Reforming a Trust To Preserve Government Benefits
Our firm was hired by the Personal Representative of a decedent's estate to complete the probate. Simultaneously, we were engaged to represent the son of one of the beneficiaries under the Will who was incapacitated due to a mental health issue. That beneficiary had previously received SSI and Medicaid benefits which had been lost due to the beneficiary not responding to the agencies. Upon reviewing the Last Will & Testament we learned that a trust had been created for the incapacitated beneficiary however it directed the trustee to distribute principal and income directly to the beneficiary. If the trust was administered in this manner the beneficiary would never re-qualify for SSI and Medicaid and the inheritance would be spent very quickly.
We counseled the Personal Representative to file a petition seeking to reform the trust into a special needs trust. The Court agreed that a material purpose of the trust could no longer be fulfilled and granted the petition. Once the trust was reformed into a special needs trust and funded with the inheritance, the Guardian reapplied for SSI for that trust beneficiary. Legal counsel for the Social Security Administration agreed with the Court's ruling and honored the Court Order. The beneficiary is now receiving SSI and Medicaid.
Protecting Child Support or Alimony During a Divorce
We collaborate with family law attorneys and their clients when alimony or child support is ordered to be paid to an adult or child who receives government benefits such as Medicaid and SSI. We have successfully created special needs trusts for spouses and minor children to receive the alimony or child support. As a result the divorced spouse and/or child maintained their government benefits and had their care and lifestyle supplemented through the special needs trust.
Keep in mind that a person going through a divorce should create or change their estate planning documents to avoid a guardianship for themselves in the event of an unforeseen incapacity or disability. We can provide these additional estate and incapacity planning services. By taking the time to plan an individual can save time, privacy and thousands of dollars that otherwise will be lost in a guardianship proceeding. Most of all they can have peace of mind.
Maximizing Settlement Proceeds for the Beneficiaries of a Deceased Medicaid Recipient
Our firm successfully collaborated with a trial attorney in a nursing home negligence case and helped maximize the settlement proceeds going to the estate beneficiaries. The deceased parent lived in a nursing home and received Medicaid assistance. A settlement offer was made however; the attorney was concerned that Florida Medicaid law requires the state to be reimbursed. We found an exception to the Medicaid estate recovery lien and successfully argued that one of the adult children had served as a caregiver for the parent for 1 year which helped delay entry into the nursing home. The lien was completely waived! When you consult with us, we'll review the facts of the case and use our knowledge and creativity to determine how to maximize the proceeds going to the beneficiaries.
Protecting the Home from the Medicaid Lien
Purchasing a home for the beneficiary of a special needs trust is one of the largest investments a Trustee will ever make. However, if the home is not titled properly it can be an expensive mistake. Recently, we were engaged by a corporate trustee of a Special Needs Trust to represent it in administering an existing Special Needs Trust. We discovered that the home was titled in the name of the trust. We immediately informed the Trustee of the danger that at the beneficiary’s demise the Trustee could be forced to sell the home to satisfy the Medicaid lien. The unfortunate consequence is that a family will lose their home.
We used our expertise and creativity to create a guardianship for the trust beneficiary. We then had the Trustee transfer the title to the home to the guardianship. The trust beneficiary obtained the homestead protection, qualified for a disability tax exemption, and now the home is not subject to the Medicaid lien.
Protecting Lawsuit Proceeds & Maintaining Government Benefits
If you or a friend has a family member with special needs you know firsthand the challenges it presents. When a person with a disability receives Medicaid and/or SSI benefits and receives money from a lawsuit or inheritance it can unintentionally cause the child to lose government benefits. We work as a collaborative partner with many trial attorneys to help clients preserve their government benefits. We are happy to report that we recently helped a young man with a developmental disability regain entitlement to Medicaid and SSI benefits. His benefits were terminated as a result of receiving the first of several payments from a personal injury settlement. When the first settlement was received his Mother who was his Guardian did not advise the Court or the attorney that her son received government benefits. Once the government agencies learned of the assets the benefits were terminated.
We successfully obtained court approval to create a special needs trust and transfer the guardianship assets into the trust. The final settlement proceeds were added to the trust. The special needs trust assets will last longer by having the government pay for certain basic approved items, and can be used to enhance his life and quality of care.