Greetings!

 
Special needs trusts have many uses and are not just limited to preserving lawsuit settlement proceeds.

This issue explores the application of a special needs trust to hold child support (or even alimony).  In today's society divorces are on the rise.  It is not unusual for divorces to be precipitated by the stressors related to having a child with a disability and/or the financial state of our economy.  More families may need to rely on government programs to help enhance the life of their child with special needs.  A special needs trust is an excellent planning tool for receiving child support and protecting government benefit eligibility.

We are your one stop shop for cutting edge elder law services. 
Warmest regards,
Stephanie L. Schneider, CELA  
Stephanie L. Schneider, PA


Read The July/August 2010 Issue
Special Needs Trusts can Protect Child Support Payments for Adult Children with Disabilities
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Stephanie L. Schneider, PA Newsletter
Elder Law News Lawyers Can Use
September/October 2010

SPECIAL NEEDS TRUSTS CAN SUCCESSFULLY PROTECT CHILD SUPPORT PAYMENTS FOR MINOR AND ADULT CHILDREN WITH DISABILITIES

Imagine this scenario: You successfully obtained a settlement for a couple whose child was severely injured.  You collaborated with an elder law attorney to create a special needs trust to protect the settlement proceeds and preserve the client's government assistance.  Several years later you get a call from one of the client's that the couple is divorcing and asking if you can refer them to a family law attorney. 

 

The next visit is to the family law attorney who will advocate for that parent's right to alimony and the child's right to child support. Alternatively, if the couple was divorced prior to the lawsuit one parent may seek to reopen the family law case to request continuing support for the client's adult disabled child after the age of majority. Can you identify the unique legal issues raised by these  facts, and the appropriate solutions?

Tale:

You represented the wife in a dissolution of marriage proceeding approximately 11 years ago. When the divorce was granted the couple had a minor age son. The son was diagnosed from birth with mental retardation (or in some cases the child is injured at birth as a result of malpractice). The son attends special education classes in the public school system and had an ESE plan created for him (exceptional student education). The wife was designated the primary residential parent.

 

The couple's son has now turned age 18. Normally the father's support obligation would end. However, your former client has asked you whether she has the right to petition the court for continued support. You ask her how her son is doing. She tells you that he is dependent upon her, needs guidance and supervision. He is receiving vocational rehabilitative services but is not working yet.The parent is considering having the child apply for SSI and Medicaid assistance in order to receive financial support and medical coverage.

You remember reading our newsletter that discussed how people with developmental disabilities could qualify for SSI (Supplemental Security Income) as well as Medicaid assistance. You recall that there is an asset limit of $2,000.00 and an income limit. Most importantly, you remember that once a minor child becomes an adult the parents' assets and income are no longer reviewed by the government agencies.

 

You orchestrate a meeting with your client, the boy's Father and his attorney. The Father is not completely adverse to continuing to pay child support however, he is concerned that it be used specifically for his son (and not the boy's Mother) and that his son qualify for government benefits. Then, the thought crosses your mind that if the Court grants the request for continued child support that it could result in the son losing eligibility for SSI and Medicaid because he may have excess income or, assets. How do you advise your client?

Tip:

A collaborative venture is necessary for your client to be successful in seeking entry of a court order based on Florida Statute 743.07(2) for support of a dependent person beyond the age of 18 years. Stephanie, a Board Certified Elder Law Attorney, will provide innovative solutions  that are in the best interests of the adult disabled child. These will include creating a special needs trust, guiding the parents through the application process for SSI and Medicaid, and educating the Family Law Court on why irrevocably assigning the child support payments to the special  needs trust will allow the chidl to mainain government assistance. Depending upon the adult child's capacity it may be necessary to initiate a guardianship or,guardian advocate proceeding in order for the parents to have authority to create the special needs trust. Our firm has more than 18 years of experience in counseling client about special needs trusts, government benefit planning, and guardianships.


"Proper Planning May Create Peace of Mind"
 

Florida DCA Rules State Law Prohibiting Homosexuals From Adopting Is Unconstitutional

 
On September 22, 2010 the Third District Court of Appeal in an unprecedented opinion held that Florida Statute 63.042(3) is unconstitutional as the classification does not have a rational relationship to the governmental objective.  That statute states: "No person eligible to adopt under this statute [the Florida Adoption Act] may adopt if that person is a homosexual.  Florida Dept. Children & Families v. In re: Matter of Adoption of X.X.G. and N.R.G.

 

The trial court found, and the parties agreed by stipulation, that the adoptive father was a fit parent and that adoption was in the best interests of the children.  The children had been abandoned and woefully neglected by the natural parents whose rights were subsequently terminated.  The adoptive parent served as a foster parent to the children and was greatly successful in healing the children and contributing to them thriving.  In fact DCF agreed that gay people and heterosexuals make equally good parents.  The trial court's opinion declared the statute unconstitutional and a violation of the equal protection rights of the children and the foster parent under Article I, Section 2 of the Florida Constitution.

 

The parties presented considerable evidence at the trial level as well as experts who testified to: break-up rates of heterosexual couples compared to homosexuals; domestic violence studies; rates of psychiatric conditions, substance abuse and smoking rates for heterosexuals compared to homosexuals. The Appellate Court agreed with the Trial Court's analysis that there was not an overwhelming difference in the rates, and that sexual orientation is not the sole demographic characteristic that impacts these issues as race, gender, age and socioeconomic status also play a role.

In its analysis, the Court noted that homosexual persons are not prohibited by any state law or regulation from being legal guardians of children in Florida under Chapter 744, Florida Statutes. Moreover, there is no law prohibiting a homosexual person from serving as a foster parent on a temporary or permanent basis.  Therefore, where was the 'rational basis'  for imposing a blanket prohibition on adoption by those same people?  The Court concluded there was no rational basis and did not certify the question as being of great public importance because DCF has the right to appeal to the Supreme Court of Florida.


Proper Planning May Create Peace of Mind
Call us to host Advanced Level CLEs
  "Preserving the Personal Injury Settlement for the Aged and Disabled Client"
 
"Medicare Set Arrangements - they're not just for Worker's Compensation Cases anymore"
at your office.
Earn 1 CLE credits or 1 Trial Law certification credits and .25 ethics credit for each program. 
Phone:  954-382-1997 or Click "Schedule a Presentation" on our website at
www.fl-elderlaw.com 

Representative Special Needs Trusts, Asset Protection Planning and Guardianship Clients

 
Guardianship & Trust Professionals
 
Michael Carris, VP, Senior Trust Advisor
Regions Morgan Keegan Trust
Ft. Lauderdale
954-769-5830 

Barry Givner, Sr. V.P, Wealth Mgt. Specialist
Coconut Grove Bank
2701 S. Bayshore Dr.
Miami
305-860-2756
 
Jean Smith, V. P.  Trust Advisor
Sun Trust Bank, N.A.
Fort Lauderdale
954-765-7231

Lori Shuman-Auspitz,
Registered Professional Guardian Weston, FL
954-349-2134

Attorneys
 
Earl Denney; Bill King; Jack Hill
Searcy Denney, et al
West Palm Beach
561-686-6300

Ervin Gonzalez; Patrick Montoya
Colson, Hicks, Eidson
Coral Gables
305-476-7400

Nancy LaVista
Clark Fountain La Vista, et al 
(formerly at Lytal, Reiter)
West Palm Beach
561-961-2300

Gloretta Hall; Linnes Finney
Gary, Williams, et al
Stuart
800-329-4279

Mark Sylvester
Leesfield & Partners
Miami
305-854-4900

Mitchell Panter
Panter, Panter & Sampedro
Miami
305-662-6178

Daniel Larson
Vaka Larson Johnson
Tampa
813-228-6688

Lon Worth Crow
Sebring
863-382-2374

Don Hinkle
Hinkle & Foran
Tallahassee
850-205-2055

Philip Gerson
Gerson & Schwartz
Miami
305-371-6000
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Program #3:
Wednesday, Nov. 17, 2010
 Classic Residence, Pompano Beach 8-10am
You Want to Buy a What?!
Creative Trust Management: How to Balance What Your Client Wants with What They Need
Program #4:
Thursday, Feb. 3, 2011
Chicken Little:
Will the Sky Really Fall
 in a Medicaid or SSI Audit?

Speakers:
Ann Koerner, R.N., B.S.N., C.R.R.N, President, National Care Advisors
Stephanie L. Schneider, CELA, Stephanie L. Schneider PA
Join us to discuss how to assess clients' long term care, health and legal planning needs, and design a plan that will help clients meet their long
term care planning goals with the settlement funds you worked so hard to obtain justice on their behalf.

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FIRM NEWS
Stephanie Schneider, CELA
The firm congratulates Stephanie L. Schneider for being selected as a
Top Lawyer in Elder Law in the 2010
 South Florida Legal Guide
and being named in
Florida SuperLawyers 2010
 Stephanie is accredited by the Veterans Administration
to counsel clients about veterans benefits planning.

Recent & Upcoming Events

10/23 Gay Pride Center- Senior Health Resource Fair  Visit us at Table #4. Stephanie Schnieder will be speaking in the educational seminars about estate & long term care planning for domestic partners.
11/11 Free Seminar
Veterans Benefits on Veterans Day for Assisted Living Facilities, Nursing Homes, Adult Day Care & Home Health Agencies.
8-10 am. Lago Mar CC., Plantation
11/17  Free Breakfast Seminar
You Want to Buy a What?!
Creating Realistic Expecta-tions: Balancing what a special needs client and their family want with what they need for the special needs beneficiary. 8-10am Classic Residence, Pompano Beach
Sponsored by Alternative Home Health & Classic Residence a Vi Community.