Surrogate abuses discretion by denying an administratrix’s petition seeking approval of a NY EPTL 7-1.12(a)(5) supplemental needs trust
- 08-18-2010
07:14
AM - Author:
A Surrogate abused his discretion by denying an
administratrix’s petition seeking approval of a supplemental needs trust (SNT)
based on the entire amount of the settlement proceeds she was receiving from a
wrongful death action as the proposed SNT complied with EPTL 7-1.12(a)(5) and
she was a disabled adult under 65 years of age.
Lexis.com subscribers can view the enhanced version of Matter of Woolworth, 2010 NY Slip Op 5092, 2010 N.Y. App. Div.
LEXIS 5123 (4th Dep’t, June 11, 2010, Decided)
Non-subscribers can use lexisOne’s Free Case Law search to view the free,
un-enhanced version of Matter
of Woolworth, 2010 NY Slip Op 5092, 2010 N.Y. App. Div. LEXIS 5123 (4th Dep’t,
June 11, 2010, Decided)
Compassionate Allowances Initiative
- 06-11-2010
16:45
PM - Author:
In October of 2008, the Social Security Administration (SSA) announced the commencement of the national Compassionate Allowances Initiative, a means to expedite the processing of disability claims for applicants whose medical conditions are so severe that their conditions obviously meet the Social Security’s standards. According to the Commissioner of Social Security, Michael Astrue, “getting benefits quickly to people with the most severe medical conditions is both the right and the compassionate thing to do. This initiative will allow us to make decisions on these cases in a matter of days, rather than months or years.”
Before announcing the initiative, the SSA held public hearings to receive information from experts on rare diseases and cancers. The agency also sought assistance from the National Institutes of Health. As a result, the SSA initially launched the expedited decisions process with a total of 50 conditions that included 25 cancers and 25 rare diseases. The SSA vowed that, over time, more conditions would be added to the list.
True to their word, in February of this year, the SSA announced that early-onset Alzheimer’s disease, as well as four related dementias have been added to SSA’s Compassionate Allowances Initiative. The four related dementias include: frontotempral dementia (FTD) – Pick’s disease, Creutzfeldt-Jakob disease, mixed-dementia, and primary progressive aphasia. To determine which diseases and conditions to include, the SSA held several public outreach hearings throughout the country that included testimony from medical experts as well as testimony from those directly affected by the disease and conditions. The July 2009 Compassionate Allowance Initiative Hearing on Early-Onset Alzheimer’s Disease and Related Dementias held in Chicago included testimony from the CEO of the Alzheimer’s Association, several of the nation’s top Alzheimer’s disease researchers, and care givers and individuals with early-onset Alzheimer’s disease who discussed the challenges they face during the disability application process.
During the day-long hearing, SSA officials heard about the terminal nature of Alzheimer’s disease, the disabilities that often prohibit work in even the earliest stages of the disease, and the lack of effective treatments to modify or halt the progression of the disease. The Alzheimer’s Association praised the SSA for understanding that cognitive impairments caused by Alzheimer’s disease leave individuals unable to maintain gainful employment and deserving of an expedited disability determination. The Association reiterated that Social Security benefits are important to those with early-onset Alzheimer’s disease and related dementias who are unable to work and have no other source of income. Individuals with early-onset Alzheimer’s disease and related dementias who apply for Social Security benefits are often initially denied, but usually win on appeal. The problem is that the appeals process can take years. Until now, individuals with early-onset Alzheimer’s disease have faced a myriad of challenges when applying for Social Security Disability Insurance (SSDI) or Supplemental Security Income (SSI), including a long decision process, initial denials, and multiple appeals. According to the Alzheimer’s Association, the recent decision by the SSA to add these conditions will simplify and streamline the SSDI/SSI application process and significantly decrease the wait time to receive much-needed benefits.
In the words of Michael Astrue: “This is America. It is simply not acceptable for people to wait years for a final decision on a disability claim. I am committed to a process that is as fair and speedy as possible. The launch of Compassionate Allowances is another step to ensuring Americans with disabilities, especially those with certain cancers, and rare diseases, get the benefits they need quickly.”
For more information on the Compassionate Allowances Initiative and/or on Alzheimer’s disease, please go to www.ssa.gov or www.alz.org.
___________
Oast Hook has been providing quality legal services in Southeastern Virginia and North Carolina for more than 80 years. The attorneys at Oast Hook can assist clients with their estate, financial, insurance, long-term care, veterans’ benefits and special needs planning issues. Visit their website at www.oasthook.com for more information.
Sandra Smith
Sandra L. Smith joined the firm in 2003. She practices primarily in the areas of elder law, estate planning, estate and trust administration, special needs planning, asset protection planning, long-term care planning and Veterans’ benefits. Ms. Smith is certified as an Elder Law Attorney (CELA) by The National Elder Law Foundation (NELF).
In 2008, Ms. Smith was named as a Rising Star by Virginia Super Lawyers magazine. Rising Stars names the state’s top up-and-coming attorneys.
Supplemental Needs Trusts
- 08-20-2010
08:14
AM - Author:
The objective of a Supplemental Needs Trust is to provide the disabled person with goods and services not adequately provided for by governmental programs such as Medicaid and Supplemental Security Income (SSI), without jeopardizing the recipient’s rights to such benefits. Read More ….
Andrew Hook of Oast & Hook on Special Needs Planning
- 08-20-2010
13:00
PM - Author:
On this edition, Andrew Hook of Oast Hook discusses special needs planning and why it is critically important. He talks about the legal tools used in special needs planning, the role of financial planning and how to find a special needs planner. Copyright© 2010 LexisNexis, a division of Reed Elsevier Inc. Visit www.lexisnexis.com/community/estate-elderlaw/.
LexisNexis® Estate Practice & Elder Law Community Podcast featuring Andrew Hook of Oast & Hook on Special Needs Planning
- 08-20-2010
13:47
PM - Author:
On this edition, Andrew Hook of Oast Hook discusses special needs planning and why it is critically important. He talks about the legal tools used in special needs planning, the role of financial planning and how to find a special needs planner. Copyright© 2010 LexisNexis, a division of Reed Elsevier Inc. Visit www.lexisnexis.com/community/estate-elderlaw/.
Special Needs Planning
- 08-23-2010
09:13
AM - Author:
This Article is a summary of the body of
knowledge that a Special Needs Planner will utilize in developing a
comprehensive plan for a person with a disability and his or her family. Special Needs Planning is
more than drafting a Special Needs Trust (SNT). While a SNT is important tool, it
is not a Special Needs Plan. A Special Needs Plan is a comprehensive,
customized legal and financial plan to address the unique
and individual needs of a person with a disability and his or her family.
Please click on the link at the top of the post to view
or download Special Needs Planning – It is more than drafting a Trust.
Estate Planning for Gifts by Parents to Special Needs Children
- 08-23-2010
10:32
AM - Author:
Trusts are
good vehicles to hold gifts by parents to their children who have disabilities
and who have qualified for programs and benefits based on indigency. The Trust can allow a third person to be
Trustee after the parents’ death and to give that person discretion in making
distributions for the benefit of the child.
The Trust can go on for the entire life of the special needs child.
If the child
acquires assets, he or she may be thrown off the program he or she previously
qualified for. In some cases, the
government entity which previously paid benefits may have a lien to recover the
value of those benefits. That lien could
attach to the assets that the child inherits at the death of his or her
parents.
A Special
Needs Trust is one which contains provisions designed to avoid these problems
and to prevent the trust assets from being treated as a resource of the
child. Central to accomplishing this
result is a provision stating that the Trust cannot be used to pay any benefits
that the child would otherwise qualify to receive from any government
program. In other words, the Trust can
only be used for things above and beyond the benefits which the special needs
child already qualifies for.
It is
critical that the child not be Trustee of his or her Trust, that the trust be
irrevocable, and that Trust benefits be paid out for the benefit of the child
and not directly to him or her. Since the Trust will go on for the child’s
entire life, it should designate a succession of many Trustees and should even have
a procedure for naming additional Trustee should the child outlive all of the
Trustees.
Some parents
like to create a Trust for the child while they are living and to transfer
assets to it. This author is not high on
this strategy because the parents, while they are living, can use their own
funds for the child and because the parents can include a provision in their
revocable trust that says when both parents die the assets for the special needs
child can be allocated to a newly created Special Needs Trust.
This article
does not speak to Special Needs Trusts that are created to house the proceeds
of personal injury settlements or awards which are transferred by the child to
his or her Special Needs Trust.
Randy
Spiro is a Beverly Hills attorney who is a certified specialist in
Taxation and in Estate Planning, Probate and Trust Law. He holds a Masters
Degree in Taxation from Golden Gate University and has taught tax and estate
planning courses at UCLA and USC. He has been named as Super Lawyer by
Los Angeles Magazine.
Access
Randy Spiro’s Martindale-Hubbell
profile on www.martindale.com
Andrew Hook of Oast & Hook on Drafting Special Needs Trusts
- 09-10-2010
13:00
PM - Author:
On this edition, Andrew Hook of Oast Hook discusses the different types of special needs trusts, where to find applicable law, and some of the most important issues to consider when drafting one. He talks about common errors attorneys make when preparing such trusts and available resources to assist practitioners. Copyright© 2010 LexisNexis, a division of Reed Elsevier Inc. Visit www.lexisnexis.com/community/estate-elderlaw/.
LexisNexis® Estate Practice & Elder Law Community Podcast featuring Andrew Hook of Oast & Hook on Drafting Special Needs Trusts
- 09-12-2010
08:47
AM - Author:
On this edition, Andrew Hook of Oast Hook discusses the different types of special needs trusts, where to find applicable law, and some of the most important issues to consider when drafting one. He talks about common errors attorneys make when preparing such trusts and available resources to assist practitioners. Copyright© 2010 LexisNexis, a division of Reed Elsevier Inc. Visit www.lexisnexis.com/community/estate-elderlaw/.
Using Third Party SNTs In Estate Planning
- 10-05-2010
14:38
PM - Author:
Third
Party SNTs are those created for the benefit of a person with a disability that
makes that person an appropriate beneficiary of a SNT and are funded with
assets belonging to someone other than the SNT’s beneficiary. The easiest
example of a Third Party SNT is where parents of a child with a disability
create, as part of their own estate plan, a SNT for the benefit of their child
and provide in their estate planning documents that the child’s share of the
inheritance is distributed to the SNT rather than to the child directly.
Please click on the link at the top of the post to view
or download the excerpt “Using Third Party SNTs In Estate Planning”
This article is excerpted from materials that Stuart Zimring will
present at 2010
Special Needs Trusts: The National Conference on Oct. 21-22, 2010, at Don
CeSar Beach Resort in St. Pete Beach, Florida. In its 12th year of teaching
excellence in the field of special needs trusts, the National Conference will
provide an in-depth review and discussion on both basic and advanced levels of
the major issues presented in the creation, administration, and monitoring of
special needs trusts. Stuart will also be presenting on Trustee Powers,
Standards and Duties.