by Bill Miller | Aug 17, 2018 | Estate Planning, Special Needs, trust
Julia’s daughter, Jenna, is a happy 17-year old woman. She participates in social activities, attends school, and has a job despite being born with multiple birth defects. While she’s satisfied with the progress Jenna has made, Julie is worried about her future. She wonders if her daughter’s needs can be anticipated and provided for in her estate planning.
The Basics
Typically, an estate plan consists of a Will, a durable power of attorney, and an advanced health care directive like a health care power of attorney. But complete estate plans address all of the testator’s needs and some people need more than the basics.
Julia can provide for Jenna in her Will. She could also have Jenna’s inheritance transferred to a trust for her benefit.
Extra Protection
Parents of a disabled child may have options that ensure their child’s future support.
- Special Needs Trust. This type of trust may calm at least some of Julia’s fears. The trust would be funded with money and assets that a trustee could use for Jenna’s support. However, if the trust is not properly drafted, it could reduce or eliminate Jenna’s eligibility for public benefits like Medicaid.
- Medicaid Income Trust. Also known as a Miller Trust or a Qualified Income Trust, Jenna can transfer some of her monthly income to this trust to remain below Medicaid’s income limits.
- ABLE Account. Julia might consider setting up savings plan called an ABLE account. ABLE stands for Achieving a Better Life Experience. Anyone can contribute to Jenna’s account, and the funds will be used for Jenna’s support.
- Guardianship. Jenna will be considered an adult at age 18, even though she has the mental age of a 10-year old child. If she has not already done so, Julia should talk to an attorney about setting up a guardianship for Jenna. Although disabled people often need to be as independent as possible, they remain vulnerable to people who may take advantage of them.
It can be difficult to find a way to provide for a disabled child’s future while preserving eligibility for public benefits and their own independence.
Consult with an Alabama Estate Planning Attorney.
Another thing Julia could do? Provide a letter of intent for future caregivers that gives instructions for Jenna’s care. While not technically an estate planning document, Julia can keep this letter with her important papers.
The attorneys at Adams & Miller have the experience you need to get the estate plan you and your loved ones deserve. Contact Adams & Miller, P.C. at 256-251-2137 to schedule an appointment or fill out our convenient Contact Form. We help clients in Anniston, Talladega, Birmingham, Gadsden and surrounding communities.
by Bill Miller | Jun 16, 2018 | Estate Planning, Special Needs, trust
As the caregiver of someone with special needs, you’re called upon to make important decisions on a daily basis. Those decisions may be life-changing for you and for your loved one. Often, therapists, medical specialists, and other advisers help plan the best care for individuals who require extra care. It’s also important to talk to an attorney who understands the needs of disabled individuals. It may be time to establish a special needs trust to provide funds for immediate and long-term care.
Is a Special Needs Trust Different from Regular Trusts?
A trust generally involves three parties:
- the trustor who signs a trust document to create the trust;
- the trustee who manages the trust assets and distributions to beneficiaries; and
- the beneficiary who receives distributions from the trust.
In some trusts, one person may serve all three roles. However, a special needs trust is for a beneficiary with conditions that require a high level of care. The trust, then, may be structured to allow the beneficiary to be eligible for public benefits, like Medicaid.
Who Can Benefit from a Special Needs Trust?
Special needs trusts may provide significant assistance for the following types of beneficiaries:
- People under age 65 who may need government benefits like Medicaid or SSI in the future.
- Individuals who suffer from one or more conditions that limit independence or require long-term or substantial treatment.
- Someone who will need assistance when you are no longer able to assist.
What Can We Pay with a Special Needs Trust?
Trustee of special needs trusts must spend trust funds for the benefit of the beneficiary. Trustees should know what state and federal law allow. Consulting an attorney is a good way to get started. In fact, the attorney who drew up the trust or who is representing the trust, may be able to give you more information the trust. Trust documents provide guidance to trustees, as well as the attorney representing the trust.
How Will I Know if I Need a Special Needs Trust?
Keep the following things in mind:
- A special needs trust may provide additional financial security to you and your loved one.
- Anyone drafting a special needs trust needs to understand the needs of the disabled person.
- Special needs trust can negatively affect eligibility for programs like Supplemental Social Security Income (SSI) or Medicaid if not properly written.
Have Questions? We Can Help.
Schedule a free consultation with the attorneys at Miller Estate and Elder Law Our attorneys know how to help people like you. Just give us a call at 256-251-2137 or use our Contact Form to set up an appointment. Serving clients in the greater Anniston area, including Birmingham, Talladega, and Gadsden.
by Bill Miller | Jun 11, 2018 | Elder Law, Special Needs
In today’s busy world, families often hire caregivers for their elderly and disabled loved ones. Many times, caregivers do a wonderful job. Still, it’s important for families to keep watch for signs things are not as they should be. It can be difficult to recognize the signs of elder abuse and even harder to know what to do about it.
What is elder abuse?
The term “elder abuse” can mean a single act, repeated act, or lack of appropriate action in several areas, including
- Verbal, physical or sexual: shouting, hitting, using drugs to inappropriately sedate, or confinement.
- Psychological or emotional. bullying, taunting, scapegoating, humiliation, isolation, or terrorizing.
- Financial. unauthorized use of an elderly person’s finances, stealing money or property, forging signatures, forcing a person to sign documents under duress, or identify theft.
- Healthcare fraud. charging for medical services that were not provided, overcharging, overmedicating or under medicating a patient, recommending inappropriate care, or recommending care for which kickbacks are received.
Elder abuse can also take the form of neglect. Instead of seeing bruises or bank accounts that mysteriously empty, abusive behavior might show up as failing to provide food, shelter, or medical care.
Abusive behavior is not limited to paid caregivers or nursing home personnel. Abusers may be family members, spouses or partners, neighbors, or family friends. Anyone who is in a position of trust for an elder person can be abusive.
How can I recognize elder abuse?
One of the best ways to protect your elderly loved ones is to communicate regularly. Visit often or call if you do not live nearby. Know what is “normal” for your loved one. If your usually talkative Aunt Gertie suddenly falls silent something could be wrong, either medically or because of an abusive situation.
Watch for physical signs of abuse. We all fall from time to time, especially as we age. However, you can watch for broken bones, sprains, dislocations, bruises, scars, and signs of restraints. Neglect may show in the form of unexplained weight loss, dehydration, poor hygiene, and wearing inadequate or inappropriate clothing.
Beware of anyone who tries to limit your time with your loved one. Someone who insists on being present while you visit may be trying to prevent a cry for help.
Ask your elderly relative to talk to an estate planning attorney before they become incapacitated. A durable power of attorney can authorize a trusted person to watch over financial accounts. A health care proxy designates who may make health care decisions for your loved one.
What can I do if I suspect elder abuse?
Do not confront the suspected abuser yourself. This could lead to greater abuse before your family member can be removed to safety. Talk to other family members and friends. Not only can they confirm whether abuse is occurring, but they can help stop the abuser.
If you need immediate assistance with an abusive situation, call 911. Otherwise, you can call the non-emergency number for your local law enforcement. Also, you may contact the Alabama Adult Abuse Hotline: 1-800-458-7214.
Ask an Elder Lawyer.
At Miller Estate and Elder Law., we make it our business to put our client’s needs first. We assist our elderly clients and their families in setting up estate plans that work for them. For a free consultation, contact us at 256-251-2137 or use our convenient Contact Form. We have offices in Anniston and Birmingham. We also assist clients in the Leeds, Gadsden, Hoover, Talladega, Vestavia Hills, and surrounding areas.
by Bill Miller | Jun 8, 2018 | Caregivers, Elder Law, Nursing Home, Special Needs
Calvin was becoming more frail every day. Daisy, his wife of 52 years, was finding it difficult to help him with his daily living activities. After several trips to the emergency room, Calvin’s doctor told them that he needed in-home nursing care. Daisy was left wondering, “What now?”
Locating the Right Caregivers
If you find yourself in this situation, the first thing to do is to find out exactly what kind of care your spouse needs. This will help you locate the right care and apply for the appropriate benefits.
For example, will your spouse need help only with activities of daily living like bathing and dressing? Or will he or she need a home health aide for skilled nursing care like taking vital signs and assisting with medication? Home caregivers may be hired through an agency or by private means while skilled health care workers are typically hired only through an agency.
Once you know what activities your in-home nursing staff will be responsible for, you can start looking for a caregiver that offers the assistance you need.
Paying for In-Home Nursing Care
In-home care is less expensive than long-term residential care, but it can still be out of reach for many people. As with long-term care, there are three basic ways to pay for in-home care:
- Self-pay. Even in-home care costs may quickly deplete your savings.
- Long-term Care Insurance. Benefits could help pay for both in-home and institutional care. Like all insurance, you have to apply and be approved. It’s likely that someone in Calvin’s position would be ineligible or would have extremely high premiums.
- Government Benefits. VA benefits might be available if you or your spouse served in the armed forces. Medicare might cover limited in-home care for a short period of time, but it’s not an option for the long haul. Medicaid does cover skilled care and assistance with daily activities.
Pre-Planning Is Best.
No one wants to think they may need in-home care, but it happens. Plan ahead with comprehensive estate planning, Medicaid eligibility planning, and purchasing insurance when possible.
The attorneys at Miller Estate and Elder Law have the experience and training to handle your concerns. Contact Miller Estate and Elder Law at 256-251-2137 to schedule an appointment. We help clients in Anniston, Talladega, Birmingham, Gadsden and surrounding communities.
by Bill Miller | Apr 17, 2018 | Special Needs
Jackson W. worried about his daughter, Olivia. As someone with a severe intellectual disability, she needed help with all daily activities and would never be self-sufficient. Her care was expensive and life-long. As he pondered ways to provide for Olivia’s care, he wondered if a special needs trust would be helpful.
The Dilemma
Children with disabilities like Olivia often need long-term, expensive care. Parents of special needs children want to provide enough money for that care, just like Jackson.
However, sometimes giving them money actually prevents the child from receiving much-needed public benefits. And leaving the money to other children or another “trusted” adult who promises to care for the child is probably not legally binding. There is no guarantee that someone will properly care for the child when you are gone.
A Trust with a Specific Purpose
People typically establish special needs trusts for two general reasons:
- To hold and maintain funds for a disabled person; and
- To ensure those funds don’t damage the disabled person’s eligibility for public benefits.
A disabled individual may need this type of trust for long-term care planning or to deal with a large influx of money from inheritance or a civil judgment.
The Two Main Types of Special Needs Trusts:
- First-Party Special Needs Trust. Also known as a Self Settled Supplemental Needs Trust or (d)(4)(A) trust. This trust is used when the disabled individual owns assets, but expects to need Medicaid or other public benefits down the road. The disabled person uses rust assets to pay for expenses not covered by SSI or other sources. A first-party trust is different from other trusts in that:
- Historically, a parent, grandparent, guardian, or court had to set up the trust. As of 2016, the individual may do so as well.
- The trust must be irrevocable.
- The trust must be funded by the beneficiary’s assets.
- The beneficiary must be age 65 or younger at the time the trust is created.
- The trust must reimburse the state Medicaid agency upon the beneficiary’s death.
- Third-Party Special Needs Trust. What sets this trust apart is that third-parties establish and fund the trust. Many times, a donor will set up this trust as part of an estate plan. For example, Jackson may establish the trust for Olivia when he does his estate planning, or he may have the trust created by his Will upon his death. The person making the trust may have to consider the following:
- There is no age requirement or limitation.
- The trust fund is not limited in size or value.
- Trust funds can be used for almost anything.
- Assets remaining in the trust at the beneficiary’s death may pass to other beneficiaries.
- The trust assets never belong to the beneficiary, so Medicaid does not have to be reimbursed.
Benefits of Using a Special Needs Trust
When Jackson considered the merits of different special needs trusts, he chose to establish and fund a third-party trust to cover Olivia’s needs. Olivia has no assets of her own to contribute to a trust. The beneficiary cannot fund a third-party special needs trust anyway. Thankfully, Jackson can contribute as much money as he wants to the fund. The trust he sets up will not interfere with Olivia’s future need to apply for public benefits under current law. As a result, Jackson feels a great sense of relief the day he fully funds the trust.
Some Trusts Require a Little More TLC.
The attorneys at Miller Estate and Elder Law assist clients with special needs planning, as well as long-term care and Medicaid applications. For more information get a copy of our Legal Planning Guide for Children and Young Adults with Special Needs.
For a free consultation with an experienced Alabama attorney, contact us at 256-251-2137 or use our convenient Contact Form. We have offices in Anniston and Birmingham and serve clients in Gadsden, Hoover, Talladega, Vestavia Hills, and surrounding areas.
by Bill Miller | Apr 7, 2018 | Special Needs
Parents of children with special needs have one big concern for the future: who will pay for their child’s expenses if they are no longer here. Special needs trusts have been available to help, but something more was needed. “Achieving a Better Life Experience” (ABLE) offers people a way to help their loved ones actually achieve a better life experience. What can an ABLE account do for you?
What Is an ABLE Account?
An ABLE Account is a tax-exempt savings account. People with special needs can save money to use for disability-related expenses without affecting their eligibility for public benefits like Medicaid.
Who Can Contribute to an ABLE Account?
Anyone.
ABLE accounts are not just for parent-child situations. If you know someone whose loved one has been diagnosed with a disability, you can help, too. In fact, any person or entity can contribute to the account.
Also, there are several ways to contribute:
- Payroll deductions,
- Through an Automated Investment Plan (“AIP”),
- Electronic transfer from a bank account,
- By check.
Gifting is another option. For example, you can use an ENABLE Gift Certificate to send a contribution and include a personal note to the account owner. And, finally, donors can use UGIFT, a free online gifting service.
What Can I Pay for Using an ABLE Account?
Withdrawals are easy, but must be used for qualified disability expenses, including:
- Education (including tuition for preschool through post-secondary schools);
- Housing;
- Transportation;
- Employment training and support;
- Assistive technology and related services;
- Personal support services;
- Health, prevention and wellness;
- Financial management and administrative services;
- Legal fees;
- Expenses for oversight and monitoring;
- Funeral and burial expenses, and
- Other expenses to enhance the account owner’s quality of life.
Funds in an ABLE account can be moved to another ABLE account if necessary. The money may be rolled over to another eligible family member.
You Can Help. So Can We.
In addition to helping someone with special needs, contributors to an ABLE account receive tax benefits. This seems almost secondary, though, compared to the good deed of helping someone in need.
If you have questions about an ABLE account or special needs trust, give us a call. We have the experience and training to handle your concerns. Contact Miller Estate and Elder Law at 256-251-2137 to schedule an appointment. We help clients in Anniston, Talladega, Birmingham, Gadsden and surrounding communities.
