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.

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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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That Time of Year

December 3, 2015

 

It is, once again, that time of year.  The time of the year where we find ourselves saying, “I cannot believe that it is December already.  Where did 2015 go?”  Some of us are busy reviewing the list of New Year Resolutions we made for 2015.  For many, our 2015 list of resolutions has become our 2015 “to do” list, which we will carefully scan to determine what remains to be accomplished.  We may find ourselves eager to complete the remaining tasks on our lists, so that we can happily cross them off our lists.  Others, who never made such a list, may now find themselves creating, and scrambling to complete, a newly created “to do” list, before 2015 is but a memory.

If you have such a list and if reviewing your current estate and life care plan is already on your list, then give yourself a pat on the back for proactively thinking about your planning.  If you have created both an estate and life care plan and reviewing your current plan is NOT on your “to do” list, we encourage you to add it to your list. If you have such planning in place, pull it out now and review it.  Ideally, absent an intervening life changing event, individuals will get into the habit of reviewing their estate and life care plans on an approximately annual basis.  As such, putting it on your annual “to do” list each year may help keep you on track.   Regardless of whether reviewing your planning is already on your list; whether you are adding it to your list now; or, whether you have no list and you are now going to make it a “to do” item, we encourage you to not delay.

When reviewing your current estate and life care planning documents, we recommend that you keep the following information in mind.  Since you originally created your planning, there may have been changes in the law which may have impacted your planning.  The attorney that assisted you in creating your estate and life care plan, most likely, was not permanently retained to keep you advised of all law changes that may potentially affect your planning.  Typically, the attorney/client relationship ends when the preparation of the plan has been completed and the attorney has closed your file; and thus, there is not an ongoing obligation to continue to advise you of law changes.  As such, we strongly encourage and recommend that you (and an attorney acting on your behalf) periodically review your planning documents to be certain your planning remains consistent with your wishes and remains appropriate for you.  Additionally, we suggest you review your planning documents anytime you experience a life-changing event or significant change in your financial circumstances, even if you just recently completed your regular, periodic review.  In Illinois, if changes to the documents are needed or desired, mark-outs or interlineations on the original documents will NOT be effective; and, any changes that you wish to make to your planning MUST be properly executed and witnessed to effectuate the change you desire.

If you do not have such planning in place, and this post, along with the hustle and bustle of the end of the year, has motivated you to add creating an estate and life care plan to your “to do” list and to move forward with your planning, then you too should give yourself a pat on the back.  As we like to say at our office, there is no time like the present to move forward with creating your estate and life care plan.

©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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