What’s Better, A Living Trust or a Will?

Everyone knows what a last will and testament is. However, a will is not always the best way to distribute your assets, explains the Times Herald-Record in the article “Living trusts are better choice than wills.” Most people think that by having a will alone, they will make it clear who they want to receive their assets when they die. However, wills are used by the court in a proceeding called “probate,” if the only estate plan you have is a will. The court proceeding is to establish that the will is valid. Depending upon where you live, probate can take a year before assets are distributed to beneficiaries.

Certain family members must receive notifications, when a will is submitted to probate. Some people will receive notices, even if they are not mentioned in the will. This can lead to all kinds of awkward situations, especially from estranged or unknown relatives. The person who is the executor of the will is required to locate these relatives, and until they are found and notified, the probate process comes to a standstill.

There are instances where a judge will allow a legal notice to be published in a local newspaper, after valid attempts to find relatives aren’t successful. If there is a disabled beneficiary, a minor beneficiary, a relative or beneficiary who can’t be located, or a relative who has been incarcerated, the judge often appoints lawyers to represent these parties’ interests and the estate pays for the attorney’s fees.

Depending on the situation, the executor may be required to furnish a family tree, or a friend of the decedent must sign an affidavit attesting that the person never had any children.

Thinking of disinheriting a child? Anyone who is disinherited in a will, receives a notice about that and is legally permitted to contest the will. That can lead to years of expensive litigation, including discovery demands, depositions, motions and possibly a trial. Like most litigation, will contests usually end in a settlement. The disinherited relative often gets a share of the inheritance, even when the decedent didn’t want them to get anything.

For many families, a living trust is a better alternative. They also serve as disability planning, naming people who will manage the assets of the trust, in case of incapacity. They are private documents, so their information does not become public knowledge, like the details of a will.

A qualified estate planning attorney will help you determine what estate planning tools will work best to achieve your goals, while maintaining your privacy and ensuring that assets pass to heirs in a discrete manner.

Reference: Times Herald-Record (Oct. 26, 2019) “Living trusts are better choice than wills”

What is a Special Needs Trust?

Supplemental Security Income and Medicaid are critical sources of support for those with disabilities, both in benefits and services.

To be eligible, a disabled person must satisfy restrictive income and resource limitations.

That’s why many families ask elder law and estate planning attorneys about the two types of special needs trusts.

Moberly Monitor’s recent article, “Things to know, things to do when considering a special needs trust,” explains that with planning and opening a special needs trust, family members can hold assets for the benefit of a family member, without risking critical benefits and services.

If properly thought out, families can continue to support their loved one with a disability long after they’ve passed away.

After meeting the needs of their disabled family member, the resources are kept for further distribution within the family. Distributions from a special needs trust can be made to help with living and health care needs.

To establish a special needs trust, meet with an attorney with experience in this area of law. They work with clients to set up individualized special needs trusts frequently.

Pooled trust organizations can provide another option, especially in serving lower to more moderate-income families, where assets may be less and yet still affect eligibility for vital governmental benefits and services.

Talk to an elder law attorney to discuss what public benefits are being received, how a special needs trust works and other tax and financial considerations. With your attorney’s counsel, you can make the best decision on whether a special needs trust is needed or if another option is better, based on your family’s circumstances.

Reference: Moberly Monitor (October 27, 2019) “Things to know, things to do when considering a special needs trust”

Social Security Disability Benefits for Children Under the Age of 18

If you have a child with a significant disability, you might think the child would automatically qualify for government benefits. However, in reality, you will have to jump through several hoops. In addition to any assistance your state might provide, your child might be eligible for Supplemental Security Income (SSI) benefits. Here is an overview of the process for going after Social Security disability benefits for children under the age of 18.

The Social Security Administration (SSA) uses a two-part procedure for determining whether a child is eligible to receive disability benefits. The adult acting on the child’s behalf must complete and file:

  • An Application for Supplemental Security Income, and
  • A Child Disability Report

The Application for Supplemental Security Income for a Child Under the Age of 18

The SSA does not provide an online Application for Supplemental Security Income for a child under the age of 18. You will have to fill out the printed form. These forms can be confusing, but do not give up. You can call your local Social Security Office or go by their office to schedule an appointment to complete the application paperwork with an agent of the SSA. The agent can help you in person or over the telephone.

The SSA usually does not publish the telephone numbers of their local offices, so you will have to call the main number to get connected to your local office. The main SSA phone number is 1-800-772-1213 (TTY 1-800-325-0778).

Your local office can help you determine whether the child meets the financial requirements for SSI benefits. The countable income and assets of the child and parents must not exceed the allowed amount. The SSA excludes many assets from consideration, which is why they use the term “countable income and assets.”

The Child Disability Report

You can complete the Child Disability Report online. If you want assistance with the form or would prefer not to use the online form, you can call the SSA for help. Whether you complete the Child Disability Report online or at an SSA office, you will have to sign a document that authorizes the SSA to talk with your child’s doctor about the medical condition that is the cause of the disability.

You can provide records you already have, and the SSA will make a copy so you can keep your records. You do not have to collect documents you do not already have. Since you have to give the SSA permission to contact the child’s health care providers, the agency can request the records for their evaluation of the application. Depending on the facts of your situation, the SSA might find these records of the child useful:

  • Medical records
  • Prescriptions or pharmacy medication containers
  • Individualized Education Program (IEP) from the child’s school
  • Individualized Family Service Plan

Sometimes people start an online Child Disability Report and realize the need more time or information to complete the form. If you find yourself in that situation, write down the re-entry number you get from the SSA website. You can use that number to go back to the Child Disability Report, when you are ready to finish the form.

It can be useful to talk to an elder law attorney in your area about planning for your child’s future and how your state’s regulations might vary from the general law of this article.

References:

Social Security Administration. “Apply for Disability Benefits – Child (Under Age 18).” (accessed August 29, 2019) https://www.ssa.gov/benefits/disability/apply-child.html

Why You Need a Power of Attorney in Your Estate Plan

A power of attorney is an important legal document that allows a person, known as the principal, to designate a person of their choice to become their agent, acting on their behalf. This is usually done when the principal is unable to manage their financial affairs due to disability, illness or incapacity. It must be done while the principal is still competent, notes Delco Times in the article “What’s the difference between guardianship and power of attorney?” There are also instances when power of attorney is used when the principal is unable to conduct their own affairs, because they are traveling or are deployed overseas.

Related documents are the health care power of attorney and the durable power of attorney. A durable financial power of attorney is a document where the principal designates the powers that the agent may exercise over their finances. The powers granted by this document can be used by the agent, regardless of the principal’s capacity or disability.

The principal has the option to grant very broad authority to their agent. For instance, the principal could give their agent the authority to gift all their assets, while they are still living. That’s why it is very important for the specific provisions in the power of attorney to be carefully reviewed and tailored to the principal’s wishes. There are risks in naming an agent, since they are able to exercise complete control over the principal’s assets. The agent must be 100% trustworthy.

A health care power of attorney allows an agent to make decisions about the principal’s health. Note that this document is operative only when a copy is provided to the attending physician, and the physician determines that the principal is incompetent.

Both health care power of attorney and financial power of attorney may be revoked by the principal at any time and for any reason.

If the principal has not had these documents prepared in advance and then becomes incompetent by reason of injury, illness, or mental health issues, they may not have the legal right to sign the power of attorney. When this happens, it is necessary for a guardianship proceeding to occur, so that other people may be named to take charge of the person’s financial and health affairs. Advance planning is always preferred.

If an individual is born with a disability that impacts their capacity and upon attaining legal age, does not have the capacity to sign a power of attorney, then a guardianship proceeding will be necessary. The court must determine if the person is truly incapacitated and if there might be an alternative to appointing a guardian. Once the guardian is appointed, the principal no longer has the legal right to make decisions on their own behalf.

A guardianship is a much more restrictive tool than a power of attorney. For one thing, the power of attorney generally does not need the involvement of the court. There is always the possibility that a guardian is appointed who does not know the family or the individual. A durable power of attorney allows a person to appoint someone they know and trust to help them and their family, if and when they become incapacitated.

Speak with your estate planning attorney about how power of attorney works, and when guardianship issues might arise. Being prepared in advance by having the right documents in place, is always better than having the family going to court and hoping that the right decisions are made.

Reference: Delco Times (May 8, 2019) “What’s the difference between guardianship and power of attorney?”

Do Veterans Need to Pay for Help to Apply for Benefits?

The Tribune-Review’s article, “Veterans don’t need to pay for help to apply for benefits in Pa,” explains that the issue of military veterans being charged when applying for benefits is a common problem in Pennsylvania. There are about 800,000 veterans in the Keystone State.

The article warns that there are still some who attempt to profit, by assisting veterans to sign up for their benefits.

Vets should never have to pay to apply.

In January, an Allegheny County company was fined $10,000 after an employee fraudulently represented that he was an accredited veteran service officer. Some of the claims handled by the Allison Park firm were from Westmoreland County.

Veterans should ask for assistance only from an accredited veteran service officer, an attorney accredited by the VA, or an accredited claims agent. These agents provide veterans and their dependents free assistance to identify, determine eligibility for and apply for a wide range of benefits on the local, state and federal levels. That benefits include the following:

  • Burial allowances;
  • Grave markers and headstones properly requested and placed;
  • The Disabled Veterans Real Estate Tax Exemption Program;
  • Veterans Emergency Assistance;
  • Pensions for blind and paralyzed veterans;
  • The Education Gratuity Program;
  • Service connected disability and non-service connected disability pensions;
  • Federal health care benefits; and
  • Survivor benefits.

You may be eligible for VA benefits, if you’re a uniformed servicemember, veteran, or spouse, child, or parent of a deceased or disabled servicemember or veteran.

A summary of benefits can be found at the Veterans Affairs website: https://benefits.va.gov/BENEFITS/benefits-summary/SummaryofVABenefitsFlyer.pdf.

Reference: (The Tarentum, PA) Tribune-Review (May 17, 2019) “Veterans don’t need to pay for help to apply for benefits in Pa”

What’s Going on in Congress with Alzheimer’s Legislation?

McKnight’s Senior Living reports in the article “Bill would aid those with younger-onset Alzheimer’s disease” that Senate Bill 901, also known as the “Younger-Onset Alzheimer’s Disease Act,” was introduced in the Senate by Senator Susan Collins (R-ME), chairman of the committee, Senator Bob Casey, ranking member, and Senators Doug Jones (D-AL) and Shelley Moore Capito (R-WV). Representatives Kathleen Rice (D-NY), Pete King (R-NY), David Trone (D-MD), Elise Stefanik (R-NY), Maxine Waters (D-CA), and Chris Smith (R-NJ) introduced the bill as H.R. 1903 in the House of Representatives.

Nutritional programs, supportive services, transportation, legal services, elder-abuse prevention and caregiver support have been available through the OAA since 1965. However, under the current law, only individuals over 60 are eligible.

“These programs would make a huge difference in the lives of individuals living with younger-onset Alzheimer’s disease, who don’t have support services available to them,” said hearing witness Mary Dysart Hartt of Hampden, ME, a caregiver to her husband, Mike, who has younger-onset Alzheimer’s.

About 200,000 individuals aged less than 65 have younger-onset Alzheimer’s disease, according to hearing witness Clay Jacobs, executive director of the Greater Pennsylvania Chapter of the Alzheimer’s Association, North Abington Township, PA.

“The need to reach everyone affected will grow significantly in the coming years,” he said.

Senator Collins was a founder and co-chair of the Congressional Task Force on Alzheimer’s Disease. She noted that she and Casey are leading this year’s OAA reauthorization efforts.

Senator Collins said she was also introducing the “Lifespan Respite Care Act” with Senator Tammy Baldwin (D-WI) Tuesday “to help communities and states provide respite care for families.” This legislation would earmark $20 million for fiscal year 2020, with funding increasing by $10 million annually to reach $60 million for fiscal year 2024. The program lets full-time caregivers take a temporary break from their responsibilities of caring for aging or disabled family members.

“Whenever I ask family caregivers, which included my own mother, about their greatest needs, the number one request that I hear is for more respite care,” Senator Collins said.

Reference: McKnight’s Senior Living (April 3, 2019) “Bill would aid those with younger-onset Alzheimer’s disease”