Fw: [voice] The Voice - Special Needs Alliance newsletter

[Guest guest]

SpecialNeedsAlliance.com E-NewsletterThis may apply to some of you.

Ellen

Ellen Garber Bronfeld

egskb@...

[voice] The Voice - Special Needs Alliance newsletter

December 2009 - Vol. 3, Issue 10

The Voice, The Official Newsletter of SNA

a.. how we help families

a.. how we help professionals

a.. related topics a.. more about us a.. unsubscribe here

The Voice is the e-mail newsletter of The Special Needs Alliance. This

installment was written by Special Needs Alliance member Pete Losavio, an

attorney with Losavio & De LLC in New Orleans and Baton Rouge, Louisiana.

He is certified as an elder law attorney by the National Elder Law Foundation.

He is a Louisiana Board Certified Estate Planning and Administration Specialist,

and a Louisiana Board Certified Tax Specialist. Mr. Losavio is a charter member

of the Life Care Planning Law Firms Association, and he is a member of the

Society of Louisiana CPAs. Mr. Losavio obtained a Juris Doctorate degree from

Louisiana State University and a Master of Law in Taxation from the University

of Florida. Mr. Losavio's practice is limited to asset protection, life care

planning and estate and tax planning.

The Secret of When Less Is More

" Well, good afternoon. " I greeted Pierre and Marie Boudreaux, a husband

and wife, and their financial consultant Maurice Thibodeaux, in the reception

room shortly after they arrived from Lafayette about 100 miles away.

The trip on the elevated highway across the Atchafalaya Basin had been a

smooth one. But the Boudreauxs wanted to get down to business and they had no

interest in small talk. They still faced a return trip when this meeting was

over. Unfortunately, they would hit the rush hour traffic on their return.

They had driven a hundred miles across the basin to see what could be done

to modify the trust that they had established for their son Lucien, who was

injured in an accident as an infant. He had fallen into a neighbor's swimming

pool and almost died, and had suffered permanent brain damage from lack of

oxygen. He was declared disabled and was receiving Supplemental Security Income.

After years of litigation, Lucien had received a substantial settlement.

To protect the settlement proceeds and maintain their son's eligibility

for government benefits, the Boudreauxs had consulted an attorney in their town.

That attorney had prepared a special needs trust with Lucien as the beneficiary.

Unfortunately, the attorney had used a form for the trust that prohibited the

trustee from making any distributions that would reduce, diminish, alter or deny

the beneficiary any government benefits. This provision prevented the trustee

from assisting Lucien with food or shelter.

Attorneys who are not experienced in planning for special needs often make

the mistake of drafting special needs provisions in their trusts which are much

more restrictive and inflexible than they need to be. Pierre and Marie Boudreaux

wanted to see if the substantial assets of the trust could be used to improve

the life of their son.

Lucien, now an adult, wanted to live in a group home that would provide a

more independent environment. The facility would cost approximately $6,500.00

per month. If the trust could expend money for housing and food, Lucien would

have an improved quality of life. However, the trust was prohibited from paying

the difference in the cost of the housing to improve his life.

In the state where Pierre and Marie reside, it is possible to modify an

irrevocable trust by petitioning a court for modification. The court must find

that the proposed modification is in the beneficiary's best interest.

Fortunately, the trust in this case could be modified to allow for such

payments. Although Lucien would receive lower SSI payments, his quality of life

would be substantially improved.

Payment by the trust for housing and food directly to the organization

providing the services (income distributions) will not usually eliminate SSI and

Medicaid benefits. Income distributions of food and shelter invoke special

rules, known as In Kind Support and Maintenance, or " ISM, " which may reduce but

not necessarily eliminate benefits.

What kind of expenses are considered " shelter " or " household " expenses

according to the Social Security Administration? Social Security's rules list

these (and only these):

1.. Mortgage, including property insurance

2.. Property taxes

3.. Rent

4.. Gas

5.. Electricity

6.. Heating fuel

7.. Sewer/Garbage removal

8.. Water

9.. Food

In general, the benefit is not reduced by more than one third of the

maximum Supplemental Security Income plus $20.00.

For example, if Boudreaux's scenario were to take place today, and

assuming Lucien was receiving the maximum federal benefit, his SSI check would

be reduced from the maximum federal rate of $674.00 to $432.00. ($674.00 ÷ 3 =

$222.42 + $20.00 = $242.00; $674.00 $242.00 = $432.00). However, if Lucien's

monthly SSI benefit had been $242 or less, his monthly SSI check would be lost

altogether -- and with it any other public assistance that he might have been

receiving tied to receipt of SSI. As long as these valuable benefits are not

lost due (that is, so long as at least some SSI benefits are received), it may

make sense to accept the reduction of SSI income in exchange for the benefits

that can be provided from tapping the income and/or assets of his Special Needs

Trust.

Since the trust in this case could be modified, the trustee can now

provide for all of the living accommodations. Although the result is a loss of

benefits of $242.00 per month, this is an example of being able to reduce the

benefit but improve the quality of the recipient's life. Truly a situation in

which less is more.

About this Newsletter: We hope you find this newsletter useful and

informative, but it is not the same as legal counsel. A free newsletter is

ultimately worth everything it costs you; you rely on it at your own risk. Good

legal advice includes a review of all of the facts of your situation, including

many that may at first blush seem to you not to matter. The plan it generates is

sensitive to your goals and wishes while taking into account a whole panoply of

laws, rules and practices, many not published. That is what The Special Needs

Alliance is all about. Contact information for a member in your state may be

obtained by calling toll-free (877) 572-8472, or by visiting the Special Needs

Alliance online.

© 2009 Special Needs Alliance. .

[Guest guest]

SpecialNeedsAlliance.com E-NewsletterThis may apply to some of you.

Ellen

Ellen Garber Bronfeld

egskb@...

[voice] The Voice - Special Needs Alliance newsletter

December 2009 - Vol. 3, Issue 10

The Voice, The Official Newsletter of SNA

a.. how we help families

a.. how we help professionals

a.. related topics a.. more about us a.. unsubscribe here

The Voice is the e-mail newsletter of The Special Needs Alliance. This

installment was written by Special Needs Alliance member Pete Losavio, an

attorney with Losavio & De LLC in New Orleans and Baton Rouge, Louisiana.

He is certified as an elder law attorney by the National Elder Law Foundation.

He is a Louisiana Board Certified Estate Planning and Administration Specialist,

and a Louisiana Board Certified Tax Specialist. Mr. Losavio is a charter member

of the Life Care Planning Law Firms Association, and he is a member of the

Society of Louisiana CPAs. Mr. Losavio obtained a Juris Doctorate degree from

Louisiana State University and a Master of Law in Taxation from the University

of Florida. Mr. Losavio's practice is limited to asset protection, life care

planning and estate and tax planning.

The Secret of When Less Is More

" Well, good afternoon. " I greeted Pierre and Marie Boudreaux, a husband

and wife, and their financial consultant Maurice Thibodeaux, in the reception

room shortly after they arrived from Lafayette about 100 miles away.

The trip on the elevated highway across the Atchafalaya Basin had been a

smooth one. But the Boudreauxs wanted to get down to business and they had no

interest in small talk. They still faced a return trip when this meeting was

over. Unfortunately, they would hit the rush hour traffic on their return.

They had driven a hundred miles across the basin to see what could be done

to modify the trust that they had established for their son Lucien, who was

injured in an accident as an infant. He had fallen into a neighbor's swimming

pool and almost died, and had suffered permanent brain damage from lack of

oxygen. He was declared disabled and was receiving Supplemental Security Income.

After years of litigation, Lucien had received a substantial settlement.

To protect the settlement proceeds and maintain their son's eligibility

for government benefits, the Boudreauxs had consulted an attorney in their town.

That attorney had prepared a special needs trust with Lucien as the beneficiary.

Unfortunately, the attorney had used a form for the trust that prohibited the

trustee from making any distributions that would reduce, diminish, alter or deny

the beneficiary any government benefits. This provision prevented the trustee

from assisting Lucien with food or shelter.

Attorneys who are not experienced in planning for special needs often make

the mistake of drafting special needs provisions in their trusts which are much

more restrictive and inflexible than they need to be. Pierre and Marie Boudreaux

wanted to see if the substantial assets of the trust could be used to improve

the life of their son.

Lucien, now an adult, wanted to live in a group home that would provide a

more independent environment. The facility would cost approximately $6,500.00

per month. If the trust could expend money for housing and food, Lucien would

have an improved quality of life. However, the trust was prohibited from paying

the difference in the cost of the housing to improve his life.

In the state where Pierre and Marie reside, it is possible to modify an

irrevocable trust by petitioning a court for modification. The court must find

that the proposed modification is in the beneficiary's best interest.

Fortunately, the trust in this case could be modified to allow for such

payments. Although Lucien would receive lower SSI payments, his quality of life

would be substantially improved.

Payment by the trust for housing and food directly to the organization

providing the services (income distributions) will not usually eliminate SSI and

Medicaid benefits. Income distributions of food and shelter invoke special

rules, known as In Kind Support and Maintenance, or " ISM, " which may reduce but

not necessarily eliminate benefits.

What kind of expenses are considered " shelter " or " household " expenses

according to the Social Security Administration? Social Security's rules list

these (and only these):

1.. Mortgage, including property insurance

2.. Property taxes

3.. Rent

4.. Gas

5.. Electricity

6.. Heating fuel

7.. Sewer/Garbage removal

8.. Water

9.. Food

In general, the benefit is not reduced by more than one third of the

maximum Supplemental Security Income plus $20.00.

For example, if Boudreaux's scenario were to take place today, and

assuming Lucien was receiving the maximum federal benefit, his SSI check would

be reduced from the maximum federal rate of $674.00 to $432.00. ($674.00 ÷ 3 =

$222.42 + $20.00 = $242.00; $674.00 $242.00 = $432.00). However, if Lucien's

monthly SSI benefit had been $242 or less, his monthly SSI check would be lost

altogether -- and with it any other public assistance that he might have been

receiving tied to receipt of SSI. As long as these valuable benefits are not

lost due (that is, so long as at least some SSI benefits are received), it may

make sense to accept the reduction of SSI income in exchange for the benefits

that can be provided from tapping the income and/or assets of his Special Needs

Trust.

Since the trust in this case could be modified, the trustee can now

provide for all of the living accommodations. Although the result is a loss of

benefits of $242.00 per month, this is an example of being able to reduce the

benefit but improve the quality of the recipient's life. Truly a situation in

which less is more.

About this Newsletter: We hope you find this newsletter useful and

informative, but it is not the same as legal counsel. A free newsletter is

ultimately worth everything it costs you; you rely on it at your own risk. Good

legal advice includes a review of all of the facts of your situation, including

many that may at first blush seem to you not to matter. The plan it generates is

sensitive to your goals and wishes while taking into account a whole panoply of

laws, rules and practices, many not published. That is what The Special Needs

Alliance is all about. Contact information for a member in your state may be

obtained by calling toll-free (877) 572-8472, or by visiting the Special Needs

Alliance online.

© 2009 Special Needs Alliance. .

[Guest guest]

SpecialNeedsAlliance.com E-NewsletterThere is some good information here...I

believe I forgot to post this, last month.

Ellen

Ellen Garber Bronfeld

egskb@...

[voice] The Voice - Special Needs Alliance newsletter

November, 2009 - Vol. 3, Issue 9

The Voice, The Official Newsletter of SNA

a.. how we help families

a.. how we help professionals

a.. additional resources

a.. locate an attorney

a.. unsubscribe here

The Voice is the e-mail newsletter of The Special Needs Alliance. This

installment was written by Special Needs Alliance members E. and

L. Lile, both of whom focus their practices on estate planning, special

needs planning and elder law. Rick is a Certified Specialist in Estate Planning,

a Certified Elder Law Attorney, a Fellow of the American College of Trust &

Estate Counsel, has been listed in Best Lawyers in America each year since 2003,

has been designated as an Ohio Super Lawyer, and is included on the Top 100

Attorneys List for the state of Ohio. and Rick are both frequent

speakers on the topic of special needs planning, and they have co-authored

numerous articles on that topic.

Top Ten Tips When Planning For Special Needs

As the seasons change, many of us return to more ordinary work schedules

and family routines. Before the bustle of the holidays sets in and another tax

season rolls around, now would be an excellent time to review your current

estate plan, to ensure the arrangements reflect your current wishes. Perhaps

updating your will or trust was a New Year's resolutions for 2009. If so, do not

let another year slip by.

In the spirit of Letterman's top ten lists, please consider the

following top ten ideas when planning for a loved one with special needs (with a

few bonus items tossed in at the end). While certain tips may be familiar to

those who already have incorporated special needs planning into their estates,

we hope this article sparks some new thoughts for your family's evolving needs.

1. Don't disinherit the family member with special needs. An archaic

approach of giving the greater share of one's estate to a so-called " healthy "

child and intentionally disinheriting a child with disabilities is entirely

unnecessary and even unintentionally cruel. Instead, consider allocating some

funds to a purely discretionary special needs trust for a child with special

needs in order to benefit this child without interfering with public benefits.

2. Carefully consider the division of assets among your children. Take the

time to realistically consider the potential needs of your descendants. Nothing

requires you to treat each person equally. In fact, it is common for parents to

set aside all or the majority of their estates for one child who needs more

assistance, especially when their other children are leading self-sufficient,

productive lives.

3. Discuss allocation of expenses and taxes in your estate. It is

important to consider how expenses and taxes are apportioned among the

recipients of an estate. Whether you create a special needs trust during your

lifetime or upon your death, you should specify whether estate taxes

attributable to the inclusion of the trust in your estate should be charged

against that trust, or entirely allocated to the remaining shares. Requiring a

special needs trust to pay a portion of the estate taxes will reduce funds set

aside for the child with disabilities.

4. Choose the trustees of a special needs trust carefully. You have heard

it before, and no doubt will hear it again, but utmost care is needed when

choosing the trustee of a special needs trust. The trustee typically will be

given " sole and absolute " discretion, a standard that often is required when

determining a beneficiary's eligibility for benefits such as Supplemental

Security Income (SSI) or Medicaid. While a natural choice may be the appointment

of an adult sibling as successor trustee, an inherent conflict may exist if the

sibling (or his children) is a future trust beneficiary. However, a prime

advantage in choosing a family member as trustee is that person's familiarity

with the beneficiary. Here are some other options:

a.. Consider naming a professional, such as an attorney or a bank, as

trustee or co-trustee.

b.. Give the trustee authority to delegate tasks to a professional,

thereby allowing the family-member trustee to serve but benefit from additional

expertise.

c.. Name a family member, but designate a trust advisor to assist with

investment decisions.

d.. Appoint a trust protector who may remove the trustee if necessary.

This would permit replacement of a corporate trustee or removal of a family

member who may be acting out of self-interest.

5. Prepare a letter of intent. A detailed letter of intent is your

opportunity to step away from the legalese of your will or trust and to be more

personal. This letter is especially important for a new caregiver or non-parent

trustee, as it provides information concerning the day-to-day activities, unique

likes, dislikes, needs, preferences, and other critical information concerning

the child with special needs.

6. What if you become incapacitated? It is essential that you consider

planning for your child's special needs if you become incapacitated in the

future. You may wish to include a provision in your financial power of attorney

allowing your agent to make discretionary, non-support distributions for the

benefit of your special needs child, and allows the agent to establish and fund

a trust for such child. Second, consider authorizing your agent to create a

" sole benefit trust " for a child with disabilities if you were to require

nursing home care. Transfers to this type of trust can assist in qualifying a

parent for Medicaid eligibility, while still preserving assets for the child.

7. Review the titling and beneficiary designations on all of your assets.

It is essential that you ensure no assets inadvertently pass directly to a child

with special needs, potentially resulting in disqualification from benefits.

8. Consider using life insurance to fund a special needs trust.

Second-to-die policies that pay after both parents' deaths are a useful tool

especially when a properly established special needs trust is a named

beneficiary. A knowledgeable financial advisor or insurance agent may assist you

in determining whether life insurance is appropriate and which policy is best

for you.

9. Retirement plans and IRAs are generally not the most effective method

of funding a special needs trust. Typically such plans have minimum required

distributions which may negatively impact means-tested public benefits.

Nevertheless, if retirement benefits are to be paid to a special needs trust, be

aware that it likely will trigger the entire income tax liability up front,

thereby reducing the net amount available for the child.

10. Don't forget to coordinate other relatives' estate planning with your

own. Family members may wish to name your child as a beneficiary of their

estates. In order to preserve means-tested benefits, it is critical that

potential inheritances be directed to a special needs trust for the child with

disabilities. Fortunately, anyone (other than the special needs child) can

create a " third party " special needs trust during his or her lifetime for the

child's benefit. Once created, the trust may receive gifts, bequests, and

inheritances from relatives or friends who choose to name it as a beneficiary.

It also is an efficient and cost-effective way to avoid other family members

having to prepare separate special needs trusts for the child.

BONUS TIP:

11. Remember that your special needs child may need his or her own estate

plan. Depending on your child's capacity, certain basic documents are advisable,

including a general power of attorney, a health care directive, and a HIPAA

release for the child. You should also consider a simple will, depending on the

child's capacity. Finally, consider setting up a self-settled special needs

trust for the child's own assets where means-tested benefits are needed. Such a

trust must generally be established by a parent, grandparent, guardian, or

through the court, so it is important to consider whether a need for such a

trust may arise in the future.

About this Newsletter: We hope you find this newsletter useful and

informative, but it is not the same as legal counsel. A free newsletter is

ultimately worth everything it costs you; you rely on it at your own risk. Good

legal advice includes a review of all of the facts of your situation, including

many that may at first blush seem to you not to matter. The plan it generates is

sensitive to your goals and wishes while taking into account a whole panoply of

laws, rules and practices, many not published. That is what The Special Needs

Alliance is all about. Contact information for a member in your state may be

obtained by calling toll-free (877) 572-8472, or by visiting the Special Needs

Alliance online.

© 2009 Special Needs Alliance. .

[Guest guest]

SpecialNeedsAlliance.com E-NewsletterThere is some good information here...I

believe I forgot to post this, last month.

Ellen

Ellen Garber Bronfeld

egskb@...

[voice] The Voice - Special Needs Alliance newsletter

November, 2009 - Vol. 3, Issue 9

The Voice, The Official Newsletter of SNA

a.. how we help families

a.. how we help professionals

a.. additional resources

a.. locate an attorney

a.. unsubscribe here

The Voice is the e-mail newsletter of The Special Needs Alliance. This

installment was written by Special Needs Alliance members E. and

L. Lile, both of whom focus their practices on estate planning, special

needs planning and elder law. Rick is a Certified Specialist in Estate Planning,

a Certified Elder Law Attorney, a Fellow of the American College of Trust &

Estate Counsel, has been listed in Best Lawyers in America each year since 2003,

has been designated as an Ohio Super Lawyer, and is included on the Top 100

Attorneys List for the state of Ohio. and Rick are both frequent

speakers on the topic of special needs planning, and they have co-authored

numerous articles on that topic.

Top Ten Tips When Planning For Special Needs

As the seasons change, many of us return to more ordinary work schedules

and family routines. Before the bustle of the holidays sets in and another tax

season rolls around, now would be an excellent time to review your current

estate plan, to ensure the arrangements reflect your current wishes. Perhaps

updating your will or trust was a New Year's resolutions for 2009. If so, do not

let another year slip by.

In the spirit of Letterman's top ten lists, please consider the

following top ten ideas when planning for a loved one with special needs (with a

few bonus items tossed in at the end). While certain tips may be familiar to

those who already have incorporated special needs planning into their estates,

we hope this article sparks some new thoughts for your family's evolving needs.

1. Don't disinherit the family member with special needs. An archaic

approach of giving the greater share of one's estate to a so-called " healthy "

child and intentionally disinheriting a child with disabilities is entirely

unnecessary and even unintentionally cruel. Instead, consider allocating some

funds to a purely discretionary special needs trust for a child with special

needs in order to benefit this child without interfering with public benefits.

2. Carefully consider the division of assets among your children. Take the

time to realistically consider the potential needs of your descendants. Nothing

requires you to treat each person equally. In fact, it is common for parents to

set aside all or the majority of their estates for one child who needs more

assistance, especially when their other children are leading self-sufficient,

productive lives.

3. Discuss allocation of expenses and taxes in your estate. It is

important to consider how expenses and taxes are apportioned among the

recipients of an estate. Whether you create a special needs trust during your

lifetime or upon your death, you should specify whether estate taxes

attributable to the inclusion of the trust in your estate should be charged

against that trust, or entirely allocated to the remaining shares. Requiring a

special needs trust to pay a portion of the estate taxes will reduce funds set

aside for the child with disabilities.

4. Choose the trustees of a special needs trust carefully. You have heard

it before, and no doubt will hear it again, but utmost care is needed when

choosing the trustee of a special needs trust. The trustee typically will be

given " sole and absolute " discretion, a standard that often is required when

determining a beneficiary's eligibility for benefits such as Supplemental

Security Income (SSI) or Medicaid. While a natural choice may be the appointment

of an adult sibling as successor trustee, an inherent conflict may exist if the

sibling (or his children) is a future trust beneficiary. However, a prime

advantage in choosing a family member as trustee is that person's familiarity

with the beneficiary. Here are some other options:

a.. Consider naming a professional, such as an attorney or a bank, as

trustee or co-trustee.

b.. Give the trustee authority to delegate tasks to a professional,

thereby allowing the family-member trustee to serve but benefit from additional

expertise.

c.. Name a family member, but designate a trust advisor to assist with

investment decisions.

d.. Appoint a trust protector who may remove the trustee if necessary.

This would permit replacement of a corporate trustee or removal of a family

member who may be acting out of self-interest.

5. Prepare a letter of intent. A detailed letter of intent is your

opportunity to step away from the legalese of your will or trust and to be more

personal. This letter is especially important for a new caregiver or non-parent

trustee, as it provides information concerning the day-to-day activities, unique

likes, dislikes, needs, preferences, and other critical information concerning

the child with special needs.

6. What if you become incapacitated? It is essential that you consider

planning for your child's special needs if you become incapacitated in the

future. You may wish to include a provision in your financial power of attorney

allowing your agent to make discretionary, non-support distributions for the

benefit of your special needs child, and allows the agent to establish and fund

a trust for such child. Second, consider authorizing your agent to create a

" sole benefit trust " for a child with disabilities if you were to require

nursing home care. Transfers to this type of trust can assist in qualifying a

parent for Medicaid eligibility, while still preserving assets for the child.

7. Review the titling and beneficiary designations on all of your assets.

It is essential that you ensure no assets inadvertently pass directly to a child

with special needs, potentially resulting in disqualification from benefits.

8. Consider using life insurance to fund a special needs trust.

Second-to-die policies that pay after both parents' deaths are a useful tool

especially when a properly established special needs trust is a named

beneficiary. A knowledgeable financial advisor or insurance agent may assist you

in determining whether life insurance is appropriate and which policy is best

for you.

9. Retirement plans and IRAs are generally not the most effective method

of funding a special needs trust. Typically such plans have minimum required

distributions which may negatively impact means-tested public benefits.

Nevertheless, if retirement benefits are to be paid to a special needs trust, be

aware that it likely will trigger the entire income tax liability up front,

thereby reducing the net amount available for the child.

10. Don't forget to coordinate other relatives' estate planning with your

own. Family members may wish to name your child as a beneficiary of their

estates. In order to preserve means-tested benefits, it is critical that

potential inheritances be directed to a special needs trust for the child with

disabilities. Fortunately, anyone (other than the special needs child) can

create a " third party " special needs trust during his or her lifetime for the

child's benefit. Once created, the trust may receive gifts, bequests, and

inheritances from relatives or friends who choose to name it as a beneficiary.

It also is an efficient and cost-effective way to avoid other family members

having to prepare separate special needs trusts for the child.

BONUS TIP:

11. Remember that your special needs child may need his or her own estate

plan. Depending on your child's capacity, certain basic documents are advisable,

including a general power of attorney, a health care directive, and a HIPAA

release for the child. You should also consider a simple will, depending on the

child's capacity. Finally, consider setting up a self-settled special needs

trust for the child's own assets where means-tested benefits are needed. Such a

trust must generally be established by a parent, grandparent, guardian, or

through the court, so it is important to consider whether a need for such a

trust may arise in the future.

About this Newsletter: We hope you find this newsletter useful and

informative, but it is not the same as legal counsel. A free newsletter is

ultimately worth everything it costs you; you rely on it at your own risk. Good

legal advice includes a review of all of the facts of your situation, including

many that may at first blush seem to you not to matter. The plan it generates is

sensitive to your goals and wishes while taking into account a whole panoply of

laws, rules and practices, many not published. That is what The Special Needs

Alliance is all about. Contact information for a member in your state may be

obtained by calling toll-free (877) 572-8472, or by visiting the Special Needs

Alliance online.

© 2009 Special Needs Alliance. .

[Guest guest]

Hi all:

The following is information about the Special Needs Alliance. I often forward

their very well done newsletter when the topics are relevant. Rubin is on

the Board of Directors of the SNA and kindly shared this information:

The SNA is a national non-profit association of experienced special needs

planning attorneys in every state. Membership is by invitation only. The

average experience of the attorney members is in excess of 20 years. A majority

of the attorney members, like myself, are either parents or siblings of an

individual with developmental disabilities and/or mental illness. For IPADD

readers benefits, the Illinois members are:

Leonard F. Berg

leberg@...

http://www.lbergelderlaw.com/

625 S. Bellwood Drive

East Alton, IL 62024

Tel: (618) 258-4800

Fax: (618) 258-7301

Darcy Chamberlin (Darcy and I annually teach the course on this for attorneys in

Illinois, and have Sherri Schneider on our faculty for the program)

Law Office of Darcy J. Chamberlin

darcy@...

http://www.dchamberlin.com/

1200 Harger Road, Ste. 209

Oak Brook, IL 60523

Tel: (630) 571-0222

Fax: (630) 572-1432

Habiger, Esq.

Habiger & Associates Elder Law Office

@...

http://www.habigerelderlaw.com

200 North Emerald Lane, Suite 1-B

Carbondale, IL 62901

Tel: (617) 549-4529

Rick L. Law

Law Elder Law, LLP

ricklaw@...

http://www.lawelderlaw.com

2275 Church Rd

Aurora, IL 60502

Tel: (630) 585-5200

Fax: (630) 566-0811

Kerry R. Peck, Esq.

Peck, Bloom, Austriaco & Koenig, LLC

kpeck@...

http://www.peckbloom.com

105 W. Street, 31st Floor

Chicago, IL 60603

Tel: (312) 201-0900

Fax: (312) 201-0803

N. Rubin

Rubin & Associates

brian@...

http://www.brianrubin.com

1110 West Lake Cook Rd

Buffalo Grove, IL 60089-1997

Tel: (847) 279-7999

Fax: (847) 279-0090

Toll free (866) to rubin

--------------------------------------------------------------------------------

Rubin (@...)

Please " click here " for a short video about Clearbrook

Clearbrook is the organization that has served my son, Mitch, who has Autism,

since 1999. Mitch is featured in the video. Clearbrook serves more than 3,000

children and adults with developmental & intellectual disabilities. I would

sincerely appreciate if you would consider Clearbrook in your annual charitable

giving. For more information about Clearbrook, please visit www.Clearbrook.org.

On behalf of my family, in particular, Mitch, thank you.

NOTICE: The information contained in this transmission is privileged,

confidential, and intended only for the use of the individual or entity named

above. If you are not the intended recipient, you are hereby notified that any

disclosure, copying, distribution, or the taking of any action in reliance on

the contents of this transmission is strictly prohibited. If you have received

this transmission in error, please notify The Law Offices of Rubin &

Associates by e-mail and destroy the original message and all copies.

TAX ADVICE

[Guest guest]

Hi all:

The following is information about the Special Needs Alliance. I often forward

their very well done newsletter when the topics are relevant. Rubin is on

the Board of Directors of the SNA and kindly shared this information:

The SNA is a national non-profit association of experienced special needs

planning attorneys in every state. Membership is by invitation only. The

average experience of the attorney members is in excess of 20 years. A majority

of the attorney members, like myself, are either parents or siblings of an

individual with developmental disabilities and/or mental illness. For IPADD

readers benefits, the Illinois members are:

Leonard F. Berg

leberg@...

http://www.lbergelderlaw.com/

625 S. Bellwood Drive

East Alton, IL 62024

Tel: (618) 258-4800

Fax: (618) 258-7301

Darcy Chamberlin (Darcy and I annually teach the course on this for attorneys in

Illinois, and have Sherri Schneider on our faculty for the program)

Law Office of Darcy J. Chamberlin

darcy@...

http://www.dchamberlin.com/

1200 Harger Road, Ste. 209

Oak Brook, IL 60523

Tel: (630) 571-0222

Fax: (630) 572-1432

Habiger, Esq.

Habiger & Associates Elder Law Office

@...

http://www.habigerelderlaw.com

200 North Emerald Lane, Suite 1-B

Carbondale, IL 62901

Tel: (617) 549-4529

Rick L. Law

Law Elder Law, LLP

ricklaw@...

http://www.lawelderlaw.com

2275 Church Rd

Aurora, IL 60502

Tel: (630) 585-5200

Fax: (630) 566-0811

Kerry R. Peck, Esq.

Peck, Bloom, Austriaco & Koenig, LLC

kpeck@...

http://www.peckbloom.com

105 W. Street, 31st Floor

Chicago, IL 60603

Tel: (312) 201-0900

Fax: (312) 201-0803

N. Rubin

Rubin & Associates

brian@...

http://www.brianrubin.com

1110 West Lake Cook Rd

Buffalo Grove, IL 60089-1997

Tel: (847) 279-7999

Fax: (847) 279-0090

Toll free (866) to rubin

--------------------------------------------------------------------------------

Rubin (@...)

Please " click here " for a short video about Clearbrook

Clearbrook is the organization that has served my son, Mitch, who has Autism,

since 1999. Mitch is featured in the video. Clearbrook serves more than 3,000

children and adults with developmental & intellectual disabilities. I would

sincerely appreciate if you would consider Clearbrook in your annual charitable

giving. For more information about Clearbrook, please visit www.Clearbrook.org.

On behalf of my family, in particular, Mitch, thank you.

NOTICE: The information contained in this transmission is privileged,

confidential, and intended only for the use of the individual or entity named

above. If you are not the intended recipient, you are hereby notified that any

disclosure, copying, distribution, or the taking of any action in reliance on

the contents of this transmission is strictly prohibited. If you have received

this transmission in error, please notify The Law Offices of Rubin &

Associates by e-mail and destroy the original message and all copies.

TAX ADVICE

[Guest guest]

SpecialNeedsAlliance.com E-NewsletterGreat piece on advocacy...

Ellen

Ellen Garber Bronfeld

egskb@...

[voice] The Voice - Special Needs Alliance newsletter

December 2009 - Vol. 3, Issue 11

The Voice, The Official Newsletter of SNA

a.. how we help families

a.. how we help professionals

a.. additional resources

a.. locate an attorney

a.. unsubscribe here

The Voice is the e-mail newsletter of The Special Needs Alliance. This

installment was written by Special Needs Alliance member Lois M. Zerrer, whose

practice is in Springfield, Missouri. She focuses on estate planning, Medicaid,

Medicare, probate and veteran's benefits. She has served as president of the

Missouri Chapter of the National Academy of Elder Law Attorneys and as chair of

The Missouri Bar Elder Law Committee. She is the principal attorney in the

Zerrer Elder Law Office, LLC, in Springfield.

Advocacy for Parents of Children with Disabilities

To say that parents of children with disabilities have learned to

multi-task is an understatement. Providing for the many personal and care needs

of your child on a daily basis requires you do this. There may be a way of

caring for your child that you have not participated in up to this time. By

advocating for your child and other children with similar disabilities, you are

caring for your loved one as well.

This article highlights several tips and ideas for being an effective

advocate with elected local, state or national representatives. I did this

recently when I had the opportunity to be in Washington, D.C. It was my first

try in personally contacting my senators and representative to advocate for an

issue in which I passionately believe. I discovered it was invigorating to be in

a place where decisions are made that affect hundreds to millions of people.

A major part of being an advocate involves talking with officials and

staff of agencies and organizations, as well as government representatives, who

really can make a difference in the lives of your loved ones. You want to be

prepared for this task in order for your efforts to bring positive results for

those persons whose cause you support.

Tips for Effective Advocates

Before preparing this article, I contacted several legislators and

advocates for tips they suggest. So here, from the " horse's mouth, " are ideas

and tips that will help you be the most effective advocate when you contact an

elected official.

1. Make your contact personal. Your contact will be remembered long after

your call or visit if you explain how a legislative proposal will impact your

family. Your representative likely will not have first hand knowledge of what

your family is going through. Whenever possible make your case more personal and

less abstract. Remember that your knowledge, interest and passion will be

remembered long after your visit.

2. Be prepared. State the issue in a clear and concise manner. Know the

bill number that you are advocating for or against, and where the bill is in the

process. Every office suggested that you know who is supportive of your bill and

who is not. Have the talking points ready for who might be opposed to your side

of the issue. Do your research and be truthful.

3. Be passionate, not demanding. There is an old saying, " You get more

with honey, than vinegar. " Advocates who present an impassioned plea will be

heard. But those who are strident may turn off the listener. Always be polite to

office staff. That may be the difference between personal time with the

legislator or not. Do not be offended if you are speaking with a staffer instead

of the legislator. The staffer is likely to be more versed on your matter than

the legislator and the staffer likely will be the person who prepares a synopsis

of the issue and legislation for your representative. Get the staffer is on your

side. That is a good thing!

4. Follow up. By sending a handwritten note or letter, your correspondence

will stand out. Legislators receive hundreds of emails a day and this may be

appropriate if a vote on your legislation is coming right up. But a personal

letter is a wonderful way of sharing your story and educating an official. Just

remember what your mother taught you - " please and thank you " go a long way!

Your follow up letter, phone call, or email will show the legislator that you

are truly engaged with your issue. Thank them for their time and effort in

visiting with you and offer to be a resource if there are further questions that

need answers. Also, if your advocacy is successful and legislation is enacted

supporting your position, again thank the legislator and perhaps invite him or

her to your organization or recognize their efforts in another fashion. This can

help to establish a long and beneficial relationship with your elected

officials.

Sometimes caring for family involves more than the daily activities of

providing food and shelter. Sometimes we have to go outside of our comfort zones

to do the right thing for our family and others. When you are passionate about

helping your loved one and others, these tips can help you expand your reach

outside your home or community. Maybe you could be the one to make a real

difference statewide or nationally, for your loved one and others by your

efforts at advocacy.

About this Newsletter: We hope you find this newsletter useful and

informative, but it is not the same as legal counsel. A free newsletter is

ultimately worth everything it costs you; you rely on it at your own risk. Good

legal advice includes a review of all of the facts of your situation, including

many that may at first blush seem to you not to matter. The plan it generates is

sensitive to your goals and wishes while taking into account a whole panoply of

laws, rules and practices, many not published. That is what The Special Needs

Alliance is all about. Contact information for a member in your state may be

obtained by calling toll-free (877) 572-8472, or by visiting the Special Needs

Alliance online.

© 2009 Special Needs Alliance. .

[Guest guest]

SpecialNeedsAlliance.com E-NewsletterGreat piece on advocacy...

Ellen

Ellen Garber Bronfeld

egskb@...

[voice] The Voice - Special Needs Alliance newsletter

December 2009 - Vol. 3, Issue 11

The Voice, The Official Newsletter of SNA

a.. how we help families

a.. how we help professionals

a.. additional resources

a.. locate an attorney

a.. unsubscribe here

The Voice is the e-mail newsletter of The Special Needs Alliance. This

installment was written by Special Needs Alliance member Lois M. Zerrer, whose

practice is in Springfield, Missouri. She focuses on estate planning, Medicaid,

Medicare, probate and veteran's benefits. She has served as president of the

Missouri Chapter of the National Academy of Elder Law Attorneys and as chair of

The Missouri Bar Elder Law Committee. She is the principal attorney in the

Zerrer Elder Law Office, LLC, in Springfield.

Advocacy for Parents of Children with Disabilities

To say that parents of children with disabilities have learned to

multi-task is an understatement. Providing for the many personal and care needs

of your child on a daily basis requires you do this. There may be a way of

caring for your child that you have not participated in up to this time. By

advocating for your child and other children with similar disabilities, you are

caring for your loved one as well.

This article highlights several tips and ideas for being an effective

advocate with elected local, state or national representatives. I did this

recently when I had the opportunity to be in Washington, D.C. It was my first

try in personally contacting my senators and representative to advocate for an

issue in which I passionately believe. I discovered it was invigorating to be in

a place where decisions are made that affect hundreds to millions of people.

A major part of being an advocate involves talking with officials and

staff of agencies and organizations, as well as government representatives, who

really can make a difference in the lives of your loved ones. You want to be

prepared for this task in order for your efforts to bring positive results for

those persons whose cause you support.

Tips for Effective Advocates

Before preparing this article, I contacted several legislators and

advocates for tips they suggest. So here, from the " horse's mouth, " are ideas

and tips that will help you be the most effective advocate when you contact an

elected official.

1. Make your contact personal. Your contact will be remembered long after

your call or visit if you explain how a legislative proposal will impact your

family. Your representative likely will not have first hand knowledge of what

your family is going through. Whenever possible make your case more personal and

less abstract. Remember that your knowledge, interest and passion will be

remembered long after your visit.

2. Be prepared. State the issue in a clear and concise manner. Know the

bill number that you are advocating for or against, and where the bill is in the

process. Every office suggested that you know who is supportive of your bill and

who is not. Have the talking points ready for who might be opposed to your side

of the issue. Do your research and be truthful.

3. Be passionate, not demanding. There is an old saying, " You get more

with honey, than vinegar. " Advocates who present an impassioned plea will be

heard. But those who are strident may turn off the listener. Always be polite to

office staff. That may be the difference between personal time with the

legislator or not. Do not be offended if you are speaking with a staffer instead

of the legislator. The staffer is likely to be more versed on your matter than

the legislator and the staffer likely will be the person who prepares a synopsis

of the issue and legislation for your representative. Get the staffer is on your

side. That is a good thing!

4. Follow up. By sending a handwritten note or letter, your correspondence

will stand out. Legislators receive hundreds of emails a day and this may be

appropriate if a vote on your legislation is coming right up. But a personal

letter is a wonderful way of sharing your story and educating an official. Just

remember what your mother taught you - " please and thank you " go a long way!

Your follow up letter, phone call, or email will show the legislator that you

are truly engaged with your issue. Thank them for their time and effort in

visiting with you and offer to be a resource if there are further questions that

need answers. Also, if your advocacy is successful and legislation is enacted

supporting your position, again thank the legislator and perhaps invite him or

her to your organization or recognize their efforts in another fashion. This can

help to establish a long and beneficial relationship with your elected

officials.

Sometimes caring for family involves more than the daily activities of

providing food and shelter. Sometimes we have to go outside of our comfort zones

to do the right thing for our family and others. When you are passionate about

helping your loved one and others, these tips can help you expand your reach

outside your home or community. Maybe you could be the one to make a real

difference statewide or nationally, for your loved one and others by your

efforts at advocacy.

About this Newsletter: We hope you find this newsletter useful and

informative, but it is not the same as legal counsel. A free newsletter is

ultimately worth everything it costs you; you rely on it at your own risk. Good

legal advice includes a review of all of the facts of your situation, including

many that may at first blush seem to you not to matter. The plan it generates is

sensitive to your goals and wishes while taking into account a whole panoply of

laws, rules and practices, many not published. That is what The Special Needs

Alliance is all about. Contact information for a member in your state may be

obtained by calling toll-free (877) 572-8472, or by visiting the Special Needs

Alliance online.

© 2009 Special Needs Alliance. .

[Guest guest]

SpecialNeedsAlliance.com E-NewsletterFYI

Ellen

Ellen Garber Bronfeld

egskb@...

[voice] The Voice - Special Needs Alliance newsletter

January, 2010 - Vol. 4, Issue 1

The Voice, The Official Newsletter of SNA

a.. how we help families

a.. how we help professionals

a.. related topics a.. more about us a.. unsubscribe here

The Voice is the e-mail newsletter of The Special Needs Alliance. This

installment was written by Gibson, a Montana elder law and disability law

attorney. Her Missoula-based practice spans the state of Montana. She is a

member and past director of The Special Needs Alliance, an invitation-only

organization of attorneys specializing in special needs and settlement planning.

She is actively involved with the National Academy of Elder Law Attorneys

(NAELA), an organization dedicated to improving the lives of the elderly and

persons with special needs. She currently is serving a second two-year term on

the NAELA board of directors. Ms. Gibson limits her practice to elder and

disability law, including estate planning and administration, but the majority

of her cases involve special needs trusts and/or settlement planning.

Medicare Premium Rules Will Affect Some Large Trusts

2010 Medicare premiums will increase for some beneficiaries of large

special needs trusts. Beneficiaries, their family members, trustees and special

needs planners should be aware of the financial consequences of this change.

" Income " for tax purposes differs from " income " for public benefit

purposes. Many special needs trust beneficiaries have little income paid

directly to them. They qualify for public benefits based upon financial need,

even though they may receive substantial benefits from trust assets held for

them during their lifetimes. The interest and dividend income generated by

special needs trust assets should not affect eligibility for SSI, Medicaid or

Medi-Cal if the trust is properly drafted and administered.

One responsibility of a trustee is to decide how trust income will be

reported to the IRS. Income earned on assets held in a third-party special needs

trust, which is funded with assets of someone other than the beneficiary, may

pass through to a beneficiary on an IRS Form K-1 to the extent distributions are

made for the benefit of the beneficiary during the year. The income from the K-1

is reported on the beneficiary's 1040 tax return and taxed at the personal

income tax rate of the beneficiary. In the case of a self-settled special needs

trust, which is funded with assets of the beneficiary and is a grantor trust,

trust income may be reported on the beneficiary's personal tax return, even if

no distributions are made during the year. This pass-through of income is a

beneficial method of allocating tax liability, as most special needs trust

beneficiaries are in a low tax bracket with less tax being paid than if the

income were taxed at the higher trust tax rates.

Although income earned by a special needs trust should not impact public

benefits eligibility, it may impact the beneficiary's Medicare premium amounts.

Beginning January 1, 2007, income reported on the beneficiary's personal income

tax return, including income from a special needs trust, can result in a higher

Medicare premium two years later. Thus, 2009 was the first year for Medicare

recipients to experience the income-related change to their Medicare premium

amount.

Most Medicare beneficiaries will continue to pay $96.40 for their 2010

Part B premium. This continuation of the 2009 premium amount applies for

beneficiaries who currently have the Social Security Administration (SSA)

withhold their Part B premiums and who have annual incomes less than $85,000 (or

less than $170,000 if filing jointly).

For individuals who do not have SSA withhold the Part B premium, effective

January 1, 2010, the basic Medicare premium is rising by 15 percent to $110.50.

In addition, Medicare premiums will be increased for Medicare beneficiaries who

have what the Medicare program computes as " modified adjusted gross income " (or

MAGI) over $85,000 for a single person or $170,000 for a couple. Premiums can be

as high as $353.60 a month for a Medicare beneficiary with an adjusted gross

income greater than $214,000 on an individual return, or $428,000 on a jointly

filed return.

The 2010 Part B premium amount is based on the beneficiary's annual income

as reported on the beneficiary's tax return from two years earlier. So for 2010,

the premium will be based on the beneficiary's 2008 tax return. Specifically, if

a beneficiary's " modified adjusted gross income " is greater than the threshold

amounts ($85,000 in 2010 for a beneficiary filing an individual income tax

return or married and filing a separate return, and $170,000 for a beneficiary

filing a joint tax return) the beneficiary will pay a higher Medicare premium.

The 2010 Part B monthly premium rates for these individuals are:

Part B premiums by income - 2010 Individual tax filers Joint returns

Premium

Less than $85,000

Less than $170,000

$96.40 (if withheld); $110.50 (if not withheld)

$85,000 - $107,000

$170,000 - $214,000

$154.70

$107,000 - $160,000

$214,000 - $320,000

$221.00

$160,000 - $214,000

$320,000 - $428,000

$287.30

More than $214,000

More than $428,000

$353.60

In addition, the monthly premium rates to be paid by a beneficiary who is

married, but files a separate return from his or her spouse and lives with the

spouse at any time during the taxable year are:

Monthly premiums for married beneficiaries who file separate returns -

2010 Less than $85,000 $96.40 (if withheld); $110.50 (if not withheld)

$85,000 - $129,000 $287.30

More than $129,000 $352.60

Some special needs trust beneficiaries are upset and confused by this

increase in their Medicare premiums because it is based upon income that they do

not see in their bank account. They may not realize that their trust is earning

interest, dividend, capital gains and even tax-exempt income, which is reported

on their tax return and is therefore included in the Medicare program's MAGI

computations. In very limited circumstances where current income is

substantially lower because of life-changing events, such as a death of a

spouse, divorce or loss of a pension plan, there may be a basis to challenge

this increase.

A modest special needs trust will probably not generate enough income to

affect the beneficiary's Medicare premium. However, this can be an issue with

large trusts that are well invested and earning significant income. All in all,

being the beneficiary of a significant income generating trust is not a terrible

problem to have, even if it increases the beneficiary's Medicare premium. If

administered well, the special needs trust should provide significant benefits

through asset management, public benefits eligibility and improvement in quality

of life.

About this Newsletter: We hope you find this newsletter useful and

informative, but it is not the same as legal counsel. A free newsletter is

ultimately worth everything it costs you; you rely on it at your own risk. Good

legal advice includes a review of all of the facts of your situation, including

many that may at first blush seem to you not to matter. The plan it generates is

sensitive to your goals and wishes while taking into account a whole panoply of

laws, rules and practices, many not published. That is what The Special Needs

Alliance is all about. Contact information for a member in your state may be

obtained by calling toll-free (877) 572-8472, or by visiting the Special Needs

Alliance online.

© 2010 Special Needs Alliance. .

[Guest guest]

SpecialNeedsAlliance.com E-NewsletterFYI

Ellen

Ellen Garber Bronfeld

egskb@...

[voice] The Voice - Special Needs Alliance newsletter

January, 2010 - Vol. 4, Issue 1

The Voice, The Official Newsletter of SNA

a.. how we help families

a.. how we help professionals

a.. related topics a.. more about us a.. unsubscribe here

The Voice is the e-mail newsletter of The Special Needs Alliance. This

installment was written by Gibson, a Montana elder law and disability law

attorney. Her Missoula-based practice spans the state of Montana. She is a

member and past director of The Special Needs Alliance, an invitation-only

organization of attorneys specializing in special needs and settlement planning.

She is actively involved with the National Academy of Elder Law Attorneys

(NAELA), an organization dedicated to improving the lives of the elderly and

persons with special needs. She currently is serving a second two-year term on

the NAELA board of directors. Ms. Gibson limits her practice to elder and

disability law, including estate planning and administration, but the majority

of her cases involve special needs trusts and/or settlement planning.

Medicare Premium Rules Will Affect Some Large Trusts

2010 Medicare premiums will increase for some beneficiaries of large

special needs trusts. Beneficiaries, their family members, trustees and special

needs planners should be aware of the financial consequences of this change.

" Income " for tax purposes differs from " income " for public benefit

purposes. Many special needs trust beneficiaries have little income paid

directly to them. They qualify for public benefits based upon financial need,

even though they may receive substantial benefits from trust assets held for

them during their lifetimes. The interest and dividend income generated by

special needs trust assets should not affect eligibility for SSI, Medicaid or

Medi-Cal if the trust is properly drafted and administered.

One responsibility of a trustee is to decide how trust income will be

reported to the IRS. Income earned on assets held in a third-party special needs

trust, which is funded with assets of someone other than the beneficiary, may

pass through to a beneficiary on an IRS Form K-1 to the extent distributions are

made for the benefit of the beneficiary during the year. The income from the K-1

is reported on the beneficiary's 1040 tax return and taxed at the personal

income tax rate of the beneficiary. In the case of a self-settled special needs

trust, which is funded with assets of the beneficiary and is a grantor trust,

trust income may be reported on the beneficiary's personal tax return, even if

no distributions are made during the year. This pass-through of income is a

beneficial method of allocating tax liability, as most special needs trust

beneficiaries are in a low tax bracket with less tax being paid than if the

income were taxed at the higher trust tax rates.

Although income earned by a special needs trust should not impact public

benefits eligibility, it may impact the beneficiary's Medicare premium amounts.

Beginning January 1, 2007, income reported on the beneficiary's personal income

tax return, including income from a special needs trust, can result in a higher

Medicare premium two years later. Thus, 2009 was the first year for Medicare

recipients to experience the income-related change to their Medicare premium

amount.

Most Medicare beneficiaries will continue to pay $96.40 for their 2010

Part B premium. This continuation of the 2009 premium amount applies for

beneficiaries who currently have the Social Security Administration (SSA)

withhold their Part B premiums and who have annual incomes less than $85,000 (or

less than $170,000 if filing jointly).

For individuals who do not have SSA withhold the Part B premium, effective

January 1, 2010, the basic Medicare premium is rising by 15 percent to $110.50.

In addition, Medicare premiums will be increased for Medicare beneficiaries who

have what the Medicare program computes as " modified adjusted gross income " (or

MAGI) over $85,000 for a single person or $170,000 for a couple. Premiums can be

as high as $353.60 a month for a Medicare beneficiary with an adjusted gross

income greater than $214,000 on an individual return, or $428,000 on a jointly

filed return.

The 2010 Part B premium amount is based on the beneficiary's annual income

as reported on the beneficiary's tax return from two years earlier. So for 2010,

the premium will be based on the beneficiary's 2008 tax return. Specifically, if

a beneficiary's " modified adjusted gross income " is greater than the threshold

amounts ($85,000 in 2010 for a beneficiary filing an individual income tax

return or married and filing a separate return, and $170,000 for a beneficiary

filing a joint tax return) the beneficiary will pay a higher Medicare premium.

The 2010 Part B monthly premium rates for these individuals are:

Part B premiums by income - 2010 Individual tax filers Joint returns

Premium

Less than $85,000

Less than $170,000

$96.40 (if withheld); $110.50 (if not withheld)

$85,000 - $107,000

$170,000 - $214,000

$154.70

$107,000 - $160,000

$214,000 - $320,000

$221.00

$160,000 - $214,000

$320,000 - $428,000

$287.30

More than $214,000

More than $428,000

$353.60

In addition, the monthly premium rates to be paid by a beneficiary who is

married, but files a separate return from his or her spouse and lives with the

spouse at any time during the taxable year are:

Monthly premiums for married beneficiaries who file separate returns -

2010 Less than $85,000 $96.40 (if withheld); $110.50 (if not withheld)

$85,000 - $129,000 $287.30

More than $129,000 $352.60

Some special needs trust beneficiaries are upset and confused by this

increase in their Medicare premiums because it is based upon income that they do

not see in their bank account. They may not realize that their trust is earning

interest, dividend, capital gains and even tax-exempt income, which is reported

on their tax return and is therefore included in the Medicare program's MAGI

computations. In very limited circumstances where current income is

substantially lower because of life-changing events, such as a death of a

spouse, divorce or loss of a pension plan, there may be a basis to challenge

this increase.

A modest special needs trust will probably not generate enough income to

affect the beneficiary's Medicare premium. However, this can be an issue with

large trusts that are well invested and earning significant income. All in all,

being the beneficiary of a significant income generating trust is not a terrible

problem to have, even if it increases the beneficiary's Medicare premium. If

administered well, the special needs trust should provide significant benefits

through asset management, public benefits eligibility and improvement in quality

of life.

About this Newsletter: We hope you find this newsletter useful and

informative, but it is not the same as legal counsel. A free newsletter is

ultimately worth everything it costs you; you rely on it at your own risk. Good

legal advice includes a review of all of the facts of your situation, including

many that may at first blush seem to you not to matter. The plan it generates is

sensitive to your goals and wishes while taking into account a whole panoply of

laws, rules and practices, many not published. That is what The Special Needs

Alliance is all about. Contact information for a member in your state may be

obtained by calling toll-free (877) 572-8472, or by visiting the Special Needs

Alliance online.

© 2010 Special Needs Alliance. .

[Guest guest]

Ellen Garber Bronfeld

egskb@...

847/212-3036 (cell)

----- Forwarded Message ----

From: The Special Needs Alliance <info@...>

Ellen Bronfed <egskb@...>

Sent: Wed, January 27, 2010 6:16:18 PM

Subject: [voice] The Voice - Special Needs Alliance newsletter

SpecialNeedsAlliance.com E-Newsletter

January, 2010 - Vol. 4, Issue 2

The Voice, The Official Newsletter of SNA

* how we help families

* how we help professionals

* related topics

* more about us

* unsubscribe here The Voice is the e-mail newsletter of The Special Needs

Alliance. This issue was written by Special Needs Alliance member A.

, the founding partner in the law firm of , & Scherr, LLC, of

Lutherville, land. Mr. ’s practice addresses the legal consequences

of common age-related disabilities. Locate a Special Needs Alliance member in

your state by visiting the Alliance's website.

Estate Planning for People with Disabilities

People of means, including the very rich, have learned how to transfer wealth

to family members with very few estate or gift tax problems. One tried and true

method is to make annual gifts of up to $13,000 per year to any number of

beneficiaries without tax consequences of any kind. Unfortunately, transfers to

family members are not so simple for individuals with disabilities who inherit

money outright or receive a personal injury settlement and need to qualify for

or keep means tested government benefits like SSI or Medicaid.

For disabled people, a pot of money can pose real problems. They cannot remain

eligible for most means tested programs with countable assets greater than

$2,000. They cannot give away money in excess of $2000 without losing most means

tested benefits for varying periods of time, and even a large personal injury

settlement or inheritance can soon be gone without Medicaid assistance because

of high medical or nursing home bills.

Establishing and funding a special needs trust with substantial personal injury

proceeds or inheritances may be a partial but far from perfect solution to this

problem. A disabled person under 65 can fund (“self-settleâ€) a special needs

trust for his own benefit with personal injury or inherited funds without

transfer penalties. The funds in a well drafted special needs trust will not

count as assets, thus preserving means tested benefits and providing for the

beneficiary's special needs during his or her lifetime.

Benefitting other family members at the beneficiary's death is not so easy. Any

trust funds left at the beneficiary's death in one of these self-settled special

needs trusts must first be used to pay back Medicaid for benefits paid. Only if

the funds remaining are more than sufficient to cover Medicaid's claims will

there be money available for family beneficiaries.

The rules regarding transfer penalties and estate recovery vary from program to

program and state to state. SSI has transfer penalties: some Medicaid programs

have transfer penalties, others do not. Different kinds of self- settled special

needs trusts have distinct establishment requirements and payback provisions. A

pooled trust established with a beneficiary's own funds, for example, will

include payback provisions for Medicaid plus retention provisions for the

benefit of the not-for-profit Trustee that may completely preclude any

possibility of family beneficiaries receiving funds at the disabled person's

death.

Preserving means tested benefits is usually a first priority for a disabled

person about to receive a personal injury settlement or inheritance. Good advice

and fast action are needed to preserve benefits. Bear in mind that beneficiaries

of means-tested programs have an affirmative obligation to inform the government

promptly about any changes in circumstances; further, money sitting in a bank

account in excess of $2000 at the end of the month may turn into a disqualifying

asset.

When benefitting other family members is also a high priority, a plan to make

transfers that produce penalties and to use the inherited or personal injury

funds to pay privately for needed care during the penalty period may be also

feasible. With good advice, it may be feasible to create an even more complex

design for asset use that combines a lifetime giving plan producing limited

initial eligibility penalties with funding a self-settled special needs trust

that may provide benefits later on to family members.

Remember: the rule that permits annual gift tax free transfers of up to $13,000

to any recipient does not mean that such transfers are also penalty free for

means tested government benefit program purposes. As is often the case,

planning techniques that may make sense for tax purposes do not necessarily

produce the desired results for public benefit purposes.

About this Newsletter: We hope you find this newsletter useful and informative,

but it is not the same as legal counsel. A free newsletter is ultimately worth

everything it costs you; you rely on it at your own risk. Good legal advice

includes a review of all of the facts of your situation, including many that may

at first blush seem to you not to matter. The plan it generates is sensitive to

your goals and wishes while taking into account a whole panoply of laws, rules

and practices, many not published. That is what The Special Needs Alliance is

all about. Contact information for a member in your state may be obtained by

calling toll-free (877) 572-8472, or by visiting the Special Needs Alliance

online.

© 2010 Special Needs Alliance. .

[Guest guest]

Ellen Garber Bronfeld

egskb@...

847/212-3036 (cell)

----- Forwarded Message ----

From: The Special Needs Alliance <info@...>

Ellen Bronfed <egskb@...>

Sent: Wed, January 27, 2010 6:16:18 PM

Subject: [voice] The Voice - Special Needs Alliance newsletter

SpecialNeedsAlliance.com E-Newsletter

January, 2010 - Vol. 4, Issue 2

The Voice, The Official Newsletter of SNA

* how we help families

* how we help professionals

* related topics

* more about us

* unsubscribe here The Voice is the e-mail newsletter of The Special Needs

Alliance. This issue was written by Special Needs Alliance member A.

, the founding partner in the law firm of , & Scherr, LLC, of

Lutherville, land. Mr. ’s practice addresses the legal consequences

of common age-related disabilities. Locate a Special Needs Alliance member in

your state by visiting the Alliance's website.

Estate Planning for People with Disabilities

People of means, including the very rich, have learned how to transfer wealth

to family members with very few estate or gift tax problems. One tried and true

method is to make annual gifts of up to $13,000 per year to any number of

beneficiaries without tax consequences of any kind. Unfortunately, transfers to

family members are not so simple for individuals with disabilities who inherit

money outright or receive a personal injury settlement and need to qualify for

or keep means tested government benefits like SSI or Medicaid.

For disabled people, a pot of money can pose real problems. They cannot remain

eligible for most means tested programs with countable assets greater than

$2,000. They cannot give away money in excess of $2000 without losing most means

tested benefits for varying periods of time, and even a large personal injury

settlement or inheritance can soon be gone without Medicaid assistance because

of high medical or nursing home bills.

Establishing and funding a special needs trust with substantial personal injury

proceeds or inheritances may be a partial but far from perfect solution to this

problem. A disabled person under 65 can fund (“self-settleâ€) a special needs

trust for his own benefit with personal injury or inherited funds without

transfer penalties. The funds in a well drafted special needs trust will not

count as assets, thus preserving means tested benefits and providing for the

beneficiary's special needs during his or her lifetime.

Benefitting other family members at the beneficiary's death is not so easy. Any

trust funds left at the beneficiary's death in one of these self-settled special

needs trusts must first be used to pay back Medicaid for benefits paid. Only if

the funds remaining are more than sufficient to cover Medicaid's claims will

there be money available for family beneficiaries.

The rules regarding transfer penalties and estate recovery vary from program to

program and state to state. SSI has transfer penalties: some Medicaid programs

have transfer penalties, others do not. Different kinds of self- settled special

needs trusts have distinct establishment requirements and payback provisions. A

pooled trust established with a beneficiary's own funds, for example, will

include payback provisions for Medicaid plus retention provisions for the

benefit of the not-for-profit Trustee that may completely preclude any

possibility of family beneficiaries receiving funds at the disabled person's

death.

Preserving means tested benefits is usually a first priority for a disabled

person about to receive a personal injury settlement or inheritance. Good advice

and fast action are needed to preserve benefits. Bear in mind that beneficiaries

of means-tested programs have an affirmative obligation to inform the government

promptly about any changes in circumstances; further, money sitting in a bank

account in excess of $2000 at the end of the month may turn into a disqualifying

asset.

When benefitting other family members is also a high priority, a plan to make

transfers that produce penalties and to use the inherited or personal injury

funds to pay privately for needed care during the penalty period may be also

feasible. With good advice, it may be feasible to create an even more complex

design for asset use that combines a lifetime giving plan producing limited

initial eligibility penalties with funding a self-settled special needs trust

that may provide benefits later on to family members.

Remember: the rule that permits annual gift tax free transfers of up to $13,000

to any recipient does not mean that such transfers are also penalty free for

means tested government benefit program purposes. As is often the case,

planning techniques that may make sense for tax purposes do not necessarily

produce the desired results for public benefit purposes.

About this Newsletter: We hope you find this newsletter useful and informative,

but it is not the same as legal counsel. A free newsletter is ultimately worth

everything it costs you; you rely on it at your own risk. Good legal advice

includes a review of all of the facts of your situation, including many that may

at first blush seem to you not to matter. The plan it generates is sensitive to

your goals and wishes while taking into account a whole panoply of laws, rules

and practices, many not published. That is what The Special Needs Alliance is

all about. Contact information for a member in your state may be obtained by

calling toll-free (877) 572-8472, or by visiting the Special Needs Alliance

online.

© 2010 Special Needs Alliance. .

[Guest guest]

SpecialNeedsAlliance.com E-NewsletterFYI

Ellen

Ellen Garber Bronfeld

egskb@...

[voice] The Voice - Special Needs Alliance newsletter

February, 2010 - Vol. 4, Issue 3

The Voice, The Official Newsletter of SNA

a.. how we help families

a.. how we help professionals

a.. related topics a.. more about us a.. unsubscribe here

The Voice is the e-mail newsletter of The Special Needs Alliance. This

installment was written by LIsa Nachmias and L. O'Sullivan, who

practice law in New Haven Connecticut as two-thirds of the firm O'Sullivan

& Priest LLC. is a member of the National Academy of Elder Law Attorneys.

has handled trust accounting and tax returns for over twenty-five years.

is a member of the Special Needs Alliance, a national organization

committed to helping individuals with disabilities, their families, and the

professionals who represent them.

Taxes and Special Needs Trusts

" The lawyer says that the personal injury settlement isn't subject to

income tax. I'm putting it in a special needs trust. So what's this about income

taxes? "

" You told us the special needs trust would not affect my son's benefits.

But now the accountant is telling us my son will have to file an income tax

return. Won't that affect his benefits? "

The idea of a special needs trust is pretty straightforward, but the

income tax rules that apply may be anything but. Whether someone will have to

pay income taxes -- and who will have to pay them -- depends on what the trust

says, what comes out of the trust, but most importantly, what goes into the

trust.

First-Party and Third-Party Trusts

There are basically two kinds of special needs trusts: a " self-settled " or

" first-party " trust and a " third-party " trust. A " first-party " trust is funded

with the beneficiary's own funds, usually out of proceeds of a personal injury

settlement, or an inheritance. (See " Fixing a Flawed Special Needs Estate Plan, "

Voice January 2008.) The first-party trust typically requires a " payback "

provision, which provides repayment to the state on the beneficiary's death for

Medicaid benefits received during the beneficiary's lifetime. In most cases, it

can only be funded when the donor-beneficiary is under 65. A third-party trust

is funded with the funds of someone other than the beneficiary of the trust,

usually by a family member and usually, but not necessarily, at the family

member's death. The third-party trust won't generally include a payback unless

the family member is about to apply for Medicaid for his or her own long-term

care needs.

First-Party Trusts - Grantor Trusts

Transferring assets into a self-settled or first-party special needs trust

allows the person funding the trust to qualify for government benefits (at least

Medicaid and SSI), but in most states the trust assets will not be protected

from the claims of the beneficiary's creditors. This may not be set out in state

statutory law, but instead as a matter of public policy enshrined in court

cases.

Because all of the trust assets may be used to satisfy the beneficiary's

own debts (or used for the beneficiary's benefit), for federal tax purposes the

trust is taxed as if there were no trust at all. That is, if the trust has

investment income, it's taxed as if the beneficiary had received the income

directly, even if the income is not distributed to the beneficiary but instead

remains in the trust. For tax purposes this type of trust is known as a " grantor

trust. " Grantor trust status is important if not all trust income will be

distributed to the beneficiary, because trust tax rates are generally higher

than individual income tax rates and a regular trust must pay tax on any income

not distributed to the beneficiary.

" But, " you say, " the trust was funded with a personal injury settlement,

and that isn't subject to income tax. Why is there any income tax to pay at

all? " Usually funds received in a personal injury settlement are not taxable.

However, if the money is then invested, the investment income generated will be

subject to income tax.

It is important to point out that in a few states first-party trusts do

not receive automatic grantor trust treatment. In those states, the lawyer may

put in technical provisions that will cause the trust to be treated as a grantor

trust in order to gain favorable income tax treatment.

Third-Party Trusts -- General Rule: Distributions Carry Out Income

The typical third-party trust is established for the benefit of a disabled

person when a relative dies and leaves money in trust. This type of trust

generally won't qualify as a grantor trust, so the trust will have to pay income

tax directly. Trust income tax brackets are notoriously steep, with a tax rate

for 2010 of 35% starting when income reaches only $11,200. The good news is that

the trust gets to deduct what it pays out to the beneficiary. The bad news is

that the income is reported as paid out to the beneficiary and the beneficiary

is issued a " K-1 " showing taxable income, which is reported to the IRS, and on

which the beneficiary must pay income tax.

Here things get technical. Interest and dividends are treated as income

for this purpose; capital gains, including the capital gains distribution

generated by mutual funds, may not be treated as income, and may be trapped

inside the trust, which then pays the tax. To the extent that the trust does

have to pay income tax, it can get a bigger exemption if it meets the

requirements for a " qualified disability trust, " which include having a

beneficiary under age 65.

If a family member is setting up a third-party trust and transferring

assets to the trust during the person's own lifetime, rather than at death, it

may be possible to include language in the trust instrument that will cause the

trust income to be taxable to the donor rather than to the trust or the

beneficiary. This is sometimes called an " intentionally defective grantor

trust. " This can be very advantageous, depending upon the particular situation -

for example, if the donor of the funds has a lower tax bracket than the trust or

the beneficiary.

The Problem of Income Tax Reporting

" But we don't want our son to report income to the IRS! Can't the trust

distribute something else, not income, so he won't have to report the income on

a tax return? "

Alas, no -- " all trust distributions carry out income " to the extent that

the trust has income. If the trustee of a third-party trust buys Junior a new

sofa, a new computer, and a new handicap-equipped vehicle, with a total tab of

$50,000, then if the trust has $50,000 of investment income the same year, all

$50,000 will be reported to the IRS as if Junior had received it in cash, and

Junior will have to file an income tax return, report the income, and pay the

tax. If the trust pays Junior's $10,000 income tax liability the following year,

but nothing else, and in that year the trust has at least $10,000 of investment

income, the $10,000 tax payment will be a distribution taxed to Junior, and so

on and so on.

Just to make things a little more complicated: If the trust were a

first-party grantor trust, the investment income might be reported directly as

being taxable income to Junior; if the trust were an " intentionally defective

grantor trust " set up by Junior's dad, Junior's dad would owe and pay the tax.

If the trust had $50,000 of investment income, but had only distributed $10,000

to pay Junior's tax liability -- nothing else - - the remaining $40,000 of

investment income would be subject to tax at the trust's tax rates, and the

trust would have to pay that tax.

It is important to remember that taxable income is not necessarily

" countable " income for purposes of Medicaid or other government benefits. Hang

on to that fact, because government agencies often get a " tracer " report from

the IRS about beneficiary income, and may issue preliminary notices that

benefits will be terminated unless they receive proof that the beneficiary did

not have countable income. The trustee should be prepared to explain that

although the income was reportable to the IRS as the beneficiary's income for

tax purposes, the beneficiary only received distributions " in kind " which in

general (with certain exceptions) are not counted as income for purposes of SSI,

Medicaid, or other programs.

About this Newsletter: We hope you find this newsletter useful and

informative, but it is not the same as legal counsel. A free newsletter is

ultimately worth everything it costs you; you rely on it at your own risk. Good

legal advice includes a review of all of the facts of your situation, including

many that may at first blush seem to you not to matter. The plan it generates is

sensitive to your goals and wishes while taking into account a whole panoply of

laws, rules and practices, many not published. That is what The Special Needs

Alliance is all about. Contact information for a member in your state may be

obtained by calling toll-free (877) 572-8472, or by visiting the Special Needs

Alliance online.

© 2010 Special Needs Alliance. .

[Guest guest]

SpecialNeedsAlliance.com E-NewsletterFYI

Ellen

Ellen Garber Bronfeld

egskb@...

[voice] The Voice - Special Needs Alliance newsletter

February, 2010 - Vol. 4, Issue 3

The Voice, The Official Newsletter of SNA

a.. how we help families

a.. how we help professionals

a.. related topics a.. more about us a.. unsubscribe here

The Voice is the e-mail newsletter of The Special Needs Alliance. This

installment was written by LIsa Nachmias and L. O'Sullivan, who

practice law in New Haven Connecticut as two-thirds of the firm O'Sullivan

& Priest LLC. is a member of the National Academy of Elder Law Attorneys.

has handled trust accounting and tax returns for over twenty-five years.

is a member of the Special Needs Alliance, a national organization

committed to helping individuals with disabilities, their families, and the

professionals who represent them.

Taxes and Special Needs Trusts

" The lawyer says that the personal injury settlement isn't subject to

income tax. I'm putting it in a special needs trust. So what's this about income

taxes? "

" You told us the special needs trust would not affect my son's benefits.

But now the accountant is telling us my son will have to file an income tax

return. Won't that affect his benefits? "

The idea of a special needs trust is pretty straightforward, but the

income tax rules that apply may be anything but. Whether someone will have to

pay income taxes -- and who will have to pay them -- depends on what the trust

says, what comes out of the trust, but most importantly, what goes into the

trust.

First-Party and Third-Party Trusts

There are basically two kinds of special needs trusts: a " self-settled " or

" first-party " trust and a " third-party " trust. A " first-party " trust is funded

with the beneficiary's own funds, usually out of proceeds of a personal injury

settlement, or an inheritance. (See " Fixing a Flawed Special Needs Estate Plan, "

Voice January 2008.) The first-party trust typically requires a " payback "

provision, which provides repayment to the state on the beneficiary's death for

Medicaid benefits received during the beneficiary's lifetime. In most cases, it

can only be funded when the donor-beneficiary is under 65. A third-party trust

is funded with the funds of someone other than the beneficiary of the trust,

usually by a family member and usually, but not necessarily, at the family

member's death. The third-party trust won't generally include a payback unless

the family member is about to apply for Medicaid for his or her own long-term

care needs.

First-Party Trusts - Grantor Trusts

Transferring assets into a self-settled or first-party special needs trust

allows the person funding the trust to qualify for government benefits (at least

Medicaid and SSI), but in most states the trust assets will not be protected

from the claims of the beneficiary's creditors. This may not be set out in state

statutory law, but instead as a matter of public policy enshrined in court

cases.

Because all of the trust assets may be used to satisfy the beneficiary's

own debts (or used for the beneficiary's benefit), for federal tax purposes the

trust is taxed as if there were no trust at all. That is, if the trust has

investment income, it's taxed as if the beneficiary had received the income

directly, even if the income is not distributed to the beneficiary but instead

remains in the trust. For tax purposes this type of trust is known as a " grantor

trust. " Grantor trust status is important if not all trust income will be

distributed to the beneficiary, because trust tax rates are generally higher

than individual income tax rates and a regular trust must pay tax on any income

not distributed to the beneficiary.

" But, " you say, " the trust was funded with a personal injury settlement,

and that isn't subject to income tax. Why is there any income tax to pay at

all? " Usually funds received in a personal injury settlement are not taxable.

However, if the money is then invested, the investment income generated will be

subject to income tax.

It is important to point out that in a few states first-party trusts do

not receive automatic grantor trust treatment. In those states, the lawyer may

put in technical provisions that will cause the trust to be treated as a grantor

trust in order to gain favorable income tax treatment.

Third-Party Trusts -- General Rule: Distributions Carry Out Income

The typical third-party trust is established for the benefit of a disabled

person when a relative dies and leaves money in trust. This type of trust

generally won't qualify as a grantor trust, so the trust will have to pay income

tax directly. Trust income tax brackets are notoriously steep, with a tax rate

for 2010 of 35% starting when income reaches only $11,200. The good news is that

the trust gets to deduct what it pays out to the beneficiary. The bad news is

that the income is reported as paid out to the beneficiary and the beneficiary

is issued a " K-1 " showing taxable income, which is reported to the IRS, and on

which the beneficiary must pay income tax.

Here things get technical. Interest and dividends are treated as income

for this purpose; capital gains, including the capital gains distribution

generated by mutual funds, may not be treated as income, and may be trapped

inside the trust, which then pays the tax. To the extent that the trust does

have to pay income tax, it can get a bigger exemption if it meets the

requirements for a " qualified disability trust, " which include having a

beneficiary under age 65.

If a family member is setting up a third-party trust and transferring

assets to the trust during the person's own lifetime, rather than at death, it

may be possible to include language in the trust instrument that will cause the

trust income to be taxable to the donor rather than to the trust or the

beneficiary. This is sometimes called an " intentionally defective grantor

trust. " This can be very advantageous, depending upon the particular situation -

for example, if the donor of the funds has a lower tax bracket than the trust or

the beneficiary.

The Problem of Income Tax Reporting

" But we don't want our son to report income to the IRS! Can't the trust

distribute something else, not income, so he won't have to report the income on

a tax return? "

Alas, no -- " all trust distributions carry out income " to the extent that

the trust has income. If the trustee of a third-party trust buys Junior a new

sofa, a new computer, and a new handicap-equipped vehicle, with a total tab of

$50,000, then if the trust has $50,000 of investment income the same year, all

$50,000 will be reported to the IRS as if Junior had received it in cash, and

Junior will have to file an income tax return, report the income, and pay the

tax. If the trust pays Junior's $10,000 income tax liability the following year,

but nothing else, and in that year the trust has at least $10,000 of investment

income, the $10,000 tax payment will be a distribution taxed to Junior, and so

on and so on.

Just to make things a little more complicated: If the trust were a

first-party grantor trust, the investment income might be reported directly as

being taxable income to Junior; if the trust were an " intentionally defective

grantor trust " set up by Junior's dad, Junior's dad would owe and pay the tax.

If the trust had $50,000 of investment income, but had only distributed $10,000

to pay Junior's tax liability -- nothing else - - the remaining $40,000 of

investment income would be subject to tax at the trust's tax rates, and the

trust would have to pay that tax.

It is important to remember that taxable income is not necessarily

" countable " income for purposes of Medicaid or other government benefits. Hang

on to that fact, because government agencies often get a " tracer " report from

the IRS about beneficiary income, and may issue preliminary notices that

benefits will be terminated unless they receive proof that the beneficiary did

not have countable income. The trustee should be prepared to explain that

although the income was reportable to the IRS as the beneficiary's income for

tax purposes, the beneficiary only received distributions " in kind " which in

general (with certain exceptions) are not counted as income for purposes of SSI,

Medicaid, or other programs.

About this Newsletter: We hope you find this newsletter useful and

informative, but it is not the same as legal counsel. A free newsletter is

ultimately worth everything it costs you; you rely on it at your own risk. Good

legal advice includes a review of all of the facts of your situation, including

many that may at first blush seem to you not to matter. The plan it generates is

sensitive to your goals and wishes while taking into account a whole panoply of

laws, rules and practices, many not published. That is what The Special Needs

Alliance is all about. Contact information for a member in your state may be

obtained by calling toll-free (877) 572-8472, or by visiting the Special Needs

Alliance online.

© 2010 Special Needs Alliance. .

[Guest guest]

SpecialNeedsAlliance.com E-NewsletterFYI

Ellen

Ellen Garber Bronfeld

egskb@...

[voice] The Voice - Special Needs Alliance newsletter

March, 2010 - Vol. 4, Issue 5

The Voice, The Official Newsletter of SNA

a.. how we help families

a.. how we help professionals

a.. related topics a.. more about us a.. unsubscribe here

The Voice is the e-mail newsletter of The Special Needs Alliance. This

installment was written by Special Needs Alliance member Cora Alsante and

Syracuse University law student Camille Castro. Ms. Castro was a 2009 summer

intern at the law firm of Hancock & Estabrook in Syracuse, where Ms. Alsante is

a partner. In addition to her work at Hancock & Estabrook, Ms. Alsante was an

adjunct professor at Syracuse University College of Law, where she taught elder

law. Ms. Alsante has also been named as a New York Super Lawyer in elder law,

estate planning and probate. Ms. Alsante is a Fellow of the American College of

Trust and Estate Counsel, and a long-time member of the National Academy of

Elder Law Attorneys.

Pooled Trusts for Individuals with Special Needs

When an individual with a disability will be receiving proceeds of a

personal injury lawsuit or settlement or other unexpected funds, the

individual's much-needed Medicaid and Supplemental Security Income (SSI)

benefits are at risk of being lost. How can the individual plan to protect those

newly acquired assets without jeopardizing his or her eligibility for public

benefits?

Government benefit programs such as Medicaid and SSI are " means-tested " -

that is, their eligibility guidelines severely limit the income and resources

available to an applicant to access for expenses. Thus, when someone with a

disability who is eligible for means-tested benefits receives a sum of money,

whether from a settlement, inheritance, or other source, that money will

typically disqualify the individual for Medicaid and SSI until the money has

been spent down.

Fortunately, the federal government passed the Omnibus Budget

Reconciliation Act of 1993, also known as OBRA '93, to allow people with

disabilities to set up trusts with their own funds and still qualify for

Medicaid. A law passed in 1999 extended this " safe-harbor " concept to the SSI

program.

The Social Security Act now authorizes particular trusts that can benefit

an individual with a disability by protecting his or her assets while allowing

SSI eligibility to be maintained. One of these permitted trusts is the " pooled

trust. "

What is a Pooled Trust?

Just as its name suggests, a pooled trust involves pooling together

resources of multiple individuals with disabilities and then using the combined

resources to reap benefits. Pooled trusts gather and merge resources from the

individual trust accounts of all the trust beneficiaries into a single, larger

amount of available capital to invest.

Non-profit organizations establish and manage pooled trusts and also may

serve as a trustee or co-trustee. They are in charge of combining and investing

individual pooled trust funds. The organization maintains a separate trust

" sub-account " for each participant. Each individual trust sub-account receives

income distributions from the pooled trust that are based on the account's pro

rata share of the entire pooled trust.

In other words, a pooled trust is like a pot of stew that is served in

proportion to the ingredients that were contributed to the pot. Both the person

who contributed three carrots and the one who contributed a pound of stew beef

will get servings of the stew, just in different sized bowls.

Creating a pooled trust that will meet the requirements of OBRA '93 as a

Medicaid-exempt trust requires a non-profit organization to set up the trust and

manage the pooled funds or arrange for a trustee to handle them. Many pooled

trusts also have a financial institution serve as a trustee or co-trustee. One

unique aspect of pooled trusts is that the disabled individual can join the

trust by signing a joinder agreement on his or her own behalf. Curiously, this

is not the case with other OBRA '93 " safe-harbor " trusts that are permitted in

the Medicaid or SSI context, which only allow certain third parties (parents,

grandparents, legal guardians or a court -- but not the individual with the

disability) to set up the trust.

For example, if Camille, a 23-year old with a disability who relies on

Medicaid to pay her medical expenses, were to receive a large sum of money from

a personal injury settlement, her parents, grandparents, legal guardian (if any)

or a court on her behalf, or Camille herself, would be able to join the pooled

trust, contribute the settlement money to it, and continue to protect Camille's

Medicaid eligibility.

To join a pooled trust, the individual with a disability, or his or her

legal representative, should meet with the non-profit organization that

established the trust to discuss the preferences and needs of the beneficiary,

the terms of the trust and the timing of distributions. While different

non-profit organizations may vary with respect to their enrollment rates,

maximum and minimum amounts of initial deposits and fund disbursement policies,

pooled trusts all have the same overall goal: giving an individual with a

disability the maximum benefits from the trust.

The non-profit organization will tailor the use of each pooled trust

account to fit the beneficiary's needs and individual preferences. Some

organizations have care coordination programs, which directly deposit investment

proceeds from the pooled trust to pay for services for the beneficiary. Examples

of services that can be funded by pooled trusts include health and dental

procedures not covered by Medicaid, rehabilitative and occupational therapy,

private case management, home care, nursing care and transportation.

If Camille joins the pooled trust, the non-profit administering the trust

will combine her sub-account with the other individual sub-accounts. The trustee

will manage all of the sub-accounts as a single trust, investing the entire

balance in lower risk investments.

One advantage of pooling is that the larger pool can result in better

investment diversification, a method that reduces overall risk. The trustee will

distribute investment income proportionately among the individual trust

sub-accounts. Together, the trustee and non-profit organization manage the daily

functions related to investments and accounting, such as maintaining records,

preparing necessary reports and forms, and monitoring the investments.

A pooled trust will continue to provide distributions for the

beneficiary's needs until the account is depleted or the beneficiary dies. Upon

the beneficiary's death, any money remaining in his or her sub-account either

will remain in the trust for distribution to other sub-accounts for the benefit

of other trust participants or will be paid back to the state as reimbursement

for Medicaid payments made during the beneficiary's lifetime.

State rules vary on whether a percentage of the beneficiary's at-death

pooled trust sub-account balance must be reimbursed to the state. In some

states, after the non-profit organization administering the pooled trust

receives its authorized share of the funds remaining in the beneficiary's

account and after Medicaid is reimbursed, then any remaining funds can go to the

beneficiary's family members or another person designated by the pooled trust

beneficiary.

Advantages

Pooled trusts have several advantages. First, they allow a beneficiary to

protect money coming from a settlement or other source for extra expenses while

remaining eligible for government benefits. In addition, they have a greater

investment potential, since the organization combines individual pooled trust

accounts into a large pot.

Pooled trusts are also beneficial because they allow an individual or the

family members to help shape the uses of the trust funds for the benefit of the

individual with a disability, while relieving the family members of the

day-to-day administration related to the trust. The organization, which must

deal with reporting and other federal regulations on a daily basis, remains

current with respect to the requirements related to pooled trusts so that the

family doesn't have this responsibility. The beneficiary has the advantages of

account growth from investments and appropriate account spending without having

to be involved in the management of the funds.

Non-profit organizations provide a higher degree of financial

accountability than an individual trustee because they work with financial

institutions on a daily basis. They can also act as trustees, relieving the

parent or guardian from that responsibility and alleviating any concerns about

having to find a replacement trustee in the event a trustee quits or becomes

disqualified to serve.

Another benefit of pooled trusts is their accessibility to people with a

variety of income and asset levels. Individuals with smaller amounts of money,

who would likely be restricted from individual trust management at financial

institutions which require substantial minimum balances, can participate in

pooled trusts. This accessibility allows more pooled trust accounts to be

created and permits greater benefits to be received by those who need them.

Disadvantages

Before deciding to join a pooled trust, consider several issues. While the

organization will ask for the beneficiary's input and wishes, it has the

ultimate power to control distributions and investments. If you want higher risk

investments, which could potentially result in greater return, a pooled trust

may not be the best option because organizations tend to invest more

conservatively.

The final disadvantage to consider is that the pooled trust and/or the

state will typically receive any money remaining in the trust upon the

beneficiary's death. In many states it is not possible to give the remaining

money to a family member, as is an option in some trusts.

Considerations Before Joining a Pooled Trust

Pooled trusts are a good vehicle for managing and protecting assets for

individuals with a disability. Before committing to a pooled trust program,

however, investigate the non-profit organization to make sure it has expertise

in this area. Also, inquire about its investment relationships to make sure that

it invests with reputable financial institutions or has selected an experienced

institution as trustee.

Finally, the organization should be able to provide clear information

about the details of its program, including distribution terms, the services it

offers, the related costs, and member reports. Consider obtaining feedback from

other members before you add to the pot.

Is a Pooled Trust Right for Your Situation?

Investing in a pooled trust can provide a means of protecting funds for

individuals with disabilities, while still maintaining the individual's

eligibility for public benefit programs. With careful planning, persons with

disabilities can benefit greatly from a pooled trust managed by a non-profit

organization that has experience with public benefit laws, a clear sense of the

objectives of the disabled individual and the ability to achieve those

objectives.

About this Newsletter: We hope you find this newsletter useful and

informative, but it is not the same as legal counsel. A free newsletter is

ultimately worth everything it costs you; you rely on it at your own risk. Good

legal advice includes a review of all of the facts of your situation, including

many that may at first blush seem to you not to matter. The plan it generates is

sensitive to your goals and wishes while taking into account a whole panoply of

laws, rules and practices, many not published. That is what The Special Needs

Alliance is all about. Contact information for a member in your state may be

obtained by calling toll-free (877) 572-8472, or by visiting the Special Needs

Alliance online.

© 2010 Special Needs Alliance. .

[Guest guest]

SpecialNeedsAlliance.com E-NewsletterFYI

Ellen

Ellen Garber Bronfeld

egskb@...

[voice] The Voice - Special Needs Alliance newsletter

March, 2010 - Vol. 4, Issue 5

The Voice, The Official Newsletter of SNA

a.. how we help families

a.. how we help professionals

a.. related topics a.. more about us a.. unsubscribe here

The Voice is the e-mail newsletter of The Special Needs Alliance. This

installment was written by Special Needs Alliance member Cora Alsante and

Syracuse University law student Camille Castro. Ms. Castro was a 2009 summer

intern at the law firm of Hancock & Estabrook in Syracuse, where Ms. Alsante is

a partner. In addition to her work at Hancock & Estabrook, Ms. Alsante was an

adjunct professor at Syracuse University College of Law, where she taught elder

law. Ms. Alsante has also been named as a New York Super Lawyer in elder law,

estate planning and probate. Ms. Alsante is a Fellow of the American College of

Trust and Estate Counsel, and a long-time member of the National Academy of

Elder Law Attorneys.

Pooled Trusts for Individuals with Special Needs

When an individual with a disability will be receiving proceeds of a

personal injury lawsuit or settlement or other unexpected funds, the

individual's much-needed Medicaid and Supplemental Security Income (SSI)

benefits are at risk of being lost. How can the individual plan to protect those

newly acquired assets without jeopardizing his or her eligibility for public

benefits?

Government benefit programs such as Medicaid and SSI are " means-tested " -

that is, their eligibility guidelines severely limit the income and resources

available to an applicant to access for expenses. Thus, when someone with a

disability who is eligible for means-tested benefits receives a sum of money,

whether from a settlement, inheritance, or other source, that money will

typically disqualify the individual for Medicaid and SSI until the money has

been spent down.

Fortunately, the federal government passed the Omnibus Budget

Reconciliation Act of 1993, also known as OBRA '93, to allow people with

disabilities to set up trusts with their own funds and still qualify for

Medicaid. A law passed in 1999 extended this " safe-harbor " concept to the SSI

program.

The Social Security Act now authorizes particular trusts that can benefit

an individual with a disability by protecting his or her assets while allowing

SSI eligibility to be maintained. One of these permitted trusts is the " pooled

trust. "

What is a Pooled Trust?

Just as its name suggests, a pooled trust involves pooling together

resources of multiple individuals with disabilities and then using the combined

resources to reap benefits. Pooled trusts gather and merge resources from the

individual trust accounts of all the trust beneficiaries into a single, larger

amount of available capital to invest.

Non-profit organizations establish and manage pooled trusts and also may

serve as a trustee or co-trustee. They are in charge of combining and investing

individual pooled trust funds. The organization maintains a separate trust

" sub-account " for each participant. Each individual trust sub-account receives

income distributions from the pooled trust that are based on the account's pro

rata share of the entire pooled trust.

In other words, a pooled trust is like a pot of stew that is served in

proportion to the ingredients that were contributed to the pot. Both the person

who contributed three carrots and the one who contributed a pound of stew beef

will get servings of the stew, just in different sized bowls.

Creating a pooled trust that will meet the requirements of OBRA '93 as a

Medicaid-exempt trust requires a non-profit organization to set up the trust and

manage the pooled funds or arrange for a trustee to handle them. Many pooled

trusts also have a financial institution serve as a trustee or co-trustee. One

unique aspect of pooled trusts is that the disabled individual can join the

trust by signing a joinder agreement on his or her own behalf. Curiously, this

is not the case with other OBRA '93 " safe-harbor " trusts that are permitted in

the Medicaid or SSI context, which only allow certain third parties (parents,

grandparents, legal guardians or a court -- but not the individual with the

disability) to set up the trust.

For example, if Camille, a 23-year old with a disability who relies on

Medicaid to pay her medical expenses, were to receive a large sum of money from

a personal injury settlement, her parents, grandparents, legal guardian (if any)

or a court on her behalf, or Camille herself, would be able to join the pooled

trust, contribute the settlement money to it, and continue to protect Camille's

Medicaid eligibility.

To join a pooled trust, the individual with a disability, or his or her

legal representative, should meet with the non-profit organization that

established the trust to discuss the preferences and needs of the beneficiary,

the terms of the trust and the timing of distributions. While different

non-profit organizations may vary with respect to their enrollment rates,

maximum and minimum amounts of initial deposits and fund disbursement policies,

pooled trusts all have the same overall goal: giving an individual with a

disability the maximum benefits from the trust.

The non-profit organization will tailor the use of each pooled trust

account to fit the beneficiary's needs and individual preferences. Some

organizations have care coordination programs, which directly deposit investment

proceeds from the pooled trust to pay for services for the beneficiary. Examples

of services that can be funded by pooled trusts include health and dental

procedures not covered by Medicaid, rehabilitative and occupational therapy,

private case management, home care, nursing care and transportation.

If Camille joins the pooled trust, the non-profit administering the trust

will combine her sub-account with the other individual sub-accounts. The trustee

will manage all of the sub-accounts as a single trust, investing the entire

balance in lower risk investments.

One advantage of pooling is that the larger pool can result in better

investment diversification, a method that reduces overall risk. The trustee will

distribute investment income proportionately among the individual trust

sub-accounts. Together, the trustee and non-profit organization manage the daily

functions related to investments and accounting, such as maintaining records,

preparing necessary reports and forms, and monitoring the investments.

A pooled trust will continue to provide distributions for the

beneficiary's needs until the account is depleted or the beneficiary dies. Upon

the beneficiary's death, any money remaining in his or her sub-account either

will remain in the trust for distribution to other sub-accounts for the benefit

of other trust participants or will be paid back to the state as reimbursement

for Medicaid payments made during the beneficiary's lifetime.

State rules vary on whether a percentage of the beneficiary's at-death

pooled trust sub-account balance must be reimbursed to the state. In some

states, after the non-profit organization administering the pooled trust

receives its authorized share of the funds remaining in the beneficiary's

account and after Medicaid is reimbursed, then any remaining funds can go to the

beneficiary's family members or another person designated by the pooled trust

beneficiary.

Advantages

Pooled trusts have several advantages. First, they allow a beneficiary to

protect money coming from a settlement or other source for extra expenses while

remaining eligible for government benefits. In addition, they have a greater

investment potential, since the organization combines individual pooled trust

accounts into a large pot.

Pooled trusts are also beneficial because they allow an individual or the

family members to help shape the uses of the trust funds for the benefit of the

individual with a disability, while relieving the family members of the

day-to-day administration related to the trust. The organization, which must

deal with reporting and other federal regulations on a daily basis, remains

current with respect to the requirements related to pooled trusts so that the

family doesn't have this responsibility. The beneficiary has the advantages of

account growth from investments and appropriate account spending without having

to be involved in the management of the funds.

Non-profit organizations provide a higher degree of financial

accountability than an individual trustee because they work with financial

institutions on a daily basis. They can also act as trustees, relieving the

parent or guardian from that responsibility and alleviating any concerns about

having to find a replacement trustee in the event a trustee quits or becomes

disqualified to serve.

Another benefit of pooled trusts is their accessibility to people with a

variety of income and asset levels. Individuals with smaller amounts of money,

who would likely be restricted from individual trust management at financial

institutions which require substantial minimum balances, can participate in

pooled trusts. This accessibility allows more pooled trust accounts to be

created and permits greater benefits to be received by those who need them.

Disadvantages

Before deciding to join a pooled trust, consider several issues. While the

organization will ask for the beneficiary's input and wishes, it has the

ultimate power to control distributions and investments. If you want higher risk

investments, which could potentially result in greater return, a pooled trust

may not be the best option because organizations tend to invest more

conservatively.

The final disadvantage to consider is that the pooled trust and/or the

state will typically receive any money remaining in the trust upon the

beneficiary's death. In many states it is not possible to give the remaining

money to a family member, as is an option in some trusts.

Considerations Before Joining a Pooled Trust

Pooled trusts are a good vehicle for managing and protecting assets for

individuals with a disability. Before committing to a pooled trust program,

however, investigate the non-profit organization to make sure it has expertise

in this area. Also, inquire about its investment relationships to make sure that

it invests with reputable financial institutions or has selected an experienced

institution as trustee.

Finally, the organization should be able to provide clear information

about the details of its program, including distribution terms, the services it

offers, the related costs, and member reports. Consider obtaining feedback from

other members before you add to the pot.

Is a Pooled Trust Right for Your Situation?

Investing in a pooled trust can provide a means of protecting funds for

individuals with disabilities, while still maintaining the individual's

eligibility for public benefit programs. With careful planning, persons with

disabilities can benefit greatly from a pooled trust managed by a non-profit

organization that has experience with public benefit laws, a clear sense of the

objectives of the disabled individual and the ability to achieve those

objectives.

About this Newsletter: We hope you find this newsletter useful and

informative, but it is not the same as legal counsel. A free newsletter is

ultimately worth everything it costs you; you rely on it at your own risk. Good

legal advice includes a review of all of the facts of your situation, including

many that may at first blush seem to you not to matter. The plan it generates is

sensitive to your goals and wishes while taking into account a whole panoply of

laws, rules and practices, many not published. That is what The Special Needs

Alliance is all about. Contact information for a member in your state may be

obtained by calling toll-free (877) 572-8472, or by visiting the Special Needs

Alliance online.

© 2010 Special Needs Alliance. .

[Guest guest]

SpecialNeedsAlliance.com E-NewsletterFYI

Ellen

Ellen Garber Bronfeld

egskb@...

[voice] The Voice - Special Needs Alliance newsletter

April, 2010 - Vol. 4, Issue 6

The Voice, The Official Newsletter of SNA

a.. how we help families

a.. how we help professionals

a.. related topics a.. more about us a.. unsubscribe here

The Voice is the e-mail newsletter of The Special Needs Alliance. This

installment was written by Special Needs Alliance member Hyman G. Darling, a

partner in the Springfield, MA firm of Bacon , P.C., where he concentrates

in estate planning, elder law, probate, special needs and guardianships /

conservatorships. Before joining Bacon , he was a trust officer for

several years. He is a frequent speaker for civic and charitable organizations.

Please visit Mr. Darling's online profile for a complete list of his

qualifications and accomplishments.

Life Insurance and Children With a Disability

Historically many people, especially the older generation, purchased life

insurance policies on their new-born children. The parent would be the owner and

beneficiary of the policy. Many of these policies were known as " industrial

policies " or " debit policies. " An agent would visit the home every week or month

with a little book or tablet and record the premium payment, which ranged from

as low as 15 cents to $1.00 a week. There were several purposes for these

policies, including providing a death benefit, adding cash value, and

guaranteeing insurability. While this quaint method of handling life insurance

business has changed over the years, the need for insurance has not.

When purchasing life insurance designed to benefit a child with a

disability, careful consideration of several facets of the policy is required.

Usually, there are four parties to a policy: the insurance company, the owner,

the insured and the beneficiary. One should be certain that the correct owner

and beneficiary are named because there can be adverse consequences if the

policy is not issued properly. Normally the insurance agent will review these

options with the applicant before the policy is issued or applied for, but

sometimes, and particularly if one applies for a policy over the internet, the

care and attention that should be given to these issues is not provided.

Should insurance be purchased on the life of a child with a disability? In

many cases the child may be disabled to the extent that he or she is not

insurable. Even if insurance is available, it may be " rated " due to the health

of the child. If a policy is purchased, one must consider the issues raised

above. The first is choosing the appropriate owner of the policy. Typically,

unless the parents have a significant taxable estate, one of the parents should

be the owner of the policy. In order to avoid subjecting the policy to probate

if that parent predeceases the child, the other parent can be designated as the

contingent or successor owner of the policy. If the other parent is not alive or

is not an appropriate successor owner, another person can be named as the

successor owner. The important thing is that the successor owner can be trusted

to use the policy proceeds as intended -- often for funeral and related expenses

of the child.

Having considered who should own the policy, next one must address who the

beneficiary should be. If the policy insures the life of the child, often the

parents will be the primary beneficiaries, and the siblings or other relatives

of the child, or perhaps a deserving charity that has assisted the child, will

be secondary or contingent beneficiaries.

The more difficult question is who should be listed as the owner and

beneficiary of a policy that insures someone else, such as a parent, where the

proceeds are to benefit the child with a disability. If the policy is large, one

option may be to name an irrevocable insurance trust as owner and beneficiary.

It is critically important not to name the child as the owner or beneficiary of

the policy, as doing either could cause the child's assets to exceed the

resource limitation for eligibility for public benefit programs. Keep in mind

that if the child's siblings are named as beneficiaries, there is a danger that

they may not use the proceeds as intended for their sibling.

Therefore, the best option may be to name what is known as a special needs

trust as the beneficiary of the policy. The special needs trust will allow the

funds to be utilized for the child as intended without causing a loss of public

benefits. It will further provide peace of mind that the funds will in fact be

used only for the benefit of the child. The trust instrument itself will

designate the contingent beneficiaries to receive any remaining funds after the

death of the child. These might include charities, family members, or possibly

the providers of services to the child during his or her lifetime.

The owner should not be the parent if there is significant cash value --

if the parent becomes incapacitated, the cash value of the policy may have to be

accessed and spent for the parent's long-term care. In that case, a special

needs trust should be the owner.

If a policy has been issued without the attention being given to the

appropriate owners and beneficiaries, it is important to contact the agent or

the company to discuss the options available. If the child is the owner, perhaps

the need for the policy is no longer present, in which case it might be more

appropriate to cash in the policy and use the proceeds to purchase life

insurance on the parent as a means of providing additional funds for the child

when the parent is deceased.

An insurance checkup is appropriate every several years. There are always

new products to be considered, and the needs of the family change from time to

time. Hopefully, this article will help you focus on some of the important

issues to keep in mind.

About this Newsletter: We hope you find this newsletter useful and

informative, but it is not the same as legal counsel. A free newsletter is

ultimately worth everything it costs you; you rely on it at your own risk. Good

legal advice includes a review of all of the facts of your situation, including

many that may at first blush seem to you not to matter. The plan it generates is

sensitive to your goals and wishes while taking into account a whole panoply of

laws, rules and practices, many not published. That is what The Special Needs

Alliance is all about. Contact information for a member in your state may be

obtained by calling toll-free (877) 572-8472, or by visiting the Special Needs

Alliance online.

© 2010 Special Needs Alliance. .

[Guest guest]

SpecialNeedsAlliance.com E-NewsletterFYI

Ellen

Ellen Garber Bronfeld

egskb@...

[voice] The Voice - Special Needs Alliance newsletter

April, 2010 - Vol. 4, Issue 6

The Voice, The Official Newsletter of SNA

a.. how we help families

a.. how we help professionals

a.. related topics a.. more about us a.. unsubscribe here

The Voice is the e-mail newsletter of The Special Needs Alliance. This

installment was written by Special Needs Alliance member Hyman G. Darling, a

partner in the Springfield, MA firm of Bacon , P.C., where he concentrates

in estate planning, elder law, probate, special needs and guardianships /

conservatorships. Before joining Bacon , he was a trust officer for

several years. He is a frequent speaker for civic and charitable organizations.

Please visit Mr. Darling's online profile for a complete list of his

qualifications and accomplishments.

Life Insurance and Children With a Disability

Historically many people, especially the older generation, purchased life

insurance policies on their new-born children. The parent would be the owner and

beneficiary of the policy. Many of these policies were known as " industrial

policies " or " debit policies. " An agent would visit the home every week or month

with a little book or tablet and record the premium payment, which ranged from

as low as 15 cents to $1.00 a week. There were several purposes for these

policies, including providing a death benefit, adding cash value, and

guaranteeing insurability. While this quaint method of handling life insurance

business has changed over the years, the need for insurance has not.

When purchasing life insurance designed to benefit a child with a

disability, careful consideration of several facets of the policy is required.

Usually, there are four parties to a policy: the insurance company, the owner,

the insured and the beneficiary. One should be certain that the correct owner

and beneficiary are named because there can be adverse consequences if the

policy is not issued properly. Normally the insurance agent will review these

options with the applicant before the policy is issued or applied for, but

sometimes, and particularly if one applies for a policy over the internet, the

care and attention that should be given to these issues is not provided.

Should insurance be purchased on the life of a child with a disability? In

many cases the child may be disabled to the extent that he or she is not

insurable. Even if insurance is available, it may be " rated " due to the health

of the child. If a policy is purchased, one must consider the issues raised

above. The first is choosing the appropriate owner of the policy. Typically,

unless the parents have a significant taxable estate, one of the parents should

be the owner of the policy. In order to avoid subjecting the policy to probate

if that parent predeceases the child, the other parent can be designated as the

contingent or successor owner of the policy. If the other parent is not alive or

is not an appropriate successor owner, another person can be named as the

successor owner. The important thing is that the successor owner can be trusted

to use the policy proceeds as intended -- often for funeral and related expenses

of the child.

Having considered who should own the policy, next one must address who the

beneficiary should be. If the policy insures the life of the child, often the

parents will be the primary beneficiaries, and the siblings or other relatives

of the child, or perhaps a deserving charity that has assisted the child, will

be secondary or contingent beneficiaries.

The more difficult question is who should be listed as the owner and

beneficiary of a policy that insures someone else, such as a parent, where the

proceeds are to benefit the child with a disability. If the policy is large, one

option may be to name an irrevocable insurance trust as owner and beneficiary.

It is critically important not to name the child as the owner or beneficiary of

the policy, as doing either could cause the child's assets to exceed the

resource limitation for eligibility for public benefit programs. Keep in mind

that if the child's siblings are named as beneficiaries, there is a danger that

they may not use the proceeds as intended for their sibling.

Therefore, the best option may be to name what is known as a special needs

trust as the beneficiary of the policy. The special needs trust will allow the

funds to be utilized for the child as intended without causing a loss of public

benefits. It will further provide peace of mind that the funds will in fact be

used only for the benefit of the child. The trust instrument itself will

designate the contingent beneficiaries to receive any remaining funds after the

death of the child. These might include charities, family members, or possibly

the providers of services to the child during his or her lifetime.

The owner should not be the parent if there is significant cash value --

if the parent becomes incapacitated, the cash value of the policy may have to be

accessed and spent for the parent's long-term care. In that case, a special

needs trust should be the owner.

If a policy has been issued without the attention being given to the

appropriate owners and beneficiaries, it is important to contact the agent or

the company to discuss the options available. If the child is the owner, perhaps

the need for the policy is no longer present, in which case it might be more

appropriate to cash in the policy and use the proceeds to purchase life

insurance on the parent as a means of providing additional funds for the child

when the parent is deceased.

An insurance checkup is appropriate every several years. There are always

new products to be considered, and the needs of the family change from time to

time. Hopefully, this article will help you focus on some of the important

issues to keep in mind.

About this Newsletter: We hope you find this newsletter useful and

informative, but it is not the same as legal counsel. A free newsletter is

ultimately worth everything it costs you; you rely on it at your own risk. Good

legal advice includes a review of all of the facts of your situation, including

many that may at first blush seem to you not to matter. The plan it generates is

sensitive to your goals and wishes while taking into account a whole panoply of

laws, rules and practices, many not published. That is what The Special Needs

Alliance is all about. Contact information for a member in your state may be

obtained by calling toll-free (877) 572-8472, or by visiting the Special Needs

Alliance online.

© 2010 Special Needs Alliance. .

[Guest guest]

SpecialNeedsAlliance.com E-NewsletterFYI

Ellen

Ellen Garber Bronfeld

egskb@...

[voice] The Voice - Special Needs Alliance newsletter

May, 2010 - Vol. 4, Issue 7

The Voice, The Official Newsletter of SNA

a.. how we help families

a.. how we help professionals

a.. related topics a.. more about us a.. unsubscribe here

The Voice is the e-mail newsletter of The Special Needs Alliance. This

installment was written by Special Needs Alliance member H. Amos Goodall, Jr.,

of State College, Pennsylvania. Mr. Goodall is a Certified Elder Law Attorney

(by the National Elder Law Foundation), and has practiced law since 1976. He is

also a Fellow of the American College of Trust and Estate Counsel, and a member

of the National Academy of Elder Law Attorneys. Mr. Goodall primarily works in

special needs and elder law planning, business organization planning, and real

estate and business litigation.

Signing the Social Security Application

A question often arises when an individual with disabilities applies for

Social Security Disability Income (SSDI) or Supplemental Security Income (SSI):

Who can sign the paperwork when the applicant is unable to do so? In addition to

needing assistance with filing the necessary documents, a person with

disabilities also may need to name someone else to receive the benefits on the

applicant's behalf (this person is known in Social Security parlance as the

" representative payee " ). The rules controlling who may sign SSDI and SSI

applications are similar to those governing who may be appointed as a

representative payee.

We are all used to having agents under a power of attorney being

authorized to take action for their principals, but Social Security regulations

do not follow this practice. A power of attorney alone can not authorize the

agent to sign an application.

Almost all SSA business is completed after an interview, either

face-to-face or by telephone. However, the Social Security Administration (SSA)

is now favoring online services, and then requiring that a physically-signed

application be submitted following the completion of the online application

process.

Although the Social Security Act contains no express guidance as to how an

application must be signed, the SSA has adopted formal rules governing who may

sign an application for benefits. The SSA also provides detailed instructions to

its regional offices, found in its Program Operations Manual System (POMS),

outlining how claims/applications should be handled.

The general rule: a claimant who is 18 years of age or older, mentally

competent and physically able to do so, must sign his or her own application. If

the claimant is under the age of 18, or mentally incompetent or physically

unable to sign, there are several people who may sign the application on the

claimant's behalf. These include a court appointed representative (such as a

guardian), the manager of an institution providing care to the claimant, or any

other person who is responsible for the claimant's care, including a relative.

A parent or person standing in place of a parent may sign for an applicant

between age 18 and the claimant's twenty-second birthday. Otherwise, the general

rule for an adult is that a court-appointed representative or a person who is

responsible for the claimant's care may sign the application only if the

claimant has been adjudged incompetent, is unable to understand what filing for

benefits means, or is physically unable to do so. In addition, if a person is in

danger of losing certain benefits, an emergency application process is available

in order to preserve the claimant's rights.

There are other instances when someone else may sign an application on

behalf of a claimant, such as when the claimant is unavailable and a loss of

benefits would otherwise result. However, these unusual situations must be

promptly followed up with an application signed by the claimant. These are

called " protective filings " .

While the POMS Manual gives considerable authority to the local office

receiving the application, certain general rules apply for claim processing. For

instance, durable powers of attorney appointing an agent to manage financial

affairs do not give authority to another person to sign for the claimant, even

if State laws provide that the agent is authorized. If a recent court order has

found the claimant incapacitated and appointed the person seeking to sign the

application as guardian of the claimant, the guardian may be able to sign the

application.

While a court-appointed guardian may sign an application for benefits, it

does not necessarily follow that the guardian will be the one to receive

payments once the application is approved. A guardian may only be authorized to

receive benefits for the ward if (a) there is no spouse, parent or other

relative with custody or who shows strong concern for the claimant AND ( the

Social Security office finds that the guardian either has custody of the

claimant or shows strong concern.

In other cases, however, the local office must develop evidence to support

an exception to the requirement that the claimant actually sign the application.

The analysis will address three questions: (a) Is the claimant physically unable

to sign? ( Does the claimant have mental capacity to sign? and © If the

answer to either question is " no " , then is the person proposing to sign on

behalf of the claimant authorized to do so?

Determining a claimant's physical inability to sign is relatively

straightforward. The POMS gives the following examples: (a) an individual who

has both arms in traction; ( an individual who is paralyzed and unable to

communicate clearly; and © an individual who is comatose. The examples make it

clear that there should be observable physical limitations that prevent the

claimant from signing the application, making a mark or otherwise " signing in a

manner that is considered the claimant's normal signature " .

Determining mental capacity is more complicated. From the outset, " if the

beneficiary can direct someone else to manage his/her benefits, he/she must be

found capable unless a voluntary conservatorship is in effect. " Thus, the fact

that a beneficiary/claimant recently has named an agent under a power of

attorney would tend to suggest that the claimant has capacity, and therefore

could sign.

Under the POMS, the local interviewer must develop evidence of capacity.

This means the interviewer must have a " clear understanding of the beneficiary's

abilities. " Evidence from a physician, psychologist or other professional may be

submitted on the question of capacity and would be considered a major factor in

the local official's determination of capacity. Using these standards, the

official must be satisfied that the claimant does not understand what filing for

benefits means before a claimant will be excused from signing the application.

If the local office determines that a claimant cannot sign, then it must

evaluate who may sign on the individual's behalf. As discussed above, although

an agent under a power of attorney is not an authorized signer, a

court-appointed representative/guardian or the manager of an institution caring

for the claimant may sign an application. Additionally, a person responsible for

the care of the claimant can sign on the person's behalf if the signer submits a

statement describing his/her relationship to the claimant, as well as the extent

to which the person is responsible for the claimant's care. The latter is not

required if the person is the claimant's parent and the claimant is living with

the parent.

In summary, for a claimant who is asserted to lack capacity to sign the

application for benefits, the local SSA office must make two specific

determinations: (a) that the claimant in fact lacks capacity (capacity being

defined as the ability to understand what it means to sign an application for

benefits), and ( that the person proposing to sign is a formal court-appointed

representative/guardian, the manager of an institution caring for the claimant,

or an individual primarily responsible for the claimant's care.

About this Newsletter: We hope you find this newsletter useful and

informative, but it is not the same as legal counsel. A free newsletter is

ultimately worth everything it costs you; you rely on it at your own risk. Good

legal advice includes a review of all of the facts of your situation, including

many that may at first blush seem to you not to matter. The plan it generates is

sensitive to your goals and wishes while taking into account a whole panoply of

laws, rules and practices, many not published. That is what The Special Needs

Alliance is all about. Contact information for a member in your state may be

obtained by calling toll-free (877) 572-8472, or by visiting the Special Needs

Alliance online.

© 2010 Special Needs Alliance. .

[Guest guest]

SpecialNeedsAlliance.com E-NewsletterFYI

Ellen

Ellen Garber Bronfeld

egskb@...

[voice] The Voice - Special Needs Alliance newsletter

May, 2010 - Vol. 4, Issue 7

The Voice, The Official Newsletter of SNA

a.. how we help families

a.. how we help professionals

a.. related topics a.. more about us a.. unsubscribe here

The Voice is the e-mail newsletter of The Special Needs Alliance. This

installment was written by Special Needs Alliance member H. Amos Goodall, Jr.,

of State College, Pennsylvania. Mr. Goodall is a Certified Elder Law Attorney

(by the National Elder Law Foundation), and has practiced law since 1976. He is

also a Fellow of the American College of Trust and Estate Counsel, and a member

of the National Academy of Elder Law Attorneys. Mr. Goodall primarily works in

special needs and elder law planning, business organization planning, and real

estate and business litigation.

Signing the Social Security Application

A question often arises when an individual with disabilities applies for

Social Security Disability Income (SSDI) or Supplemental Security Income (SSI):

Who can sign the paperwork when the applicant is unable to do so? In addition to

needing assistance with filing the necessary documents, a person with

disabilities also may need to name someone else to receive the benefits on the

applicant's behalf (this person is known in Social Security parlance as the

" representative payee " ). The rules controlling who may sign SSDI and SSI

applications are similar to those governing who may be appointed as a

representative payee.

We are all used to having agents under a power of attorney being

authorized to take action for their principals, but Social Security regulations

do not follow this practice. A power of attorney alone can not authorize the

agent to sign an application.

Almost all SSA business is completed after an interview, either

face-to-face or by telephone. However, the Social Security Administration (SSA)

is now favoring online services, and then requiring that a physically-signed

application be submitted following the completion of the online application

process.

Although the Social Security Act contains no express guidance as to how an

application must be signed, the SSA has adopted formal rules governing who may

sign an application for benefits. The SSA also provides detailed instructions to

its regional offices, found in its Program Operations Manual System (POMS),

outlining how claims/applications should be handled.

The general rule: a claimant who is 18 years of age or older, mentally

competent and physically able to do so, must sign his or her own application. If

the claimant is under the age of 18, or mentally incompetent or physically

unable to sign, there are several people who may sign the application on the

claimant's behalf. These include a court appointed representative (such as a

guardian), the manager of an institution providing care to the claimant, or any

other person who is responsible for the claimant's care, including a relative.

A parent or person standing in place of a parent may sign for an applicant

between age 18 and the claimant's twenty-second birthday. Otherwise, the general

rule for an adult is that a court-appointed representative or a person who is

responsible for the claimant's care may sign the application only if the

claimant has been adjudged incompetent, is unable to understand what filing for

benefits means, or is physically unable to do so. In addition, if a person is in

danger of losing certain benefits, an emergency application process is available

in order to preserve the claimant's rights.

There are other instances when someone else may sign an application on

behalf of a claimant, such as when the claimant is unavailable and a loss of

benefits would otherwise result. However, these unusual situations must be

promptly followed up with an application signed by the claimant. These are

called " protective filings " .

While the POMS Manual gives considerable authority to the local office

receiving the application, certain general rules apply for claim processing. For

instance, durable powers of attorney appointing an agent to manage financial

affairs do not give authority to another person to sign for the claimant, even

if State laws provide that the agent is authorized. If a recent court order has

found the claimant incapacitated and appointed the person seeking to sign the

application as guardian of the claimant, the guardian may be able to sign the

application.

While a court-appointed guardian may sign an application for benefits, it

does not necessarily follow that the guardian will be the one to receive

payments once the application is approved. A guardian may only be authorized to

receive benefits for the ward if (a) there is no spouse, parent or other

relative with custody or who shows strong concern for the claimant AND ( the

Social Security office finds that the guardian either has custody of the

claimant or shows strong concern.

In other cases, however, the local office must develop evidence to support

an exception to the requirement that the claimant actually sign the application.

The analysis will address three questions: (a) Is the claimant physically unable

to sign? ( Does the claimant have mental capacity to sign? and © If the

answer to either question is " no " , then is the person proposing to sign on

behalf of the claimant authorized to do so?

Determining a claimant's physical inability to sign is relatively

straightforward. The POMS gives the following examples: (a) an individual who

has both arms in traction; ( an individual who is paralyzed and unable to

communicate clearly; and © an individual who is comatose. The examples make it

clear that there should be observable physical limitations that prevent the

claimant from signing the application, making a mark or otherwise " signing in a

manner that is considered the claimant's normal signature " .

Determining mental capacity is more complicated. From the outset, " if the

beneficiary can direct someone else to manage his/her benefits, he/she must be

found capable unless a voluntary conservatorship is in effect. " Thus, the fact

that a beneficiary/claimant recently has named an agent under a power of

attorney would tend to suggest that the claimant has capacity, and therefore

could sign.

Under the POMS, the local interviewer must develop evidence of capacity.

This means the interviewer must have a " clear understanding of the beneficiary's

abilities. " Evidence from a physician, psychologist or other professional may be

submitted on the question of capacity and would be considered a major factor in

the local official's determination of capacity. Using these standards, the

official must be satisfied that the claimant does not understand what filing for

benefits means before a claimant will be excused from signing the application.

If the local office determines that a claimant cannot sign, then it must

evaluate who may sign on the individual's behalf. As discussed above, although

an agent under a power of attorney is not an authorized signer, a

court-appointed representative/guardian or the manager of an institution caring

for the claimant may sign an application. Additionally, a person responsible for

the care of the claimant can sign on the person's behalf if the signer submits a

statement describing his/her relationship to the claimant, as well as the extent

to which the person is responsible for the claimant's care. The latter is not

required if the person is the claimant's parent and the claimant is living with

the parent.

In summary, for a claimant who is asserted to lack capacity to sign the

application for benefits, the local SSA office must make two specific

determinations: (a) that the claimant in fact lacks capacity (capacity being

defined as the ability to understand what it means to sign an application for

benefits), and ( that the person proposing to sign is a formal court-appointed

representative/guardian, the manager of an institution caring for the claimant,

or an individual primarily responsible for the claimant's care.

About this Newsletter: We hope you find this newsletter useful and

informative, but it is not the same as legal counsel. A free newsletter is

ultimately worth everything it costs you; you rely on it at your own risk. Good

legal advice includes a review of all of the facts of your situation, including

many that may at first blush seem to you not to matter. The plan it generates is

sensitive to your goals and wishes while taking into account a whole panoply of

laws, rules and practices, many not published. That is what The Special Needs

Alliance is all about. Contact information for a member in your state may be

obtained by calling toll-free (877) 572-8472, or by visiting the Special Needs

Alliance online.

© 2010 Special Needs Alliance. .

[Guest guest]

Good information.

Ellen

Ellen Garber Bronfeld

egskb@...

[voice] The Voice - Special Needs Alliance newsletter

June 2010 - Vol 4, Issue 8

The Voice, the Official Newsletter of SNA

Quick Links

> How we help families

> How we help professionals

> Related topics

> More about us

> Unsubscribe

> Subscribe to the

Capitol Connection

Join Our Mailing List >

The Voice is the e-mail newsletter of The Special Needs

Alliance. This installment was written by Janet L. Lowder, JD, CELA; J.

Buzney, JD, LISW and B. McKee, JD, who practice law in northeast Ohio with

Hickman & Lowder Co., L.P.A. Janet and are members of the National

Academy of Elder Law Attorneys (NAELA); belongs to the National

Organization of Social Security Claimants' Representatives (NOSSCR). Janet is

also the Vice President of the Special Needs Alliance, a national organization

committed to helping individuals with disabilities, their families, and the

professionals who represent them.

Housecleaning? Please Don't Pitch These Records!

School's out, spring's gone, taxes are filed and it's

time to clean out the study / spare room. You're probably thinking about whether

you can throw away all those files and boxes of old records. We're all supposed

to " go green, " right?

Parents of a child with special needs or individuals who

had special needs as a child, however, should carefully consider which records

to place in the recycle bin and which records to maintain and re-label.

Counterintuitive as it may seem, hoarding sometimes helps. Even if eligibility

for government benefits or other programs is not a concern at this time, some

records may be critically important in the future.

The guiding principle of the record retention strategy

is " Hope for the best but plan for the worst. " While many children with special

needs will find jobs that enable them to be self-sufficient or pursue

educational goals and then start careers, others may rely on public benefit

programs.

Many public benefit programs require proof that a person

had a disability prior to reaching the age of 22. A person might need

documentation of such a condition to acquire appropriate accommodations in

vocational training or college, which may one day lead to a career or the

fulfillment of educational goals. Others may need to document when a childhood

condition was originally discovered because a recurrence or exacerbation in

adulthood could put substantial gainful employment on hold and qualifying for

various benefits may become necessary.

Some of the most important documents that may be useful

throughout a person's lifetime would include the following:

a.. Individual education plans (IEPs), multi-factored

evaluations (MFEs), 504 plans, and the recommendations for accommodations

b.. Results of medical exams, particularly by

specialists such as neurologists and psychologists

c.. If there was an acute illness, accident or trauma

that resulted in permanent changes in the individual's cognitive skills or

physical abilities, medical records from this period of time to show the before

and after picture

d.. Documentation that the individual received

services from agencies that focus on individuals with special needs or

disabilities

e.. Records from job training programs or workshop

employment

f.. Letters from coaches, camp counselors, neighbors,

religious or community leaders --anyone not related to you whose observations

may someday help to establish how different or special your child was

g.. Letters from employers preserving the story of how

your child got the job, whether the job was created or tailor-made for your

child, and any problems or issues on the job

h.. Court documents regarding

guardianship/conservatorship, settlements for personal injuries or orders

concerning legal capacity

Having appropriate documentation may make it easier for

a person to qualify for invaluable public benefits in the future, including many

of the following:

a.. Social Security Disability Insurance (SSDI) based

on the individual's work record or adult Childhood Disability Benefits (CDB,

formerly DAC) based on the earnings of a parent who is permanently disabled,

retired, or deceased

b.. Supplemental Security Income (SSI)

c.. Medicare

d.. Medicaid

e.. Income and health insurance benefits available

through a parent's employer for dependent adult children

f.. Supported living and other benefits through public

Developmental Disability boards

g.. Medicaid Waiver programs

h.. Military Survivor Benefits Plans

Destroying certain records can be like throwing out the

baby with the bathwater - they can be impossible to recreate. Keep in mind that

professionals such as attorneys and physicians, and even some government

programs such as public schools, may not be required to keep records

indefinitely.

Professionals who may have assisted a person in the past

may have since retired, moved, changed jobs or even passed away. Schools,

non-profit agencies and other programs can merge with other organizations,

evolve or even become extinct - making record recreation a nightmare, if even

possible at all. Tracing back through the years to track down the people who

might still remember enough details to provide testimony or a written statement

may prove futile, even in the age of Facebook and Google.

In short, resist the urge to toss those yellowing papers

just because they're more than three, seven, or 37 years old. They may well have

more than sentimental value one day. So reach for your goals and encourage

individuals with special needs to follow their dreams, but please keep those old

records somewhere safe that is conveniently accessible. It is perfectly

acceptable to invest in a scanner and build a virtual stockpile of those paper

files. If these kids happen to do as well as everyone hopes and have their own

households one day, they can do their own housecleaning!

About this Newsletter: We hope you find this newsletter

useful and informative, but it is not the same as legal counsel. A free

newsletter is ultimately worth everything it costs you; you rely on it at your

own risk. Good legal advice includes a review of all of the facts of your

situation, including many that may at first blush seem to you not to matter. The

plan it generates is sensitive to your goals and wishes while taking into

account a whole panoply of laws, rules and practices, many not published. That

is what The Special Needs Alliance is all about. Contact information for a

member in your state may be obtained by calling toll-free (877) 572-8472, or by

visiting the Special Needs Alliance online.

© 2010 Special Needs Alliance. .

[Guest guest]

Good information.

Ellen

Ellen Garber Bronfeld

egskb@...

[voice] The Voice - Special Needs Alliance newsletter

June 2010 - Vol 4, Issue 8

The Voice, the Official Newsletter of SNA

Quick Links

> How we help families

> How we help professionals

> Related topics

> More about us

> Unsubscribe

> Subscribe to the

Capitol Connection

Join Our Mailing List >

The Voice is the e-mail newsletter of The Special Needs

Alliance. This installment was written by Janet L. Lowder, JD, CELA; J.

Buzney, JD, LISW and B. McKee, JD, who practice law in northeast Ohio with

Hickman & Lowder Co., L.P.A. Janet and are members of the National

Academy of Elder Law Attorneys (NAELA); belongs to the National

Organization of Social Security Claimants' Representatives (NOSSCR). Janet is

also the Vice President of the Special Needs Alliance, a national organization

committed to helping individuals with disabilities, their families, and the

professionals who represent them.

Housecleaning? Please Don't Pitch These Records!

School's out, spring's gone, taxes are filed and it's

time to clean out the study / spare room. You're probably thinking about whether

you can throw away all those files and boxes of old records. We're all supposed

to " go green, " right?

Parents of a child with special needs or individuals who

had special needs as a child, however, should carefully consider which records

to place in the recycle bin and which records to maintain and re-label.

Counterintuitive as it may seem, hoarding sometimes helps. Even if eligibility

for government benefits or other programs is not a concern at this time, some

records may be critically important in the future.

The guiding principle of the record retention strategy

is " Hope for the best but plan for the worst. " While many children with special

needs will find jobs that enable them to be self-sufficient or pursue

educational goals and then start careers, others may rely on public benefit

programs.

Many public benefit programs require proof that a person

had a disability prior to reaching the age of 22. A person might need

documentation of such a condition to acquire appropriate accommodations in

vocational training or college, which may one day lead to a career or the

fulfillment of educational goals. Others may need to document when a childhood

condition was originally discovered because a recurrence or exacerbation in

adulthood could put substantial gainful employment on hold and qualifying for

various benefits may become necessary.

Some of the most important documents that may be useful

throughout a person's lifetime would include the following:

a.. Individual education plans (IEPs), multi-factored

evaluations (MFEs), 504 plans, and the recommendations for accommodations

b.. Results of medical exams, particularly by

specialists such as neurologists and psychologists

c.. If there was an acute illness, accident or trauma

that resulted in permanent changes in the individual's cognitive skills or

physical abilities, medical records from this period of time to show the before

and after picture

d.. Documentation that the individual received

services from agencies that focus on individuals with special needs or

disabilities

e.. Records from job training programs or workshop

employment

f.. Letters from coaches, camp counselors, neighbors,

religious or community leaders --anyone not related to you whose observations

may someday help to establish how different or special your child was

g.. Letters from employers preserving the story of how

your child got the job, whether the job was created or tailor-made for your

child, and any problems or issues on the job

h.. Court documents regarding

guardianship/conservatorship, settlements for personal injuries or orders

concerning legal capacity

Having appropriate documentation may make it easier for

a person to qualify for invaluable public benefits in the future, including many

of the following:

a.. Social Security Disability Insurance (SSDI) based

on the individual's work record or adult Childhood Disability Benefits (CDB,

formerly DAC) based on the earnings of a parent who is permanently disabled,

retired, or deceased

b.. Supplemental Security Income (SSI)

c.. Medicare

d.. Medicaid

e.. Income and health insurance benefits available

through a parent's employer for dependent adult children

f.. Supported living and other benefits through public

Developmental Disability boards

g.. Medicaid Waiver programs

h.. Military Survivor Benefits Plans

Destroying certain records can be like throwing out the

baby with the bathwater - they can be impossible to recreate. Keep in mind that

professionals such as attorneys and physicians, and even some government

programs such as public schools, may not be required to keep records

indefinitely.

Professionals who may have assisted a person in the past

may have since retired, moved, changed jobs or even passed away. Schools,

non-profit agencies and other programs can merge with other organizations,

evolve or even become extinct - making record recreation a nightmare, if even

possible at all. Tracing back through the years to track down the people who

might still remember enough details to provide testimony or a written statement

may prove futile, even in the age of Facebook and Google.

In short, resist the urge to toss those yellowing papers

just because they're more than three, seven, or 37 years old. They may well have

more than sentimental value one day. So reach for your goals and encourage

individuals with special needs to follow their dreams, but please keep those old

records somewhere safe that is conveniently accessible. It is perfectly

acceptable to invest in a scanner and build a virtual stockpile of those paper

files. If these kids happen to do as well as everyone hopes and have their own

households one day, they can do their own housecleaning!

About this Newsletter: We hope you find this newsletter

useful and informative, but it is not the same as legal counsel. A free

newsletter is ultimately worth everything it costs you; you rely on it at your

own risk. Good legal advice includes a review of all of the facts of your

situation, including many that may at first blush seem to you not to matter. The

plan it generates is sensitive to your goals and wishes while taking into

account a whole panoply of laws, rules and practices, many not published. That

is what The Special Needs Alliance is all about. Contact information for a

member in your state may be obtained by calling toll-free (877) 572-8472, or by

visiting the Special Needs Alliance online.

© 2010 Special Needs Alliance. .

[Guest guest]

FYI

Ellen

Ellen Garber Bronfeld

egskb@...

[voice] The Voice - Special Needs Alliance newsletter

July 2010 - Vol 4, Issue 10

The Voice, the Official Newsletter of SNA

Quick Links

> How we help families

> How we help professionals

> Related topics

> More about us

> Unsubscribe

> Subscribe to the

Capitol Connection

Join Our Mailing List >

The Voice is the e-mail newsletter of The Special Needs

Alliance. This installment was written by Special Needs Alliance member, Mark

Shalloway of West Palm Beach, Florida. Mr. Shalloway is a certified elder law

attorney (by the National Elder Law Foundation), and is a member of the charter

class of attorneys board certified in elder law by the Florida Bar Association.

He has practiced law since 1989, and is a past president of the National Academy

of Elder Law Attorneys. His practice primarily includes elder law and special

needs planning.

Being Prepared For a Disaster

Summertime for those of us in coastal states often

means the start of hurricane season. Recently, a weather reporter on a national

news show commented on August 2010 being the five year anniversary of Hurricane

Katrina, and urged families to begin planning for weather related disasters. For

families of a person with a disability, this advanced preparation is even more

essential. Individuals with disabilities are particularly vulnerable in

disasters, whether it be a hurricane, nor'easter, blizzard, tornado, flood, fire

or volcanic eruption.

Establish a Personal Support Network

Start by establishing a personal support network made up

of friends, family, co-workers, roommates or other individuals who are part of

the life of the person with a disability. These individuals may be contacts at

school, work, home, or any other place the family member typically spends time.

Identify persons who are ready and willing to assist in the time of a disaster,

and organize a network based on sub-teams for each of these locations. These

personal support network team members should help complete checklists and

prepare emergency preparedness kits for the individual.

Ideally, each site location sub-team should consist of

at least three persons in order to avoid depending upon just one individual. The

site team members should evaluate the location for which they are responsible,

design and implement a plan of preparation and recovery for the individual, and

be ready to act when disaster strikes. Likewise, the individual with a

disability should be made aware of his or her responsibility to inform team

members of travel or time away from home, work, school or other places where

significant time is normally spent.

Every team member should have a complete copy of

emergency information, including descriptions of the individual's medications

and personal care needs. The plan should also identify a designated gathering

area based on the individual's location and the disaster type, as well as

information needed to contact the individual following the disaster.

Comprehensive communication techniques beyond the telephone may be required,

such as visual cues or automatic signals that indicate to others whether the

individual is safe or in harm's way.

Other important planning for team members includes (1)

establishing protocols for notifying the individual of any government alerts or

warnings in the event of an evacuation order, (2) scheduling regular reviews of

these disaster plans to assure accuracy and completeness, (3) scheduling

practice sessions for learning to operate any assisted technologies or medical

equipment needed by the individual, along with his or her personal grooming or

care skills, and (4) becoming familiar with the individual's service animal and

its care.

Complete a Personal Assessment

The individual with a disability, along with his or her

network team members, should complete important forms and checklists of items

and services the individual may require before, during, and after a disaster.

These should address the individual's capabilities and limitations regarding his

or her activities of daily living, and describe medical care equipment, adaptive

feeding devices, utility services and power-based equipment, transportation or

mobility issues, evacuation, communication, and service animal or pet needs and

abilities.

Checklists of this type are available from the American

Red Cross. Ask your local chapter for a copy of " Disaster Preparedness for

People with Disabilities " (Form A5091) or visit the Red Cross website.

Other helpful publications with disaster planning lists

may be obtained from FEMA by calling 1-800-480-2520 or writing FEMA, P.O. Box

2012, Jessup, MD 20794-2012. Some of these publications include " Are You Ready?

An In-depth Guide to Citizen Preparedness (IS-22); Preparing for Disaster

(FEMA475)(4600); Food & Water In An Emergency (FEMA477)(A5055); and Helping

Children Cope with Disaster (FEMA 478)(A4499).

Prepare a Disaster Supply Kit

FEMA and the Red Cross guidelines emphasize disaster

supply kits for the individual to be maintained at home, work, school and other

frequently visited sites, as well as kept in the car. Many sources suggest

storing the kit in portable waterproof luggage or storage boxes. Having multiple

kits available provides reassurance that the individual with a disability will

have these items regardless of where he or she is when the emergency or disaster

strikes. In addition to the checklists by FEMA and the Red Cross, other sources

of suggested disaster kit contents may be found at these websites:

· The Access Board

· Department of Health & Human Services (DHHS)

Administration on Aging

· National Council on Disability

· National Organization on Disability

· Prepare.Org

· American Association for People with Disabilities

· American Foundation for the Blind

· National Association of the Deaf

· Easter Seals

Enroll in a Special Needs Registry

Many states have established special needs registries

and special needs shelters for individuals with disabilities. In Florida, for

example, each county has a phone number for a special needs registry. Depending

upon the community, special needs shelters may separately exist or be a unit

within a Red Cross public shelter. Identification of the appropriate shelter and

its location should be noted in the disaster supply kit.

Be aware that while a special needs shelter is designed

to meet the needs of individuals who require help with the activities of daily

living, including medication management and supervision, special needs shelters

rarely have advanced medical equipment. A caregiver for the individual should

accompany him or her to the shelter.

Disaster Recovery

Effective recovery from a disaster also begins with

advanced planning. Working with FEMA will be required. The disaster recovery

process begins with registration by telephone at FEMA. The individual will be

referred to a disaster recovery center for important follow-up. Call FEMA

contact information (1-800-621-FEMA). For persons with speech and hearing

impairments call TTY-800-462-7585. Try calling either early in the morning or

late at night, and have pen and paper handy when calling. If computer internet

access is restored, check FEMA's information online.

Individuals with special needs who need assistance with

completing forms may ask for assistance from an individual at the nearest

disaster recovery center. In order to quickly take advantage of resources FEMA

can provide, have the following information accessible:

· Social Security Number

· Current and pre-disaster address and phone number

· Insurance information and type(s)

· Bank information (routing and account number)

Individuals with special needs receiving disaster relief

federal payments including Social Security and Medicare should know these

benefits are not affected by the receipt of FEMA assistance funds. Likewise,

Supplemental Security Income (SSI) support and maintenance benefits are

unaffected by such disaster payments as long as requirements are met. That may

not be the case, however, for other public benefits.

About this Newsletter: We hope you find this newsletter

useful and informative, but it is not the same as legal counsel. A free

newsletter is ultimately worth everything it costs you; you rely on it at your

own risk. Good legal advice includes a review of all of the facts of your

situation, including many that may at first blush seem to you not to matter. The

plan it generates is sensitive to your goals and wishes while taking into

account a whole panoply of laws, rules and practices, many not published. That

is what The Special Needs Alliance is all about. Contact information for a

member in your state may be obtained by calling toll-free (877) 572-8472, or by

visiting the Special Needs Alliance online.

© 2010 Special Needs Alliance. .

[Guest guest]

Well now, here is a suggestion worth implementing in counties throughout IL!

On IPADD we talk about getting things done, and all the big things that need

doing (housing, access to services for more people, etc.).  Yet it would be more

encouraging to us to start small and have a measure of success.

A special needs registry is something relatively small, and can be linked into

existing county emergency programs.  It would also get us " activists " known to

county officials.  How about it?

-Gail

Enroll in a Special Needs Registry

Many states have established special needs registries and special needs shelters

for individuals with disabilities. In Florida, for example, each county has a

phone number for a special needs registry. Depending upon the community, special

needs shelters may separately exist or be a unit within a Red Cross public

shelter. Identification of the appropriate shelter and its location should be

noted in the disaster supply kit.

Be aware that while a special needs shelter is designed to meet the needs of

individuals who require help with the activities of daily living, including

medication management and supervision, special needs shelters rarely have

advanced medical equipment. A caregiver for the individual should accompany him

or her to the shelter.

[Guest guest]

FYI

Ellen

Ellen Garber Bronfeld

egskb@...

[voice] The Voice - Special Needs Alliance newsletter

July 2010 - Vol 4, Issue 11

The Voice, the Official Newsletter of SNA

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The Voice is the e-mail newsletter of The Special Needs

Alliance. This installment was written by Barbara Isenhour of the Seattle,

Washington law firm Isenhour Bleck, PLLC. Her practice focuses on government

benefit issues for individuals with disabilities and estate planning for

families with special needs children. A board member of the Special Needs

Alliance, NAMI Eastside in Redmond, Washington, and ElderHealth NW in Seattle,

Barbara frequently lectures around the state of Washington on issues involving

special needs trusts and government benefits for the elderly and disabled.

Your Retirement Age Can Affect Your Child's Disability

Benefits

If you have a child with special needs, you should

think carefully about whether it is advisable to retire before what Social

Security calls your " normal retirement age " or " NRA. " Social Security has a

formula for reducing retirement benefits depending upon how many years before

NRA a worker retires (but not younger than age 62). NRA varies between age 65

and 67 depending on the worker's date of birth. Social Security has a chart

showing retirement ages. The NRA has gradually increased over time. For many

years NRA was 65 for everyone, but now it is as high as 67 for people born after

1959.

If you retire before your NRA, your Social Security

benefit amount will be reduced by a mathematical formula based on how many

months before your NRA you retire. So for example, if you retired at age 62 and

your NRA was 66, your retirement income will be reduced by 25%. If you retired 2

years before your NRA, the reduction in your Social Security benefits would be

about 13%. You can calculate your estimated NRA by going to Social Security's

web site. AnalyzeNow, a private web site with a mission to " disseminate

inexpensive retirement planning tools, " also has a useful retirement calculator

program.

There are several articles on the pros and cons of

applying for Social Security retirement benefits before reaching your NRA. Many

of the articles discuss what is referred to as the " break even " point. The idea

is to try to calculate whether you will receive more money over your lifetime if

you receive a smaller amount starting at age 62 or a larger amount starting at a

later age. There are calculator programs to determine how long you would have to

live before the amount you would receive at the NRA rate would be greater than

the smaller amount you would receive over a longer period of time if you elected

early retirement.

These articles and calculators fail to take into account

one factor that is of critical importance to parents with a special needs child.

Your child may be eligible for a Social Security benefit that is based on your

retirement benefit. The less you receive in retirement income, the less your

child's benefit will be for his or her lifetime.

Child Disability Benefits

If a child is disabled before the age of 22, he or she

may be eligible for Child Disability Benefits (CDB) when the parent retires,

becomes disabled or dies. The child must be at least 18 years old, and the

parent must have paid into the Social Security system while working. (A detailed

discussion of CDB is beyond the scope of this article.) The child's benefit

amount is 50% of the parent's Social Security benefit if the parent is living.

If the parent dies, the CDB benefit is increased to 75% of the parent's benefit

amount. If both parents are retired, disabled or deceased, the child will

receive the CDB amount based on the higher earning parent's Social Security

benefit. Occasionally a child will not get the full CDB benefit amount because

other family members are also entitled to Social Security benefits based upon

the parent's account. There is a maximum " family benefit " that can be paid based

on any one person's Social Security contributions.

Many adult disabled children are already receiving SSI

benefits when they qualify for CDB after their parent retires, becomes disabled

or dies. CDB will replace or offset the SSI benefit dollar for dollar. If the

CDB amount is less than the SSI benefit amount, the child can receive both CDB

and enough SSI income to bring the child's total income up to the SSI benefit

amount plus an additional $20.

The federal SSI benefit amount for 2010 is $674. Some

states pay a supplemental amount to increase the total SSI payment. So, for

example, if Tim was previously receiving SSI and his CDB benefit is $600 per

month, he will be eligible for an additional SSI benefit of $94 per month ($74 +

$20). If Tim's CDB benefit is $800 per month, he will receive no SSI benefits

because the CDB amount exceeds the SSI benefit amount.

How Retirement Age Affects Child Disability Benefits

The CDB amount paid to your child is based upon your

actual Social Security benefit amount. Applying for early retirement Social

Security benefits will not only reduce your Social Security benefit amount for

the rest of your life, but it will also reduce your child's CDB benefit.

For example, Kate is 61 years old and is trying to

decide whether to take early retirement at age 62 or wait until her NRA at 66.

Kate has a 30 year old son, , who is currently receiving SSI benefits of

$674 per month. has had cerebral palsy since birth.

Using the Social Security benefit calculator, Kate

determined that her NRA is 66, because she was born in 1949, and that if she

waited until age 66 to retire, her monthly benefit would be $1,250 per month. If

she retired at age 62, her retirement benefit would be about $900 per month.

Based upon the above estimates, Kate then calculated

's CDB if she died. would be entitled to half of Kate's benefit

amount when she retires, but her primary concern is how to provide for her son

at her death. If Kate waited until her NRA of 66, 's CDB would be $937 per

month (75% of $1,250). If Kate instead retired at 62, she estimated that 's

CDB benefit would be $675 per month (75% of $900). In doing these rough

calculations, Kate did not take into account annual cost of living adjustments

(COLA) and she disregarded the CDB benefits would not receive if she

delayed her retirement by four years.

The difference in 's CDB amount depending upon

whether Kate retired at age 62 or 66 amounted to $262 per month or $3,144 per

year. Projecting out this increased benefit amount over 40 years, would

receive approximately $125,000 more in CDB income if Kate waited to apply for

Social Security at 66 when she reaches her NRA. Keep in mind that the above

projections are based upon Kate's employment history, so the projected CDB

benefits for her son will not be same as another parent with higher or lower

earnings.

There are many factors to take into account before

deciding when to apply for Social Security retirement benefits, and there is no

single right answer to the question, " is early retirement a good idea? "

a.. For some families there are economic, health or

employment issues that make early retirement necessary regardless of the impact

on a child's CDB amount.

a.. For some families there are significant assets to

leave to their children in a special needs trust, making additional monthly

income from delayed retirement less significant.

a.. Some children contribute almost all of their

income as a co-payment towards residential care paid by the Medicaid program, so

additional monthly income will not impact the quality of their life.

a.. Some children with disabilities have their own

employment history through supported work that gives them a higher disability

benefit than what they would receive on a parent's Social Security account.

a.. The child is entitled to the higher benefit amount

if both parents are deceased, retired or disabled and in insured status with

Social Security. For example, if 's father has an account with Social

Security that is close to or higher than Kate's, she may be less concerned about

the effect of her retirement age on 's CDB benefit amount.

All of the above factors should be weighed carefully

before you decide whether to apply for early retirement with Social Security.

Your financial planner can give you guidance on the best age for you to retire

based upon your net worth. But if you have a special needs child who was

disabled before the age of 22, no decision should be made before considering the

impact of your retirement age on your child's future Social Security benefits.

About this Newsletter: We hope you find this newsletter

useful and informative, but it is not the same as legal counsel. A free

newsletter is ultimately worth everything it costs you; you rely on it at your

own risk. Good legal advice includes a review of all of the facts of your

situation, including many that may at first blush seem to you not to matter. The

plan it generates is sensitive to your goals and wishes while taking into

account a whole panoply of laws, rules and practices, many not published. That

is what The Special Needs Alliance is all about. Contact information for a

member in your state may be obtained by calling toll-free (877) 572-8472, or by

visiting the Special Needs Alliance online.

© 2010 Special Needs Alliance. .