Title: What Financial Planners, Trust Officers, CPAs and Estate Planning Attorneys Need to Know About Elder Law
1What 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
2Critical 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
3Alphabet Soup
A
C
B
ds
Of Trusts
4First Party Trusts (Pay Back)
- d4A - Under 65
- d4B - QIT
- d4C Pooled
- 42 USC 1396p
5Under 65 Disabled (d)(4)(A)
- Who Can Establish?
- Parent
- Grandparent
- Legal Guardian
- Court
- Disabled Defined
- Social Security Disability
- SSI
6Qualified 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
7Specific 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
8Pooled 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
9Pooled Trust (Cont)
- Set up by
- Individual
- Parent
- Grandparent
- Legal Guardian
- Court Order
- Ultimate Beneficiary
- State or
- Charity
10Third 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
11Other 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
12Elective Share and Medicaid
13What 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
14When is Election Due?
- Within 6 months of Notice of Administration or 2
years - If no election made, disqualifying transfer
results
15Who can Make the Election?
- Spouse
- Guardian
- Power of Attorney
- If Guardian or Power of Attorney, court must
determine election in spouses best interests
16Elective 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
17Elective 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
18Elective Share Trust
- Total discretion income and principal 0
- Income only 50
- Income with principal discretion 80
19Qualifying Special Needs Trust (100)
- Court finds ill or disabled
- Qualified Trustees
- Total trustee discretion
20Qualifying 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
21Qualifying Special Needs Trust
- Full credit toward Elective Share Amount
- Court Approval and Ineligible Trustee Rules When
Trust Assets Exceed 100,000
22Elective Share Trust
- No restriction on choice of trustee
- Must pay income with trustee discretion for
principal - Can get QTIP treatment
23Medicaid and the Elective Share
- Either Elective Share or Qualifying Special Needs
Trust - Must be testamentary trust for Medicaid
24Spouses with family from prior marriage(s)
- Pre nuptial agreements- still valid?
- Do informal understandings still work?
25Caregiver spouses
- Ill or disabled spouse at home
- Spouse in long term care facility
26Elective Share Scenario
- Husband Nursing Home Medicaid
- Wife sells house
- Wifes assets 500,000 for elective share
calculation - Elective share 150,000
27Wifes 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
28Preferred scenario Fork in the Road Living Trust
- If ill spouse dies first, traditional trust
- If well spouse (grantor) dies first, EST/QSNT
29Administering 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
30Opportunity 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
31Visit our Web Site
- www.Charlie-Robinson.com
- www.CharlieRobinsonFuturist.com
Or Email Comments to Elderlaw_at_Charlie-Robinson.co
m
Presentation graphics by Wendy