Stephanie L. Schneider, PA Newsletter
Elder Law News Lawyers Can Use
All Special Needs Trusts are Not Created Equal: Buyer Beware!
For those unfamiliar with the complex nature of government benefits and the laws governing special needs trusts (SNTs) it might be assumed that it is a 'forms practice.' Nothing could be further from the truth. Draft the SNT correctly the first time and the benefit is a happy client who maintains eligibility for government benefits and an informed trustee who can properly administer the SNT. Alternatively, draft the SNT incorrectly and it is a very expensive mistake which has led to malpractice suits.
Our firm was recently hired to represent two family members as Co-Guardians of their sister who has a disability. The guardianship had been estalished in 2005 as a result of a lawsuit settlement. In reviewing the documents provided by the clients I was curious about the SNT - how it was drafted, how it was being administered, and whether there was proper reporting to the relevant government agencies.
As I dug deeper I learned:
- The SNT agreement was missing witness signatures;
- The SNT agreement was missing a notary;
- There was no legally authorized Settlor identified in the SNT;
- The Social Security Administration was never notified of the settlement and the establishment and funding of the SNT;
- The Agency for Persons with Disabilities was never notified of the settlement and the establishment and funding of the SNT;
- The SNT agreement incorrectly authorized reimbursement to SSA at the death of the beneficiary.
When I advised our new clients of my assessment and that the trust was invalid they were flabbergasted and upset. They didn't understand how those mistakes could have been made as they were relying on an attorney who they thought knew what she was doing. After they calmed down we proposed a solution of seeking judicial reformation of the SNT to fix these mistakes. Our petition will request reformation nunc pro tunc as of the date the SNT was first established so that hopefully the trust beneficiary will not lose her government benefits and the agencies will not ask for reimbursement of benefits now. I believe we have a high probability of success.
We appreciate the trust and confidence these clients have placed in us and only wish that they had been referred to us initially so that we could have saved them additional expense and stress. Help your clients to make an informed decision and wise investment in their future - refer them to a Board Certified Attorney.
"Proper Planning May Create Peace of Mind"
We are your and your clients' partner in the aging process. Let us help you put the pieces of the puzzle together to navigate the elder law maze!
|Welcome to Our Success Corner |
If you have ever had a settlement which needed to be protected by a special needs trust (SNT) then you probably know that federal law requires the Medicaid lien to be repaid at the death of the beneficiary. No one has a crystal ball to forecast the size of the Medicaid lien or, the value of the trust assets at the beneficiary's demise. Consequently, it is important for us to counsel the trustee (and the beneficiary's family) about planning proactively.
Purchasing a home for the SNT beneficiary is one of the largest investments a SNT will ever make. However, if the home is not titled properly it can be an expensive mistake. If the home is titled in the name of the SNT there is the potential that the home may need to be sold to satisfy the Medicaid lien. The unfortunate consequence is that a family will lose their home.
Recently, we were called by a corporate trustee to represent them in administering an existing SNT. We discovered that the home was titled in the name of the trust. We immediately informed the Co-Trustees of the inherent danger. We are petitioning the probate division for the beneficiary's guardianship to obtain authorization to transfer the title to the guardianship. The result will be to maintain the constitutional protection of homestead as well as the ad valorem tax benefits.
This is just one of many rewarding reasons why we do what we do! Support your clients by consulting with our firm early in the planning process.
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.
|Representative Special Needs Trusts, Asset Protection Planning and Guardianship Clients|
Guardianship & Trust Professionals
Michael Carris, VP, Senior Trust Advisor
Regions Morgan Keegan Trust
Barry Givner, Sr. V.P, Wealth Mgt. Specialist
Coconut Grove Bank
2701 S. Bayshore Dr.305-860-2756
Jean Smith, V. P. Trust Advisor
Sun Trust Bank, N.A.
Registered Professional Guardian Weston, FL
Earl Denney; Bill King; Jack Hill
Searcy Denney, et al
West Palm Beach
Ervin Gonzalez; Patrick Montoya
Colson, Hicks, Eidson
Lytal, Reiter, et al
West Palm Beach
Gloretta Hall; Linnes Finney
Gary, Williams, et al
Leesfield & Parners
Panter, Panter & Sampedro
Vaka Larson Johnson
Lon Worth Crow
Hinkle & Foran
Gerson & Schwartz
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Estate & Incapacity
♦ Probate & Trust
♦ Last Will & Testament
♦ Revocable Trust
♦ Durable Power of Attorney
♦ Designation of Healthcare
♦ Quit Claim Deed
♦ Living Will
♦ Emergency & Standard
Guardianships (adults &
♦ Long Term Care Facility
♦ Medicaid Applications &
♦ Veterans Benfits Planning
♦ Special Needs Trusts
♦ Representation of Trustees
♦ Protecting Lawsuit
Preserving Medicaid &
♦ Exceptions to Medicaid
♦ Reduction of Third
Party Medicaid Liens
Visit Us at FJA
Booth # 40
Flroida Justice Association Annual Conference
at the Breakers
Date & Location To Be Announced
Attorney &Paralegal CLE Seminar: Elder Law Issues in the Personal Injury Case
Stephanie L. Schneider Board Certified Elder Law Attorney and Ann Koerner, RN, National Care Advisors will present an interactive discussion of how to identify and resolve elder law issues that arise in a personal injury or medical malpractice case such as the Medicaid third party lien, guardianship, special needs trust, probate, Medicare set-aside arrangements.
Credits will be available for Florida Registered Paralegals and Certified Legal Assistants through the National Association of Legal Assistants.
We look forward to seeing you at the Breakers during the Florida Justice Association Annual Conference.
The firm congratulates Stephanie L. Schneider for being selected as a
Top Lawyer in Elder Law in the 2011
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.
Stephanie L. Schneider &