What Financial Planners, Trust Officers, CPAs and Estate Planning Attorneys Need to Know About Elder Law - PowerPoint PPT Presentation

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What Financial Planners, Trust Officers, CPAs and Estate Planning Attorneys Need to Know About Elder Law

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Title: What Financial Planners, Trust Officers, CPAs and Estate Planning Attorneys Need to Know About Elder Law


1
What Financial Planners, Trust Officers, CPAs and
Estate Planning Attorneys Need to Know About
Elder Law
  • Charlie Robinson
  • Florida Board Certified Elder Law Attorney

www.Charlie-Robinson.com www.CharlieRobinsonFuturi
st.com
2
Critical Resources
  • DCF Manual - MyFLorida.com
  • HCFA Pub 45-3, Transmittal 64
  • 42 C.F.R. Part 435
  • 20 C.F.R. Part 416
  • 42 U.S.C. Sections 1396 et seq
  • Florida Statutes 409.901 et seq
  • Florida Administrative Code Rules 65C-8.011 et
    seq.
  • POMS (Program Operation Manual System)
    httpssa.gov/poms.nsf

3
Alphabet Soup
A
C
B

ds
Of Trusts
4
First Party Trusts (Pay Back)
  • d4A - Under 65
  • d4B - QIT
  • d4C Pooled
  • 42 USC 1396p

5
Under 65 Disabled (d)(4)(A)
  • Who Can Establish?
  • Parent
  • Grandparent
  • Legal Guardian
  • Court
  • Disabled Defined
  • Social Security Disability
  • SSI

6
Qualified Income Trust (d)(4)(B)
  • Income over 1,656
  • Not a SNT
  • Floridas Income Cap
  • Set up for first month benefits needed
  • All Leftovers to the State
  • Specific authorization in DPOA

7
Specific Authority
  • Add to your DPOA language or else
  • To create, fund and maintain an Income Trust
    pursuant to 42 USC 1396p(d)(4)(B) in order to
    qualify me for Medicaid or any other public
    assistance benefits

8
Pooled Trust (d)(4)(C)
  • Same Level of Disability as Under 65
  • No Age Limit
  • Separate Account for Each Beneficiary
  • Joinder Agreement
  • Non-Profit Association Establishes

9
Pooled Trust (Cont)
  • Set up by
  • Individual
  • Parent
  • Grandparent
  • Legal Guardian
  • Court Order
  • Ultimate Beneficiary
  • State or
  • Charity

10
Third Party Trusts for Medicaid
  • Availability of Assets and Income Measured by
    Trustee Discretion
  • Living Trust or Testamentary if assets owned by
    person other than spouse
  • If spouse trust must be under will
  • No payback requirements after death of
    beneficiary

11
Other Trusts for Medicaid
  • Assets Available if Grantor is
  • Applicant
  • Applicant's Spouse
  • DPOA or Court
  • At Direction or Request of Grantor or Grantors
    Spouse
  • Testamentary trust OK

12
Elective Share and Medicaid
13
What is Elective Share?
  • Rights of surviving spouse to deceased spouses
    assets
  • Up to 9/30/01
  • 30 of net Probate Estate
  • After 10/1/01
  • 30 of Nearly Everything

14
When is Election Due?
  • Within 6 months of Notice of Administration or 2
    years
  • If no election made, disqualifying transfer
    results

15
Who can Make the Election?
  • Spouse
  • Guardian
  • Power of Attorney
  • If Guardian or Power of Attorney, court must
    determine election in spouses best interests

16
Elective Estate Property
  • Probate estate
  • Pay on death, transfer on death, In trust for, co
    ownership with right of survivorship
  • ½ tenancy by the entirety
  • The portion of property decedent could use or
    withdraw without accounting to another person

17
Elective Estate Property (cont)
  • Fractional interest in joint with right of
    survivorship,
  • Tenancy by the entirety
  • Value divided by number of tenants
  • Property transferred over annual exclusion

18
Elective Share Trust
  • Total discretion income and principal 0
  • Income only 50
  • Income with principal discretion 80

19
Qualifying Special Needs Trust (100)
  • Court finds ill or disabled
  • Qualified Trustees
  • Total trustee discretion

20
Qualifying Special Needs Trust
  • Trustees
  • Majority Must Be Eligible Trustees
  • Ineligible Trustees
  • Decedents Grandparents
  • Descendant's of Decedents Grandparents
  • Who are not also descendants of the surviving
    spouse
  • Income and Principal at Trustee Discretion

21
Qualifying Special Needs Trust
  • Full credit toward Elective Share Amount
  • Court Approval and Ineligible Trustee Rules When
    Trust Assets Exceed 100,000

22
Elective Share Trust
  • No restriction on choice of trustee
  • Must pay income with trustee discretion for
    principal
  • Can get QTIP treatment

23
Medicaid and the Elective Share
  • Either Elective Share or Qualifying Special Needs
    Trust
  • Must be testamentary trust for Medicaid

24
Spouses with family from prior marriage(s)
  • Pre nuptial agreements- still valid?
  • Do informal understandings still work?

25
Caregiver spouses
  • Ill or disabled spouse at home
  • Spouse in long term care facility

26
Elective Share Scenario
  • Husband Nursing Home Medicaid
  • Wife sells house
  • Wifes assets 500,000 for elective share
    calculation
  • Elective share 150,000

27
Wifes Estate Plan
  • Living trust with assets to children
  • Transfer on death, joint with survivorship, and
    beneficiary designation to her children
  • What if she had set up living trust with special
    needs limitation to husband if he survived, then
    to her children?
  • D I S A S T E R

28
Preferred scenario Fork in the Road Living Trust
  • If ill spouse dies first, traditional trust
  • If well spouse (grantor) dies first, EST/QSNT

29
Administering Trusts for Special Needs People
  • Must have working knowledge of SSI
  • Over 65 or
  • Blind or
  • Disabled
  • SSI Medicaid
  • Assets Under 2,000 in available assets
  • Income limit 552

30
Opportunity for Fiduciary Pros
  • Special Needs Trusts and Elective Share issues
    beyond Self-help
  • Fees should reflect traditional fiduciary fees
    plus
  • Knowledge required to maintain SSI qualification
  • Ability to determine special needs
  • Doing well by doing good

31
Visit our Web Site
  • www.Charlie-Robinson.com
  • www.CharlieRobinsonFuturist.com

Or Email Comments to Elderlaw_at_Charlie-Robinson.co
m
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