Wednesday - Friday, October 14-16, 2020
National Conference

Live Webinar Sessions - Wednesday, October 14, 2020

Please note that all live session times are in the Eastern Time Zone.

12:50 p.m.-1:00 p.m.

Welcome from Sponsor

1:00 p.m.-1:10 p.m.

Welcome and Announcements
Professor Roberta Flowers, Conference Chair and Director, Center for Excellence in Elder Law

1:10 p.m.-2:00 p.m.

Our New Reality: Practicing Law During and After a Pandemic
Craig C. Reaves
Last March, life as we know it came to a screeching halt as a highly contagious virus began rampaging throughout the United States forcing state and local governments to issue emergency orders to shut down businesses and require everyone to shelter at home. Suddenly, attorneys and their staff members found themselves working remotely from separate locations outside their office, and it was no longer possible to physically meet with clients and colleagues. Many systems utilized in law offices and clauses used in legal documents were found to be no longer viable in this new reality.

While challenging and tragic on many levels, there is a silver lining in this seismic event. Attorneys have quickly adapted and reimagined how to practice law and continue to help their clients during a time when many clients or their family members are isolated at home or in locked down facilities and it is not safe or possible to meet in person. And special needs trusts designed for completely different circumstances have been flexible enough to allow trustees to help beneficiaries who are facing challenges that were never envisioned when the trust was drafted. This presentation provides an overview of some of the creative solutions to shortfalls in systems and documents that have been implemented during this time, many of which will no doubt continue to be utilized in the future.

2:00 p.m.-2:10 p.m.

Sponsor Break

2:10 p.m.-3:00 p.m.

Fiduciary Litigation Update
Sean Murphy
This session will provide an overview of leading fiduciary litigation decisions issued by state and federal courts over the past year and will include a discussion of any decisions specifically involving special needs trusts.

3:00 p.m.-3:10 p.m.

Sponsor Break

3:10 p.m.-4:00 p.m.

Ethical Considerations When Serving as or Representing Fiduciaries
Mary Radford
Lawyers and other professionals are sometimes asked by their clients to serve as trustees or other fiduciaries. This session will explore some of the considerations that should be weighed before agreeing to take on this weighty task. In addition, the session will examine the professional and ethical responsibility challenges faced by lawyers who represent trustees and other fiduciaries.

4:00 p.m.-4:10 p.m.

Sponsor Break

4:10 p.m.-5:00 p.m.

Electronic Wills and Remote Notarization: Coming Soon to a State Near You
Robert B. Fleming, Bruce Stone
Electronic wills and remote notarization became the unexpected solution for many individuals during the height of COVID. Learn how electronic wills and remote notarization works, the safeguards for using them, how you incorporate their use in your practices. If they haven’t come to your state yet, it’s only a matter of time!

Live Webinar Sessions - Thursday, October 15, 2020

Please note that all live session times are in the Eastern Time Zone.

12:00 p.m.-12:50 p.m.

Q&A Session
Live Q&A Zoom room with the speakers of the National Conference pre-recorded sessions.

12:50 p.m.-1:00 p.m.

Welcome from Sponsor

1:00 p.m.-1:05 p.m.

Welcome and Announcements
Professor Roberta Flowers, Conference Chair and Director, Center for Excellence in Elder Law

1:05 p.m.-1:55 p.m.

The Secure (“Setting Everyone Up for Retirement Enhancement” or “Sending Everyone Cowering Under Reduced Expectations”) Act and Other Recent Developments in Estate Planning for Retirement Assets
Robert “Bob” Kirkland
If you take a step back and honestly assess the portion of total estate planning time spent for a client on planning for the client’s retirement benefits, do you feel it is proportionately appropriate? We have now seen a sea change in the law regarding IRA distributions with the enactment of the SECURE Act in late December 2019, and to a lesser extent, the CARES Act in March 2020. Today, the case can be legitimately made that planners should spend a disproportionate amount of planning time with respect to clients’ retirement benefits.

1:55 p.m.-2:05 p.m.

Sponsor Break

2:05 p.m.-2:55 p.m.

The SNT Trustee as a “Super” Fiduciary?
Shirley Whitenack
In this session, Shirley Whitenack will consider whether a SNT Trustee, because of the special needs of beneficiaries, has a higher or different duty, such as the duty to apply for or maintain eligibility for public benefits because of the trust’s terms; when the trustee is a co-trustee with a family member, etc.

2:55 p.m.-3:05 p.m.

Sponsor Break

3:05 p.m.-3:55 p.m.

The Good, the Bad, and the Unknown of Using ABLE Accounts
Stephen Dale, Bradley J. Frigon, Peter Wall
This session will provide an overview of Achieving a Better Life Experience (ABLE) accounts and their utility in trust administration and planning. Coordination with Special Needs Trusts (SNTs) and short- and long-term planning with ABLE accounts will be reviewed, including facets of beneficiary budgeting, distribution mechanisms and public benefits eligibility. The presenters will provide case studies and recent case law as examples of prudent utilization of ABLE accounts.

3:55 p.m.-4:05 p.m.

Sponsor Break

4:10 p.m.-5:00 p.m.

Q&A Session
Live Q&A Zoom room with the speakers from Wednesday’s and Thursday’s general sessions.

Live Webinar Sessions - Friday, October 16, 2020

Please note that all live session times are in the Eastern Time Zone.

12:50 p.m.-1:00 p.m.

Welcome from Sponsor

1:00 p.m.-1:10 p.m.

Welcome and Announcements
Professor Roberta Flowers, Conference Chair and Director, Center for Excellence in Elder Law

1:10 p.m.-1:50 p.m.

An Update from CMS
Gene Coffey (moderated by Mary O'Byrne)
CMS has worked hard during the COVID-19 Public Health Emergency (PHE) to develop strategies for state Medicaid agencies to address the numerous demands the PHE has imposed on states and to help state Medicaid agencies utilize various authorities to meet their specific needs. Gene Coffey of the Division of Medicaid Eligibility Policy at CMS has been significantly engaged in this work and will provide an overview of the broad range of actions regarding Medicaid eligibility that CMS has taken to meet this extraordinary challenge.

1:50 p.m.-2:00 p.m.

Sponsor Break

2:00 p.m.-2:50 p.m.

Late Breaking News
Mary O’Byrne (moderator) and a panel of national experts
This year has seen significant developments, not all because of COVID-19. There have been decisions from the courts, administrative changes and operational hurdles. Our panel of experts will get you up to speed and discuss how these changes may affect your practices. This is the one session you don’t want to miss!

2:50 p.m.-3:00 p.m.

Sponsor Break

3:00 p.m.-3:50 p.m.

Going Rogue: What to Do When Your Clients Don’t Take Your Advice
Stuart Zimring
This session will deal with potential liability and what to do in a situation where you are not the Trustee but the Trustee is not taking your advice and is making bad decisions or ones that could disqualify a client for benefits. Topics may include: (1) Non-reporting of distributions to Social Security; non-filing of tax returns; how to disengage services with the Trustee? And reviewing who your client is if you prepared the Trust for the beneficiary.

3:50 p.m.-4:00 p.m.

Sponsor Break

4:00 p.m.-5:00 p.m.

Case Law Update and Q&A
Robert W. Fechtman, Robert B. Fleming
This popular session closes the program again this year. Its primary purpose: to give you up-to-date, useable information about developing trends in special needs law, to survey new cases and important changes in the law, and to energize you for the return to your office with information you will be able to use immediately.

Pre-Recorded Sessions

Pre-Recorded sessions will be available from Monday, October 5, 2020 to Friday, October 16, 2020 for attendees to view at their convenience.


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.