Special Needs Trust Fairness Act Passage Presents New Opportunities in the New Year

January 30, 2017

On December 13, 2016, approximately two weeks prior to the start of the new year, the Special Needs Trust Fairness (SNTF) Act became law.  The SNTF Act corrected what appears to have been a long-standing error in the law regarding who is authorized, pursuant to the Social Security Act, to create first-party special needs trusts (commonly referred to as a (d) (4) (A) trust).  For many disabled persons, the ability to create a first-party special needs trusts is extremely important and critical to his/her continued access to important government benefits.  As such, the passage of the SNTF Act is a significant victory for competent disabled adults, who now have the same right that parents, grandparents, guardians, and courts have to create a first-party trust, for their own benefit with their own assets.

Prior to December 13, 2016, and for more than two decades, such individuals were prohibited from creating their own first-party special needs ((d)(4)(A)) trust.  Rather, the prior law stated that such trusts could only be created by the individual’s parent, grandparent, or guardian or by a court, even in a circumstance in which the individual was legally competent and able to handle his or her own affairs.  This error in the law left legally competent disabled adults in the unfortunate circumstance of having to either rely on the assistance of a qualified family member, or to expend significant funds petitioning a court to establish a first-party trust, when a qualified family member was either no longer alive, unwilling, or unable to assist.

Specifically, the SNTF Act, which was included in the 21st Century Cures Act, accomplished this change by amending the Social Security Act to add “the individual” as a person who is now allowed to create a first-party specials needs trust for the individual’s own benefit.  It should be noted that the SNTF Act did NOT make any other changes to the law regarding first-party special needs trusts, which still requires the inclusion of a payback provision to allow state Medicaid offices to recover expenditures made by the state for the individual’s benefit from the any remaining trust assets, after the individual’s death.

Quite simply:  The bottom line is that the addition of just two words (“the individual’) to the Social Security Act has made a world of difference for many legally competent adults.

Planning for special needs is complex.  As such, persons wishing to learn more about special needs planning for yourself or a loved one, are strongly encouraged to seek specific legal advice from an attorney, whose practice includes special needs planning.

The Elder Law Center, P.C. (subsidiary of Mickey, Wilson, Weiler, Renzi & Andersson, P.C., http://www.mickeywilson.com) is located in Sugar Grove, IL, Kane County, in the Chicago Western Suburbs, phone number: 630-844-0065.


National Healthcare Decisions Day 2016

April 16, 2016

Today is “National Healthcare Decisions Day!”  What is National Healthcare Decisions Day (NHDD)?  According to the “National Healthcare Decisions Day” website (www.nhdd.org), “National Healthcare Decisions Day exists to inspire, educate, and empower the public and providers about the importance of advance care planning.”  In other words, it is a day dedicated to educating others as to the available options for creating the appropriate legal documents to ensure that their wishes regarding their healthcare will be carried out, should there come a time when they are no longer able to express their wishes.

The attorneys and staff at our office are, and have been, extremely passionate about the importance of advance planning for healthcare decision-making for anyone over age 18. It was out of this passion and strong belief that all competent persons over age 18 should have access to the information necessary to understand and create a Durable Powers of Attorney for Healthcare that we celebrated NHDD 2016 earlier this week.  We celebrated by hosting a community event to educate Illinois residents.  Not only was it an inspiring day for our office, it was truly our pleasure to host this event and to meet with attendees to “inspire, educate, and empower” all those who attended to be pro-active regarding their healthcare planning.  We are grateful to, and thank, all who attended the event.  In addition, we thank and salute our staff for going above and beyond to ensure that the event was a huge success.  If you missed the event, and would like to receive general information regarding the Illinois statutory Durable Power of Attorney for Healthcare, please do not hesitate to contact our office.

Thus, we wish each of you a very Happy National Healthcare Decisions Day 2016!  To those of you who already have your planning in place, we encourage you to inspire others to do the same.  To those of you who do not, we encourage you seek the information you need and delay no more in creating an advance healthcare plan for yourself.  Remember though, the available legal documents and the legal requirements for creating such documents will vary from state to state.  Thus, it is important to seek specific legal advice in your state to be sure that any documents that you create will, if ever needed, be effective.

The Elder Law Center, P.C. (subsidiary of Mickey, Wilson, Weiler, Renzi & Andersson, P.C., http://www.mickeywilson.com) is located in Aurora, IL, Kane County, in the Chicago Western Suburbs, phone number: 630-844-0065.


Illinois Again Revises Statutory Health Care Power of Attorney Form

February 5, 2016

If you are an Illinois resident, then you may already be aware that as of January 1, 2016 there is yet another new version of the Illinois Health Care Power of Attorney (HCPOA) statutory form now in effect.  Some of you may be wondering why Illinois keeps revising this form.  It seems that, as of late, revisions to Illinois’ statutory  HCPOA form have been frequent.   By way of background, the HCPOA statutory form has evolved and been tweaked over many years.  Then, in 2015, an unexpected and substantial revision to the form was rolled out, and less than a year later, legislation had already been passed (which took effect on January 1, 2016) to correct several major issues of concern with the 2015 form.  In our opinion, the new changes are a vast improvement over the 2015 version.  Although the 2016 changes significantly improve the 2015 version, one might argue that there still remains room for improvement.  That being said, here are a few of the key, positive changes to the 2016 version of the HCPOA statutory form:

  • The principal’s designation of the agent as guardian, should one later be required, has been added back into the form. For some unknown reason (perhaps simply an unintentional oversight), this provision was removed from the 2015 form.
  • The designation of successor agents has been relocated to a more logical place within the form. The location of this provision in the 2015 form was quite problematic, as it appeared after the signatures of both the principal and the witness.
  • Another significant change is that the 2016 version of the form now includes a third, and new, statutory option as to when the agent is permitted to act on behalf of the principal. The new, additional option reads as follows: “Make decisions for me only when I cannot make them for myself. The physician(s) taking care of me will determine when I lack this ability. Starting now, for the purpose of assisting me with my health care plans and decisions, my agent shall have complete access to my medical and mental health records, the authority to share them with others as needed, and the complete ability to communicate with my personal physician(s) and other health care providers, including the ability to require an opinion of my physician as to whether I lack the ability to make decisions for myself.” The 2015 version included two somewhat extreme options, which for many proved to be quite confusing. Both of these options remain in the new form.  The addition of the third option appears to be an attempt to bridge the gap between the extremes of the other two options, by offering a more a middle of the road option.  Thus, if using the statutory form, these three options should be carefully considered; and if need be prior to completing the form, advice should be obtained to ensure that the legal impact of each option is fully understood.
  • The 2016 version now includes language which allows an agent the authority to continue an application or appeal of government benefits post-death, if no probate representative is appointed. This, too,  is a significant and positive addition to the form, as this provision will allow an agent to continue to pursue government benefits (such as Medicaid for long-term care) when the principal has no funds remaining and the opening of a probate estate is not, otherwise, necessary and/or practical.

Many Illinois residents are, also, now wondering whether the Illinois statutory HCPOA which they previously created is still valid; or whether they should create a new one that complies with the most recent set of changes. The good news is the recent statutory changes include a “savings clause.”  As such, an existing, otherwise valid, statutory HCPOA executed prior to January 1, 2016 remains valid and in effect.  However, for those who created a HCPOA using an “unaltered” version of the 2015 Illinois statutory form, we encourage you to seek advice to determine whether updating to the revised 2016 Illinois statutory form is recommended for you.  For those, who created their HCPOA using a pre-2015 version of the statutory form, unless you wish to change your HCPOA for other reasons (such as to change your agents, change the effective date, etc.), your current HCPOA will more likely than not continue to meet your needs.  For those who have not yet created a HCPOA then we, of course, encourage you to do so, as there is no better time than the present to create a HCPOA.

Quite simply, the bottom line is that the 2016 revisions to the Illinois statutory HCPOA are a move in the right direction.  Although executing a new form is not required,  Illinois residents, who used an “unaltered” 2015 version of the form, are encouraged to seek legal advice as to whether updating to the new 2016 form is recommended for them.  For those who have any question at all about their current HCPOA, regardless of whether it was created using the 2015 form or a pre-2015 form,  we likewise encourage those persons to seek specific legal advice for their particular circumstance.

©Copyright 2016 by Constance Burnett Renzi. All rights reserved.

The Elder Law Center, P.C. (subsidiary of Mickey, Wilson, Weiler, Renzi & Andersson, P.C., http://www.mickeywilson.com) is located in Aurora, IL, Kane County, in the Chicago Western Suburbs, phone number: 630-844-0065.

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Social Security Retirement Benefits: A Not So Simple Decision

October 12, 2015

For those of you who will soon be eligible to start receiving Social Security retirement benefits, you are probably already acutely aware of the decision that lies before you.  That decision, of course, is when is the best time for you to start collecting benefits.   You are wondering whether you should start collecting your benefits at age 62; whether you should wait until your full retirement age; whether you should file and suspend, etc.  If you are married, then this decision is even more complicated and the range of options before you and your spouse increases significantly.  You have probably begun to receive mailers for workshops where planners will be on hand to help you make that determination.  In addition, you may have engaged in internet research and discovered the plethora of articles on the topic, as well as a vast number of Social Security retirement benefit calculators promising to give you the magic answer that you seek.   After having engaged in my own personal research and educating myself on this very important topic, and after having had the pleasure and privilege of attending a presentation by the extremely knowledgeable and highly regarded Social Security guru, attorney Avram Sacks, at the IL-NAELA “Unprogram” on October 3, 2015, I have come to the following conclusions:

  • This decision is anything but simple;
  • There is no “one-size fits all” answer;
  • Not all benefits calculators are alike, as not all calculators will necessarily take into consideration all relevant and pertinent factors impacting this decision;
  • Not all benefits calculators offer “error” free results;
  • Certain decisions cannot be undone; and,
  • Absent a working crystal ball, any decision one makes will ultimately incorporate certain variables that will be based upon the best available information regarding health, expected longevity, future earnings, anticipated taxes, etc., which in the end may prove to have been based on incorrect assumptions.

So what is one to do improve their chances of maximizing these benefits for the remainder of their life?  Quite simply, our office recommends consulting a knowledgeable and highly-regarded Social Security guru, before making any final decisions.

©Copyright 2015 by Constance Burnett Renzi. All rights reserved.

Our office is available for consultation regarding estate planning (including Wills and/or Trusts), life care planning (powers of attorney), special needs planning, probate, guardianship matters, Medicaid eligibility for long-term care, and/or other elder law issues.  The Elder Law Center, P.C.  proudly serves clients throughout Illinois and is located in Aurora, IL,  in the Chicago Western Suburbs.  Our office can be reached via telephone (630-844-0065) or email through our website:http://www.elderlawpc.com.

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Resource for Information on Free and Low Cost Medication Programs

October 5, 2015

If you follow our office on Twitter, then you know that both Katie Lenert and I recently attended the Illinois Chapter of the National Academy of Elder Law Attorneys IL-NAELA “Unprogram.”   Kudos to Katie Lenert and the others on the committee for putting together, yet, another fabulous continuing education program for elder law attorneys.   The program was chocked full of both interesting tidbits and substantive information, some of which we thought may be of immediate value to our clients, friends, and/or readers of our blog.   Accordingly, here is one piece of information that we wanted to share right away.

For those of you looking for information about free and low cost medication programs, visit:

www.rxassist.org

In addition, some may also find RxAssist helpful in providing useful information about other ways to manage medication costs.

Be sure to check back for more tidbits and information from IL-NAELA’s “Unprogram.”

©Copyright 2015 by Constance Burnett Renzi. All rights reserved.

Our office is available for consultation regarding estate planning (including Wills and/or Trusts), life care planning (powers of attorney), special needs planning, probate, guardianship matters, Medicaid eligibility for long-term care, and/or other elder law issues.  The Elder Law Center, P.C.  proudly serves clients throughout Illinois and is located in Aurora, IL,  in the Chicago Western Suburbs.  Our office can be reached via telephone (630-844-0065) or email through our website: http://www.elderlawpc.com.

Follow us on Facebook @ http://www.facebook.com/pages/Elder-Law-Center-PC/285067291548844

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Happy National Healthcare Decisions Day

April 16, 2015

 

Whether you have already created an advance directive (or advance directives) for your healthcare, or not, National Healthcare Decisions Day is the perfect day to take a minute to consider your wishes regarding your healthcare.  As long as you remain competent, you will be able to make your own healthcare decisions.  What happens, however, if you become incapacitated?  How will your healthcare decisions be made and who will make them for you?  The good news is that you have the ability to be pro-active and create a document, often referred to as a Healthcare Power of Attorney, that will allow others (who you choose) to make healthcare decisions for you.  In addition, you may also choose to create other documents to inform your healthcare providers of your specific wishes, regarding particular healthcare circumstances that may later arise.  If you do not have a Healthcare POA in place, then now is the perfect time to consider creating one for yourself.

If you already have a Healthcare Power of Attorney (POA), in place, then give yourself a pat on the back.  By creating a Healthcare POA you have taken a very important step with regard to future healthcare decisions for yourself, should you later become incapacitated and unable to make your own decisions.  Even though you may have already created a Healthcare POA, National Healthcare Decisions Day is the perfect time to review your POA (and/or other healthcare advance directives), particularly if it has been years since you have last looked at your POA.  If you have not reviewed it recently, are you sure that it still accurately reflects your wishes?  When you do review it, to be sure that it still reflects your wishes, also check to be sure it includes successor agents.  Designating successor agents means that should your first named agent be unable to act on your behalf, there is a better chance that there will be someone else in place to act as your agent.  With regard to the people that you have designated as your agent and successors, do they know that you have done so, and do they know where you are storing the original and/or copies?  Failing to let the people you have designated as your agent and successors know that you have done so, and/or failing to let them know where to find your Healthcare POA if needed, will be fatal to your Healthcare POA working as you intended it to work, in the event of your incapacitation.  Assuming that you have informed your agent and successors that they have been so designated and they know where it is stored, have you also talked with these persons to further explain your wishes?  While advance directives allow you to give written directions to the people you are naming to act on your behalf, it is still important to have a conversation with those so designated to fully explain your wishes and philosophies with regard to your health and healthcare decisions.  Having periodic conversations with your agent and successors is, likewise, recommended to be sure these people remember your wishes and to be sure that they are aware of any changes in your wishes or philosophies, which may have evolved over time.

The available advance directive options for healthcare will vary from state to state.  Thus, it is important to seek advice regarding the options available to you in your state.  If you reside in Illinois and would like information and/or assistance in creating a Healthcare Power of Attorney (POA), or you would like to have your current POA reviewed, contact our office at 630-844-0065 to schedule an appointment.

©Copyright 2015 by Constance Burnett Renzi. All rights reserved.

Our office is, also, available for consultation regarding estate planning (including Wills and/or Trusts), life care planning (powers of attorney), special needs planning, probate, guardianship matters, and/or other elder law issues.  The Elder Law Center, P.C.  proudly serves clients throughout Illinois and is located in Aurora, IL,  in the Chicago Western Suburbs.  Our office can be reached via telephone (630-844-0065) or email through our website: http://www.elderlawpc.com.

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Dispelling a Common Misconception:  Annual Gifts do NOT Qualify as an Exception Under the Strict Medicaid Transfer Rules

March 30, 2015

At our office, we frequently meet with clients regarding long-term care planning.  Many times these meetings include counseling clients regarding the Medicaid eligibility rules for a long-term nursing home stay.   (A full discussion of the Medicaid eligibility rules is beyond the scope of this post, as the rules are complex and vary from state to state.)   During these meetings, it is not uncommon for clients to make the following statement, “I know that I can gift $14,000 per year per person, without any negative consequences, if I have to apply for Medicaid.”   Most of these folks are quite surprised when we advise them that their understanding is incorrect and simply NOT true.  

Pursuant to the federal law regarding Medicaid eligibility for long-term care stays at a nursing home, there is a sixty (60) month look-back period in which ALL transfers made by the Medicaid applicant will be strictly scrutinized.   When transfers made during the look-back period are reviewed, a penalty period will be imposed for all “non-allowable” transfers.  A “non-allowable” transfer (made during the look-back period) is a transfer for which there is insufficient documentation to support that the applicant, or his/her spouse, received either  resources or services approximately equal to the fair market value of the amount transferred.  There are “exceptions” to the transfer rules, which may result in certain transfers being treated as “allowable,” even when the transfer was not made for fair market value.  However, nowhere in the Medicaid eligibility laws, rules, and policy provisions, as applied in Illinois, is the transfer of $14,000 per year per person included as an “allowable” transfer.  Thus, pursuant to the Illinois Medicaid eligibility rules, unless an annual gift (made during the applicable look-back period) fits into one of the “exceptions,” the gift will NOT be “allowable,” and it will result in a penalty period being imposed.

The genesis of this misconception is easily explained.   It is the result of confusing the federal gift tax laws with the Medicaid eligibility laws and rules.  According to the IRS, the federal annual gift tax exclusion rules provide that, in 2015, an individual may gift up to $14,000 per year per person without the annual exclusion gifts counting towards the individual’s lifetime gift exemption. This rule, however, is limited solely to the federal estate and gift tax laws, and unless the gift fits into one of the stated “exceptions” for transfers made during the look-back period, it will NOT qualify as an “allowable” transfer under the Medicaid eligibility rules.

Quite simply, the bottom line is that if you or a loved one will likely need Medicaid assistance for long-term care, obtaining legal advice (in your home state) for your specific situation is highly recommended. As noted above, the Medicaid eligibility rules are quite complex and vary from state to state.  As such, it is important to be certain that you are not confusing other laws and rules with the applicable Medicaid eligibility rules in your state.

©Copyright 2015 by Constance Burnett Renzi. All rights reserved.

To discuss elder law issues, estate planning (including Wills and/or Trusts), life care planning (powers of attorney), special needs planning, probate and/or guardianship matters with one of our attorneys, please call the Elder Law Center at 630-844-0065 or contact us via email. The Elder Law Center, P.C. is located in Aurora, IL, Kane County, in the Chicago Western Suburbs.

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