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Special Needs Planning

Saturday, June 15, 2019

What is the Medical Aid in Dying Act?


Medical aid in dying is the process by which an adult, mentally competent, terminally ill patient, whose doctors have determined likely to die within six months, self-consumes prescribed medicines to end suffering and achieve a peaceful death. There are currently legislative efforts in New York State to establish Medical Aid in Dying as a right.


Has it been tried before? Medical Aid in Dying has been legal in both Oregon and Washington for over a decade. Evidence compiled from these two states demonstrates that these programs are overwhelmingly beneficial. There is no evidence of disproportionate impact on vulnerable populations - the majority of patients who choose aid in dying have health insurance and most are college educated.


Read more . . .


Saturday, June 8, 2019

Do You Need a Health Care Proxy?


In New York, the two documents that allow an individual to detail their future medical wishes are a Health Care Proxy and a Living Will. You can also combine the two into one document: in the Health Care Proxy you can both nominate and provide specific instructions to your agent.


Purpose: A Health Care Proxy allows an individual to plan their future medical decisions in the event they are incapacitated. Given the state of today's medicine, individuals are commonly subjected to advanced life support systems and invasive medical treatments that only prolong the end-of-life care. If you have any specific wishes in regards to your end-of-life care (e.


Read more . . .


Wednesday, October 3, 2018

Psychiatric Advance Directives (PAD) – are they different from a regular health care proxy?

Every individual of adult years and sound mind has a right to choose what shall be done with his own body and to control the course of his medical treatment. Patient autonomy and self-determination are a firmly ensconced principle in New York State Law.

But what happens with patients who have lost decision making capacity? A Health Care Proxy is a powerful tool. Patients may choose a health care agent who will make all health care decisions for them in the future. These decisions include both life-sustaining treatment and on-going medications.


Read more . . .


Monday, February 26, 2018

How to Talk to an Aging Unsafe Driver


Driving is one of the most sensitive topics for caregivers of elderly. Driving is all about independence and it is one of the most emotional things for a senior to give up. Furthermore, it is hard to get around most of US without a car. So giving up your driving will almost always mean a need for relocation to a different type of living environment, which means leaving your home.

There are different signs and warnings that alert you that an elderly driver is having difficulty.
Read more . . .


Friday, September 15, 2017

Should you hire an aide privately or through an agency?


According to recent research by the AARP, about 90 percent of seniors would like to stay in their own home as they age, even if they require day-to-day assistance with activities of daily living. With a rapidly increasing senior population, demand for quality in-home care is beginning to skyrocket.

In the past, in-home care was usually delivered by home care agencies, who would provide a home care aide, and take care of the back-end reporting and financial requirements. However, the cost structure is beginning to shift.

First, cases involving cognitive decline, such as Alzheimer’s disease, usually require round the clock care.
Read more . . .


Thursday, July 7, 2016

ABLE accounts


The newly enacted ABLE accounts permit people with disabilities to save money without jeopardizing their government benefits. Account holders can have up to $100,000 in these accounts without jeopardizing their SSI (Supplemental Security Income) benefits. Medicaid benefits do not get jeopardized regardless of the amount of money held in these accounts.

These accounts enable disabled individuals to hold money in their name without a need for a Supplemental Needs Trust. This can be very beneficial for people with limited assets.


Read more . . .


Friday, June 19, 2015

Improving the Life of a Disabled Loved One: First Party vs. Third Party Supplemental Needs Trust

If you have a loved one with a disability, their life can be significantly improved with additional funds (think of non-generic medicine, vacation, additional home care, specially outfitted car, etc).   Supplemental Needs Trusts are set up for people with disabilities. The purpose of this type of a Trust is to supplement, not to supplant the government benefits to which the beneficiary may be entitled. If drafted properly, the assets and income of these trusts are treated as “exempt” by the agencies providing means tested benefits.  

There are two main types of Supplemental Needs Trusts.

First Party Supplemental Needs Trust holds the property of the person with disability (usually the funds come from an inheritance or a personal injury settlement). There are very specific criteria about the creation and administration of this type of a Trust. The assets must come from a beneficiary who is under the age of 65. The beneficiary must be disabled, as defined in the Social Security Law. The Trust must be established by a parent, grandparent, legal guardian or court order. Finally, the Trust must contain a ‘payback’ provision: upon the beneficiary’s death, all remaining assets must be used to repay the state Medicaid program for any assistance provided.

 

Third Party Supplemental Needs Trust holds the property of a ‘third party’ – a parent, a grandparent, a relative or a friend of the disabled beneficiary. There are fewer restrictions about the creation of this Trust. The beneficiary must be disabled. However, there is no ‘payback’ requirement: upon the beneficiary’s death the remaining assets may be distributed to another person. In addition, just like with the First Party Supplemental Needs Trust, the drafting language must remain very precise. Many Supplemental Needs Trusts have been disqualified, and the assets were considered available to the beneficiary, because of the imprecise language used by the attorneys. See my previous post about a trust that was not considered a proper Special Needs Trust by a court. http://sverdlovlaw.com/lawyer/2015/04/07/Children/The-importance-of-Using-the-Proper-Language-When-Setting-up-a-Special-Needs-Trust_bl18479.htm

 

Disclaimer: This article only offers general information.  Each situation is unique. It is always helpful to talk to a specialized attorney, to figure out your various options and ramifications of actions.  As every case has subtle differences, please do not use this article for legal advice. Only a signed engagement letter will create an attorney-client relationship.

 


Tuesday, April 7, 2015

The importance of Using the Proper Language When Setting up a Special Needs Trust

In a recent New York case, In re Paradiso, the court did not reform a father’s will which left money in a trust to a disabled daughter. In the Will, the father attempted to create a testamentary special needs trust, which would not have jeopardized the daughter’s government benefits (Medicaid and SSI). However, the language that was used to create a trust was not the statutory language!

There is a statute, EPTL 7-1.12, which requires that the supplemental needs trust language must clearly show that the intent of the deceased was “to supplement, not supplant, impair or diminish, government benefits”. If there is no such precise language, the intent of the testator is not clear, and the Trust will not be considered a Special Needs Trust.

As a result, the father’s money went in a regular Trust to a disabled daughter. Since the government will consider this money available to her, she is likely to lose her government benefits. These benefits can range from housing assistance and vocational training to home care and a stipend for basic food needs. 

This result could have been avoided by talking to a special needs attorney, who would have drafted a proper testamentary Special Needs Trust.  

 

Disclaimer: This article only offers general information.  Each situation is unique. It is always helpful to talk to a specialized attorney, to figure out your various options and ramifications of actions.  As every case has subtle differences, please do not use this article for legal advice. Only a signed engagement letter will create an attorney-client relationship.


Tuesday, March 31, 2015

Planning for Children with Special Needs

There are many considerations when planning for your children. There are even more issues to consider when planning for your child with Special Needs. Regardless of the child’s age, the need for special care will continue.

  1. Advanced Directives. You need to have a trusted family member or a friend to make financial decisions and health care decisions on your behalf, if you are not able to do so. The documents needed are Power of Attorney and a Health Care Proxy. Having these documents will ensure that someone has access to your money and will be able to support your children even if you are incapacitated. .

  2. Will. You can only name a guardian of your children through a Will. If you are named as a guardian of your special needs child, you can either specify an alternate guardian through the guardianship paperwork or do it through your will. You can also set up a Supplemental Needs Trust through a Will.  

  3. Guardianship. Once the child turns 18, your authority to make decisions for him will end. Prior to this age, you may want to commence a 17A guardianship, which will permit you to continue making financial and health care decisions on the child’s behalf.

  4. Supplemental Needs Trusts. These trusts provide funds for the enhancement of life for special needs children and adults, without jeopardizing their receipt of government benefits.

    1. These trusts can either be set up during life or through a Will.

    2. There are two types of Supplemental Needs Trusts:

      1. Payback Trusts: set up using the individual’s own money, need to have a Payback provision to the State

      2. Third Party Trusts – set up with other people’s money, there is no need for a payback provision.

  5. Government Services. There are many government benefits available to special needs children and adults. You need to review the various options available and plan accordingly.  

    1. Supplemental Security Income (SSI): provides a monthly stipend to a child once he or she is eligible. Funds are used to meet basic needs.

      1. Typically a child qualifies at 18 (when he is deemed to be cut off from parents’ income and assets

      2. SSI has a 3 year look back period for transfers of applicant’s own funds – so planning must start early

      3. Eligibility is based on resources (maximum of $2,000)

    2. Medicaid and Medicaid Waiver Programs: provide for home and community care, prevocational services, supported employment, respite care, vehicle modification.

      1. Some programs are resource based, others are not

 


Disclaimer: This article only offers general information.  Each situation is unique. It is always helpful to talk to a specialized attorney, to figure out your various options and ramifications of actions.  As every case has subtle differences, please do not use this article for legal advice. Only a signed engagement letter will create an attorney-client relationship.

 


Wednesday, March 11, 2015

Planning for Minor Children

Do you have minor children? Planning for the children involves multiple considerations.

1. Who do you want to raise your children if you are gone?

You need to name a “guardian” who will take care of your children in the event of your demise. You should name an alternate guardian, in case your first choice (usually your spouse) is unable to become one. This designation can only be done through a will.

You don’t want your children or your family to go through a custody battle. Stating your wishes clearly in a Will eliminates the courtroom drama.

2. Who do you want to manage the children’s assets while they are minor?

You need to name someone who will take care of the child’s assets while they are minor and potentially afterwards. It can be the same person as the “guardian” but it can also be a different person.  It will be either a “custodian” or a “trustee”, depending on the method used to leave the money.

You can decide whether or not there will be only one custodian or several (depending on how much control you want one person to have). You should not name your spouse as the sole custodian of the minor children’s money.

3. How do you want to split the money between your spouse and your children?

A very common misconception is that when a spouse dies, 100% of his money goes to the surviving spouse. In New York State, this is simply not correct, if there are children involved. Without a will expressing wishes to the contrary, the first $50,000 belong to the surviving spouse, and the remaining assets are split 50 /50 between the spouse and the children.

Do you like this default distribution? If you do not, then you need to write a will, expressing your desires about the percentage of your assets going to the spouse and the percentage going to your children.

4. When do you want your children to receive the money?

Without a will expressing wishes to the contrary, the children will receive all of their money at the time they turn 18 years old. Do you like this default distribution? Some people think that 18 is too young to receive a large inheritance. If you agree, then you need to decide when they children should receive the money and who will manage their assets in the meantime.

You can create a trust for the benefit of your children. The trust will specify at what age and under what circumstances the money will be distributed. You can decide who will manage the money and determine the distribution. You can decide in what proportion the money will be distributed. This trust can be created either during your life or written into a Will, to come into effect only after your demise.

Do not think that you need to have to be rich to have a trust. A $100,000 inheritance placed into the hands of an 18 year old without any limitations or control may spell disaster. With proper estate planning, the same money managed by a responsible friend or a relative can be used to pay for college education or vocational training, establishing a child’s future.  

5. Will the children have sufficient money to live on if something happens to you?

Even if you establish a guardian for your children, consider whether or not that guardian will have sufficient funds to raise your family. Will there be sufficient money for college, summer camps, and extracurricular activities?

If you are unsure of the answer, consider buying life insurance. The proceeds will ensure that your children are provided for until they are old enough to support themselves.

6. Do you have a child with Special Needs? There are many steps you should take when planning for this child’s future.

  • If the child has capacity to execute legal documents, then as soon as he turns 18, he should execute advance directives.  
  • If the child does not have capacity, then prior to the child turning 18, you will need to initiate a guardianship proceeding.
  • Depending on the disability, either an Article 17A or an Article 81 guardianship may be appropriate.
  • Prior to the child turning 18, you need to register with OPWDD (New York State Office for People with Developmental Disabilities), in order to obtain continuing services, assistance with living and additional education after high school.
  • You should consider establishing either a First Party Special Needs Trust or a Third Party Special Needs Trust, depending on your individual situation, in order not to jeopardize the child’s ability to receive government programs.

 

This article only offers general information.  Each situation is unique. It is always helpful to talk to a specialized attorney, to figure out your various options and ramifications of actions.  As every case has subtle differences, please do not use this article for legal advice. Only a signed engagement letter will create an attorney-client relationship.


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