When parents retire, SSI recipients should update look at their beneits

Are you thinking about starting to collect your Social Security retirement benefits soon?  When the parent of an SSI recipient retires, there may be an opportunity for the child to apply for Social Security Disabled Adult Child Benefits (DAC) based on the earnings record of the parent. This can be highly beneficial because (1) the benefit may be higher than SSI, (2) the child can receive Medicare after 2 years, and (3) there is no asset limit. http://www.ssa.gov/dibplan/dqualify10.htm#age22

To be eligible for DAC benefits, you must  be able to prove that prior to age 22, your child met the criteria for Disability under Title II of the Social Security Act. If the child began collecting SSI at age 18 — as do many children who have intellectual developmental disabilities — there should be no proof problem. However, if the individual began collecting SSI after age 22, you will need to prove that the child met the criteria before age 22 even though they didn’t start receiving SSI until later on. EN-05-10026

In a previous post I wrote about the necessity to save the medical records for disabling conditions that begin in youth because they may be crucial should your child remain disabled at the time you retire.

As you begin planning for retirement, go with your child to the local Social Security office and investigate the options to transfer from SSI to DAC. Keep in mind that no change occurs until the application is actually filed.

Call for an appointment concerning retirement & estate planning … 732-382-6070 

VA Form 21-0958 (Notice of Disagreement) Compatibility Issues and Simple Solution

Since the Department of Veterans Affairs released the standardized Notice of Disagreement (VA Form 21-0958) in February 2013, hundreds of veterans have contacted me because they have been unable to download the form through the VA website at http://www.va.gov/vaforms/form_detail.asp?FormNo=21-0958.  In turn, I’ve been happy to provide the Notice of Disagreement form via email.  From my perspective, this has been a simple solution to a complex computer-compatibility issue and has provided a conduit for veterans to feel comfortable asking substantive or procedural questions about the issues they wish to appeal.

In problem-solving, I’ve identified the two issues: (1) Acrobat-compatibility issues if the veteran is attempting to download through Google Chrome (confirmed by the VA Form Managers); and (2) veterans who are attempting to download through any web-browser that has not been updated with the most recent version of Acrobat Reader.

The solution is three-fold: (1) as one astute computer-savvy veteran explained to me, there are downloadable PDF readers for Google Chrome that will permit a veteran to access and revise VA Form 21-0958 within the web browser; (2) attempt to download VA Form 21-0958 in a web browser other than Chrome; or (3) feel free to email me at sdirector@finkrosner.com for copy via email.


Not all Discretionary Trusts are Special Needs Trusts

Over the years in my practice I have encountered many situations in which a discretionary trust was written into a Will to receive the inheritance of a person who had disabilities. Often the testator (person who was signing the Will) specifically wanted to protect the funds becuse they knew the person with disabilities relied on government programs like Medicaid or SSI. However, since the testator is (usually) not a lawyer, they did not realize that those funds are only protected if they are in certain kinds of trusts. Further, the Trustee may not have realized this either, further compounding the problem. We have had to go to court many times to ask the Judge to repair a Trust to conform to the testator’s original intent, a costly and time-consuming process.

If a person receives benefits under means-tested programs such as Supplemental Security Income (SSI), Medicaid, or the state Division of Developmental Disabilities (DDD) DC3_2013 (1), assets in a trust for them will likely be counted as “available” unless they are held in a highly restricted trust called a Supplemental Needs Trust, which is sometimes referred to as a Special Needs Trust (SNT).  https://secure.ssa.gov/poms.nsf/lnx/0501120203  [In a previous post I discussed the difference between this and a first-party Special Needs Trust]. The SNT requires an array of specific restrictions. In general, if the assets are held in a general discretionary trust, the assets will be counted and the beneficiary can lose their benefits and be at risk for a State claim for repayment if they continued to receive benefits while the discretionary trust was in existence.

If you are the Trustee of a discretionary Trust — created, let’s say, under your parent’s Will – it would be a good idea to verify whether the Beneficiary is receiving benefits, as prompt legal steps might be needed to protect those benefits.

For advice on preparing, funding, and administering special needs trusts, call 732-382-6070

Don’t guarantee that nursing home bill unless you plan to pay it

When an individual moves into a nursing home for long-term care, there are an array of admissions documents that get signed. These include everything from personal preferences information to insurance and financial disclosures, medical releases, selection of physicians etc. One of these documents contains the contract for payment for the services being rendered.

Typically, the contract contains the daily rate and potential add-on charges, as well as information concerning the obligation to pursue potential Medicaid eligibility. The party signing the contract agrees to  pay the bill and to file a Medicaid application in a timely way, and to pursue that Medicaid application process by providing necessary documentation to the board of social services. Who should sign the contract?

Nursing homes are regulated by the state and federal governments. The law prohibits a nursing home facility from requiring a third party guarantee of payment as a condition of admission to the facility http://www.ecfr.gov/cgi-bin/text-idx?rgn=div8&node=42:   [41 CFR 483.12(d)(2)]. These are among many protections contained in the federal Nursing Home Reform Act, http://www.law.cornell.edu/uscode/text/42/1395i-3  [42 USC 1395i--3(c), and the NJ law is at NJSA 30:13-3].     Nevertheless, it is not uncommon for nursing facilities to request that a family member or friend also sign the Admission Agreement as a “responsible party.” There is typically an optional signature line for the “responsible party.”  Be careful. If you choose to take on that responsibility, you may find that you’ve made a binding contract to personally pay the nursing home if the resident fails to pay or fails to become eligible for Medicaid.

The admission contract should be signed by the incoming resident. It can also be signed by the spouse, because — at least under NJ law –  married people who reside together are legally responsible for each other’s “necessary” medical bills [Jersey Shore Medical Center - Fitkin vs. Estate of Baum,  84 NJ 137 (1980)]. This post, though, is really a caution to the non-spouse who is involved in the situation. If the resident is incapable of signing the contract themselves, the legal representative should sign on their behalf  and should clearly indicate their role. The legal representative would be either the court-appointed Guardian or the person who is the Agent under Power of Attorney. Either way. the legal representative is the person who manages the funds and government benefits for the applicant, and basically “stands in the shoes” of the applicant. By signing the contract on behalf of the resident, they take on the obligation to make sure they pay the bill from the resident’s income or assets and to file a Medicaid application when that becomes necessary.

Although a nursing home is a health care facility, the admissions contracts can be complex. Legal advice is useful to make sure your interests are protected.

For advice on nursing home admissions, Medicaid and elder care care, call 732-382-6070

PTSD, Veterans Benefits, and Wikipedia Explanation of DSM-5 Criteria

Recently, the VA announced an interim rule (effective August 4, 2014), and proposed final rule, which incorporates the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5) criteria into Title 38.  More information about the changes can be found at https://www.federalregister.gov/articles/2014/08/04/2014-18150/schedule-for-rating-disabilities-mental-disorders-and-definition-of-psychosis-for-certain-va.

An informative and straightforward Wikipedia entry was created that both explains Post-Traumatic Stress Disorder (PTSD) in the context of Title 38 and how PTSD is defined under DSM-5. More information can be found at Wikipedia (PTSD).