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Utah Probate, Elder Law, Medicaid, Guardianship and Special Needs Blog

Friday, February 13, 2015

Transferring Title to your Home and Utah Medicaid

The Utah Department of Health policy manual section 371-4 provides that the home of a Medicaid applicant may be transferred to the following protected classes without incurring a transfer penalty or impacting the applicant’s eligibility:


Read more . . .


Wednesday, February 11, 2015

The Able Act...a Medicaid 529 Plan?

The ABLE Act Defined

The ABLE Act is a federal law that allows states to establish a savings program for persons with disabilities.  The program is modeled after the 529 savings accounts.  ABLE accounts may be used to accumulate savings, with certain restrictions, for use by a beneficiary with a disability.

 An ABLE account may be established by any contributor (a parent, friend, family member or the person with a disability) for the benefit of an eligible beneficiary of any age so long as that person can establish they met the criteria prior to age 26. An eligible beneficiary is an individual who meets the standard for disability prior to turning the age of 26.  A recipient of SSI or SSDI satisfies this requirement while those who do not receive such benefits must be certified under the act.

 Financial Limitations on the ABLE Act

 While the ABLE Act has made strides in bringing to light the issue of saving for those with disabilities, there are limits to the Act.  For example, the Act imposes a limit as to the amount of savings that can be held in an ABLE account. 

 The first such limitation deals with the annual contribution amount, which may not exceed the annual gift-tax exclusion amount (currently $14,000).  In addition, ABLE accounts may only accumulate aggregate contributions up to the state’s limit on qualified tuition programs (i.e. 529 accounts), which ranges between $300,000 and $400,000.  And, finally, SSI exempts only the first $100,000 of an able account.  Therefore, if an individual receives SSI, his or her ABLE account may not exceed $100,000 and he/she may have other assets up to only $2,000.  Otherwise, the individual will become ineligible to continue receiving SSI, but can remain eligible for Medicaid.

 Medicaid Payback

It is important to note that the ABLE account is a “Medicaid Payback” account.  This means that the Act requires a provision in the account that upon the death of the beneficiary of the account, Medicaid payments made on behalf of the beneficiary subsequent to the establishment of the ABLE account must be reimbursed with any remaining funds.  As a professional serving those with special needs, attention to the client’s priorities should be weighed carefully when determining the amount of savings to place in an ABLE account given this payback provision.  When a beneficiary of an ABLE account is receiving Medicaid, it is important to consider how much should be placed in the ABLE account to limit what may be recovered by Medicaid at the end of the beneficiary's life.

 Tax Benefits

 ABLE accounts have tax benefits similar to 529 accounts.  Qualified distributions from the account are not counted as taxable to either the contributor or the beneficiary.  Qualified distributions include expenses paid for the benefit of the beneficiary related to:  education, housing, transportation, employment training and support, assistive technology and personal support services, health, prevention and wellness, financial management and administrative services, legal fees, expenses for oversight and monitoring, funeral and burial expenses, and any other expenses approved by the Secretary of Treasury.

 In addition, earnings on the ABLE account are not taxable to the contributor or to the beneficiary.  Contributions, however, are made from post-tax income.

 Finally, assets in an ABLE account may be rolled over to another ABLE account for the benefit of another qualified individual who is a brother, sister, stepbrother, or stepsister of the beneficiary.

 Uses of the ABLE Act

A person receiving needs-based government benefits often has a dilemma when it comes to saving, whether for education or for unexpected events, all while maintaining public benefits such as SSI.  In order to receive SSI, a person with a disability must have assets under $2,000. The ABLE Act makes saving possible…up to a point.  Now the individual can remain on SSI and save a modest amount in an ABLE account (up to $14,000 per year). 

 Persons with disabilities who are employed may want to utilize an ABLE account to save a portion of their income while remaining qualified for SSI.  In addition, families may want to contribute to an ABLE account for their loved ones with disabilities in smaller increments.  These same families may also desire to use other tools available such as Special Needs Trusts, which may be more flexible. 


Monday, February 9, 2015

Special Needs Trusts and Pending Legislation

Understanding Special Needs Trusts

 A Special Needs Trust is a trust that is established for an individual with special needs who is or may become dependent on public benefits.  The trust is specifically identified to meet certain supplemental needs and to enhance the quality of life for the beneficiary, the special needs person.  Most importantly, the SNT is created so as to not disqualify the beneficiary for the public benefits being received.  The trust, then, is a pool of money available for the benefit of the beneficiary in order to provide him or her with goods or services that public benefits do not provide.  For example, SNT funds may be used for in-home care services that would otherwise not be affordable to the beneficiary.  Should a person with special needs receive these funds outright and outside a properly created SNT, the individual may become ineligible for the public benefits and reinstatement of the benefits can be a difficult process.

  There are two types of SNTs:  A third-party SNT and a first-party SNT.  A third-party SNT is one in which a loved one has assets that he or she would like to use to benefit the individual with special needs.  Whereas, a self-settled SNT is one in which the assets belongs to the individual with special needs. 

  A self-settled SNT is often used in the case of a litigation settlement.  One example involves an individual who was in a car accident and sued the “at fault” driver successfully.  By the time the lawsuit settlement was reached, the individual had been declared disabled.  Instead of the settlement funds being given outright to the person who is now disabled, the funds could be placed into a self-settled SNT for the benefit of that individual.  This allows the person with the disability to continue to receive benefits and have the settlement money available to him or her for supplemental purposes, increasing his or her quality of life.

 Self-settled SNTs have been recognized by federal law since 1993 under 42 USC §1396p(d)(4)(A).   A self-settled SNT contains a mandatory payback provision, meaning that upon the death of the beneficiary, the State will be paid back from the remaining trust assets up to the amount of public benefits expended on behalf of the beneficiary during his or her lifetime. 

  Within a self-settled trust an individual trustee or corporate trustee is appointed to manage the funds in the trust.   Choosing the correct trustee is an important decision as the trustee will be responsible for managing and investing trust assets, and is responsible for following the guidelines regarding proper distributions from the trust.  Failing to do so could result in a loss of benefits for the trust beneficiary. 

 Problem with the Current Law

 The law, as currently written, states that a first-party trust may only be established by the individual’s parent, grandparent or a court of competent jurisdiction.  It appears that the option for a competent individual to establish his or her own trust under 42 USC § 1396p (d)(4)(A) was a simple mistake by the writers of the law.  However, this minor mistake causes major financial losses to disabled individuals.  It requires those disabled individuals who have no parent or grandparent alive to establish the trust, to expend money on an attorney and court costs in order to ask for a court order establishing the trust.  The money to accomplish this is often such an impediment for these individuals, that they do not pursue it and end up either kicked off the public benefits or forgoing the supplemental monies they would otherwise have access to.

 Pending Legislation

Currently there are two identical bills sitting in the House of Representatives and in the Senate which would create the option for competent individual who is disabled to establish his or her own trust under 42 USC § 1396p(d)(4)(A).  In May 2013, H.R. 2123 was introduced in the House and the next day it was referred to the House subcommittee on Health, where is currently sits.  A few months later in November 2013, S. 1672 was introduced in the Senate, was read twice and referred to the Committee on Finance.  The title of the identical bills is the “Special Needs Trust Fairness Act of 2013” and is described as “a bill to amend title XIX of the Social Security Act to empower individuals with disabilities to establish their own supplemental needs trusts.” 

  As advocates for individuals with special needs, it is important that we support this bill so that our clients have more choices for themselves with regards to establishing special needs trusts.  If you feel so inclined, please contact your Congressional representative and ask for the passage of these bills.  Encouragement from us of the importance of this bill to our clients is imperative to get the bill recognized and enacted.  Otherwise, it may get lost in the shuffle and our clients’ needs may not be adequately addressed.


Monday, May 20, 2013

Elder Law Discussion on May 22, 2013 at 6:30 pm, Atria Assisted Living

Join members of the Elder Law Section of the Utah State Bar this Wednesday, May 22, 2013 at 6:30 pm  for a discussion on topics affecting the aging population. Now is the time to fill-out your advanced directive!  The discussion will occur at Atria Senior Living, 10970 S. 700 E. in Sandy, Utah.


Monday, March 18, 2013

Amazing Benefits Available to Utah Veterans..including free help with VA Pension Applications

More information on specific eligibility for benefits can be found on the local VA website at veterans.utah.gov , but you may be interested in the following list of available benefits and contact information (not exhaustive):

  • Property tax abatement depending on percentage of disability;
  • Purple Heart Tuition Waiver;
  • Tuition Waiver for Military Members’ Surviving Dependents;
  • Honorary High School Diplomas;
  • Veterans Upward Bound (assisting in obtaining admission to post-secondary schools);
  • Veterans License Plates;
  • Veterans Job Representatives;
  • Veterans Job Preference;
  • Veterans Hiring Priority;
  • Veteran Nursing Homes;
  • Utah State Veterans Cemetery and Memorial Park located at 117111 Camp Williams Road in Bluffdale;
  • Bus and Trax Reduced Fare Cards;
  • Community Based Outpatient Clinics;
  • Valor House (provides transitional housing to homeless veterans for up to two years)  (801) 582-1565 ext. 2703

Did you know that you may obtain exceptional help filling out a VA applications for pension benefits for *FREE* from the American Legion (801) 326-2380;  VFW  (801) 326-2385;  DAV  (801) 326-2375; or Purple Heart (801) 326-2471?


Read more . . .


Thursday, October 25, 2012

Elder Financial Exploitation

As chair of the Elder Law Section of the Utah State Bar, I am constantly impressed by the quality of speakers that present on behalf of our section.  Today, we listened to two prosecutors and the director of Adult Protective Services (APS) speak about Elder financial exploitation.  The incidence of financial exploitation of the elderly has increased by 50% between 2008 to 2010.  According to APS, the top 3 ways in which Utah seniors are exploited are as follows: (i) signing a quitclaim deed to their home;  (ii) adding a child or another individual to a joint bank account; (iii) unauthorized use of a durable power of attorney document.

According to APS and the prosecutors on today's panel, much abuse could be alleviated if an elderly individual had a third party to monitor their accounts for any circumspect use or charges, either by providing online limited access or by providing extra statements to the monitor.  Another suggestion our panel discussed was to give serious thought as to your agent under a durable power of attorney and the motivations of the agent.

 Although a durable power of attorney document can be the most useful and money saving document in an estate plan, as an attorney, I have seen serious abuse of durable power of attorney documents which has resulted in financial exploitation.  These documents are intended to be used (by statute) only for the benefit of the principal (eg. the senior). Criminal penalties  apply if the agent uses the document as a means of "stealing" from the principal.  The most important decision that you are making when you execute a durable power of attorney document, is the selection of a trustworthy "agent".  If possible, a senior should also seriously consider creating a durable power of attorney document which "springs" into life upon incapacity as certified by one or more physicians.  Serious consideration should also be given for the power conferred.  For example, if the power of attorney permits gifting (which is common where advanced estate planning/asset protection strategies are used), the decision to gift should be made by a special agent, who could make an impartial assessment as whether to the gift.

If you would like to read more about elder financial abuse and what to do about it, you may phone Utah Division of Aging and Adult Services at 1-877-424-4640 and request a legal guide.


Wednesday, March 28, 2012

Free Senior Center Consultations by Lawyers from the Utah State Bar

Did you know that the Utah State Bar Elder Law Section sponsors a program that allows Seniors to make appointments at their local Senior Center to discuss legal issues important to them with a licensed attorney in the State of Utah ...without cost?  I will be participating this Friday in that capacity at the Sandy Senior Center.  However, lawyers from the Elder Law section of the Utah State Bar and other volunteer lawyers routinely participate on a rotating basis in this service county-wide!  You simply need to contact the Salt Lake County Senior Center near you for more information.


Wednesday, February 29, 2012

Elder Care Seminar

Join social worker, Carol Wilcox, long term care insurance specialist, Nate Raso and me for an evening of information on issues confronting the senior community including but not limited to: the most important legal documents a senior should possess as (s)he ages; long term care planning with respect to legal documents; cognitive testing, care giver support; three items that lead to premature death among seniors; and the most important aspects of long term care policies.

This event will take place at St. John the Baptist Catholic Church on 2/29/2012 at 7:00 pm.  Please email jenniejoeconnelly@hotmail.com for additional information on this event. 

Please join us!


Saturday, January 14, 2012

Serving our Seniors Tomorrow at Wasatch Manor in Salt Lake City

The Young Lawyers section of the Utah State Bar is sponsoring a pro bono opportunity for attorneys and free basic estate planning for low income senior citizens in Utah at Wasatch Manor located at 535 South, 200 East in Salt Lake City tomorrow, 1/14/2012.  I will attend and direct the training session  prior to the event from 10-11 am. 


Tuesday, October 4, 2011

Is my Advanced Directive from another State Considered Valid in Utah?

The validity of an out-of-state Advanced Directive in Utah is a cause of common concern among clients.  The Utah Advance Directive Health Care Act states in Title 75-2a-121 that a "health care provider may, in good faith, rely on any health care directive, power of attorney or similar instrument: (a) executed in another state..." 

So, the answer is "yes".  Most likely your health care provider will recognize the validity of that out-of-state instrument.

However, if you are living in Utah (and have the requisite capacity), you may want to compare the Utah statutory form with your out-of-state Advanced Directive to ensure that your desires with respect to agency and end of life treatment are sufficiently represented on your Advanced Directive.


Thursday, September 29, 2011

Senior Expo Hours

I'll be at the Senior Expo today from 8-12.  See you there!


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| Phone: 801-572-0900

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