Yes □  No □

 

6. Is there a Medicare claim?    Yes □  No □    If so, how much is the claim? ____________________

 

7. Has Medicare been notified of the commencement of the action or of the proposed settlement, arbitration award, or jury verdict?    Yes □  No □    If so, please attach a copy of the notice.

 

8. Has the Medicare claim already been negotiated?    Yes □  No □    Have any releases been signed?    Yes □  No □

 

9. Has Plaintiff received any benefits from worker's compensation? □ Yes □ No    If yes:

Name of Carrier ____________________

 

Address ____________________

 

City State Zip ____________________

 

Telephone No. Fax No. ____________________

 

Name of Contact Person ____________________

 

10. Are there any insurance subrogation claims in the case?    Yes □  No □    If yes, please describe the nature and extent of the subrogation claim. ____________________

 

11. Has the disabled person received any other government benefits?    Yes □  No □    If yes, please describe the benefits.

____________________

 

____________________

 

12. Has the disabled person ever received Medicaid in any other state?   Yes □  No □     If yes, please list the states in which Medicaid benefits were paid. ____________________

 

L.  COURT PROCEEDINGS

 

1. Do you believe court approval of the settlement is necessary? □ Yes □ No    If not, why not?

____________________

 

____________________

 

2. Assuming court approval is necessary, who are the interested parties? What are their names and addresses?

Name: ____________________

 

Address ____________________

 

City State Zip ____________________

 

Name: ____________________

 

Address ____________________

 

City State Zip ____________________

 

Name: ____________________

 

Address ____________________

 

City State Zip ____________________

 

3. Who signed the engagement agreement with the plaintiff's counsel? ____________________

 

4. In which court is the proceeding pending? ____________________

 

5. What is the docket number of the case? ____________________

 

6. Who is the presiding judge? ____________________

 

M.  PUBLIC BENEFITS

 

1. Is anyone in the disabled person's household or immediate family receiving public benefits?    Yes □  No □    Who? ____________________

 

2. What public benefits are family or household members receiving?

____________________

 

____________________

 

3. What public benefits is the disabled person receiving? (Please list all public benefits: Medicaid, Special Waiver Programs, SSI (Supplemental Security Income), Social Security Disability Income (SSDI), Workers' Comp, Medicare, etc.

____________________

 

____________________

 

____________________

 

4. Is it likely the disabled person will require public benefits in the future?  Yes □  No □

If yes, why? ____________________

____________________

 

5. Does the disabled person have any income?    Yes □  No □    From what source? ____________________

____________________

 

6. Has the disabled person made an application for public benefits that is still pending?    Yes □  No □

 

7. Has the disabled person ever received public benefits (other than Medicaid) in any other state?    Yes □  No □

If yes, list the states in which benefits were paid and the nature of the benefit.

 

____________________

 

N.  EXPECTATIONS OF THE DISABLED PERSON

 

1. What does the disabled person hope to achieve with this settlement?

____________________

 

____________________

 

____________________

 

2. What kinds of services does the disabled person now need that the plaintiff is not receiving?

____________________

 

____________________

 

____________________

 

3. What kinds of equipment or personal property does the disabled person hope to purchase with this settlement?

____________________

 

____________________

 

____________________

 

4. Where would the disabled person like to be in two years?

____________________

 

____________________

 

____________________

 

5. If the disabled person is living with parents or a spouse, what kinds of equipment, personal property, or renovations would the parents or spouse like to see result from this settlement?

____________________

 

____________________

 

____________________

 

O.  ESTATE PLANNING

 

1. Does the disabled person presently have any estate planning documents (wills, trusts, powers of attorney)?    Yes □  No □    If yes, please attach copies.

 

2. Do the parents or spouse have any estate planning documents?    Yes □  No □

If yes, please attach copies.

 

P.  WHO IS THE CLIENT?

 

1. Who will be the client of [ name of law firm]?

Counsel?        □ Yes □ No

 

 

Disabled Person?        □ Yes □ No

 

2. Will the fees of [ name of law firm] be carried as a cost?    Yes □  No □

 

3. Who is the guarantor of the fees of [ name of law firm]?

____________________

 

Q.  RESOURCES

 

1. Does the disabled person presently have any health insurance, long term care policies, annuities with long term care provisions?   Yes □  No □    If yes, please attach copies, and delineate the coverages.

 

2. Does the disabled person own any property, or is the person the beneficiary of any trust?   Yes □  No □

If yes, please list all property owned, copies of any trusts, value of property owned, and any debts of the disabled person.

 

3.  Is the disabled person a veteran?  If so, is there a VA Claim Number?  What sort of discharge did the disabled person receive (and what  was the basis for the discharge)?  Does the disabled person have his or her DD214? What were the dates of service?  Has an application been filed with the VA, and if so, what action was taken?

 

 

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