Thursday, October 14, 2021
7:15 a.m. - 8:05 a.m.
Mary Alice’s Ethics Breakfast – It’s On You: What To Do When Your Client’s Capacity to Execute a Special Needs Trust Hits A Bump
Mary Alice Jackson
[Session Description coming soon]
8:15 a.m. - 8:30 a.m.
Welcome and Announcements
8:30 a.m. - 9:20 a.m.
CMS Update and Getting Back to “Normal”
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. As the PHE begins to abate, the questions abound as to how the states will unwind from the emergency maintenance provisions. Gene Coffey of the Division of Medicaid Eligibility Policy at CMS will provide an overview of what guidance the CMS is giving the states as we return to the “new normal”. Additionally, Mr. Coffey will discuss other guidance CMS will be providing on the use of federal funding to HBCS.
9:20 a.m. - 10:10 a.m.
SNTs and the Secure Act: Are the Two a Match Made in Heaven?
In this session you will learn how the Secure Act has affected SNT planning and discuss by drafting provisions needed for effective planning.
10:10 a.m. - 10:30 a.m.
Break and Visit with Sponsors and Exhibitors
10:30 a.m. - 11:20 a.m.
Critical Issues in Advocacy That Impact Special Needs Planning for Today’s Clients
Thomas Foley, Robyn Powell, and Mary Alice Jackson (moderator)
Three nationally prominent advocates talk about the hot topics which affect the future of our clients. Learn about supported decision making (SDM) as a rapidly growing less restrictive alternative to guardianship; consider the impact of economic inclusion and access to safe and affordable products; what important legal issues arose from COVID pandemic; reproductive justice and parenthood (think Britney Spears?), and intersectionality: identifying the interconnected nature of social categories including disability. Will we remodel planning based on these trends?
11:20 a.m. - 12:30 p.m.
SSI Trust POMS Update: Changes Since 2018
Ken Brown, retired Deputy Office Director for the Social Security Administration, wrote most of the trust policy that applies to the SSI program to this day. In this session he will review the policy changes since the 2018 POMS rewrite and cover trends and developments in the Regional Chief Counsel Precedent opinions that govern how the SSA evaluates SNT and pooled trust establishment and administration.
12:30 p.m. - 1:15 p.m.
1:15 p.m. - 2:05 p.m.
Breakout Session 1
- SNT Planning: A Family Matter
John B. Henry, III
A special needs trust is a critical source of support in the continuum of care for a loved one with special needs. However, there are often ethical and practical considerations necessary to preserve the purpose and use of funds in compliance with the grantor’s wishes and regulations regarding while permitting beneficiary self-reliance. This session will explore ethical considerations in trust drafting and administration and tools in trust drafting to build safeguards to maintain the purpose(s) of the special needs trust you draft.
- When Fiduciaries Go Wrong
This session will examine the duties owed by fiduciaries, the most common types of breaches by fiduciaries, the rights of beneficiaries and the remedies available to the beneficiaries for breaches by the fiduciaries.
- Terminating Special Needs Trusts
Crystal West Edwards
Special needs trusts may end upon the death of the beneficiary, the exhaustion of principal, or the occurrence of an event. This session discusses early termination and termination upon the death of a beneficiary in the context of self-settled special needs trusts and third-party special needs trusts.
2:15 p.m. - 3:05 p.m.
Breakout Session 2
- What SSA Looks at When Evaluating Whether A Special Needs Trust or Pooled Trust is a Countable Resource
A discussion of the key issues the agency considers when evaluating whether a trust is a countable resource, including the source of funding, Medicaid reimbursement language, early termination provisions and the existence of remainder beneficiaries.
- Inherited IRA SNTs: Solutions, Options, & Cost Savings
Darryl Lynch and Peter Palumbo
This presentation will discuss ways to preserve capital in funding, investing, and utilizing IRA SNTs. We will examine the tax benefits of funding SNTs with inherited IRAs under IRS private letter ruling (PLR) 2006 200 25. We will review the process of (d)4(a) transfers and the financial impact they may have on the beneficiary. Additionally, the presentation will cover fees, costs, and investment allocations with a focus on preserving and growing beneficiary assets and making suitable, ethical investment decisions as fiduciaries.
- Creative Writing Meets Drafting SNTs
You're drafting a SNT and your client tells you that at some time in the future the Beneficiary will be eligible for an experimental medical procedure in Country X that will cure her. Or kill her. The client wants it made clear that the Trustee can and should pay all expenses incurred in connection with the procedure and that the Trustee is to have no liability if things go wrong. How do we draft for that? Can we? Should we? Is “…in the Trustee’s sole and absolute discretion” adequate? What is our responsibility/exposure? This session will be interactive and will rely on attendees sharing real world experiences.
3:05 p.m. - 3:30 p.m.
Break and Visit with Sponsors and Exhibitors
3:30 p.m. - 4:20 p.m.
Breakout Session 3
- Divorce and the Special Needs Child: How to Save the Day by Knowing A Lot About A Little
As special needs attorneys, we already work in a field that mystifies most other legal practitioners. But once you fall down the special needs rabbit hole, opportunities to develop your practice as a super-specialist abound. One such opportunity lies in the realm of divorce work. This session will highlight the dangers of using conventional child support and life insurance provisions when planning for a child who may qualify for means tested benefits. We will discuss the role a special needs attorney can play in negotiating and drafting a divorce settlement agreement, and suggest ways to include this highly specific area of special needs work in your practice.
- The Role of the SNT Attorney or Trust Administrator in Working With Probate, Personal Injury, and Family Law Attorneys and their Clients
Attorneys who prepare or manage special needs trusts may be called on by probate, personal injury, and family law attorneys to provide advice regarding the type of trust to use, allocation of a settlement, options for provision of support and selection of assets for inheritance, the need for or eligibility for public benefits, management of liens and claims, investment models, and taxation. This presentation will provide an outline of the techniques developed in providing this type of advice to these attorneys and the families and individuals that they represent.
- What Happens to My Child When I’m Gone?
H. Amos Goodall
SNT beneficiaries are among the most vulnerable--once their parents die, who’s looking out for them?
4:25 p.m. - 5:15 p.m.
Breakout Session 4
- The Individual Education Plan (IEP): Unlocking the Schoolhouse Doors for Students with Disabilities and Their Families
Jeff N. Eckert
This session will provide valuable information about the Individual Education Plan (IEP) including its function, different interactive parts, and relevance to special needs planning. Justice Brennan described the IEP as "the centerpiece of the statute's education delivery system for disabled children." The IEP is both a document and a process to help achieve the Individuals with Disabilities Education Act's (IDEA) legislative purpose for meeting the unique needs students with disabilities and preparing them for further education, employment, and independent living. IEP's also provide relevant documentation to help families of a child (or adult child) with a disability to access critical public benefits and services.
- Leaving A Home in Trust for a Person With Disabilities
In the coming decade, over half a million young people with disabilities will transition into adult services. Where they will live is just one of the daunting questions facing these individuals and their families. Many parents want to leave the family home to or in trust for their child. This session discusses counseling parents in this plan, understanding the wishes of the child, assessing the financial resources needed, coordination with service providers and Medicaid home and community based waivers, and drafting trusts to allow for a lifetime of changing needs.
- What We Need to Know About Taxes and Pooled Trusts
Brad Frigon and Peter Wall
Taxation within a Pooled Special Needs Trust (PSNT) can oftentimes be a nebulous and misunderstood concept. For referring attorneys, PSNT trust administrators, investment professionals or family members, taxation plays a critical role in both short- and long-term planning for people with disabilities. In this session, Bradley J Frigon and Peter J Wall will provide an overview of how taxes are assessed in both First and Third Party PSNTs including an analysis of decedent proceedings, capital gains allotment, and the Qualified Disability Trust exemption. The presenters will share a myriad of case studies illustrating the effects of PSNT capital gains tax realization at the beneficiary level, asset transfer considerations, and PSNT IRA administration via the SECURE Act.