estate planning and decision making presented by: joshua l. brothers dussault law group (206)...
TRANSCRIPT
Estate Planning andDecision Making
Presented by:Joshua L. Brothers
Dussault Law Group(206) 324-4300
www.dussaultlaw.com
Public Benefits Eligibility
SSI/Medicaid– Disabled, blind, >65– Disabled = no SGA
($1,040/month)– “Means tested”
– Income– Earned ($2:$1)– Unearned
($1:$1)– ISM (up to 1/3)
– Assets < $2000 (individual)
– Exemptions include primary home (<$500k), vehicle, personal property, SNT
SSDI/Medicare– Disabled, blind, >65– Disabled = no SGA
($1,040/month)– Work History
– Available to individuals who have paid FICA taxes in the last 20 of 40 quarters prior to disability
– Not “means tested”
– Medicare available when: over 65 or meets SSA disability definition, 29 months post injury
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SSI/SSA Benefit Coverage
• SSI– Cash benefit of up to $710 to be utilized for food and shelter
expenses (as of 1/13). – Some States provide cash supplements to base SSI limit– “Gatekeeper” to Medicaid and other public benefit programs
• SSA– Cash benefit depending on amount paid into Social Security
system– Received through earned credits of self, spouse, or parent
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Medicaid/ Medicare Coverage
• Medicaid– Medical Assistance
• No premiums, co-pays or deductibles
– Long-Term Care• Personal care hours• Assisted living, nursing homes, etc.
• Medicare– Hospital, doctor visits, prescription drugs
• Premiums, co-pays and deductibles
– Minimal rehabilitation care, but no long-term care
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Last Will and Testament (aka the “Will”) vs.
Revocable Living Trusts• No will/living trust = “intestate succession”• Most common estate planning documents• Decision based on state probate process• Estate tax considerations ($5,000,000 exemption in 2013)
– Living trusts and estate taxes– Estate Taxes
• Should I leave assets to an individual with disabilities?– Outright distribution– Disinherit the individual– “Testamentary” special needs trust
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Probate vs. Non-Probate
Assets• Probate assets are assets held in the decedent’s name without a
beneficiary designation• Non-probate assets are those that pass by a written instrument or
arrangement other than a will– Jointly owned property with right of survivorship (bank accounts and
real property)– Pay on Death (POD) Account– Trust– Community Property– Individual Retirement Accounts (IRA)– 401(k) Plans– Life Insurance
• Review non-probate assets on a regular basis
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Roles of Individuals in a Will• Executor:
– Duties– Who to name?
• Guardian:– Duties– Who to name?– Should be consistent with any Court files
• Trustee:– Duties– Who to name?
• Advantages & disadvantages of using professionals
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What is a Trust?
• Separate legal entity• Barrier between beneficiary and Trust assets• Roles
– Trustor or Settlor– Trustee– Beneficiary
• Basic Functions of a Trust– Safeguard assets– Financial Management– Distributions
• “Types” of Trusts are just restrictions on basic functions• Can serve as an alternative to guardianship
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What is a Special Needs Trust (SNT)?
• Purposes:– Financial management– Continued eligibility for “means” sensitive benefits (primarily SSI and
Medicaid)• Restriction on expenditures – “extra and supplemental needs”
of the beneficiary– Needs not covered by SSI and Medicaid– Cannot pay for basic food (groceries) and shelter (rent and basic utilities) or
primary medical services otherwise covered by benefits– Can be used to pay for vacations, clothes, entertainment, education, etc.– Trust restrictions must be observed.
• Must be “irrevocable”• Sole benefit
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Source of Funding Matters
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Self-Settled (d)(4)(A) SNT
• Beneficiary’s own assets• Restrictions
– Beneficiary must be disabled– Established by parents, grandparents, guardian, or court– Beneficiary must be under 65 years of age– Medicaid Reimbursement
• Court-ordered (d)(4)(A) SNT– Court reporting requirements– Bond or blocked accounts– Possible need for a professional Trustee (bifurcated duties?)
• “Grantor” Trust if drafted appropriately• Alternative: (d)(4)(C) SNT
– Pooled Trust– Retained Trust assets replaces Medicaid Reimbursement
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Third Party SNT
• Assets of anyone other than the beneficiary• No (d)(4)(A) SNT restrictions
– Anyone can establish– Beneficiary can be any age– No Medicaid reimbursement
• Complex Trusts• Can be a Living or Testamentary Trust• Common situations in which a Third Party SNT is created
– Will and Estate Planning documents– Family or friends want to assist the beneficiary– Avoidance of multiple SNTs in wills
• Lack of judicial oversight• Use of non-professional Trustees• Control of assets after the beneficiary has passed away
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SNT Administration
• Who is the Trustee?– Professional– Non-Professional– Bifurcated duties (investment/disbursement)– Trust Protector?
• Beneficiaries with Guardians– Person vs. Estate– Court appointed legal representative– Guardian stands in the shoes of the beneficiary
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SNT Administration (Continued)
• Fiduciary Duties• Can be highly intensive trusts
• Understanding specific disabilities• Understanding public benefit programs• Family interactions
• Court supervision• Annual Reports• Bond or Blocked accounts
• Court accountings & duty to keep informed.
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SNT Administration (Continued)
• Direct payments to vendors/service providers• Cash to Beneficiary?
• Impact on SSI/Medicaid• Use of credit cards and gift cards
• Trust Owned Home• Charge rent?• Sources of rent (SSI, SSA and HUD)
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SNT Administration (Continued)
• Taxes• Trust vs. Individual Taxes• 3rd Party SNT = Complex Trust
• Retained income taxed to the Trust• Distributed income taxed to the Beneficiary
• Self-Settled SNT = Grantor Trust• All income taxed to Beneficiary
• Payment of taxes by Trust• WA’s flexible laws on Trust issues (“TEDRA”)
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Presumed Capacity
• When an individual turns 18, she is an adult in the eyes of the law.
• Adults presumed to be capable of making decisions on their own behalf.
• Parents lose the right to speak & act for their child, including…– Health Care– Driving– Marriage– Schools & Other Government Agencies– Financial
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Conferred Authority
• To make decisions on behalf of another adult, a person must be granted that authority by the adult, by the courts, or by operation of law.
• Ways to retain decision making authority– Guardianship– Power of Attorney– Trust– Representative Payee
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Guardianship/
Conservatorship• A “guardian” appointed by Superior
Court upon a finding of incapacity.• Types of Guardianship:– Estate/Conservatorship (financial)– Person (everything else!)
• Can be all rights or something less in most states
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Scope of GuardianshipPerson Estate
Full
Limited
√√ √√
√√ √√
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Establishing A Guardianship• Court determines– Incapacity– Scope of the guardianship–Who should be appointed as
guardian• Process varies from state to sate
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Potential Rights
• Objection to Guardianship.• Representation by counsel• Jury trial• Presumed to have capacity until found
incapacitated.
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Who Should Serve As
Guardian?• Parents, siblings, other close family members, family friends, certified professional guardian, public guardian
• Minimum qualifications– Over 18 years of age– Of unsound mind– No conviction of a felony or of a misdemeanor involving moral
turpitude– A person whom the Court finds unsuitable
• Stand-by Guardian• Transition
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Guardian’s Ongoing Rights and
Responsibilities• Manage the Incapacitated Person’s assets• Manage the Incapacitated Person’s
financial affairs• Court Reports & Accounting• Is the Guardian responsible for the
Incapacitated Person’s Debts?
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Power of Attorney (POA)
• A legal instrument in which a person (the “Principal”) grants another person (the “Attorney-in-Fact” or “AIF”) the right to make decisions on his or her behalf
• “Capacity” to sign the Power of Attorney required• The Principal does not lose the ability to make decisions• Substituted judgment rule• Decisions of Principal “trump”• POA is revocable• Date of Effectiveness
– Immediately (terminates on disability unless otherwise indicated)– Upon disability of the Principal
• Beware of the form!
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POA Authority
• Scope of the AIF’s authority determined by language in the POA – Financial– Health Care
• Broad language granting "all powers that the principal has" allows the AIF to make most decisions regarding the Principal's financial affairs and health care, including– Consent to most medical treatment– Buy or sell things– Enter contracts
• Language can be very specific and limited
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POA vs. Guardianship
Guardianship• No retained rights• Difficult to revoke• Invasiveness
– Establishment– On-Going Reports
• Psychological effect on AIP
• Can be expensivewww.dussaultlaw.com
POA• Retained Rights• Easily revocable• Privacy• Does not protect
against bad decisions• Relatively
inexpensive• May be a “temporary
fix”
Representative Payee
• An individual designated by the Social Security Administration (“SSA”) to act on behalf of a disabled person in dealing with the SSA
• Acts as a substitute to receive and handle a recipient’s benefits including SSI and SSDI
• Agrees to use the government benefits on behalf of the beneficiary for the beneficiary's personal care or well-being
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Who may serve as Representative Payee?
• Anyone concerned with the recipient’s welfare• Individuals
– Parent– Spouse– Close relative– Guardian– Friend
• Organizations– Institution such as a nursing home or health care provider;– Public or nonprofit agency or financial organization
• Cannot be a convicted felon
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Role of Representative
Payee• Uses benefits for the recipient’s basic needs for food and
shelter• Provides an accounting, usually on an annual basis to
the agency showing how the benefits were used. • Communicates with the agency, including completion of
agency requests and reports• Advocates for the best interests of the disabled recipient
to the agency including appeals• Authority is limited to matters between the recipient and
the agency.
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Disclaimer/Notice• This training and written materials are designed to
provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the presenter is not engaged in rendering legal, financial or other professional services. If legal advice or other expert assistance is required, the services of a competent professional should be sought.
• Please keep in mind all written materials and power point slides are the intellectual property of the Dussault Law Group. These materials may not be distributed without the express written consent of the authors.
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