National Conference

Professor Flowers’ Ethics Session - The Ethical Alligators in Fiduciary Representation: How to Avoid Being Bit by One

Roberta K. Flowers

This discussion will explore the ethical and practical issues faced by attorneys and other professionals when the trustee is acting with malfeasance or misfeasance. The participants will explore how and why trustees take a wrong turn and fail to serve their beneficiaries properly. The session will discuss what professionals can and should do when the trustee is not acting appropriately. Finally, the session will turn to how to prevent misconduct by trustees by education and oversight.

Goals of the Session: After this session the participants will be able to:

1. Identify misconduct by trustees
2. Advise trustees of their obligations and duties
3. List the ethical rules and standards that professionals should consider when faced with trustee misconduct.
4. Create intentional practical steps to deal with the trustee who is acting unethically or negligently.

Time to Terminate

Shirley Whitenack

This session will focus on terminating special needs trusts, both before death and after death. When is court approval necessary? Should the trust be terminated if the beneficiary is no longer receiving means-tested benefits? What can be paid from a first party special needs trust ahead of Medicaid payback before death and after death?

Practical and Pesky Problems … and a Process Toolkit

Hyman G. Darling

This session will cover some typical and non-typical problem situations that a trustee may encounter. While some answers may be determined by state law, the presenters will attempt to provide guidance in assisting with decision making. Topics may include the following: (1) Mom has been supporting a child, not a minor, with cash, and she has died. Child has been dependent on this cash. Now what to do? (2) The beneficiary has some “bad habits” such as alcohol, drugs, gambling, smoking, etc., is requesting money for these purposes. Is this allowable? (3) What about medical marijuana and non-medical marijuana, even in states that have legalized it? (4) Beneficiary has won a scratch ticket and claims it and tells you. What to do? (5) You find that a beneficiary has allowed someone to move into their apartment and is subletting it. (6) The beneficiary is working part-time and receives a statement at year-end stating that he/she now has $2,500.00 in a 401k plan. (7) parents don’t apply for benefits for the child because of fear of deportation; undocumented folks and SNTs-family decides to move back to their home country; cultural competencies and language issues, too.

When Parents … and Grandparents … Fail to Plan

Janet Lowder

This session is a survey of what various states do-what works and doesn’t. For example, what about a grandparent client who is in denial and intentionally refuse to plan or creates an inappropriate plan. What about parents planning for their minor children but the grandparents refuse to do so? Will reformation allow you to “fix” the problem after the grandparent (or parent’s) death?

Trust Law Basics

Regina “Gina” Spielberg

This session will review some of the basic laws that are instrumental in attending to legal issues relative to a Trust, but some may have been forgotten since law school days. They may include (1) The Rule against Perpetuities; (2) The Doctrine of Worthier Title; (3) Ademptions; (4) The Rule in Shelley’s Case; (5) Merger Doctrines. Nightmares not included.

Non-Judicial Settlements Under the UTC

Shannon Laymon-Pecoraro

The Uniform Trust Code permits Nonjudicial Settlement Agreements as a trust modification tool for irrevocable trusts. These agreements, which are given the same effect as if approved by court, may permit an attorney to creatively resolve problems in trust administration and may facilitate the modification of a special needs trust without court intervention.

Addiction & Trusts – It Looks Great on Paper, But Does It Work?

Stuart Zimring

Attorneys drafting SNTs (and other types of trusts) have included language giving specific guidance and instructions to the Trustees as to how to handle situations where a beneficiary has, has had, or may have a substance abuse problem, or an addiction of some type. The purpose of these clauses range from hoping to assist the beneficiary in coping with the problem, hoping to preserve the corpus of the trust in the face of a beneficiary who is or may be a spendthrift as a result of his problem or to put the Trustee on notice that a problem may exist and how to respond if it does.

This session will examine whether such clauses really work, do they put an unreasonable burden on the Trustee and what other alternatives may be available to the drafting attorney and the Trustee.

Community Property vs. Separate Property

Bruce Stone and Stuart Zimring

Clients move around. They move from one neighborhood to another or from one state to another. When doing an estate plan for a client, you need to know whether the client has ever lived in a community property state and separate property state. This matters. Want to know why? Attend this session!

The Changing Face of Public Benefits (Basics)

Mary Alice Jackson

For years, with special needs planning, we know that we need to understand means-tested benefits. With the Pandemic, Medicaid expansion, people sick, people out of work, it may not be public benefits as usual. This fundamentals session will review the basics of public benefits as well as the waivers and other changes that have occurred this past year, looking specifically at understanding the Social Security Administration; Supplemental Security Income (SSI); who gets it and why; the Medicaid program, waiver and expansions; Social Security Disability Insurance; and the relationship between SSDI and Medicare.

Choice of Entity: Decision Points for Income Tax and Benefits Planning

James McCarten

This advanced session will discuss different entities that may be used and whether they should be considered to hold assets such as a house, personal residence, vehicle, or other assets, and whether the Trust can hold them or whether the Trustee should establish one of these entities to hold a specific asset. This session will review trusts, partnerships, limited liability companies (LLC), corporations, and agreements with joint owners, as well as SSA’s consideration of these various entities.

Pets, Guns, Cryptocurrency, Caregivers, Medicaid Appeals: Problematic Trust Administration Issues

Elizabeth Noble Rollings Friman

Join us for a discussion about specific administrative challenges that create problems for trustees. With thoughtful trust provisions and discretion to make decisions, trustees can work collaboratively with beneficiaries and their families to address issues like Medicaid appeals; cryptocurrency and distributions for hobbies (or business ventures?!), pets, guns and caregivers. Sample trust provisions and practice tips for trustees will be provided in this breakout session.

What Happens If your State Medicaid Rules More Strict Than the Federal Medicaid Statute Allows?

Laurie Hanson

This session will explore various restrictive state statutes and procedures concerning first and third party special needs trusts - and pooled trusts – that make it difficult for trustees to exercise their discretion in the best interest of the beneficiaries. These restrictive measures may make it difficult for individuals to qualify for Medicaid. We will discuss options for challenging these procedures.

Ken Brown’s SSI FAQs

Ken Brown

In this session, Ken Brown, former Team Leader of the Social Security Administration, will answer questions you submitted in advance. Questions may be anything SSI related including policy, eligibility and payment, special needs and pooled trusts, the POMS, ABLE accounts, SSA process, etc.

Submit your questions by September 25, and then be sure to watch the recording of this session available starting October 5, 2020.

When SNT Paying is Better than Entitlement Programs

Bryn Poland

We all know that public benefits provide fairly basic benefits. We often think of the SNT to supplement, not supplant, public benefits. But there may be times when the SNT would provide better benefits than those public benefit programs. What does the trustee do in cases such as this? This session will tell us!

The How-Tos of Drafting SNTs

David Banas

This session will cover relevant considerations about client circumstances, funding sources, and benefit implications when drafting first and third party SNTs.

Ethics Session: Multi-Disciplinary Liability and Defining the Trustee’s Role

Peter Wall and Roberta Flowers

How does a trustee and/or attorney best work with an outside guardian/conservator/case manager/family member/third party professional? Because fiduciary practices in the elder law arena are especially focused on the needs of the senior community and people with disabilities, specialized knowledge across multiple disciplines is crucial. This session will address privilege, fee sharing with non-attorneys, HIPAA, privacy rules, unintended consequences, exploitation, discovery and other areas pertinent to multi-disciplinary administration.

Trustees Sending Funds Electronically and What Goes Wrong: Security Issues and Importance of Process

Amos Goodall

Technology has made our lives easier, and better, in many ways. The convenience of sending funds electronically can’t be beat….until something goes wrong. Learn about the trustee’s needed security and what to do when something does go wrong.

Using Your SNT to Access and Keep Public Benefits (Basic)

Mary Alice Jackson 

Once we know about the client’s needs, we can choose whether to use a SNT to access benefits. In this session, Mary Alice Jackson will provide the basic definition of a special needs trust; clarify common SNT nomenclature; list the types of SNTs; analyze who needs a SNT; and consider which types of benefits will most likely be useful for the client in need of a SNT.

I Think My Trustee is Ripping Me Off 

Cady Huss

This presentation will include examples from real cases of bad to criminal acts committed by a trustee. It will address how to protect the trust, preserve a beneficiary’s rights, and prevent other trustees from making similar, dangerous mistakes.

10 Red Flags: How to Review Investments Like a Fiduciary

Darryl Lynch

This session will cover the various rules regarding investments, including The Prudent Investor Rule, Fiduciary responsibilities and liabilities as well as 10 common mistakes fiduciaries make and how put procedures in place to avoid them. Ethical objective decision making versus subjective investment opinions. Proper construction of investment portfolio for trust and conservatorships that keep you compliant with the UPIA.

Medicare Coverage for Individuals Under 65 with Disabilities (Advanced)

David A. Lipschutz

This session will cover eligibility for Medicare for individuals under 65 (including waiting period and exceptions), Medicare for working people with disabilities, ways to supplement Medicare coverage (including Medigaps, Medicare Advantage, and employer plans), and selected access to care issues, such as Jimmo v. Sebelius and the improvement standard.