With an asset protection plan that uses our proven Estate, Tax, Elder Law, Medicaid and Special Needs Planning strategies, Amoruso & Amoruso, LLP gives you peace of mind by ensuring that your loved ones receive the care that they need.
As many of you know, Michael J. Amoruso, Esq. was the leading advocate of the Special Needs Trust Fairness Act well before he brought the issue to the National Academy of Elder Law Attorneys (“NAELA”) to actively draft, support and push for its introduction and passage in Congress as current NAELA Vice President and Past Chair of NAELA’s Public Policy Committee. “Today I am honored to be NAELA’s representative at the White House to witness President Obama sign the Cures Act that contains the Special Needs Trust Fairness Act! It has been a long 23 year effort to correct a mistaken presumption in Federal law that anyone with a disability lacks the mental capacity to plan their own affairs,” Amoruso stated. “Standing in the White House today with my Seeing Eye Dog, Demitri, I am proud to know that with fortitude and perseverance, all Americans are empowered to make a positive change,” Amoruso said.
In 1993, Congress added a concept called a “Special Needs Trust” to the Omnibus Budget Reconciliation Act of 1993 (“OBRA 1993”). This addition permitted a disabled individual under the age of sixty-five, who might rely on Medicaid for health benefits and/or Supplemental Security Income to survive, to have a trust established to hold his or her savings in order to have supplemental funds to pay for daily living needs that government benefits did not cover. The quid pro quo for such protection was that, at the disabled individual’s death, the State would be reimbursed from the trust assets for Medicaid benefits paid to the individual during lifetime.
The problem, now solved by the Special Needs Trust Fairness Act, was that the Federal law required the trust be established by a parent, grandparent, legal guardian of the individual or a court. Who was missing from that list? That’s correct….the individuals themselves. “The Special Needs Trust Fairness Act rightfully adds “the individual” onto the list of those eligible to establish the trust – their constitutional right,” Amoruso explained. Prior to the passage of the Special Needs Trust Fairness Act , that person’s sole option (with no parent or grandparent available) was to hire a lawyer to petition the court to create the trust, thereby significantly increasing the cost and time required to create the trust. .
What does this mean to you?
If you have a disability
Act now! If you are under the age of 65, you now can sign your own Special Needs Trust and plan for your own affairs like every other American! No longer do you need to ask your parents, grandparents or a Court to allow you to plan for yourself. Unlike an ABLE Account which is limited to $100,000, a Special Needs Trust can hold unlimited assets for you to supplement living expenses without losing lifeline government benefits such as SSI and Medicaid. A real opportunity exists to enhance your quality of life when a Special Needs Trust is used in conjunction with an ABLE Account.
If you are a financial advisor
No longer do your clients need to spend down their assets or engage in costly legal proceedings to qualify for needed government benefits if they no longer have a parent or grandparent alive. You can simply refer them to a qualified attorney to prepare a self settled Special Needs Trust. In this way, you can maintain the financial plan and investment portfolio you already have in place to maximize the individual's quality of life and your all important client relationship remains intact.
If you are a caregiver, care manager, social worker or other caring professional
You now have the ability to quickly empower your client to keep control of their lives. The plan you put in place for your clients can be implemented much faster and at less cost now that they can take action themselves.
“The long struggle to ensure that folks like me can finally act for themselves like any American with capacity is finally over. The demoralizing stigma that I am incapacitated because I am disabled has finally been corrected and removed by Congress and the President. Today, I am especially proud to be an American” Amoruso declared.
It has taken nearly two years but some states are finally acting on the ABLE laws and regulations.
The Achieving a Better Life Experience Act (ABLE), which was passed in 2014, allows people with disabilities to put up to $100,000 in state based accounts without losing Social Security benefits. But the act also requires states to take part and pass laws and regulations overseeing the program. Four states are moving into action to launch the program.
Disability Scoop reports in "First ABLE Accounts Expected This Summer" that Nebraska has announced that its program will begin on June 30, 2016. Ohio has not announced a launch date, but it might begin its program even sooner. Florida and Virginia are also expected to open their programs this year.
In good news for all people with a disability, Ohio, Nebraska and Virginia are not limiting their programs to state residents. Anyone in the country can enroll.
As the programs are expected to vary between states, people might want to go ahead and enroll in one of those three states. The accounts can later be rolled over to another state if a better program opens up.
It is advisable that families consult with an estate planning attorney to learn about the restrictions on ABLE accounts and whether a special needs trust may benefit their situation.
When their daughter had a breakdown while attending college, there was nothing that Keisha Sacher’s parents could do when she refused to come home. At age 19, she was an adult. They had no legal control over her. When she finally did return to their home, the family endured a nightmare of her drug addiction, homelessness, hospitalizations and worse. The Sacher’s were aging, and they needed to plan for their daughter’s care in the future.
For parents watching helplessly while adult children struggle with mental illness and addition, there is another layer of worry. What will happen when the parents are no longer alive? In“For Parents With Troubled Adult Children, Financial Hurdles Abound,”The New York Times examine the financial challenges of helping loved ones stricken with mental illness. The solution must provide for care without placing assets in the ill person’s control, must not jeopardize their government benefits and must not worsen their condition. One solution is the special purpose trust.
A special-purpose trust is different from a special-needs trust, which is frequently implemented to pay for additional needs of those receiving government benefits where the government has strict restrictions on the recipient’s assets. A special-purpose trust can be used to provide children more of the life they might have enjoyed without mental illness or addiction, and it allows the parents the flexibility to make changes with the distributions.
Special-purpose trusts are more complicated to establish than regular trusts because of the powers they give to the trustees and the restrictions they place on distributions. However, the toughest part of creating a special-purpose trust is getting parents to accept them as necessary: parents must first acknowledge that their children will never fully recover.
Parents are advised to set out some very specific criteria for distributions into trust documents, for example, staying on medication or staying sober for a certain period of time. In addition, those with a family history of mental illness and addiction issues should get a power of attorney and health care proxy for children over 18 who are away at college. In the event that something happens to their child, the parents will have access to medical records and will be able to help.
Work through these issues with an experienced estate planning attorney to make sure that you are doing your best to help your child.
Ernie Banks, known as “Mr. Cub” had been diagnosed with dementia just days before he signed a will leaving his small estate to a caregiver, charges his estranged wife. Seems like she isn’t done with him yet.
In a case for resolving marital disputes sooner rather than later, the battle between Ernie Banks and his fourth wife, Elizabeth Banks, has now extended into an estate battle. The couple’s long and contentious divorce was still on-going when he passed away at age 83 this past January. Elizabeth Banks is disputing a March court ruling that validated Banks’ will, which left all of his estate to a caregiver, Regina Rice.
The Chicago Tribune reported that Elizabeth Banks argued in the filing that Ernie’s health was in a rapid state of decline since the preceding October when he was injured in a fall. Rice, a longtime friend to Ernie Banks, took him in to live with her at her home in Plainfield, Illinois while he was recovering.
Elizabeth Banks alleged in those March proceedings that Regina Rice coerced the ailing baseball legend and “Mr. Cub” into making changes to his will to give Regina all of the assets. However, two paralegals testified in the case that Ernie had the capacity and was of sound mind during the notarization of the will changes. The witnesses also said Ernie also said to them that he didn’t plan to leave money to his family.
Regina Rice has told the media that Ernie’s estate was worth a little more than $16,000 when he passed away.
There is no one right way to be a caregiver; everyone’s situation is different. You will find that, among a host of things, family dynamics, financial resources and the ability of your parent(s) to provide guidance for the support that they desire will shape your situation.
If you've been tasked to set up care for an aging parent or loved one, where do you even begin? What is the right way to go about this important task?
Luckily a recent PBS article, titled "How to care for your aging parents from a distance," assures us that there is no one right way to be a caregiver, as everyone’s situation is different. Caregiving responsibilities can entail at least information gathering and the coordinator of services.
One step is to ask your parent(s) to provide you with information to locate their important records, phone numbers, email addresses and other essential contact information. This includes legal documents like a Durable Power of Attorney for Health Care and Durable Power of Attorney for financial matters. These should be created before a health condition makes it impossible.
The original article suggests that to keep things in order, long-distance caregivers will benefit from keeping a Care Notebook. This is a central place to maintain all critical information and can be digital or just a regular old three-ring binder with pocket dividers. Do not forget current info on your parent’s prescriptions. Also, if you hire professional caregivers for your loved one, keep a separate notebook to document medication administration and other basic physical and mental health status information. Instructions to paid caregivers should be in writing.
PBS provides a few other important suggestions, such as:
Communicate. Whenever possible, include your loved one in the decision making process—especially choices on care and housing. Consider his or her expressed preferences and respect their values, even if they are not yours.
Education. Read up on the available care and services. Every region and location is unique in the types of services that are available, but some are found throughout the U.S.
Take Care of Yourself. Caregiving can be stressful, and you should have a support network for yourself. Hire help and get other family members involved. Attempting to do it all yourself is not healthy or safe for you or your loved one.
Changing Needs. Remember that your loved one's care needs may change over time, and original article stressed that it is never too early to consider possible future needs. There are many options to be considered; making informed, well-thought-out decisions about your parent’s care are vital, and your elder law attorney can help.
The realization of your new role as a caregiver can be stressful. The good news is that you can contact a qualified elder law attorney to get more information and the answers you need.
New studies are providing more current cost estimates. “What we found was shocking,” Mandell said. “This is a huge hit on families.”
The costs to care for a child with special needs is on the rise, as reported in a new study in the medical journal JAMA Pediatric. The study found that the total lifetime cost of supporting an individual with an ASD is $1.4 million in the U.S.—with an added intellectual disability, the total rises to $2.4 million. Reuters recently reported on this study and its findings in an article titled "Raising an Autistic Child: Coping With the Costs."
These costs typically include an ongoing mix of special education programs, medical care, and lost wages as many parents of autistic children reduce their work hours or even quit their jobs to help their child full-time. The organization Autism Speaks estimates that it now takes roughly $60,000 annually to support someone with an ASD. Such costs can be so prohibitive that many affected families will move to states that offer a better collection of services.
The original article advises parents not to automatically think they must drop out of the workforce to manage their child’s case full-time. It is the natural human instinct to want to do so. No one knows a child and his or her needs like a parent, and navigating the morass of city, state and federal services can be a full-time job. However, if a parent drops out of the workforce, just as out-of-pocket expenses start to mount up, it can become very challenging financially.
The article urges families to take a long-term view of caregiving. In some situations it might be more advantageous for mom to stay in the workforce, and then hire additional support to provide case-management services. An attorney well-versed in special needs issues can be an indispensable aid in this area.
A proper Caregiver Agreement is essential when a loved one or friend wants to pay you to provide assistance and care for them. Here is a link to an article in which Michael J. Amoruso, Esq., Managing Partner of Amoruso & Amoruso LLP in Westchester County, NY and Howard S. Krooks, Esq., Of Counsel to Amoruso & Amoruso LLP are both quoted on key issues involving caregiver agreements - http://newsle.com/article/0/164143883/#reloaded
Since for most of us, our children are our foremost priority in life, a Letter of Intent can be a crucial document. And anyone who wants to ensure special care for their children should consider including one with their estate documents; there are no real drawbacks to writing one.
For parents, their children are the most important part of their lives. With that in mind, a Letter of Intent can be a very important document to ensure special care for your children. This estate planning "blueprint" was recently discussed in a LifeHealthPro article titled "Letter of intent: a useful component of an estate plan." Including such a letter as part of your estate documents can prove to be very beneficial.
The article advises that there's no drawback to writing one either. However, there are a few things to keep in mind.
Far from being a “silver bullet” for all of your estate planning “must-haves,” there are some things that a Letter of Intent can't do. For example, a Letter of Intent is really a "blueprint" for other estate planning documents. You can use the Letter of Intent to provide detailed instructions and preferences for the care of your child, and those wishes can then be reflected in your wills or a trust to guarantee that they’re carried out. Financial decisions should be a reflection of your vision of the child's care—not vice versa.
Another thing to note is that the letter can be drafted right now, regardless of where you and your child are in life. "It’s not just that you never know when disaster will strike, although that’s always a good reason to be prepared," the article says. Understanding a child—especially one with special needs—is a lifelong journey. Start the letter now and add to it as the years go on.
Get your child involved, as it is his or her life, and he or she should have a voice. The LifeHealthPro article confirms that the child will appreciate being permitted to be a part of the important decisions about his or her future.
One last thing to remember: this is your opportunity to record everything about your child.A Letter of Intent can do this and more—it can let others know about his or her personality, likes, dislikes, strengths, and weaknesses. This will be critical information for those individuals whom you entrust to potentially have an important role in the care of your child.
“Beneficiary designations that are inconsistent with your will can wreak havoc on a well-structured estate plan,” said Helen Modly, a wealth manager and Executive Vice President at Focus Wealth Management in Middleburg, Va.
What is the top estate planning mistake you can make? Keeping things up-to-date, especially those beneficiaries! An article titled "Don’t make the No. 1 estate-planning goof" from MarketWatch lists six reasons you might need to update your beneficiary designations:
You got divorced or remarried. There are some jurisdictions that will automatically eliminate former spouses as beneficiaries; however, there are others that don’t. You should see your estate planning attorney to find out the law in your state.
You changed jobs and rolled over your retirement plan. What happens when you transfer your money from your former employer’s retirement plan into your new one or into an IRA? Your beneficiaries may lose any claim to those assets. You need to make sure that they are named as beneficiaries on the new account.
Your primary beneficiary died. You need to update your designation. If you also named a secondary beneficiary, he or she will move to the primary, but now you’ll need to name a new secondary beneficiary.
Your financial institution changed ownership. It's happened: when a bank, a brokerage firm, or mutual funds merge, they have been known to sometimes drop the beneficiary designations for older accounts.
You had a child or grandchild. The article cautions not to designate a child under age 18 or 21 (depending on your state) as a beneficiary. If so, the state will appoint a conservator until the child comes of age. You should instead create a trust for his or her benefit and name the trust as the beneficiary if you'd like to give them some of your assets.
Your beneficiary became disabled. You need to alter the designation or risk jeopardizing the beneficiary’s eligibility for Social Security’s Supplemental Security Income (SSI) benefits. Set up a Special Needs Trust for the benefit of the disabled person and designate the trust as the beneficiary on your accounts.