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List of Forms by Chapter - Chapter 1 — Initial Client Meeting and Needs Assessment
-
I. [1.1] Initial Planning Considerations - [1.2] Growing Need for Estate Planning for Potential Special-Needs Beneficiaries and Special Situations To Consider
- [1.3] Special-Needs Trusts
- [1.4] Trusts Under the Omnibus Budget Reconciliation Act of 1993
- [1.5] Tax-Free Savings Accounts Under the Stephen Beck, Jr., Achieving a Better Life Experience Act of 2014
- [1.6] Perspective of Parents of Children with Disabilities
- II. [1.7] Understanding the Clients
- III. [1.8] Topics To Discuss
- Chapter 2 — Day Program and Residential Placement Options and Related Funding Issues
- I. [2.1] Introduction
- II. Programming and Placement Options for Newborns to Preschool-Age Children
- III. Programming and Placement Options for School-Age Children
- IV. Programming and Placement Options for Adults
- [2.10] Usual vs. Unusual Circumstances
- [2.11] Options for Mental Illness vs. Developmental Disability
- [2.12] Living at Home with Day Programming
- [2.13] Funding Issues and Options
- Residential Placement; Living Away from Home
- [2.14] In General
- [2.15] Nursing Homes
- [2.16] Group Homes
- [2.17] Supportive Living Facilities
- V. Programming and Placement Options for Seniors
- VI. [2.20] Summary
- VII. [2.21] Appendix — Resources and References
- Chapter 3 — Home Design and Adaptations for Use for a Person with Special Needs
- I. [3.1] Introduction
- II. [3.2] Assessment of Disability, Programming Available, and Resources
- III. Assessment for Adaptations
- [3.3] Initial Considerations
- Meeting the Needs of the Individual
- [3.4] Activities of Daily Living Considerations
- [3.5] Access Into and Through the Home
- Room-by-Room Assessment of Activities of Daily Living
- [3.6] Kitchens
- [3.7] Bathrooms
- Therapy Areas
- [3.8] In general
- [3.9] Notes on specialized therapies
- [3.10] Rest and Recreation
- [3.11] Care Providers and Special Adaptations
- IV. Old vs. New
- V. [3.19] Resources
- Chapter 4 — Drafting Self-Settled OBRA Trusts
- I. [4.1] Drafting Self-Settled OBRA Trusts
- II. Sources of Law and Policy for Self-Settled OBRA Trusts
- III. Requirements To Qualify a Special-Needs Trust as a Medicaid-Exempt 42 U.S.C. §1396p(d)(4)(A) OBRA Trust
- [4.6] Establishment by Qualified Person or Court
- [4.7] Individual
- [4.8] Parent or Grandparent
- [4.9] Legal Guardian
- [4.10] Court
- [4.11] Disability
- [4.12] Definition of “Disability”
- [4.13] Definition of “Disability” for Persons Under Age 18
- Irrevocability
- [4.14] 42 U.S.C. §1396p(d)(4)(A) Special-Needs Trust Must Name Residuary Beneficiaries
- [4.15] The Beneficiary and the Beneficiary’s Agents Must Be Prohibited from Revoking the 42 U.S.C. §1396p(d)(4)(A) Special-Needs Trust
- [4.16] Under Age 65
- [4.17] Assets of the Individual
- [4.18] For the Sole Benefit of the Individual
- [4.19] Payback Requirement
- [4.20] Deductions Permitted To Be Paid Prior to Payback
- [4.21] Deductions Not Permitted To Be Paid Prior to Payback
- [4.22] Early Termination Clauses
- [4.23] Satisfaction of Personal Injury Lien
- [4.24] Savings Clause
- IV. Other Drafting Issues
- V. Notice and Approval
- VI. [4.34] Checklist for Drafting 42 U.S.C. §1396p(d)(4)(A) OBRA Special-Needs Trusts
- VII. [4.35] Requirements To Qualify a Special-Needs Trust as a Medicaid-Exempt 42 U.S.C. §1396p(d)(4)(C) OBRA Trust
- [4.36] Statutory Requirements
- [4.37] Disability
- [4.38] Nonprofit Association
- [4.39] Separate Account
- [4.40] Solely for the Benefit Of
- [4.41] Established By
- [4.42] Payback
- [4.43] Early Termination Clauses
- Other Pooled Trust Issues
- [4.44] Transfer Penalty for Age 65 or Older
- [4.45] Retention by Trust
- [4.46] Advantages of 42 U.S.C. §1396p(d)(4)(C) Pooled Special-Needs Trusts
- [4.47] Available to Individuals with Disabilities over Age 65 Who Are Wards of the County or State Guardian
- [4.48] Trustee Expertise
- [4.49] Lower Expense
- Services Provided by the Pooled Trust
- [4.50] Money Management
- [4.51] Care Services
- Other Considerations
- [4.52] Fees
- [4.53] Funding
- [4.54] Pooled 42 U.S.C. §1396p(d)(4)(C) Special-Needs Trusts Available in Illinois
- VIII. Appendix
- Establishing Special-Needs Trusts
- [4.55] Chancery Petition To Establish a Special-Needs Trust for Person with a Disability
- [4.56] Petition To Authorize Guardian To Establish OBRA Special-Needs Trust for the Benefit of the Ward
- [4.57] Chancery Order Establishing a Special-Needs Trust
- [4.58] Comparison of Illinois Pooled Trusts
- Chapter 5 — Drafting Third-Party Special Needs Trusts
- Chapter 6 — Social Security and Medicare: An Overview
- I. [6.1] Introduction
- II. Supplemental Security Income
- [6.4] Overview
- [6.5] Qualification
- [6.6] Income Limitations
- [6.7] Resources
- [6.8] Application for Other Benefits
- [6.9] Institutionalization Affecting Eligibility
- [6.10] Determination of Disability and Appeals
- [6.11] Reconsideration
- [6.12] Formal Administrative Hearing
- [6.13] Social Security Appeals Council
- [6.14] Civil Action in Federal District Court
- III. Social Security Disability Insurance
- [6.15] Overview
- [6.16] Qualification
- [6.17] Application Specifics
- [6.18] Determination of Disability
- [6.19] Five-Step Decision Process
- [6.20] Is the Applicant Working?
- [6.21] Is the Medical Condition Severe?
- [6.22] Is the Medical Condition on the List of Impairments?
- [6.23] Can the Applicant Do the Work Done Before?
- [6.24] Can the Applicant Do Any Other Type of Work?
- [6.25] Decision on Application and Appeals
- IV. Children with Disabilities
- V. Medicare
- [6.29] Overview
- [6.30] Medicare Part A Hospital Insurance
- [6.31] Medicare Part B Medical Insurance
- [6.32] Original Medicare Plan
- [6.33] Enrollment Issues
- [6.34] Medicare Part C Medicare Advantage Plans
- [6.35] Preferred Provider Organization
- [6.36] Health Maintenance Organization
- [6.37] Private Fee-for-Service
- [6.38] Medical Savings Account
- [6.39] Special-Needs Plan
- [6.40] Enrollment for Medicare Advantage Plans
- [6.41] Word of Caution About Medicare Advantage Plans
- [6.42] Medicare Part D Prescription Drug Plans
- [6.43] Coverage Summary
- [6.44] Enrollment Issues
- [6.45] Extra Help or Low-Income Subsidy
- [6.46] Tips for New Medicare Recipients
- Medicare Enrollment Issues
- [6.47] Open Enrollment
- [6.48] General Enrollment
- VI. [6.49] Resources
- Chapter 7 — Medicaid Issues
- I. [7.1] Introduction
- II. [7.2] Overview of Programs
- III. [7.8] Source of Medicaid Law
- IV. [7.9] Medicaid Eligibility
- V. [7.10] Medicaid Financial Eligibility Requirements
- [7.11] Exempt Assets
- [7.12] Homestead Property
- [7.13] Personal Effects and Household Goods
- [7.14] Motor Vehicle
- [7.15] Life Insurance
- [7.16] Burial Spaces
- [7.17] Burial Funds
- [7.18] Resources Needed for Self-Support
- [7.19] Nonexempt or Available Assets
- Available but Not Counted Assets
- [7.20] Jointly Owned Real Property
- [7.21] Life Estates
- [7.22] Other Non-Homestead Real Property
- VI. [7.23] Transfers of Resources and Income
- VII. [7.31] Planning Strategies
- [7.32] Exempt Purchases
- [7.33] Fair Market Value Purchases
- [7.34] Transfers to Special-Needs Trusts
- [7.35] Transfers to Spouse
- [7.36] Transfer of Exempt Assets to Community Spouse
- [7.37] Transfer of Available Assets to Community Spouse
- [7.38] Refusal To Disclose Assets and Spousal Cooperation
- [7.39] Increased Community Spouse Asset Allowance
- [7.40] Transfer of Income to Community Spouse
- [7.41] Transfers to Children
- [7.42] Transfer of Homestead to Siblings with an Equity Interest
- [7.43] Outright Transfers of Assets
- VIII. Dealing with Property in Trust
- IX. [7.50] Estate Recovery and Liens
- X. [7.51] Medicaid Planning by Guardians
- XI. [7.52] Trends To Monitor
- Chapter 8 — Tax Issues Relating to Special-Needs Trusts
- I. [8.1] Introduction
- II. [8.2] Income Tax Overview
- III. Income Tax Issues and (d)(4)(A) Special-Needs Trusts
- IV. [8.12] Income Tax Issues When a Third-Party Special-Needs Trust Is Funded During the Lifetime of the Donor
- V. [8.15] Income Tax Issues When a Third-Party Special-Needs Trust Is Funded at the Death of the Donor
- VI. [8.16] Income Tax Filing Requirements
- VII. [8.17] Income Tax Issues When a Third-Party Special-Needs Trust Is Funded with a Retirement Plan
- VIII. [8.18] Miscellaneous Income Tax Issues
- IX. Gift and Estate Tax
- [8.19] Gift and Estate Tax Issues and (d)(4)(A) Special-Needs Trusts
- [8.20] Parents as Trustees of a (d)(4)(A) Special-Needs Trust
- [8.21] Gift and Estate Tax Issues and Third-Party Special-Needs Trusts Funded During the Lifetime of the Donor
- [8.22] Gift and Estate Tax Issues for a Third-Party Special-Needs Trust Funded at the Death of the Donor
- X. [8.23] Generation-Skipping Tax
- XI. [8.24] Conclusion
- XII. [8.25] Resources
- Chapter 9 — Disability Provisions in General (Non-Special-Needs Trust) Living Trusts
- I. Essential Provisions
- [9.1] Determining Incapacity of the Grantor After Creation of the Trust
- [9.2] Distribution to a Beneficiary with a Disability
- [9.3] Spendthrift Provision
- Incapacity of Beneficiary or Trustee
- [9.4] Incapacity Defined
- [9.5] Personal Representative Defined
- [9.6] Notice to Personal Representative
- [9.7] Power To Amend
- II. Additional Provisions
- III. [9.14] Exempt Trust Under the Omnibus Budget Reconciliation Act of 1993
- IV. [9.15] Tax-Free Savings Account Under the Stephen Beck, Jr., Achieving a Better Life Experience Act of 2014
- Chapter 10 — Special Powers in Powers of Attorney Relating to Special-Needs Issues
- I. [10.1] Power To Establish and Fund Omnibus Budget Reconciliation Act Payback Trust
- II. [10.2] Power To Make Gifts or Transfer Assets
- III. [10.3] Power To Make Payments for the Benefit of Special-Needs Persons
- IV. [10.4] Power To Amend Estate Planning Documents To Protect Estate
- V. [10.5] Power of Attorney Protector (Similar to Trust Protector)
- VI. [10.6] Special Powers Sample Provisions
- [10.7] Transfer on Death Instrument
- [10.8] Personal Service Contract
- [10.9] Other Compensation
- [10.10] Reverse Mortgage
- [10.11] Effective Date
- [10.12] Online Accounts and Digital Assets
- [10.13] Estate Guardian
- [10.14] Collection and Payment
- [10.15] United States Government Bonds
- [10.16] Banking Powers
- [10.17] Motor Vehicles
- [10.18] Business Interests
- [10.19] Tax Powers
- [10.20] Digital Devices and Assets
- [10.21] Safe-Deposit Boxes
- [10.22] Insurance
- [10.23] Healthcare
- [10.24] Health Insurance Portability and Accountability Act Release Authority
- VII. [10.25] Practical Advice for Attorneys
- VIII. [10.26] Conclusion
- Chapter 11 — Planning for Beneficiaries Who May Become Disabled
- Chapter 12 — Powers of Attorney and Trusts as Alternatives to Guardianship
- Chapter 13 — Guardianship
- I. [13.1] Scope of Chapter
- II. [13.2] Introduction to Guardianship
- III. [13.3] Special-Needs Planning and Guardianship
- IV. [13.4] Guardianship for Minors
- [13.5] Qualifications of a Guardian for a Minor
- [13.6] Overview of the Duties of a Guardian for a Minor’s Person
- [13.7] Overview of the Duties of a Guardian for a Minor’s Estate
- [13.8] Short-Term Guardianship for a Minor
- [13.9] Selection of a Short-Term Guardian for a Minor
- [13.10] Procedure for the Appointment of a Short-Term Guardian for a Minor
- [13.11] Statutory Form for Appointment of a Short-Term Guardian of a Minor
- [13.12] Consideration of Minor’s Wishes and Right To Nominate a Guardian
- [13.13] Consideration of Potential Objections by Interested Parties
- [13.14] Rights of the Other Parent Are Not Affected
- [13.15] Appointment of Short-Term Guardian Without Consent of Other Parent
- [13.16] The Effect of an Appointment of a Short-Term Guardian for a Minor
- [13.17] Protection of Third Parties Who Rely on Short-Term Guardian
- [13.18] The Term of a Short-Term Guardianship for a Minor
- [13.19] School Residency and Short-Term Guardianship for a Minor
- [13.20] Amendment or Revocation of Short-Term Guardianship for a Minor
- [13.21] Designation of a Guardian for a Minor
- [13.22] Selection of a Guardian for a Minor
- [13.23] Procedure for the Designation of a Guardian of a Minor
- [13.24] Court Appointment Required for a Designated Guardian of a Minor
- [13.25] Rights of the Other Parent and the Parental-Superior-Rights Doctrine
- [13.26] Consideration of a Minor’s Rights to Notice and To Nominate a Guardian
- [13.27] Consideration of Potential Objections by Interested Parties
- [13.28] The Effect of a Designation and Standard for Court Appointment of a Guardian for a Minor
- [13.29] Amendment or Revocation of a Designation of Guardian for a Minor
- [13.30] Standby Guardianship of a Minor
- [13.31] Selection of a Standby Guardian for a Minor
- [13.32] Procedure for the Appointment of a Standby Guardian for a Minor
- [13.33] Court Appointment Required for a Standby Guardian of a Minor
- [13.34] Consideration of a Minor’s Right to Notice and To Nominate a Guardian
- [13.35] Consideration of Potential Objections by Interested Parties
- [13.36] Rights of the Other Parent Are Not Affected
- [13.37] Petition for Appointment of a Standby Guardian for a Minor
- [13.38] Bond Requirement for a Standby Guardian of a Minor
- [13.39] Duties and Authority of a Standby Guardian of a Minor
- [13.40] Amendment and Termination of a Standby Guardianship for a Minor
- [13.41] Automatic Termination of a Standby Guardianship for a Minor After 60 Days
- [13.42] Priority of a Standby Guardian of a Minor
- [13.43] Standby Guardianship and Short-Term Guardianship of a Minor Compared
- [13.44] Permanent Guardianship for a Minor
- [13.45] Petition for Appointment of a Permanent Guardian for a Minor
- [13.46] Exercise of Duties by a Court-Appointed Guardian of a Minor’s Person
- [13.47] Annual Reports by a Court-Appointed Guardian of a Minor
- [13.48] Residential Placement by a Guardian of a Minor
- [13.49] Visitation by Grandparents and Others
- [13.50] Domestic Violence Act Protective Orders Used To Protect a Minor
- [13.51] Administration by a Court-Appointed Guardian of a Minor’s Estate
- [13.52] Contracts
- [13.53] Investigation and Application for Benefits by a Guardian of a Minor
- [13.54] Special-Needs Estate Planning by a Guardian of a Minor
- [13.55] Representation by a Minor’s Estate Guardian in Legal Proceedings
- [13.56] Termination of Guardianship for a Minor
- [13.57] Planning for the Majority of a Special-Needs Minor
- V. [13.58] Guardianship for Adults with Disabilities
- [13.59] Capacity of an Adult To Manage Personal and Financial Matters
- [13.60] Eligibility of an Adult for Appointment of a Guardian
- [13.61] Powers of Attorney and Guardianship
- [13.62] Plenary Guardianship of an Adult with a Disability
- [13.63] Limited Guardianship of an Adult with a Disability
- [13.64] Guardianship of the Person for an Adult with a Disability
- [13.65] Guardianship of the Estate for an Adult with a Disability
- [13.66] Temporary Guardianship of an Adult with a Disability
- [13.67] Physician’s Report
- [13.68] Qualifications of a Guardian for an Adult with a Disability
- [13.69] Designation of a Guardian for an Adult with a Disability
- [13.70] Selection of a Guardian for an Adult with a Disability
- [13.71] Procedure for Designation or Nomination of a Guardian of an Adult with a Disability
- [13.72] Court Appointment Required for a Designated Guardian
- [13.73] Consideration of the Rights and Potential Objections of an Adult with a Disability
- [13.74] Consideration of Potential Objections by Interested Parties
- [13.75] Effect of a Designation of a Guardian for an Adult with a Disability
- [13.76] Amendment or Revocation of a Designation of Guardian for an Adult with a Disability
- [13.77] Petition for Appointment of a Guardian for an Adult with a Disability
- [13.78] Jurisdiction of the Court — Multistate Guardianship Issues
- [13.79] Summons, Notice, Hearing, and Rights of the Alleged Person with a Disability
- [13.80] Powers and Duties of a Guardian of the Person for an Adult with a Disability
- [13.81] Powers and Duties of a Guardian of the Estate for an Adult with a Disability
- [13.82] Short-Term Guardianship for an Adult with a Disability
- [13.83] Selection of a Short-Term Guardian for an Adult with a Disability
- [13.84] Statutory Form for Appointment of a Short-Term Guardian for an Adult with a Disability
- [13.85] Consideration of the Wishes and Rights of the Adult with a Disability and Potential Objections
- [13.86] The Effect of an Appointment of a Short-Term Guardian for an Adult with a Disability
- [13.87] Protection of Third Parties Who Rely on a Guardian
- [13.88] The Term of a Short-Term Guardianship for an Adult with a Disability
- [13.89] Amendment or Revocation of a Short-Term Guardianship for an Adult with a Disability
- [13.90] Standby Guardianship for an Adult with a Disability
- [13.91] Selection of a Standby Guardian for an Adult with a Disability
- [13.92] Statutory Form for the Designation of a Standby Guardian for an Adult with a Disability
- [13.93] Consideration of the Wishes and Rights of the Adult with a Disability and Potential Objections
- [13.94] The Effect of a Designation of a Standby Guardian for an Adult with a Disability
- [13.95] Petition for Court Appointment of a Standby Guardian for an Adult with a Disability
- [13.96] Notice of a Petition To Appoint a Standby Guardian for an Adult with a Disability
- [13.97] Duties and Authority of a Standby Guardian for an Adult with a Disability
- [13.98] Automatic Termination of a Standby Guardianship for an Adult with a Disability
- [13.99] Amendment or Revocation of Standby Guardianship Designation for an Adult with a Disability
- [13.100] Modification or Termination of Guardianship for a Person with a Disability
- VI. [13.101] Statutory Requirements Applicable to the Estates of Both Minors and Persons with Disabilities
- [13.102] Jurisdiction of the Court — Residency
- [13.103] Oath and Bond Requirements
- [13.104] Duties Common to Estate Guardians for both Minors and Persons with Disabilities
- [13.105] Guardian Ad Litems’ Fees
- [13.106] Guardians’ Fees
- [13.107] Attorneys’ Fees
- [13.108] Resignation or Removal of a Guardian and Successor Guardianship
- [13.109] Death of a Ward
- VII. Appendix
- [13.110] Bibliography
- Forms
- [13.111] Short-Term Guardian for Minor — Emergency Backup
- [13.112] Short-Term Guardian for Minor — Specified Duration
- [13.113] Short-Term Guardian for Minor — Modification of Terms of Short-Term Guardian Appointment To Include Appointment for Specified Duration in Addition to Emergency Coverage
- [13.114] Notice to Short-Term Guardian of Intention To Resume Duties of Parent
- [13.115] Revocation of Appointment of Short-Term Guardian for Minor
- [13.116] Handout for Parent Regarding Short-Term Guardianship for Minor
- [13.117] Handout for Short-Term Guardian for a Minor Regarding Duties
- [13.118] Designation of Guardian for Minor
- [13.119] Designation of Standby Guardian for Minor
- [13.120] Handout for Parent Regarding Standby Guardianship for Minor
- [13.121] Handout for Standby Guardian for Minor
- [13.122] Handout for Parent and/or Standby Guardian Regarding Duties of Guardian of Minor’s Person
- [13.123] Handout for Parent Regarding Duties of Guardian of Minor’s Estate
- [13.124] Physician’s Report Form for Minor at Majority
- [13.125] Limited Guardianship Supplement to Physician’s Report — Personal Decisions
- [13.126] Limited Guardianship Supplement to Physician’s Report — Financial Decisions
- [13.127] Power of Attorney Attachment to Physician’s Report
- [13.128] Testamentary Capacity Attachment to Physician’s Report
- [13.129] Designation of Guardian for Self
- [13.130] Designation of Guardian by Parent for Adult with a Disability
- [13.131] Short-Term Guardian for Person with a Disability — Emergency Backup
- [13.132] Short-Term Guardian for Person with a Disability — Specified Duration
- [13.133] Short-Term Guardian for Person with a Disability — Modification of Terms of Short-Term Guardian Appointment To Include Appointment for Specified Duration in Addition to Emergency Coverage
- [13.134] Notice to Short-Term Guardian of Intention To Resume Duties of Guardian for Person with a Disability
- [13.135] Revocation of Appointment of Short-Term Guardian for Person with a Disability
- [13.136] Handout for Client Regarding Short-Term Guardianship for Person with a Disability
- [13.137] Handout for Short-Term Guardian for a Person with a Disability Regarding Duties
- [13.138] Designation of Standby Guardian for Adult with a Disability
- [13.139] Handout for Client Regarding Standby Guardianship for Adult with a Disability
- [13.140] Handout for Standby Guardian for Adult with a Disability Regarding Duties
- [13.141] Sample Inventory of Guardian
- [13.142] Sample Exhibit A to Inventory of Guardian
- [13.143] Sample Notice of Account — Current or Final
- [13.144] Sample Current Account of Guardian
- [13.145] Guardian Fees Worksheet
- [13.146] Sample Petition for Guardians’ Fees
- [13.147] Sample Order for Guardians’ Fees
- [13.148] Sample Petition for Legal Fees — Attorney for Guardian
- [13.149] Sample Order for Legal Fees — Attorney for Guardian
- [13.150] Sample Order of Discharge of Estate Guardian (Estate Remains Open Person Only)
- [13.151] Guardianship Forms Available Online
- Chapter 14 — Protection of the Caregiver
- Chapter 15 — Caregiver Succession Planning
- Chapter 16 — Special-Needs Issues in Personal Injury and Wrongful-Death Awards or Settlements
- I. [16.1] Omnibus Budget Reconciliation Act of 1993 Payback Trusts
- [16.2] Background and Statutory and Legislative Authority
- [16.3] Who Is a Person with a Disability for Purposes of Funding an Omnibus Budget Reconciliation Act of 1993 Trust?
- [16.4] Payback Requirement
- [16.5] Settlement of State Claims Before Funding an Omnibus Budget Reconciliation Act of 1993 Trust
- [16.6] Omnibus Budget Reconciliation Act of 1993 Trusts Must Be Irrevocable
- [16.7] Stand-Alone 42 U.S.C. §1396p(d)(4)(A) Payback Trusts
- [16.8] Pooled 42 U.S.C. §1396p(d)(4)(C) Payback Trusts
- [16.9] Comparison Chart for 42 U.S.C. §1396p(d)(4)(A) and 42 U.S.C. §1396p(d)(4)(C) Trusts
- [16.10] Economics of Omnibus Budget Reconciliation Act of 1993 Trusts in the Skilled Nursing Setting
- [16.11] Attorneys’ Fees
- [16.12] Age Requirements
- [16.13] Preexisting Omnibus Budget Reconciliation Act of 1993 Payback Trusts
- II. Medicaid, Medicare, and Private Liens
- [16.14] Private Liens for Past Medical Expenses
- [16.15] Medicare or Medicaid Liens for Past Medical Expenses
- [16.16] Medicare Secondary Payer Statute
- [16.17] Conditional Payments
- [16.18] Medicare Set-Aside for Future Medical Expenses
- [16.19] Workers’ Compensation Cases
- [16.20] General-Liability Cases
- [16.21] When a Medicare Set-Aside Arrangement is Necessary
- [16.22] Types of Arrangements
- [16.23] Basic Criteria
- [16.24] Reasonableness
- [16.25] Approval of Medicare Set-Aside Arrangements
- [16.26] Ongoing Responsibilities
- [16.27] Denial and Appeal
- [16.28] Consequences of Noncompliance
- [16.29] Changes Under the Medicare, Medicaid, and SCHIP Extension Act of 2007
- III. [16.30] Special-Needs-Related Issues in Structured Settlements
- Advantages of Structured Settlements
- [16.31] Tax Consequences and Time Value of Money
- [16.32] Structured Settlements for Plaintiffs with Reduced Life Expectancy
- [16.33] Deferred Apportionment
- Disadvantages of Structured Settlements
- [16.34] Company Paying the Structured Settlement Could Go Bankrupt
- [16.35] It Is a Gamble That the Structured Settlement Will Outperform Other Investments
- [16.36] It Ties Up the Money
- [16.37] Interaction Between a Structured Settlement and Government Benefits in a Special-Needs Trust
- [16.38] When Is Court Approval of a Settlement Required?
- [16.39] When Is Court Approval of a Distribution Necessary?
- [16.40] Counseling Clients on Structured Settlements
- [16.41] Get a Second Opinion on the Structured Settlement
- [16.42] Remember That Counsel Can Propose a Structured Settlement
- [16.43] Is the Client Receiving Government Benefits?
- [16.44] Determine the Cost To Fund the Structured Settlement
- [16.45] Attorneys’ Fees in Structured Settlements
- [16.46] Discussions with the Client
- [16.47] When Will the Attorney Be Paid?
- [16.48] Methods for Calculating Value
- [16.49] Selling the Interest in a Structured Settlement and/or Preventing Its Sale
- [16.50] Effect of a Structured Settlement on the Remaining Parties
- [16.51] Miscellaneous Issues with a Structured Settlement
- IV. [16.52] Appendix — Cook County Presiding Judges’ August 2014 Memorandum
- Chapter 17 — Trust Management
- I. [17.1] Introduction and Overview of Special-Needs Trust Management Issues
- [17.2] Advising Clients of Management Issues Unique to Special-Needs Trusts
- [17.3] Determining if the Trust Is Drafted Correctly To Preserve Eligibility for Governmental Benefits
- [17.4] Applying for a Tax Identification Number
- [17.5] Identifying Assets To Be Transferred to the Trust
- [17.6] Titling Assets in a First-Party Special-Needs Trust
- [17.7] Titling Assets in a Third-Party Special-Needs Trust
- II. [17.8] Basic Trustee Issues
- [17.9] Duty of the Trustee
- [17.10] The Duty of Loyalty
- [17.11] The Duty To Read the Trust
- [17.12] The Duty of Prudent Investment
- [17.13] The Duty To Make Trust Property Productive
- [17.14] The Duty To Give Personal Attention to the Activities of the Trust
- [17.15] The Duty To Account to the Beneficiary
- [17.16] Breach of Duty
- [17.17] Avoiding Conflicts of Interest
- III. [17.18] Managing the First-Party Special-Needs Trust — (d)(4)(A) and (d)(4)(C) Trusts
- [17.19] Sole Benefit Requirement of a First-Party Special-Needs Trust
- [17.20] First-Party Trusts and Housing Payments
- [17.21] First-Party Trusts and Transportation Payments
- [17.22] First-Party Trusts and Credit Card Payments
- [17.23] Sole Benefit Rule and Child Support and Alimony Payments
- [17.24] Creditor’s Right to Payment from First-Party Trust
- [17.25] Early Termination Requirement for First-Party Trust
- IV. [17.26] Managing the Third-Party Special-Needs Trust
- V. [17.31] Maintaining Contact with the Beneficiary, the Representative Payee for Social Security Administration Benefits, the Guardian, and the Legal Representative of the Beneficiary
- VI. [17.35] Navigating the Maze of Government Benefits and Their Treatment of Trusts
- VII. [17.38] Making Distributions To Maximize Governmental Benefits
- [17.39] Entitlement Benefits: Social Security Disability Income and Medicare
- [17.40] Additional Entitlement Benefits Under Social Security Disability Income: Disabled Adult Child Benefits
- [17.41] Supplemental Security Income and Medicaid
- [17.42] Allowable Distributions
- [17.43] Supplemental Security Income In-Kind Support and Maintenance Rules
- [17.44] Section 8 Distribution Rules
- VIII. [17.45] Accounting, Record-Keeping, and Termination of Trust
- IX. [17.49] Appendix — Nonprofit Trust Administrators
- Dirk Bromberek
Dirk Bromberek
Dirk Bromberek is an attorney with Generation Law Ltd., in Elmhurst, where he focuses on guardianship investigation and litigation. Mr. Bromberek received his B.S. from Illinois State University and his J.D. from The John Marshall Law School.
- Kathryn C. Casey
Kathryn C. Casey
Kathryn C. Casey is a Partner at Dutton Casey & Mesoloras, PC, in Chicago, and concentrates her practice on elder law. Ms. Casey is a Certified Elder Law Attorney with the National Elder Law Foundation. She has been named a Top 10 Elder Law Attorney in Illinois and a Top Leading Women Lawyer by the Leading Lawyers Network. Ms. Casey received her B.A. from Virginia Tech, her M.A. from DePaul University, and her J.D. from DePaul University College of Law.
- Lorraine K. Cavataio
Lorraine K. Cavataio
Lorraine K. Cavataio is a Shareholder at Sandberg Phoenix & von Gontard P.C., in its O’Fallon office. She focuses her practice on business law, estate planning, estate and trust administration, litigation, and real estate. She is a Certified Public Accountant and a Fellow of the American College of Trust and Estate Counsel. She has been chosen as a Super Lawyer (2015 – 2022) and is listed as part of the Estate Planning and Probate Division for Illinois. Ms. Cavataio received her B.S. from the University of Kansas and her J.D. from the Washington University School of Law.
- Patricia Cline
Patricia Cline
Patricia Cline is an Expert Life Care Manager for Lifecare Innovations/Lifecare Guardianship in Burr Ridge, with extensive professional experience in life care management, guardianship, and home care. She is an Illinois Licensed Clinical Social Worker, a Certified Life Care Planner, and a National Certified Guardian. She is a member of the National Association of Social Workers, the Illinois Guardianship Association, and the Illinois State Chapter Board of the International Association of Rehabilitation Professionals. Ms. Cline received her B.A. from DePaul University, her M.S.W. from the University of Illinois Chicago Jane Addams College of Social Work, and her M.A. from Loyola University Chicago.
- Heidi E. Dodd
Heidi E. Dodd
Heidi E. Dodd is an Owner of Harter, Larson & Dodd in O’Fallon, where she practices in the areas of estate planning and elder law. Ms. Dodd was the recipient of the 2018 Legacy Celebration Award. She is a board member of the Illinois National Academy of Elder Law Attorneys and the Mascoutah Senior Center. She received her B.S. from Southern Illinois University Edwardsville, her M.A. from the University of Illinois Springfield, and her J.D. from the University of Tulsa College of Law.
- Janna S. Dutton
Janna S. Dutton
Janna S. Dutton is a Principal at Dutton & Casey, P.C., in Chicago, where she concentrates in estate planning, probate, and elder law issues, including guardianship and financial exploitation matters, trusts and estate planning, Medicaid planning and applications, and probate and estate administration. She is certified by the National Elder Law Foundation as an elder law attorney and has held this certification since 1995. Prior to opening her private practice in 1989, Ms. Dutton was the Project Director of Senior Citizens Legal Services with the Cook County Legal Assistance Foundation. Ms. Dutton is a member of the National Academy of Elder Law Attorneys, Illinois Chapter; the Chicago Bar Association, Elder Law Committee, Trust Law Committee; and the Council of Advanced Practitioners (CAP) of the National Academy of Elder Law Attorneys. The CAP is an invitation-only membership for experienced Certified Elder Law Attorneys with an AV rating. Ms. Dutton completed her undergraduate education at Wheaton College and received her J.D. from DePaul University College of Law.
- Michael H. Erde
Michael H. Erde
Michael H. Erde is Principal at Michael H. Erde, P.C., in Chicago, where he concentrates his practice on estate planning, elder law, and probate. Mr. Erde is a member of the National Academy of Elder Law Attorneys and its Chicago Chapter. He is certified as an elder law attorney by the National Elder Law Foundation. Mr. Erde is Former Chair of the Chicago Bar Association Elder Law Committee and the Founder and Former Chair of the CBA’s Asset Protection Planning Committee. He received his B.S. from Washington University and his J.D. from the University of Illinois and has graduate credits in taxation from The John Marshall Law School.
- Joshua B. Hutkins
Joshua B. Hutkins
Joshua B. Hutkins is a Shareholder at Sandberg Phoenix & von Gontard P.C., in O’Fallon, where he is the Chair of the firm’s Wealth Planning Team. He focuses his practice on estate planning and trust and estate administration. Mr. Hutkins received his B.A. from Lindenwood University and his J.D. from the University of Missouri — Kansas City School of Law.
- Shay Jacobson
Shay Jacobson
Shay Jacobson of Jacobsen Consulting in Homer Glen practices nurse life care planning. She is a Certified Nurse Life Care Planner and a National Master Guardian. She is a member of the American Association of Nurse Life Care Planners, the American Association of Legal Nurse Consultants, and the National Guardianship Association. Ms. Jacobson, a Registered Nurse in Illinois, received her B.S.N. and M.A. in nursing from the University of Iowa.
- Helen Mesoloras
Helen Mesoloras
Helen Mesoloras is a Partner at Dutton Casey & Mesoloras, P.C., in Chicago, where she concentrates her practice in elder law. She is a member of the National Academy of Elder Law Attorneys and served as President of the Illinois Chapter in 2017. Ms. Mesoloras is a Certified Elder Law Attorney. She is also a member of the and the Chicago Bar Association, having served as Chair of the CBA Elder Law Committee. She received her B.A. with honors and her J.D. from DePaul University.
- Ben A. Neiburger
Ben A. Neiburger
Ben A. Neiburger is a Partner at Generation Law in Elmhurst, where he concentrates his practice on elder law and ERISA. He is a member of U.S. Supreme Court Bar, the U.S. District Court Bar, the Northern District of Illinois Bar, and the Illinois State Bar Association. He has been recognized as an Illinois Super Lawyer in Elder Law (2007, 2009 – present). He is also a C.P.A. Mr. Neiburger received his B.S. at the University of Illinois Urbana-Champaign and his J.D. from Chicago-Kent College of Law.
- Bhavik R. Patel
Bhavik R. Patel
Bhavik R. Patel is CEO and Shareholder with Sandberg Phoenix & von Gontard P.C., in St. Louis, where he concentrates his practice on wealth, tax, special-needs planning and administration, and business and corporate planning. Mr. Patel is a board member of the St. Louis Arc, the Starkloff Disability Institute, and the St. Louis Zoo. Mr. Patel received his B.B.A. magna cum laude from Georgia State University, M.B.A. with high honors from the Illinois Institute of Technology-Stuart College of Business, LL.M. from Washington University School of Law, and J.D. with honors from the University of Arkansas-Little Rock School of Law, where he served as the Associate Managing Editor of the University of Arkansas-Little Rock Law Review.
- Cary R. Rosenthal
Cary R. Rosenthal
Cary R. Rosenthal is Principal at Rosenthal & Associates P.C., in Chicago, where he concentrates his practice in estate planning, business succession planning, and taxation. He has practiced in the Chicago area since being admitted to the Illinois bar and the federal bar. He began his career litigating business matters, including contract claims, shareholder disputes, and fraud litigation, and later began representing clients before the Internal Revenue Service and the Illinois Department of Revenue. He concentrates on helping clients avoid the perils of lawsuits, income taxation, and transfer taxes by using forms of entities that maximize benefits and minimize potential problems; using a variety of vehicles to ensure that a family business, often a family’s largest asset, succeeds to the next generation; engaging in comprehensive tax planning; providing probate and guardianship representation; and, as a last resort, using bankruptcy and other insolvency vehicles. Mr. Rosenthal graduated from Washington University School of Law.
- Brian N. Rubin
Brian N. Rubin
Brian N. Rubin is a Principal at Rubin Law, A Professional Corporation, in Buffalo Grove, where he focuses his practice on special-needs planning. Mr. Rubin is the parent of three children, one of whom, Mitchell, has autism, and is dedicated to serving the legal and future planning needs of his fellow families of children and adults with intellectual disabilities, developmental disabilities, and/or mental illness. He has been elected as a Fellow of the American College of Trust and Estate Counsel and has received the Martindale-Hubbell AV® Preeminent™ Rating. Mr. Rubin is a Past President of The Arc of Illinois, has been a member of the Board of Directors of Clearbrook, is Past Chairman of the Board of Directors of the Special Leisure Services Foundation, served as the Founding Chairman of the Board of Trustees of the Foundation of the Special Education District of Lake County, served on the Board of Directors of KESHET (Jewish Parents of Children with Special Needs); served on the Board of Directors of Pact, Inc., served on the Board of Directors of Northpointe Resources, serves as Vice President and on the Board of Directors of the Special Needs Alliance, served on the Special Needs Law Section Steering Committee of the National Academy of Elder Law Attorneys, was a Charter Member of the Academy of Special Needs Planners, and has spoken and written for IICLE®. Mr. Rubin, among many other State of Illinois committees and commissions, has served as Chairman of the State of Illinois Statewide Advisory Council on Developmental Disabilities; Chairman of the State of Illinois Autism Task Force; a member of the State of Illinois Guardianship and Advocacy Commission; a member of the State of Illinois Department of Human Services Office of Inspector General Quality Care Board; a member of the State of Illinois Department of Human Services, Division of Developmental Disabilities Strategic Plan Team; a member of the State of Illinois Disabilities Services Advisory Committee; and a member of the State of Illinois, Department of Human Services, Division of Developmental Disabilities Quality Committee. He is a former IRS agent and a former IRS estate tax attorney. Mr. Rubin served by appointment on the American Bar Association’s Sub-Committee on Special Needs Trusts and Other Protective Vehicles; by appointment of the President of the Illinois State Bar Association on the ISBA’s Section Council on Estate Planning, Probate, and Trust Law; and, by appointment, on the ISBA’s Standing Committee on the mentally disabled. Mr. Rubin received his B.S. from the University of Illinois, Champaign-Urbana, and his J.D. from ITT Chicago-Kent College of Law.
- Benjamin A. Rubin
Benjamin A. Rubin
Benjamin A. Rubin is an attorney with Rubin Law, A Professional Corporation. Mr. Rubin is the Chair of the American Bar Association Special Needs Planning Committee, President of SIBS (Supporting Illinois Brothers and Sisters), and a member of the Academy of Special Needs Planners and the Special Needs Alliance. He also serves as Treasurer and member of the Board of Directors at The Arc of Illinois, the Board of Directors of DayOne PACT, and the Foundation of The Special Education District of Lake County as well as the Advisory Council for Encompass. Mr. Rubin received both his undergraduate degree and his LL.M. from Northwestern University and his law degree magna cum laude from the University of Illinois College of Law.
- Bryan J. Schrempf
Bryan J. Schrempf
Bryan J. Schrempf is a Partner at Schrempf, Kelly, & Napp, LTD, in Alton, where he regularly drafts wills, estate plan, and trust agreements. Mr. Schrempf is licensed to practice in Illinois, Missouri, the Southern and Central Districts of Illinois, and the Eastern District of Missouri. He received his B.S. and M.S. from the University of Illinois Urbana-Champaign and his J.D. from St. Louis University School of Law.
- Lauren Sherman
Lauren Sherman
Lauren Sherman is President of Lifecare Innovations, an Arosa Company, and Lifecare Guardianship, in Burr Ridge. Ms. Sherman is a National Master Guardian and a certified case manager. She is member of the Advisory Counsel for Age Guide (Northeastern Illinois Area Agency on Aging), the National Guardianship Association, and the Aging Life Care Association. Ms. Sherman received her both B.A. and her MSW from the University of Illinois at Chicago.
- Nancy M. Spain
Nancy M. Spain
Nancy M. Spain is a Partner at Spain, Spain & Varnet P.C., in Chicago, and concentrates her practice on probate, guardianships, and special-needs planning. Ms. Spain is a pro bono guardian ad litem for Chicago Volunteer Legal Services and a member of the Chicago and Illinois Bar Associations. She received her B.A. from Connecticut College and her J.D. from Case Western Reserve University School of Law.
- Linda M. Strohschein
Linda M. Strohschein
Linda M. Strohschein is the Principal of Strohschein Law Group, LLC, a boutique estate planning and elder law firm in St. Charles. She concentrates her practice on estate and long-term care planning, guardianship, estate and trust administration, and probate litigation. Ms. Strohschein is certified as an elder law attorney (CELA) by the National Elder Law Foundation. Although CELA is not required by the State of Illinois, this title is earned through a multifaceted process and the attorney must successfully pass a comprehensive certification exam to demonstrate an in-depth knowledge of elder law. She is a frequent speaker on a variety of estate planning and disability topics. Ms. Strohschein is a current member of the Kane County Bar Association. In addition, she is also a member of the National Academy of Elder Law Attorneys and serves as the Treasurer of the Executive Board for the Illinois chapter. Ms. Strohschein received her B.A. from George Mason University and her J.D. from The John Marshall Law School.
- Theresa Medeiros Varnet
Theresa Medeiros Varnet
Theresa Medeiros Varnet is Of Counsel for Spain, Spain & Varnet P.C. in Chicago, and Of Counsel for Fletcher Tilton PC, Worcester, Massachusetts, and concentrates her practice in the areas of probate, guardianship, and special-needs planning. She is a member of the National Academy of Elder Law Attorneys and Cochair of its Special Needs Law Section. She is also a member of the Academy of Special Needs Planners. She received her B.A. from the University of Massachusetts, her MSW from the University of Connecticut, and her J.D. from DePaul University.
- Heather E. Voorn
Heather E. Voorn
Heather E. Voorn is a Partner with Delaney Delaney & Voorn, Ltd., in Chicago, Oak Brook, and Orland Park, and dedicates her practice to elder law. Ms. Voorn is certified as an Elder Law Attorney by the National Elder Law Foundation. She is a Guardian ad Litem and accredited by the U.S. Department of Veterans Affairs. She is a member of the Illinois State, Will County, and South Suburban Bar Associations and the Estate Planning Council of Greater Joliet. Ms. Voorn earned her bachelor’s degree magna cum laude from Florida State University and her J.D. magna cum laude from The John Marshall Law School, where she was on the Law Review and externed for the Honorable Charles R. Norgle of the Northern District of Illinois District Court.
Special-Needs Trusts 2020 Edition
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