Tricks for Tracking Down Benefits

When a special needs planner meets with the family of a person with special needs, the planner will often ask the family what federal disability benefit their loved one receives.  In many cases, the family will tell the planner that their relative receives some kind of cash benefit, but they frequently don’t know if that benefit is a Supplemental Security Income (SSI) benefit or a Social Security Disability Insurance (SSDI) benefit.  In some cases, even the person receiving the benefit might not know what type of benefit it is.  But there are a couple of tricks for determining the type of disability benefit, short of finding the disability award letter or contacting the Social Security Administration directly.

First, the amount of the benefit is a clue.  The federal SSI benefit is capped at $733 per month (in 2016), with some states supplementing this with an additional smaller payment.  So if the beneficiary is receiving a monthly distribution of $1,000 or more, you know for sure that the beneficiary is receiving SSDI, which can have higher cash payments, not SSI.

Often, the beneficiary’s cash award is not higher than the maximum SSI benefit, so this first method won’t work.  In this case, the family needs to look at the date of the benefit payment in order to determine the type of benefit being received.  If the benefit is deposited on the first of the month (or on the banking day before the first of the month if the first of the month falls on a Saturday, Sunday or holiday), then the beneficiary is receiving SSI.  If the benefit is deposited on the third day of the month, then the beneficiary is receiving SSI and SSDI.  Finally, if the benefit is deposited on the second, third or fourth Wednesday of the month, then the beneficiary is receiving SSDI.

Although these tricks will help your special needs planner with an initial evaluation of your family member’s needs, please keep in mind they do not define the benefits with certainty.  It is always important to get your hands on the Social Security Administration’s actual award letter in order to give the planner an accurate picture of how the disability benefit is calculated.

When Your Disabled Child Turns 18: Financial Support

When a child turns 18, a family should establish the foundation for the child’s support and well-being through solid financial and legal planning. If parents make the wrong decisions during this transition, the effects of those errors could affect the child far into the future, often when the parents are no longer there to care for the child. Therefore, it is essential that parents take extra care when planning for this crucial juncture.

1.  SSI.  Most special needs planning begins with a look into whether a child needs and qualifies for Supplemental Security Income (SSI) for support. SSI is a means-based program for people with disabilities and provides a limited monthly cash benefit of up to about $733 a month. SSI eligibility also comes with a much more important benefit — access to Medicaid. For this reason alone many families, especially those with children who have major medical expenses, pursue SSI benefits despite the program’s severe income and asset limits. SSI can also be the ticket into vocational training and group housing services.

2.  SSI Standards.  Once a child reaches age 18, s/he qualifies for SSI based on his/her own income and assets. In order to receive benefits, the child must meet the government’s disability standard, have less than $2,000 in assets and receive minimal income. Each dollar of unearned income (including any direct payments of cash to a beneficiary, along with additional reductions for in-kind payment for food and shelter) and every two dollars of earned income reduces a beneficiary’s base SSI award by one dollar. If the SSI benefit reaches zero because of this reduction, SSI coverage ends. Despite these restrictions, an SSI beneficiary needs only a $1 award in order to retain her Medicaid benefits, so careful planning in this realm carries great rewards.

3.  SSDI.  A child who became disabled before reaching 22 years of age can also collect Social Security Disability Insurance (SSDI) based on a parent’s work record if either of his/her parents has worked enough quarters to collect Social Security and is already receiving Social Security benefits or has died. Under SSDI, the “adult disabled child” of the Social Security beneficiary receives a monthly benefit check, as long as he doesn’t perform substantial work, defined as earning more than $1,090 a month. After receiving SSDI for two years, the adult disabled child also begins to receive Medicare, a substantial benefit.

Often, adults who became disabled as children receive SSI benefits until their parents retire, at which point they transition to SSDI, which is usually preferred both because it may offer a higher monthly benefit and because the beneficiary no longer needs to be concerned about SSI’s strict rules on other sources of income and savings. On the other hand, the switch to SSDI can be problematic if it means that the adult child loses eligibility for Medicaid or other programs.

4.  Using a SNT to Qualify for SSI/SSDI.  If a child has more than $2,000 in assets when s/he reaches age 18, rendering the child ineligible for SSI, a parent, grandparent or court has the power to create a special trust, known as a “(d)(4)(A) ” or “first-party supplemental needs” or “under 65 disability trust” trust to hold his savings. Any assets held by the trust do not count against the $2,000 asset limit for SSI, allowing him to qualify. One requirement of such trusts is that when the beneficiary dies, any funds remaining in the trust must be used to reimburse the state for medical care the trust beneficiary received during his life. Because of this payback provision, planners often encourage trustees to pay for a child’s supplemental needs from a (d)(4)(A) trust before using other assets, in order to limit the state’s collection later on.

5.  Future Planning.  Finally, many families create trusts known as “third-party” supplemental needs trusts in addition to (d)(4)(A) trusts.  As long as families fund these trusts with their own assets (never with their child’s funds) and give the trustee complete discretion to distribute the funds for a beneficiary’s care, the funds held in the trust will not count as the child’s assets. Furthermore, these trusts do not have to contain a payback provision, allowing families to place significant amounts of money into the trust without worrying that the government will receive a large portion later on. The trusts can then provide a child with special needs with services and care s/he may not receive from other sources throughout his/her life.  A Third-Party SNT can be created within the parents own estate plan or as a separate stand-alone trust which allows for contributions and gifting from other family members.

Coming soon: When Your Disabled Child Turns 18: Services and Supervision

Starting a New Job? Consider These Tips!

When you start a new job you may be offered a range of employee benefits, from retirement accounts to life insurance. If you are the parent of a minor child or child with special needs, the decisions you make about these benefits could have dramatic future consequences. Here are a few issues to consider when it comes time to make those important employee benefit elections. (Of course, if you made different choices, there is always time to change your plan.)

Don’t name a child with special needs as a direct beneficiary of a retirement account

When you first set up an IRA or 401(k), you have to name primary and contingent beneficiaries to receive the funds in the account. Your first thought may be to name your spouse or partner as the primary beneficiary and your children as the contingent beneficiaries. If one of your children has special needs, this decision could be disastrous for several reasons. First, if your child is receiving government benefits, a sudden influx of income from an inherited retirement account could disqualify your child from those benefits. Second, retirement accounts will eventually pay out a set amount of money per year to the designated beneficiaries – this amount may be more than a person with special needs can or should handle on his own. One resolution to this dilemma is to set up a special needs trust to hold and distribute the retirement funds.

Evaluate how much life insurance you may need and designate the appropriate beneficiary

Many companies offer basic life insurance coverage with the option to purchase additional insurance at a discount. As discussed above, naming a child with special needs as the beneficiary of a large life insurance policy could create havoc for the child later on. However, life insurance does provide a great planning opportunity for parents of children who may require significant care because the death benefit can be used to fund a special needs trust with a significant amount of money. If your company offers additional insurance, it may be prudent to purchase it and name a special needs trust as the beneficiary. If you are concerned about being “fair” to your children without special needs when it comes to inheritance, you may opt to balance their inheritance by leave them a different asset such as your retirement accounts while using a life insurance policy to take care of your child with special needs.

Long-term disability insurance may be worth it

When you have a family to care for, you always need to give serious consideration to what your family’s financial position would be if you lost your job due to disability. Many companies allow employees to purchase long-term disability insurance and some offer it for free. If you are the primary wage earner and you don’t have substantial savings to care for your family, then it may make sense to sign up for disability insurance so that your family will be protected.

Whether you are staring a new job or you have employee benefits package in place, it may be helpful to go over your benefits with your attorney.  With careful planning you may ensure a more secure future for your family.

How Can A Special Needs Trust Pay for Utilities?

The answer depends on whether the trust allows disbursements for utilities. If it does, you may be allowed to make the payment but you need to consider the disbursement’s impact on the beneficiary’s government benefits such as SSI, Medicaid, or Section 8 housing. For example, if the beneficiary receives SSI , the payment of utilities can reduce his/her SSI benefit by a maximum of $264.33 in 2015.  However, there are times when the loss of $264.33 is easily compensated by the trust’s payment of a larger bill.  Furthermore, some things that we consider utilities (such as phone service or cable tv) may not be counted as utilities by the government.  Therefore, its important to discuss the matter with a qualified special needs attorney.

On Planning for Minor Children

In addition to the general concerns of estate planning, families with minor children have additional reasons for creating a formal estate plan.

First, parents want their children to be cared for by designated family members or close friends and need to make the court aware of their wishes.  Because children are not property, parents cannot designate a person to inherit their minor children, rather they must nominate a suitable guardian who in the event of the death of both parents will need to petition the court for guardianship.  This nomination is commonly made in the parent’s will.

Second, the parents should plan how assets inherited by the children will be properly safeguarded.  Assets can include: real estate, vehicles, cash and investments accounts as well as the commonly overlooked proceeds from life insurance policies.  While children are minors (under 18) funds over $12,000 cannot be legally distributed to them or even to an informal custodian to hold for them until they reach the age of majority.  Rather, a legal conservatorship authorized by the court would need to be established.  This can be costly, time consuming and limiting.  Conservatorship funds are often locked by the court so that no distribution can be made without the court’s explicit permission.  However, when the child turns 18, he or she can immediately take control of the funds and spend them in any manner the child wishes.

Instead, a parent may opt to create a testamentary trust.  This is a trust created in a will that come into effect only if the parent(s) pass away.  The trust can hold a child’s funds until any age set by the parents.  Parents will often choose to have the funds held until the child is past the age of majority and is likely to have completed college or graduate school.  However, the trustee (appointed by the parents) has access to the trust assets and can pay for whatever the parents deem appropriate which often includes: health, education, maintenance, and distribution of funds to pay for a wedding, establish a business, buy a house or even to the guardian to offset the cost of care.  The parents control the rules of the trust and determine how their child’s future will be managed.

A will can be a relatively easy document to create.  For a free estate planning consultation with attorney, Kara Daley, please call: (541) 738-2445.

Military Members and New Uses for Special Needs Trusts

Through Survivor Benefit Plans (SBPs) members of the military can elect to defer a portion of their retirement pay so that when they pass away a surviving spouse or dependent child will receive up to 55 percent of their retirement payments.  However, up until now, military members had to name individuals as the beneficiaries of these SBPs.  This rule created a dilemma for the parents of children with special needs.  On the one hand, the retiree could name a child with special needs as the beneficiary of his SBP and that child would receive much-needed income and monetary support.  However, receipt of the SBP funds could compromise the beneficiary’s ability to receive means-tested benefits like Supplemental Security Income (SSI) or Medicaid

With the passage of the National Defense Authorization Act of 2015, Congress has, for the first time, allowed military members to name Special Needs Trusts as beneficiaries of Survivor Benefit Plans (SBP).  This means that military families will finally be able to direct SBPs to their children with special needs without compromising the children’s ability to access government disability and medical benefits.  Although the bill is a great first step, military retirees now need to contact their estate planning attorney to make use of these new planning options for their children with special needs.

10 Reasons to Create an Estate Plan Now

“Never leave that till tomorrow which you can do today.” – Benjamin Franklin

Many people think that estate plans are for someone else, not them. They may rationalize that they are too young or don’t have enough money to reap the tax benefits of a plan. But as the following list makes clear, estate planning is for everyone, regardless of age or net worth.

1. Loss of capacity. What if you become incompetent and unable to manage your own affairs? Without a plan the courts will select the person to manage your affairs. With a plan, you pick that person through a power of attorney and perhaps a trust.

2. Minor children. Who will raise your children if you die? Without a plan, a court will make that decision. With a plan, you are able to nominate the guardian of your choice and advise the court of persons not suitable to care for the children.

3. Dying without a will. Who will inherit your assets? Without a plan, your assets pass to your heirs according to your state’s laws of intestacy (dying without a will). Your family members (and perhaps not the ones you would choose) will receive your assets without benefit of your direction or of trust protection. With a plan, you decide who gets your assets, and when and how they receive them.

4. Blended families. What if your family is the result of multiple marriages? Without a plan, children from different marriages may not be treated as you would wish. With a plan, you determine what goes to your current spouse and when/what your children will receive from you.

5. Children with special needs. Without a plan, a child with special needs risks being disqualified from receiving Medicaid or SSI benefits, and may have to use his or her inheritance to pay for care. With a plan, you can set up a Supplemental Needs Trust that will allow the child to remain eligible for government benefits while using the trust assets to pay for non-covered expenses.

6. Keeping assets in the family. Would you prefer that your assets stay in your own family? Without a plan, your child’s spouse may wind up with your money if your child passes away prematurely. If your child divorces his or her current spouse, half of your assets could go to the spouse. With a plan, you can set up a trust that ensures that your assets will stay in your family and, for example, pass to your grandchildren.

7. Financial security. Will your spouse and children be able to survive financially? Without a plan and the income replacement provided by life insurance, your family may be unable to maintain its current living standard. With a plan, life insurance can mean that your family will enjoy financial security.

8. Retirement accounts. Do you have an IRA or similar retirement account? Without a plan, your designated beneficiary for the retirement account funds may not reflect your current wishes and may result in burdensome tax consequences for your heirs (although the rules regarding the designation of a beneficiary have been eased considerably). With a plan, you can choose the optimal beneficiary.

9. Business ownership. Do you own a business? Without a plan, you don’t name a successor, thus risking that your family could lose control of the business. With a plan, you choose who will own and control the business after you are gone.

10. Avoiding probate. Without a plan, your estate may be subject to delays and excess fees (depending on the state), and your assets will be a matter of public record. With a plan, you can structure things so that probate can be avoided entirely.

Elder Abuse: Signs and Prevention

The elderly are particularly vulnerable to scams or to financial abuse by family members.  A recent study found that up to one million older Americans may be targeted yearly. Family members and caregivers are the culprits in 55 percent of cases, although total financial losses are higher with investment fraud scams.

While it is impossible to guarantee that an elderly loved one is not the victim of financial abuse, there are some steps you can take to reduce the chances.

1.  Have more than one family member involved in caring for the loved one and reviewing financial decisions to provide a check and balance system. Family members often begin abuse by “borrowing” money from available sources when a financial crisis occurs in his/her life.  Although he/she may begin the abuse with the full intention of repayment, the abuser often fails to follow though.

2.  You can also encourage the elder to get involved in community activities to ensure he or she has a wide range of support. Elderly people with little support are easy prey to ill intentioned individuals who can insert themselves into the lives of a lonely senior with little oversight.

3.  Talk to the senior while he or she is competent and able to discuss proactive solutions such as establishing a trust or giving power of attorney to appropriate family members or trusted, long-term friends. Create a system of tracking incoming funds by using direct deposit or online banking. Establish a contact person to help the senior vet caregivers carefully, verify references and touch base after hiring.

Despite these safeguards, financial abuse can still occur and be very difficult to detect. Signs that a loved one may be the victim of this kind of abuse often include:

▸    Disappearance of household objects
▸    Withdrawals of large amounts of money or low bank balances
▸    Continual withdraws of cash for no stated purpose
▸    A new “best friend” who is often significantly younger
▸    A change or increase in credit card transactions
▸    Signatures on checks look different
▸    Changes in bank accounts or newly formed joint accounts
▸    Indications of fear or concern that a cargiver will no longer like them

If you suspect someone of being financially abused, start by calling your local Adult Protective Services. They may suggest that you contact the police and file a police report.  You may also need to contact an attorney to establish a guardian or conservatorship to end the abuse.

Legal Savvy Seminars

Please join Kara at her upcoming seminars:

registration at the door, or to register in advance go to:

https://apm.activecommunities.com/corvparksandrecreation/Activity_Search/legal-savvy-series/17540

Legal Savvy Series Learn to navigate your way to legally savvy decisions in this series by Kara Daley, Attorney at Law. All classes are held at the Corvallis Senior Center 12-1 pm.  Registration required. $2 per session.

F, Feb. 13:Estate Planning for Busy People Have you been avoiding estate planning?  Did you write a will or a trust long ago and need to update it? Well, you are not alone. Spend one painless (maybe even entertaining) hour learning what you actual need to do and how to take care of the matter once and for all.

Th, February 19: Planning for Parents As our parents grow older, often their children become their support system.  Learn the legal protections to put in place to help your parents age gracefully and avoid costly mistakes in planning. The class will also address emergency planning, community resources and medicaid.

Th, February 26: Special Needs Trusts require special planning.  Because such planning often involved the complex intersection of state and federal law, preparation can be critical in preventing costly mistakes. Join us for: a one hour overview of the different types of special needs trusts, a discussion of when each type of trust is needed and an brief introduction on how to manage the trust once established.

Th, March 5: Starting a Small Business Do you have an idea?  Are you ready to take the plunge and open a business?  Learn the critical steps to take in planning and operating your own small business. The class will discuss the different types of business entities (LLC, LLP, Corporation etc.),  how to launch your new business and provide practical advise on how to maintain the business once its up and running.

F, March 13: Planning for PI Settlement Often a personal injury case proceeds to settlement with no thought of how the monetary distribution will effect a beneficiary who is receiving state assistance.  Receipt of a large sum of money will often disqualify an individual from important benefits such as health care, housing, food stamps and SSI.  Learn how a settlement can be set aside in a special needs trust preserving it as a resource for the individual while maintaining their eligibility.  Class is appropriate for individuals and professionals.

F, March 20: SSD – The Third Appeal Applying for Social Security Disability?  Feeling lost?  The class will provide a clear overview of the steps of a social security disability application and provide practical discussions on how to navigate the process.

An Overview of the New ABLE Accounts: Tax-Free Savings Accounts for People with Disabilities

At the end of December 2014, Congress instituted a new type of savings account for people with disabilities who became disabled before they turned 26.  Called “529A” or “ABLE” accounts, these allow individuals and families to set aside up to $14,000 a year in tax-free savings account without affecting eligibility for government benefits. Contributions are in after-tax dollars but earnings grow tax-free. 529 ABLE accounts are established in the beneficiary’s name but contributions into an ABLE account can be made by any person. It is important to note, that the beneficiary has control over the spending from the accounts.  Unlike other types of special needs trusts, disbursements from the fund are more limited to certain qualifying expenses such as the costs of treating the disability, or for medical expenses, education, housing and health care, or burial expenses.  Caution should be taken spending as there can be hidden consequences.

Beneficiaries are limited to one ABLE Account with a maximum contribution of $14,000 per year.  The existence of the account will not compromise the individual’s ability to qualify for such benefits as SSI or Medicaid unless the account balance exceeds $100,000.  If the beneficiary is receiving SSI benefits, when the assets in the account total $100,000, monthly SSI benefits will be placed in suspension. If the assets in the ABLE account drop back below $100,000, the SSI benefit suspension ceases and any SSI benefit resumes.

If the beneficiary dies with assets in an ABLE account, those assets are first distributed to any state Medicaid plan that provided medical assistance to the beneficiary. For that reason, families looking to establish a fund for individuals may prefer to set up their own special needs trusts which allows them to protect the trust from state recovery and choose secondary beneficiaries other than the state.

The act takes effect at the beginning of 2015, and many states are forecasting that plans will be available starting in July 2015. States must first set up the administrative support to control and provide investment options for the “529A” accounts. Once in place, ABLE accounts will become another tool to protect valuable benefits while enhancing quality of life.   Because of the limitations, many families of people with disabilities should still consider setting up traditional special needs trusts to provide enhanced care for their relatives with special needs.  Before making a decision, it is important to talk to an attorney who can advise you on the best options for your particular needs.