Newsletters

In our April 9, 2020 newsletter, we informed readers of changes to the rules for establishing eligibility for home and community-based services, including the imposition of a penalty period for individuals who transfer assets in anticipation of an...

This edition of the Special Needs Estate Planner is a reprint of an edition we circulated some years back. As we head into tax season with so many different things on our minds, we thought it a good idea to reprint this article to remind special needs...

Over the last several months we have seen story after story about families being unable to visit their loved ones living in skilled nursing facilities, group homes or other congregate settings. The stories we hear from our friends and colleagues are often...

We send The Special Needs Estate Planner to over 4,000 email recipients, and over the years our newsletters get passed along to people across the state and beyond. By far the most popular issue has been the one originally entitled, "Dear Grandma and...

  A crisis is unfolding. We have enjoyed the expansion of Medicaid home care benefits through the Nursing Home Transition and Diversion (NHTD) Waiver, the Consumer Directed Personal Assistance Program (CDPAP), the Managed Long Term Care (MLTC) Program and...

A couple of months back we informed our readers of some changes that were on the horizon in the New York State Medicaid program for those who hope to receive home and community-based services, including the imposition of a penalty period for individuals...

The Achieving a Better Life Experience ("ABLE") Act was signed into law by President Obama in December of 2014. Governor Andrew Cuomo signed New York's ABLE Act into law in December of 2015, but it took until September 10, 2017 for New Yorkers to be able...

At the risk of sounding trite, the coronavirus pandemic has caused most of us to consider whether we are truly prepared for the unexpected.  As we read the news and experience the changes in the patterns of our day-to-day lives, we cannot help but reflect....

Stimulus Payments and the CARES Act:  Questions and (Some) Answers   We have been inundated with information about the CARES Act stimulus checks that began to be distributed by the federal government earlier this week. Some of the information we received...

While You Were Disinfecting:   Unsettling Changes to New York's Home Care Programs New York has been at the epicenter of the pandemic, and we imagine that most readers have been impressed with Governor Andrew Cuomo's leadership during the crisis.  So have...

We hope our readers are staying safe, socially distanced and as sane as possible in these interesting times. Like you, we continue to adapt to this new way of living, and our office practices continue to evolve as we try to serve our clients as safely and...

Given the uncertainty of things to come and the daily changes we are all each being asked to process and endure, we wanted to share some thoughts on the importance of preparedness from an estate planning perspective. Preparedness applies to your estate...

Interesting Times…It has been a while.Without any fanfare, we stopped publishing the Special Needs Estate Planner in 2017. We left a link on our website because many visitors are interested in prior issues, but we were unconvinced that there was sufficient...

Readers who have attended our presentations will recall what we consider to be the three main objectives of comprehensive special needs estate planning: empowering agents to make important life decisions for a person with a disability, protecting government benefit eligibility, and providing good information for those who will carry on after the primary caregiver is gone.

It has been well over a year since our last issue of The Special Needs Estate Planner. We have been fortunate to see our practice continue to grow in the interim, but this was not the reason for the delay in publication. Truth be told, we have been wrestling with the decision to continue with the newsletter.

The times they are a’ changin’ in the world of Medicaid funded home care here in New York. Many of our readers know this only too well, as they are wrestling with these changes first hand. Some are struggling to secure eligibility to one of our community based Waiver programs. Others are trying to figure out how to navigate through one of the ‘managed long term care’ programs that are popping up all over the State. All would surely agree that the system is not getting any easier to navigate.

A brief note of introduction for this edition of The Special Needs Estate Planner is in order. This edition discusses the Supplemental Security Income (SSI) program rules for overpayments of SSI benefits. Many of our readers are trustees of Supplemental (Special) Needs Trusts (“SNTs”) and representative payees for SSI benefits, and they are well aware of how challenging – and often frustrating – it can be to interface with the administrative staff of the Social Security Administration (SSA).

Each year as we approach tax season we receive a number of questions from clients about the taxation of income generated on assets held in Special Needs Trusts. With this newsletter we thought we would try to lay out some of these rules in as simple a manner as possible.

We send The Special Needs Estate Planner to nearly 3,000 email recipients, and over the years our newsletters get passed along to people across the state and beyond. By far the most popular issue has been the one originally entitled, “Dear Grandma and Grandpa,” which discusses common mistakes that are made by well-intentioned friends and family members who make financial gifts to individuals with disabilities. We originally sent this newsletter in 2009, and reproduced it during the holidays in 2011. As we have added nearly 1,000 readers since then, we have decided to reproduce the issue once again. So maybe you can call this our own holiday tradition…

Our past few issues of the Special Needs Estate Planner have focused on trustees of supplemental (special) needs trusts. In Part 1 we summarized our concerns over appointing family members as trustees. In Part 2 we highlighted some very common mistakes made by trustees (professional and individual trustees alike).

We received such positive feedback from our recent newsletter (“Serving as Trustee: Fair and Honest is Not Enough,” Special Needs Estate Planner, November 2012) that we thought a companion piece which continued the theme would be in order. Before we do, however…

The closing days of 2012 and opening days of 2013 were eventful days in our nation’s capital. Most of us have heard in one form or another about the impending drop off the “fiscal cliff” and the Congressional action that broke the fall, at least for now.

It has now been approximately six months since our last newsletter. We knew that many people read and enjoyed our newsletters, but we did not realize the extent of the interest until we had a multi-month delay in sending one out. Thank you to all of our readers who have called, emailed, or otherwise contacted us to inquire.

Lets get this straight: we love the internet, and we couldn’t carry on our practice without it. When we learn of an unfamiliar disability or diagnosis, off to the internet we go. We look for information on the disability, how it impacts a client’s life, and what types of programs and services are available to help support the individual in the community. This information helps us provide better legal advice and draft better planning documents.

We expect that everyone who reads this Newsletter is familiar with the concept of a “Special Needs Trust.” This type of trust is specifically designed to hold money for individuals with disabilities who participate in any number of means tested government benefit programs, and is used to provide goods and services which supplement what is available through those programs. For those who want more information, we suspect that their first step would be an internet search on the topic. This is where readers need to be cautious.

In our April edition of the Special Needs Estate Planner, Snakes in the Grass, we told our readers about changes to the Medicaid program that were anticipated by the passage of the 2011-2012 New York State budget. Since that date, the New York State Department of Health has been busy promulgating regulations and issuing directives that have helped to clarify and explain many of those changes.

If you have been reading The Special Needs Estate Planner since its debut in 2004, then you know that we have never repeated an issue. We may sometimes be slow in getting them “to print,” but we always write them from scratch. Of course, in the world of disability and elder law there are plenty of topics to choose from, so the challenge has really been in deciding which topic to write about rather than finding something interesting in the first place.

The second problem with “unfiltered” information from the internet lies in the fact that the law governing Special Needs Estate Planning in general, and Special Needs Trusts in particular, varies greatly from state to state, and in some cases from region to region within an individual state. Like politics, Special Needs Trust practice is in many ways a local endeavor.

We have been pleased in recent years to see an increasing number of individuals with disabilities and their families take a more active role in planning for the point in time when the parent or caregiver becomes disabled or passes away. “Future Planning,” or as we call it in our office, “Special Needs Estate Planning,” can be especially difficult for parents and caregivers, as it forces them to contemplate the often inconceivable notion that a son or daughter with a disability will have to continue on without the support and advocacy provided by his or her parents.

Recently we attended the Fourth Annual Future Planning Conference in Albany, New York sponsored by NYSARC, Inc., and the Schoharie County ARC. Programs were presented by attorneys and other professionals from the Office for People with Developmental Disabilities (OPWDD), the Mental Hygiene Legal Service, local service providers, and by a panel of local Surrogate Court Judges.

In the world of Estate Planning, retirement plans are almost always part of the picture. While in general they can be great wealth building tools, in the specialized world of Special Needs Estate Planning, they can also present some very significant challenges, both for parents who want to leave retirement funds for the benefit of their children with disabilities, as well as for people with disabilities who work and need to qualify for Medicaid so that services and support can continue.

We often say that the word “disability” means different things in different contexts. Disabilities can be physical in nature, cognitive in nature, or some combination thereof. Some individuals with disabilities have guardians; some don’t. Some receive means-tested government entitlements; some don’t. Some work, others don’t.