Third-Party and Self-Created Trusts
A Modern Look
Häftad, Engelska, 2023
Av Rebecca C. Morgan, Robert B. Fleming, Bryn Poland, Fleming Jr.,Robert B., Rebecca C Morgan, Robert B Fleming
1 589 kr
Produktinformation
- Utgivningsdatum2023-10-03
- Mått177 x 254 x 23 mm
- Vikt680 g
- FormatHäftad
- SpråkEngelska
- Antal sidor370
- FörlagAmerican Bar Association
- ISBN9781639052691
Tillhör följande kategorier
Rebecca C. MorganBoston Asset Management Chair in Elder Law, Center for Excellence in Elder LawB.S.B.A., Central Missouri State UniversityJ.D., Stetson UniversityCourses:Aging and the Law (J.D. and LL.M. courses), Elder Law, Trusts and Estates, Disability LawRebecca C. Morgan is the Boston Asset Management Chair in Elder Law. Professor Morgan teaches a variety of elder law courses in the J.D. and LL.M. programs and oversees the elder law concentration program for J.D. students. She is the successor co-author of Matthew Bender's Tax, Estate and Financial Planning for the Elderly, and its companion forms book (Lexis), a co-author of Representing the Elderly in Florida, (Lexis), The Fundamentals of Special Needs Trusts (Lexis), Ethics in an Elder Law Practice (ABA) and Planning for Disability (Bloomberg BNA Portfolio) and co-author of Elder Law in Context (casebook, forthcoming Aspen). She is a member of the elder law editorial board for Matthew Bender. Professor Morgan has authored a number of articles on a variety of elder law issues and has spoken a number of times on subjects of elder law. She is the co-editor of the Elder Law Prof Blog, http://lawprofessors.typepad.com/elder_law/ (with Katherine Pearson (Penn State)).Professor Morgan is a past president of the National Academy of Elder Law Attorneys, past president of the board of directors of the National Senior Citizens Law Center, past chair of the American Association of Law Schools Section on Aging and the Law and of the Florida Bar Elder Law Section, and on the faculty of the National Judicial College. She served as the reporter for the Uniform Guardianship and Protective Proceedings Act. She served on the Florida Attorney General's Task Force on Elder Abuse and the Florida Legislative Guardianship Study Commission. She is a member of the American Law Institute (ALI), academic advisory board for the Borchard Center for Law and Aging, an academic fellow of the American College of Trusts & Estates Counsel (ACTEC), a NAELA fellow, and a member of NAELA's Council of Advanced Practitioners (chair 2012-2014). After a term on the Board of the ABA Commission on Law and Aging, she is a special advisor to the ABA Commission on Law and Aging. She is a member of the board of directors for the Center for Medicare Advocacy.Professor Morgan was the recipient of the 2003 Faculty Award on Professionalism from the Florida Supreme Court Commission on Professionalism. She received the NAELA Unaward in November 2004 from President Stu Zimring for her accomplishments in the field of elder law. Professor Morgan, along with Professor Roberta Flowers, received the 2005 Project Award on Professionalism from the Florida Supreme Court Commission on Professionalism for their video series on ethics in an elder law practice. She received the 2006 Rosalie Wolf Memorial Elder Abuse Prevention Award from the National Committee for the Prevention of Elder Abuse. She received the Homer & Dolly Hand Award for Faculty Scholarship in May of 2008, and the NAELA President's Award from NAELA President Mark Shalloway in May of 2008. She received the Theresa Award from the Theresa Alexandra Foundation in 2008. Professor Morgan was the 2009 recipient of the Treat award from the National College of Probate Judges. She currently lives in Gulfport, Florida. Phone: 727-562-7872 | Email: morgan@law.stetson.edu | Office: Elder Law (Gulfport)Robert B. Fleming is a partner in the Tucson elder law firm of Fleming & Curti, P.L.C., with a practice limited to trust (and special needs trust) administration, guardianship, conservatorship, estate planning, and probate. Mr. Fleming was the original author of The Elder Law Answer Book, and co-author (with the late Professor Kenney Hegland) of New Times, New Challenges: Law and Advice for Savvy Seniors and Their Families. He is certified as an Estate and Trust specialist by the State Bar of Arizona, and as a Certified Elder Law Attorney (CELA) by the National Elder Law Foundation. Mr. Fleming is a founding member of the Special Needs Alliance (https://www.specialneeds alliance.org/). He has lived in (and is passionate about) downtown Tucson, Arizona (a UNESCO International City of Gastronomy), for more than four decades.Ms. Poland is partner at the law firm Mayo & Poland, PLLC, in Baytown, Texas. She focuses her practice on special needs trust planning and administration, Medicaid planning, and qualified settlement funds. Born and raised a Kansas girl, Ms. Poland was inspired to become an elder law attorney when she watched her family struggle with care options for her great-grandmother, Lulu Sleeper, who lived to the age of 109. Ms. Poland is a member of, and has served in various leadership roles for, the Houston Bar Association, the Texas Chapter of the National Academy of Elder Law Attorneys, and the Special Needs Alliance. When Ms. Poland is not helping clients, she loves taking family adventures with her husband and their twin daughters and young son.
- TABLE OF CONTENTSAcknowledgments ixAbout the Authors xiCHAPTER 1Introduction of Planning for Special Needs with Trusts 1I.Demographics 1A.The Costs of Long-Term Care 3B.Why Plan to Become Eligible for Public Benefits? 3II.History of Trust Planning 4A.Early Trust Practice (No Holds Barred) 4B.MQT 6C.OBRA ’93 8D.Medicaid Trusts 11III.Distinctions between Self-Settled and Third-Party Trusts 11A.When Can a Self-Settled Trust Actually Bea Third-Party Trust? 12IV.Examples of Various Public Benefits Programs 13V.SNT Requirements Summary 15VI.Vocabulary 15CHAPTER 2Ethical Issues and Fiduciary Representation 17I.Introduction 17II.Who Is the Client? 17A.First-Party Trusts: Is the Question, “Who Is the Client?”More Complicated? 19B.Third-Party SNTs: Is the Question, “Who Is the Client?”Easier to Answer? 21III.When an Attorney Represents the Trustee:The Ethical Issues 22IV.When the Attorney Is the Trustee (or Other Fiduciary) 27V.Does the Attorney for the Trustee Have Any Dutyor Liability to the Trust Beneficiary? 28VI.Ability to Share Information with Nonclient Beneficiary 32A.What about Privileged Information? Is That Protectedfrom Disclosure? 34VII.Always an Attorney Must Be Competent 36VIII.Conclusion 37CHAPTER 3Public Benefits 39I.Introduction 39II.Various Programs 39A.Supplemental Security Income 39B.SSDI 50III.Childhood Disability Benefits: Transitioning from SSI to SSDI 60A.Description of Programs 61B.Eligibility Requirements 62C.Proving Disability 62D.Medicare 64E.Medicaid 65F.Tips and Tricks 66IV.Federal Housing Programs under the U.S. Department of Housing and Urban Development 67A.Description of Programs 67B.Eligibility Rules 68C.Tips and Tricks 72CHAPTER 4First-Party Special Needs Trusts 77I.Introduction 77II.The Statutes and More 78III.The Program Operations Manual System 81IV.The State’s Medicaid Program 81V.The State’s Trust Code 81VI.Commentary 82VII.The Trust Is Irrevocable 84VIII.Sole Benefit 85IX.Source of Funds 86X.Distribution Standard 88XI.What Are “Special Needs”? 89XII.Some Specific Trust Provisions 89XIII.Submitting the SNT to the SSA for Approval 91XIV.Who Should Be the Trustee? 91XV.Case Law 92XVI.Creation 93XVII.Payback Requirements 95XVIII.Administrative Matters 96XIX.Spousal and Child Support 97CHAPTER 5Third-Party Special Needs Trusts 99I.Introduction 99II.What Is a Discretionary Trust? 100III.Distinctions of a Third-Party SNT from the First-Party SNT 104A.Why a Third-Party SNT? 104B.Who Is a Third Party? 109 vi Table of ContentsIV.Uniform Trust Code 110V.Inter Vivos or Testamentary? 114VI.Distribution Standard 116VII.Modification 124VIII.What the Courts Have to Say 126CHAPTER 6Modification, Reformation, Decanting, and Directed Trusts 131I.Introduction 131II.Modification 131A.Guidance from the Program Operations Manual System 134B.Modification: Applicability to Special Needs Trusts 134III.Reformation 142IV.Decanting 144A.Uniform Trust Decanting Act 145B.State Example: Florida’s Decanting Statute 147C.Decanting Cases 148V.Directed Trusts 152A.Case Law on Trust Directors 154CHAPTER 7Special Needs Trust Alternatives 157I.No SNT or Trust at All 157II.Achieving a Better Life Experience Accounts 158III.Qualified Disability Trusts 162A.Elements 164B.Taxation of Distributions 165C.Analysis 166IV.Sole Benefit Trusts 167A.Elements 168B.Analysis 169V.Settlement Protection/Preservation Trusts 171VI.Health Insurance under the Affordable Care Act 172 Table of ContentsviiAPPENDICESAppendix ASelf-Created Special Needs Trust177Appendix BThird-Party Inter Vivos Trust193Appendix CChecklist for First-Party Special Needs TrustConsiderations for Interview and Drafting209Appendix DClient Interview Questionnaire213Appendix ESocial Security Administration Notice Letterfor Self-Settled Trust with Payback Language Basedon SSA Step-Action from the Program OperationsManual System221Appendix FSocial Security Administration Letter for Third-PartySpecial Needs Trust, No Payback229Appendix GSocial Security Administration Step-Action from theProgram Operations Manual System: SI 01120.203Exceptions to Counting Trusts Established on or afterJanuary 1, 2000233Appendix HThird-Party Special Needs Trust Information Schedule237Appendix ICaregiver Letter245Appendix JTrustee Letter251Appendix KChoosing a Trustee Letter265Appendix LSpecial Needs Alliance Trustees Handbook273Appendix MTrust Distribution Standards (a Sampler)291Appendix NABLE Account, Special Needs, and Pooled TrustComparison Chart293Appendix OTransmittal 64309Index349