Member of the
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for more information, go to the Special Needs Alliance Website
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ORGANIZATONAL HIGHLIGHT
 Benefits Education CenterProviding cutting edge Disability Benefits Training and Private Benefits Coaching to individuals living with disabilities and the community of professionals and para-professionals that serve them.
CLICK HERE to link to their website
With BEC on your team, you will understand the intricacies and complexities of the Disability Benefits System
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Special Needs Trust Seminar
November 10th
Special Evening Workshop from
6:00 p.m. - 8:00 p.m.
No cost to attend!
The Dale Law Firm
1670 Riviera Ave., Suite 101
Walnut Creek, CA 94596
To register for this workshop or to find out more about future workshops, please contact us at:
(925) 270-0172
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This Month's Video  Free video access to recorded workshops are available at the Achieving Independence website
Click Here
to view this month's video on the importance and use of Trustees. (approx. 10 minutes)
This video is from a larger presentation made by Stephen W. Dale. More videos are available on our website:
achievingindependence.com
NOTE: This video will open in a new page. The video will begin when 10% of the video has uploaded. In order to have full access to the entire video, we suggest you place the video on 'pause' for approximately 3 - 5 minutes. Once the video has fully loaded, you will have full access to the table of contents along the left side of the video allowing you to skip to specific sections.
We appreciate your comments and questions.
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Special Promotion
New clients will receive a discount on their estate planning if they attend a workshop, watch an on-line video or view a free educational DVD from the Dale Law Firm.
For more information,
go to the
"Educational Workshop"
section of the Achieving Independence
website.
There are two applicable videos to view. The first video is listed under "Special Needs Trusts" and is 1 hour, 40 minutes long.
The Limited Conservatorship workshop is listed in 5 sections under "Limited Conservatorship"
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A Newsletter for People with Disabilities and Their Families
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This issue's focus:
Trustees
Dear Reader:
Thank you for your interest in The Achieving Independence Newsletter.
Our subject for this issue is the importance of choosing a qualified trustee and the qualifications that makes a good trustee.
We're always looking for your input. As the editor of the Achieving Independence Newsletter, I invite you to contact me by calling (925) 280 - 0172 or by writing editor@dalelawfirm.com
We at achievingindependence.com and The Dale Law Firm would like to wish you Happy Holidays.
Nina S. Jones, Editor
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Qualities You Should Look For in a Trustee
by Stephen W. Dale
The Choice of your trust's management system is the single greatest factor in determining whether the trust will succeed or fail. There are several qualities we look for in selecting the ideal trustee of a Special Needs Trust. The first quality the trustee should posses is a commitment to always act in the best interest of the beneficiary. Knowing when to say "yes" or "no" and being able to actually say "yes" or "no" to a distribution request from the beneficiary is imperative. The trustee must have the ability to deny any request, no matter how reasonable, from the beneficiary in order to maintain eligibility for needs based benefits and to prevent the assets of the trust from being considered a resource.
The next quality is to have a solid understanding of public benefits as they pertain to the beneficiary and to remain up-to-date with the changes in the law and social service systems. This does not require that the trustee understand every nuance of the benefit system, but it does require being able to identify issues, seek advice when necessary, and make some common sense decisions.
Wise investment is always important, but it is even more critical when the assets of a special needs trust are at stake. Generally, professionally managed special needs trusts are designed with a very low risk tolerance and the investment models tend to be built conservatively. When the market is good, these portfolios will typically have less gain, but when times are bad, the losses will also be less. How special needs trusts are taxed can be very confusing. But with the right understanding of taxes, the trust can achieve a good tax benefit as well as a good advocacy benefit. Proper tax treatment of a special needs trust is dependent on both proper planning and drafting of the trust itself, and proper administration of the trust once it's funded.
Keeping good records is always a high priority with any trust, but this duty is especially heightened whenever one is dealing with needs based benefits programs such as SSI and Medi-Cal. Being summoned to a benefits audit is an anxious and confusing experience. If a family member trustee arrives unprepared and without documentation reporting the extent and nature of all trust distributions, there is a high likelihood of a denial of benefits. On the other hand, if the trustee is confident and is armed with good records and a good knowledge of benefit laws, there is little to worry about.
The greatest service that a special needs trustee can offer is to provide advocacy and serve as a tool to prevent abuse and neglect. Many times it takes knowledge of the system and perseverance to secure available services from school and service programs. It is just a fact of life that those who are complacent and do not ask questions get one level of service, while the well informed advocate - the one who will challenge a service provider with gusto and nerve - will typically receive a higher level of services.
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GUEST ARTICLE -
What are the Duties of a Special Needs Trustee?
by Robert Fleming - Attorney at Law, Tucson, AZ
Robert Fleming is the author of The Elder Law Answer Book, now available from Panel Publishers. He is a Fellow of both the American College of Trust and Estate Counsel and the National Academy of Elder Law Attorneys. Robert is also a member of the Special Needs Alliance, the premier national organization of lawyers working with "special needs" trusts, and the Elder Law Alliance.
The Trustee of a special needs trust can be central to the quality of care (and of life) for a person with disabilities. This is often the case because the trust can be so critical to a good quality of care, and the duties and responsibilities imposed on the trustee can be both substantial and frequently, undescribed.
The trustee of any trust has a set of well-defined responsibilities, including a duty of loyalty, a duty not to commingle trust assets or income with their own, a duty to account to the beneficiaries, a duty to utilize any special skills they may bring to the job, and a handful of other frequently cited duties. Those traditional trust principles, however, do not address some of the most important issues when dealing with a beneficiary receiving public benefits.
The Trustee of a special needs trust must be generally familiar with the public benefits system, and attuned to many of its nuances. For instance, does the beneficiary even receive any means-tested public benefits? If he or she gets monthly income from the Social Security Disability Insurance program, or on his or her parents' retirement accounts, then trust distributions may not have any effect on benefits. Is the beneficiary receiving all, or most, of his or her medical care from the federal Medicare program, or is he or she also qualified for MediCal (Medicaid) benefits? The former will not be affected by trust distributions, but the latter might.
Beyond that preliminary understanding, a good Trustee must also appreciate that individual trust distributions might reduce some benefits but not eliminate them. For instance, paying rent from a special needs trust may reduce the Supplemental Security Income payments (which are means-tested) but not eliminate them; meanwhile, receipt of even $1 of SSI benefits will usually entitle the recipient to full Medicaid benefits. In other words, it may sometimes be possible to actually provide housing benefits for a special needs trust beneficiary without eliminating their Medicaid -- or even SSI -- benefits.
Once the Trustee has made that calculation, however, it is important to check back with the trust document itself. Even though SSI and Medicaid law may permit some distributions, the trust -- or the court supervising the trust -- may not.
Acting as Trustee of a special needs trust can be a challenge. Good legal and programming advice can make it easier to navigate a difficult terrain. With that help, a Trustee can find the administration of a special needs trust terrifically rewarding, and truly make a positive difference for the trust's beneficiary.
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