Presents

Basics of Special Needs Planning

By

Michele Fuller and Kevin Urbatsch8th Annual ASNP National Conference

March 27, 2014

Morning Agenda

Overview of Special Needs Planning

Working with Persons with Disabilities and their Families

Basics of Public Benefits for Persons with Disabilities (SSI, Medicaid, SSDI, Medicare)

Different Types of SNTs (Third Party SNTs, (d)(4)(A) SNT, Pooled SNT)

Avoiding Common Mistakes During Special Needs Planning and Administration

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Benefits of Planning

1. Provide Financial Security

2. Leverage Means Tested Public Benefits

3. Select Proper Team to Provide Lifetime Management

4. Plan for Appropriate Housing

5. Provide Ongoing System for Advocacy

6. Plan for Caregiving Needs

7. Coordinate Entire Extended Family's Planning

8. Protect Beneficiary from Predators

9. Preserve Assets for other Heirs

Number of Persons with Disabilities

•Dramatic rise over next 30 years•Aging baby boomer generation •Combat related disabilities•New category: voluntary disability?•Autism•Aging with disabilities

• The Future of Planning for Persons with Special Needs: What Challenges Will Arise, NAELA Journal Vol 9, No. 2, Fall 2013, by Kevin Urbatsch and Michele Fuller

Number of Persons with Disabilities

•Currently 1:7 currently disabled•Aging baby boomers•Population over 65 predicted to double by 2030•However, number of aged with disabilities dropping due to medical advances

•Largest increase: those under 65•Asthma•Autism•Childhood obesity

Do All Persons with Disabilities Require Special Planning?

Only those individuals who meet the definition of disability and must maintain eligibility for needs-based programs require planning

• SSI & Medicaid

• NOT SSDI & Medicare

Working with People with Disabilities

• Common Issue: not including the person with a disability in the planning

• Capacity issues

• Often relies on others (Family, Friends and Community)

• Can be difficult, especially with severe mental illness – patience and a thick skin are a must

• Remember People First Language

Working with the Family

• Research the condition so you can address the issues that arise (e.g. Prader-Willi Syndrome – Issues w/food)

• Making sure the decision-maker is in room• Understand and be able to discuss the

acronyms (IEP, SSI, SNT)• Being able to provide referrals to

applicable resources like charities or support groups

Public Benefits SummaryPublic Benefits Summary

Types of Public Benefit Programs

Needs Based Public Benefits

SSI

Medicaid

Expanded Medicaid

What SSI Provides

SSI provides a monthly cash grant for food and shelter to disabled, blind, or the aged (65 or older)

In 2014, the SSI federal maximum payment is $721 for an individual

Some States supplement this amount. (e.g., California provides a

$156.40/month supplement in 2014

Where is SSI Law?

Finding the Law, Regulations, and SSA Policy

• 42 U.S.C. §§1381–1383f

• 20 C.F.R. §§416.101–416.2227

• SSA’s Program Operations Manual System (POMS) governs administration of SSI. POMS guidelines are available on the SSA’s website at

• http://policy.ssa.gov/poms.nsf

SSI Non-Financial Requirements

• Citizen or lawful resident

• Not be a fugitive felon, in prison, violating parole

• Not be outside the U.S. for more than one month

• Must apply for all other benefits for which you are eligible

• If an alien, meet special requirements

SSI Eligibility

Person Must Meet Two Additional Tests:

•Medically Disabled (physically or mentally) under SSI’s Definition or Elderly (65+), plus

• Poor

• Resource Test – measured only one time each month

• Income Test – total any income received any time of the month

Disability Defined

• “Disability” for an adult is defined as the inability to engage in any “substantial gainful activity” (SGA) due to any medically determinable physical or mental impairment, or combination of impairments, that has lasted or can be expected to last for a continuous period of at least 12 months, or result in death

• “Disability” for a minor is defined as a medically determinable physical or mental impairment or combination of impairments that causes marked and severe functional limitations, and that can be expected to cause death or that has lasted or can be expected to last for a continuous period of not less than 12 months

SSI Resource Test

“Countable resource” limits for SSI:• $2,000 for an eligible

individual• $3,000 for an eligible

couple• Measured on a month-by-

month basis on first day of each month• Snapshot Test

SSI BIG Exempt Assets

• Principal residence • (20 CFR §416.1212)

• Automobile (of any value) • (20 CFR §§416.1210(c))

SSI Other Exempt Assets

• Household items (20 CFR §§416.1210(b), 416.1216(a);

• Personal effects (20 CFR §§416.1210(b), 416.1216(b));

• Musical instruments (20 CFR §§416.1210(b), 416.1216(b));

• Burial insurance (20 CFR §§416.1230, 416.1231(b)(8));

• Irrevocable burial trusts; burial funds (20 CFR §416.1230, 416.1231(b)(8));

• Burial plots, vaults, and crypts (20 CFR §416.1231(a)); and

• Life insurance policies with cash value less than $1500, All term life insurance (20 CFR §416.1230)

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Types of SSI Income

Unearned Income

Includes gifts, payments from annuities, and pensions, alimony and support payments, dividends,

interest, rents, awards and payments from other benefits

programs.

Reduces benefits dollar-for-dollar after the

first $20.00

Earned Income

Consists of wages, royalties, net earnings from self employment, and any honoraria received for

services rendered.

Reduces benefits one dollar for every two

dollars earned after the first $65 earned monthly.

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Types of SSI Income

In-Kind Support & Maintenance

Actual receipt of food, clothing, or shelter, or something that can be

used to get one of these.

Reduces benefits dollar for dollar up to a maximum of

1/3 the benefit.

Deemed Income

Someone else’s income. (Same household; duty to

support)

Reduces benefits dollar-for-dollar after the

first $20.00

SSI Exempt Income and Earned Income

The first $20 of any income is exempt plus the first $65 of earned income

Earned income after the first $85 reduces the SSI monthly benefit:

• $1 for every $2 earned

• Example: If $585 was earned in a month, the SSI check would be reduced by $250

• ($585-$85 exemptions – 250 (50% of remaining earned income) = $250

SSI Unearned Income

Unearned income reduces the SSI monthly cash payment dollar-for-dollar, after taking the $20 "any-income" exemption

The effect of Unearned Income is much greater than Earned Income

• Example: Parent gives child SSI recipient $585 cash gift. Child will lose $565 of his monthly SSI check

SSI In-Kind Support and Maintenance (ISM)

Depending on living arrangements, SSI reduction is subject to either the

• Value of the one-third reduction (VTR) or

• Presumed maximum value rule (PMV)

• Clothing used to be considered ISM but no longer is, see POMS SI 00835.400

ISM Defined

The only ten “food and shelter” items are:1. Food

2. Mortgage (including property ins. required by lender)

3. Real property taxes (less any tax rebate/credit)

4. Rent

5. Heating fuel

6. Gas

7. Electricity

8. Water

9. Sewer

10. Garbage removal

SSI Deeming of Income to Minor or Spouse

Income and resources of a person having a duty of support are attributed or "deemed" to the person who is legally entitled to support. In the most common cases:• Parents income and assets deemed to minor• Spouse’s income and assets deemed to

spouse

“Deeming” is an irrefutable presumption: It does not matter if money is actually provided to an eligible individual for deeming to apply.

SSI Penalty for Giving Away Assets

Individuals who give away assets are ineligible for SSI for up to 36 months

To calculate the period of ineligibility, the amount transferred is divided by the transferor's monthly SSI benefit (including state supplement), rounding the result up or down to the nearest whole number

• Example: Eric receives $674/month from SSI. He receives $20,000 from his mother. He gives the entire amount to his brother. Eric loses 29 months of SSI eligibility (20,000 ÷ 674 = 29.67 or, rounded down, 29 months.

SSI Reporting Requirement

Benefits recipients are under a legal obligation to notify the SSA of changed circumstances, e.g., a change in income or assets.

The report should be in writing and mailed by certified letter within 10 calendar days of the end of the month in which the assets were received to the local SSA office. Reports should include:

• The reporter's name;

• The name and Social Security number (SSN) of the person the report is about;

• Facts about the change; and

• When the change happened

Eligibility for Medicaid

• Alabama, Arizona, Arkansas, California, Colorado, Delaware, Georgia, Florida, Kentucky, Iowa, Louisiana, Maine, Maryland, Massachusetts, Michigan, Mississippi, Montana, New Jersey, New Mexico, New York, North Carolina, Pennsylvania, Rhode Island, South Carolina, South

Dakota, Tennessee, Texas, Vermont, Washington, West Virginia, Wisconsin, Wyoming and Washington, D.C.

1634 States

• Alaska, Idaho, Kansas, Nebraska, Oregon, and Utah

SSI Criteria States

• Connecticut, Hawaii, Illinois, Indiana, Minnesota, Missouri, New Hampshire, North Dakota, Ohio, Oklahoma, and

Virginia

209b States

Eligibility for Medicaid

•1634 States▫ SSI rules apply and $1 of SSI eligibility means automatic

Medicaid eligibility

•SSI Criteria States▫ States elect to provide Medicaid for all SSI recipients, but

only if the recipient completes a separate application for Medicaid Program

•209b States▫Most restrictive allows States to authorize Medicaid criteria

which are more restrictive than SSI criteria, so long as criteria chosen are not more restrictive than the State's approved Medicaid plan in Jan. 1972

ACA (Private Insurance)Expanded Medicaid

• ACA – Private Health Insurance• Government Subsidized Private Health Care for

Income Levels of 139 to 400% of Federal Poverty Limit

• Ends at Age 65• May Not Provide Full Coverage

• Expanded Medicaid• Free Medicaid without Asset Test – Less Than 138% of

FPL• Ends at Age 65• Not Every State Has Adopted It

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Social Security Disability Insurance (SSDI)

Basic Eligibility Criteria

40 SSA work credits, 20 of which must have been earned in the last 10 years

Number of credits required is based on age, and when the individual becomes disabled.

In 2014, an individual gains 1 credit for each $1,200 of wages. Therefore, earnings of $4,800 equal 4 credits

Paid Social Security taxes on earnings

After Two Years – Qualify for Medicare

Social Security – Childhood Disability Beneficiary

• The SSDI program pays benefits to adults whose disability began before the age of 22

• This program is currently called the Childhood Disability Beneficiary (CDB), formerly referred to as a Disabled Adult Child (DAC)

• The amount of the monthly check is roughly • 50 percent of the parent's monthly cash payment

at retirement, and • 75 percent at death.

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Medicare Basics

• Part A – Hospital Insurance• Covers most of a stay in the hospital, plus

some follow-up costs

• Part B – Medical Insurance• Covers some of the costs of doctors and

outpatient care

• Part D – Prescription Drugs• Pays some of the cost of prescription drugs

Different Types of Special Needs Trusts

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Types of Special Needs Trusts

Source of Funds

Who Establishes

Trustee Distribution Upon Death

Third Party Anyone except beneficiary

Anyone except beneficiary

Grantor’s wishes Grantor’s wishes

Third PartyPooled Trust

Anyone except beneficiary

Anyone except beneficiary Non-profit Grantor’s wishes

First Party(d)(4)(A)

Beneficiary with a

disability’s funds before

age 65

Parent, Grandparent,

Guardian, Court

Grantor’s wishes

Medicaid payback; then

remainder beneficiaries

First Party(d)(4)(C)

Pooled Trust

Beneficiary with a

disability’s funds – may be funding

penalty after age 65

Beneficiary, Parent,

Grandparent, Guardian,

Court

Non-profit

Non-profit Trustee; or, Medicaid

payback; then remainder

beneficiaries

Third-Party Special Needs Trust

Third-party trust main requirements:• Beneficiary (or spouse) did not create the

trust• Trust does not hold Beneficiary’s (or

spouse’s) assets• Beneficiary is not Trustee• Trustee has sufficient discretion to

withhold distributions

Third-Party SNT Requirements

For SSI purposes, SSA defines a third party trust as

"a trust established by someone other than the beneficiary as grantor.“

It defines a grantor as

"the individual who provides the trust principal (or corpus).”

Third Party SNT Requirements

POMS two additional requirements:1. Beneficiary cannot have authority to

revoke the trust; and2. Beneficiary cannot direct the use of

trust assets for his or her support and maintenance under the terms of the trust

Third-Party SNTs

• No payback requirements• Grantor can leave any remaining funds to

whomever he or she wants

• Revocable during life of grantor

• If for a spouse, must be established by will (not revocable trust)

• More drafting flexibility so long as correct distribution standard is used

First-Party Special Needs Trusts

Disabled individual’s own funds are placed into the trust.

Established by statute:• (d)(4)(A) – Payback Trust• (d)(4)(C) – Pooled Trust

First Party SNTs

When are First Party SNTs used:• Personal Injury Award• Inheritance or Gift•Minor with a Disability Turns 18• Adult Recently Disabled

(d)(4)(A) SNT Requirements

Authorized by 42 U.S.C. §1396p(d)(4)(A) and has the following characteristics:• Irrevocable• Established by parent, grandparent, legal guardian,

or court• For the sole benefit of a person with a disability who

is under the age of 65• Provide that on the death of the beneficiary, the

trustee must repay Medicaid for all benefits received by the beneficiary during his or her lifetime to the extent that funds remain in the trust at the beneficiary's death

PRO’s - (d)(4)(A) SNT

• Control• Choice of Trustee• Choice of Investment Options

• More easily accepting of non-liquid assets like real estate

• More personalized attention

CON’s - (d)(4)(A) SNT

Limited to under age 65

Control• Choice of Trustee may be inappropriate• Investments could be too aggressive; result in a

loss of principal

Cannot be executed by an individual with capacity• Often results in Probate Court involvement to

establish trust and possible court supervision; bond• Very costly to maintain; No cap on fees

Poor drafting or administration

(d)(4)(C) Pooled SNT Requirements

• Irrevocable

• Established and managed by a non-profit association.

• Separate account is maintained for each beneficiary; pooled for purposes of investment and management

• Established by the individual, parent, grandparent, legal guardian, or by a court.

• Residual funds after death are retained by the trust or repaid to the State for medical assistance paid on behalf of the beneficiary

Typical Components Pooled Trust

• Master Trust Agreement

• Joinder Agreement

• Information Sheet / Questionnaire

• Legal Advice Waiver

• Fee Notice

• Funds Request Form

• Account Statements (at least annually)

PRO’s - Pooled Trust

• Can be executed by an individual with capacity

• No Court supervision required

• Professional Administration

• Often fees are capped

• Perfect for small settlements

• Choice of paying back state or leaving to charity

• Easier and can be lower cost to establish

CON’s – Pooled Trust

• Beneficiary has little control

• Fees can be large

• Investment options may be limited or information may not be accessible

• Not always accepting of non-liquid assets; depends on the Trustee

• Distribution may be by committee or only at certain times

Avoiding Common Mistakes During Special Needs

Planning and Administration

SNT Issues Ripe for Mistakes

• Stricter Enforcement by Public Agencies

• Section 8 Housing - Distributions affect benefit

• Medicare Set-Aside Arrangements

Failing To Keep Informed About Changes In Law Concerning SNTs

• Special Needs Attorney Organization• Academy of Special Needs Planners (ASNP)• National Academy of Elder Law Attorneys

(NAELA)

• Nonprofit Associations Assisting Persons with Disabilities

• Government Agencies Assisting Persons with Disabilities

Failing To Determine Which Person The Attorney Represents

Common scenarios include:• Family member brings in person with

a disability who has marginal or no capacity• Personal injury attorney brings case to

attorney to set up special needs trust• Attorney establishes special needs

trust for PI Attorney/Beneficiary then represents trustee

Confusing the Public Benefit Programs

Needs-Based Public Benefits:

• Supplemental Security Income (SSI)

• Medicaid

Entitlement Public Benefits:

• Social Security Disability Income (SSDI)

• Social Security – CDB

• Medicare

Other benefit programs

• Section 8

• Veteran Benefits

• SNAP

• Waiver Services

Confusing Different Types of SNTs

First Party Special Needs Trusts• (d)(4)(A) SNT or Payback SNT• Pooled SNT or (d)(4)(C) SNT•Miller Trusts or (d)(4)(B) trust

Third Party Special Needs Trust

Improper Third Party Planning

Improper Third Party SNT Planning• For spouse, must be done through will

One Dimensional Third Party Planning (it’s not just about public benefits)• Advocacy and care giving• Multiple beneficiaries• Coordination with family members• Memorandum of intent

Poor Distribution Standard

• Too broad (e.g., distribution for SNT beneficiary’s support, maintenance or mandatory distribution) will reduce or eliminate needs-based public benefits• Too narrow will unnecessarily restrict

trustee’s ability to make distributions (e.g., distribution that will not reduce SNT beneficiary’s public benefits in any way)

Poor SNT Management Team

Trustee• Bank or Private Professional Fiduciary

Trust Advisory Committee• Family members and friends, may also

include professional benefits counselor to make sure distributions do not interfere with public benefits

Trust Protector• Modify trust for changes in law or to remove

and replace trustee for any reason

Not Preparing a Financial Plan

Common gaps in financial planning•Premature death or disability of parent

•Inadequate savings to meet lifetime goals

•Not taking advantage of benefit programs

•Failing to review and monitor financial plan

Fails to Set Up Process for Distribution

• Number One complaint is that SNT trustee fails to timely respond to distribution requests

• Best practice is to require that all disbursement requests come in writing• Have form that can be scanned and

emailed or faxed

• Trustee needs system for accepting/denying requests

Complying with “Sole Benefit Rule”

• POMS require that First party SNTs be for the “sole benefit” as defined

Consider a trust established for the sole benefit of an individual if the trust benefits no one but that

individual, whether at the time the trust is established or at any time for the remainder of the

individual's life. POMS SI 01120.201F.2.a

“Sole Benefit”- But for how long?

Consider the following disbursements or distributions to be for the sole benefit of the trust beneficiary:

• Payments to a third party that result in the receipt of goods or services by the trust beneficiary;

• Payment of third party travel expenses which are necessary in order for the trust beneficiary to obtain medical treatment; and

• Payment of third party travel expenses to visit a trust beneficiary who resides in an institution, nursing home, or other long-term care facility (e.g., group homes and assisted living facilities) or other supported living arrangement in which a non-family member or entity is being paid to provide or oversee the individual’s living arrangement. The travel must be for the purpose of ensuring the safety and/or medical well-being of the individual.

• POMS SI 01120.201F.2.b.

Distributing Cash/ Allowance/ Gift Card To Beneficiary

• Distributing more than $20 cash a month directly to beneficiary – unearned income reduces SSI (dollar for dollar)• Gift Cards okay but only if

1. cannot be used for food or shelter and 2. legal prohibition against resaleOtherwise treated as unearned income, nearly impossible to meet

Refusing To Make Appropriate Distributions To A SNT Beneficiary

• Purchase of Exempt Resources• Payment of Food and Shelter• Payment for Services• Payment of Medical Expenses• Vacations• Payment of Appropriate Credit Card

Charges• Clothing• Home Furnishings, etc. etc. etc.

Not Maintaining Good Records

• How long?• One SSA Agency sought 25 years of trust

records

• If records are inadequate all doubts and presumptions made that Trustee did something inappropriate

First Party SNT Termination – Payback Provision

May payReasonable fees for administration

of trustTaxes

Then must pay all State Medicaid agencies

Not allowed prior to paybackFuneral Expenses (prepay for funeral)Preexisting debts

Thank You