Recent Successes And News:   Month: May 2023

Remember how satisfying it was setting up a trust for your child with special needs? You named a trustee and a successor trustee, signed the paperwork, and paid the legal bills, and then you rested easy at night knowing you had put a plan in place for your child. Done!

Well, not exactly. Because things always change, whether over time or suddenly.

It’s easy to throw your new special needs trust into a drawer and forget about it, especially if you are not planning on funding it until you pass away. Likewise, if your loved one with special needs has executed a durable power of attorney and health care proxy in case of an emergency, she too may squirrel the documents away for use if needed, and feel they never need to be looked at again.

But while having a plan in place is a great start, it does need to be maintained. You wouldn’t buy a new car and then decide never to change the oil, after all. When it comes to special needs planning, even small changes in circumstance can have major legal repercussions, and delay can be devastating.

Here are just a few examples of the types of changes that can have an impact on your special needs trust.

• Trustees and successor trustees: Perhaps because of a major life event such as divorce, physical incapacity, or job loss, they are no longer capable of serving as your trustee. Is the successor you named back in the beginning still up to the job?
• Health care agent: Is that person still able to jump in at a moment’s notice in the event of an emergency, or has he moved to another state or country? Does he still have the capacity and willingness to perform this very important role?
• Finances: Think of big changes in your financial picture, such as an inheritance, the liquidation of a family business, the purchase of a life insurance policy, retirement, bankruptcy, or litigation. You may consider transferring additional funds to the trust, adjusting the language to add an extra layer of protection, or rethinking how the fund’s assets are managed.
• Major life events: Any significant changes in your own life will have an impact on your dependent with special needs. These include losing a spouse to death or divorce, remarriage, the birth of another child, retirement, or relocating to another state where the laws governing special needs trusts are different.
• Changes in the beneficiary’s situation: Your special needs dependent could develop more capacity through therapies and medical innovation, or she might need more support and assistance as time goes by. Or perhaps she has received an inheritance or a settlement from a lawsuit. Or your wishes for your child may have changed with time. Any of these developments will have an impact on how the trust functions in the beneficiary’s life. Does the language in the trust even allow provisions to be added or changed to meet any new requirements?

Then there is the ever-changing world of federal and state disability benefits, which can be challenging to keep track of. This is where the Special Needs Attorneys at Kommer Bave & Ciccone LLP fit in; we not only monitor shifts in disability benefits law, but may also be instrumental in shaping new policies on a local, state or federal level. Such new policies may have a direct impact on your special needs plan.

The good news is that special needs trusts are living documents that can be updated and changed on a regular basis. But whatever happens, DON’T:

• Put off reviewing the trust’s provisions. As we all know only too well, everything can change when you least expect it, whether as a result of global pandemics, extreme weather events, financial crises, or other emergencies. Don’t wait for such an event before reviewing the plan; check it at least once a year to make sure everything is the way you want it.
• Think you can do it yourself by making handwritten changes in the margins. Changes must be properly noted and executed through your attorney. If done incorrectly, without a legal review, such amendments could complicate matters for your special needs beneficiary down the line and lead to expensive litigation.
• Assign successor trustees based on assumptions. Do not presume, for instance, that a trustee’s spouse will take over if the trustee passes away. Always plan for contingencies when making decisions.

If it has been a while since you took a peek at your special needs plan, take it out, dust it off, and schedule an appointment with the Special Needs Attorneys at Kommer Bave & Ciccone LLP. You may have a lot of work to do—or perhaps none at all—but staying on top of things will pay dividends in the end.

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If we have learned anything these past few years, it’s that life is fleeting. For families with children with disabilities, worrying about their loved one’s life in the years ahead is ever-present. Special needs planning allows you to provide for your children upon your death and name a trusted person to step in as a legal guardian. After choosing a guardian, drafting a Letter of Intent is critical to safeguarding your child’s future.

What Does a Letter of Intent Do?

If a guardian ever needs to take responsibility for your child, a Letter of Intent — also known as a Memorandum of Intent — can give the individual a greater understanding of your child’s needs, making the transition smoother.

Even when you trust the person you nominated as a guardian, the individual might not know how to care for your child. A Letter of Intent prevents confusion or miscommunication from adversely affecting your child’s future.

Although Letters of Intent are not legally binding, they can provide valuable information, guiding your child’s caregiver through important decisions.

What Should Be Included in a Letter of Intent?

With a Letter of Intent, you can give your child’s guardian detailed instructions that are not fleshed out in legal documents. To get you started, here are some suggestions on what to include:

• An introductory overview of your child. You can provide an overview of your child’s life and your wishes for your child’s future, such as where you think it would be best for your beloved child to live and what kind of care is appropriate.
• Public benefits on which your child relies. Describe any federal, state, or local benefits your child receives. If your child receives benefits like SSDI or Medicaid, the guardian can learn about these programs to help your child remain eligible.
• Important medical details. To care for your child effectively, the guardian must also know your child’s medical needs. List the names of physicians, types of procedures your child has undergone, any medications your child takes, and prescriptions your child has not responded well to in the past.
• Consider also including family medical history, indicating any predispositions to conditions. Conveying health care information can be particularly important for parents of children with challenges communicating or managing their care. If your child has food allergies or does well on a particular diet, provide dietary instructions.
• Your child’s network and support system. Providing information that supports your child’s physical health is crucial, but so is giving details that will help the guardian sustain your child’s mental wellness. As your child’s family and friends may be vital connections in your absence, list their full names, contact information, and relationship with your child. In some cases, maintaining long standing friendships can be just as important as keeping up family ties. Children may also have significant connections with their favorite teachers and mentors. Be sure to include details about the activities your child enjoys, from clubs to religious activities.
• Best practices that work for your child. You can list the behavioral management techniques that work for your child as well as methods that have been unsuccessful.

Update Your Letter of Intent Regularly

Your Letter of Intent should be a living document, which you update periodically as your child’s needs and preferences develop. Block time on your calendar to start — or review and update — the Letter of Intent for your child, striking irrelevant details and adding new developments. As a Letter of Intent is a vital part of your overall plan, you should update it just like you would update a will or other estate planning document.

Since Letters of Intent are not legally binding, they will not take precedence when they conflict with legal documents such as trusts and wills. Your entire estate plan should reflect your wishes for your child.

Speak with the Special Needs Attorneys at Kommer Bave & Ciccone LLP to learn more about incorporating a Letter of Intent into your plan for your child.

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Although people are willing to volunteer to care for a parent or loved one without any promise of compensation, entering into a caregiver contract (also called personal service or personal care agreement) with a family member can have many benefits.

The Benefits of Becoming a Family Caregiver

Caring for a relative rewards the family member doing the work. It can help alleviate tension between family members by making sure the work is fairly compensated. In addition, it can be a key part of Medicaid planning, helping to spend down savings so that the elder might more easily be able to qualify for Medicaid long-term care coverage, if necessary.

Tips for Effective Caregiver Contracts

The following are some things to keep in mind when drafting a caregiver contract:

• Meet with your attorney. It is important to get your attorney’s help in drafting the contract, especially if qualifying for Medicaid is a goal.
• Caregiver’s duties. The contract should set out the caregiver’s duties, which can be anything from driving to doctor’s appointments and attending doctor’s meetings, to grocery shopping, to help with paying bills. The length of the term of the contract is usually for the elder’s lifetime, so it is important to cover all possibilities, even if they are not currently needed. The contract can continue even if the elder enters a nursing home, with the caregiver acting as the elder’s advocate to ensure the best possible care.
• Payment. Payment to the caregiver needs to be made in weekly or monthly installments for services rendered. (New York State does not recognize the ability to create a lump-sum contract based upon life expectancy.) For Medicaid purposes, it is very important that the pay not be excessive. Excessive pay would be viewed as a gift for Medicaid eligibility purposes. The pay should be similar to what other providers of the services in the area are making, or less. The U.S. Bureau of Labor Statistics provides information on the pay ranges for these services by area in their Occupational Outlook Handbook.
• Taxes. Keep in mind that there are tax consequences. The caregiver will have to pay taxes on the income he or she receives and should consult with an accountant.

Contact the Elder Law attorneys at Kommer Bave & Ciccone LLP for help with crafting a personal care contract.

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Taking on the responsibility of providing full-time care for an aging or disabled loved one can be a rewarding experience. Being a primary caregiver helps you rest assured that your loved one is receiving compassionate care from someone who will go above and beyond to ensure they are comfortable and looked after.

Despite your good intentions to create a comfortable environment for your loved one, full-time caregiving is a significant time commitment. There is also a financial reality that the caregiver must face. Fortunately, family members who want to serve as caregivers may have options to help cover the expense.

What Is a Caregiver, and What Do They Do?

Professional caregivers work intimately with seniors to meet their needs as they age. As individuals get older, their needs change and they may need more help going about their day. Examples of the kinds of help caregivers provide include:

• Bathing and grooming
• Help with toileting
• Medical appointments and medication compliance
• Transportation
• Companionship
• Cooking, cleaning, and grocery shopping
• Care for animals
• Laundry
• Coordinate benefit care/speak to insurance companies on the senior’s behalf, if authorized

Family Caregivers: Know the Downsides

Having a family member serve in the role of caregiver can make for a better experience for your loved one and, in some ways, give you peace of mind as well. However, there are some downsides to be aware of if you are considering becoming a family caregiver.

Your own health, both physical and emotional, can be negatively affected when taking on the burden of caring for a family member. Be sure to engage in self-care, maintain a healthy diet, and watch out for signs of stress and burnout. When you do need a break, consider looking into respite care.

If your loved one has specific medical issues that will require the attention and expertise of a professional health care provider, you may want to reassess whether you should take on the role of family caregiver.

Taking care of a loved one who is getting older or who is disabled will likely require a great deal of your time, too. You may find yourself not performing as well at work or having a longer commute as you fulfill the needs of your ailing loved one. Not to mention that your own immediate family may be missing out on valuable time with you while you are caregiving elsewhere.

In turn, this could mean you will have less time to hold down a full-time job. In fact, a 2020 AARP survey showed that about 20 percent of family caregivers reported experiencing a high level of financial stress. Nearly 30 percent of them stopped saving altogether as a result of providing care for their loved one.

In these challenging economic times, you must be able to support yourself while ensuring the best care for your aging family member.

Can Family Members Get Paid for Their Work as a Caregiver?

Fortunately, certain programs are available to help family members care for ailing relatives. An experienced Elder Law Attorney can help you to find the right option for your circumstances.

Medicaid Self-Directed Care
For individuals on Medicaid, the Medicaid Self-Directed Care Program is one option that gives them the authority to manage their services. In New York State, the program is the Consumer Directed Personal Assistance Program (CDPAP). In New York, CDPAP allows the family caregiver to be paid by the Medicaid program. This option is especially important with the current shortage of home health aids. The Medicaid Self-Directed Care Program lets seniors have more autonomy over their care. Family members, friends, and other individuals are eligible to provide care, however spouses and financial agents may not serve as a personal assistant under CDPAP.

If you are considering becoming the caregiver of an aging or disabled relative, contact the Elder Law attorneys at Kommer Bave & Ciccone LLP. We can help you to plan for their future and their care.

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