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Estate Planning, Administration & Probate

Estate planning is critically important so that your wishes are followed after your death. Your state of residence, size and complexity of your estate, and the rules of probate will dictate what the elements and documents your estate plan should consist of. Most traditionally, one's estate will consist of a Last Will & Testament, Trust (e.g., Revocable Living Trust or Special Needs Trust where a disabled family member exists), Durable Power of Attorney, and Healthcare Directive (a.k.a., Medical Directive, Living Will, or Advance Directive).

A Will establishes who will receive your property at death. It also establishes, where applicable, who will serve as guardian of your children and as trustee of any trusts created under your Will. Lastly, your Will designates who (i.e., the Executor) will see that your wishes are carried out. If you elects to have a Revocable Living Trust, the Will acts as a back-up (a.k.a., pour over Will) and the individuals estate is re-titled into the name of the trust; thereby bypassing the state probate process. In such case, the same wishes as to how you wish to dispose of your estate; but, the trustee is in charge of the administering the trust estate.

A Special Needs Trusts allows parents (and other family members) to leave assets to their children when they die without causing an ineligibility problem for means-tested programs such as Medicaid and SSI.

A Durable Power of Attorney is a document an adult with capacity can create to appoint another, called their attorney-in-fact or agent, to perform duties and make decisions concerning their own financial business when they are not able to do so generally during periods of incapacity.

A Healthcare Directive is a similar document to the durable power of attorney, but deals with medical decision making, including end-of-life decision making, when one is incapacitated and unable to do so for themselves. The agent or proxy is to make decisions that the individual would have wanted with regard to their medical care.

Valerie has spent her entire legal career carefully counseling individuals and families on how best to handle their estate and has specialized in planning for special needs families, same-sex couples, multi-generational and blended families, and Native Americans. On the other end of the process, Valerie routinely assists families administer trusts and probate estates after one has died.

Valerie is experienced, skilled, and comfortable throughout all phases of the estate planning, trust, administration and probate process and able to handle all court filings and litigation, where necessary, regarding an estate or trust.

 

Special Needs Trusts & Trust Administration

In the context of one's estate: Most parents want to leave assets to their children when they die. If an individual with a significant cognitive disability receives assets, they may not have the capacity to make good decisions about how those assets are used and they may become ineligible for important federal and state resources and services. The individual can lose Social Security Income (SSI) and Medicaid and the assets may also be subject to recoupment by Medicaid or by the State if the individual is receiving residential services. To avoid these negative consequences, it is recommended that parents establish a special needs trust. A special needs trust can protect the assets while; at the same time, making the assets available to protect and enrich the life of the person with a disability without jeopardizing benefits available from the government. A special needs trust is a unique legal document that contains a set of instructions describing how assets placed into trust will be administered on behalf of a person with a disability. It must be carefully worded and is best written by professionals familiar with disability services and programs.

In the context of a settlement: When an individual with disabilities receives a settlement in a personal injury case due to medical malpractice, personal injury, an automobile accident, and similar events, care must be taken at the time of the settlement to protect that individual’s eligibility for government benefits such as SSI and Medicaid. Many important government benefits have economic means tests – meaning, in order to be eligible, one must have assets no greater than $2,000 and income below a specified amount. Accordingly, unrestricted access to settlement funds can cause an individual to be ineligible for these very important benefits. Many individuals with disabilities require care and services throughout their lifetime and the costs of those services can often quickly deplete even a large settlement award. Therefore, it is prudent to conserve settlement funds in a manner that will provide benefit to the individual with disabilities while ensuring that the funds do not negatively affect eligibility for governmental benefits. In order to accomplish this goal, settlement proceeds must be placed into a special needs trust. Federal law permits placement of settlement proceeds into a special needs trust that is for the sole benefit of the individual with disabilities. Such trusts are referred to as “self-settled” trusts because they are funded with the disabled individual’s own funds. They also are referred to as “OBRA ‘93" trusts, after the federal law that permits their creation. Valerie frequently works with personal injury and medical malpractice attorneys and families to establish self-settled trusts.

In the context of divorce: Divorce presents many challenges, especially for couples with children. Parents often strive to put individual differences aside and make decisions that are in the best interests of their children. When one or more of those children have disabilities, this is of critical importance. Careful planning and consideration must go into divorce and custody agreements in order to protect the interests of the child, maximize access to vital disability-based services and supports, and preserve publicly-funded disability benefits. Parents and attorneys must carefully consider the needs of the child with disabilities, and reflect those considerations in the language of any agreements that are signed by the parents or submitted to the court. Among the important issues to consider during this process is child support – In most divorce situations, child support is required; however, where improperly structured, child support can cause a child with disabilities to be ineligible for SSI and Medicaid benefits. The Social Security Administration considers child support “unearned income” and counts 2/3rds of child support payments as income when determining eligibility for SSI and Medicaid. It is, therefore, recommended that the divorce agreement direct child support be paid into a special needs trust for the benefit of the child with disabilities. This trust is separate and different from any special needs trust created as part of either of the parents’ estate plan. Specialized legal consultation can help ensure that the trust is established and funded in a way that will preserve future benefits. Valerie has years of experience helping families and routinely advise parents, family law attorneys, and the courts on these important matters in order to improve the quality of life for individuals with disabilities.

 

Fiduciary Services

Individuals, private fiduciaries, banks, and corporate entities can serve as a fiduciary of one's Will, Estate, or Trust. Legal representation is often required in the performance of those fiduciary duties. Valerie has spent her entire legal career providing legal counsel to Estate Executors and Administrators, Trustees of Trusts (Special Needs Trusts, Settlement Trusts, Revocable Living Trusts, and Irrevocable Trusts), Trustees of Decedent Trusts, Attorneys-at-Law, and Healthcare Agents.

 

Attorney Referral Services

At the time of settlement of a personal injury or medical malpractice matter, it is of critical importance that the attorney handling the lawsuit evaluate the beneficiary's needs and whether the establishment of a special needs trust to receive and hold the settlement funds is prudent. Valerie has assisted personal injury and medical malpractice practitioners and their clients over a decade in evaluating the injured or disabled clients' present and future needs and obtaining court-establishment of a special needs trust. By doing so, Valerie has preserved the individual's settlement funds while at the same time maintaining present or future eligibility for means-tested programs such as SSI, Medicaid (a.k.a., Medical Assistance or MediCal), and housing and pharmaceutical assistance programs.

Additionally, Valerie has been engaged to assist fellow estate planning and trust attorneys to complement their work by either drafting a special needs trust to add to the client's estate plan or assist with the court in gaining reformation of a defective special needs trust.

Moreover, Valerie has been engaged by family law attorneys to evaluate and recommend language to be included in Marital Separation Agreements when divorce or dissolution of a marriage occurs; as well as, to establish a special needs trust into which the agreed-upon or court-ordered child support payments will be made so as to preserve the special needs child's present and future eligibility for means-tested programs.

 

Expert Services

Valerie has been engaged by fellow attorneys to provide expert services in Medicaid and special needs trust matters; as well as to serve as special counsel to provide assistance in complex special needs matters involving health care insurance, Medicaid, Medicaid-funded waivers, special needs trusts, and guardianship matters.

 

Healthcare Insurance

The health insurance system is complex. It is, therefore, critical that you have a complete understanding of your coverage in order to secure all the services you, your child, or disabled family member needs. The more you know, the more you will maximize coverage and minimize your financial responsibility. Quite frequently, health insurance plans reduce, limit or deny coverage – often claiming the requested service is not medically necessary. When this occurs, it is important to know your appeal rights and exercise them in a timely manner.

It is important to note that dependent coverage under the Federal Health Insurance Reform known as the Patient Protection & Affordable Care Act and Health Care & Education Affordability Reconciliation Act extends to children through age 26 so long as they are not otherwise eligible for group health insurance coverage. Moreover, depending on the state in which you reside and what type of health insurance plan you have, dependency coverage may extend beyond the Federal 26 year old mandate (e.g., New Jersey extends coverage to dependents 30 years and younger). Further additional coverage is available to parent for adult disabled children with medical proof of the same.

 

Medicaid, Medicaid-Funded Waiver Programs & Medicare

Medicaid (a.k.a., Medical Assistance in PA and Medi-Cal in CA) is a federal-state entitlement program for low-income Americans. There are three basic groups of low-income people parents and children, elderly, and the disabled. To be eligible for Medicaid, one must have limited financial resources (that is, generally, no greater than approximately $674 in monthly income and no more than $2,000 in countable assets). Each state’s Medicaid State Plan provides the following Mandatory Services: in-patient and out-patient hospital treatment, lab tests, x-rays, EPSDT services, home healthcare, physician services, nurse midwife, family assistance, and nursing home for those over the age of 21. Each state varies in the Optional Services it has elected to include in its Medicaid State Plan.

Medicaid-funded Home and Community-Based Waiver Programs (“Waivers”) provide individuals with disabilities care in the home and community as an alternative to institutional care. The programs “waive” some of the rules of Medicaid to serve children and adults otherwise requiring an institutional level of care who can; instead, be served at home or in the community.

Medicare is a partner program to Social Security, which provides a health and financial safety net to those 65 years and older and to those declared disabled for 24 months. Medicare is broken into several parts. Medicare Part A generally covers inpatient services – medical care when one is checked into a hospital or are recovering in a nursing facility. It also covers some short-term home health care, along with hospice care. Most people are enrolled automatically in Part A when they reach age 65 and get it for free. Together, Part A and Part B are called "Original Medicare." Medicare Part B covers outpatient services – like physician visits and treatment at a hospital where one does not check in – along with lab tests and other medical care. Although enrollment in Part B is often automatic, it is not free. One is required to pay a monthly fee; as well as, an annual deductible. Medicare Advantage plans are Medicare health plans that are managed by private insurance companies. All Medicare Advantage plans provide health care coverage. Some also offer prescription drug coverage and dental or vision care. These plans may cost more and restrict the doctors one can see. Medicare Prescription Drug Plans (Medicare Part D) are optional plans that provide prescription drug coverage.

 

Guardianships & Conservatorships

In the eyes of the law, even a person with a significant developmental, cognitive or mental health disability is legally permitted to make decisions on his or her own behalf at the age of majority. Therefore, if a person is not capable of making his or her own decisions due to a significant disability, it is necessary to secure the court appointment of a guardian (in NJ, PA, and NY) or conservatorship (in California). A guardian or conservator is someone appointed by the court to make decisions on behalf of another person who cannot make decisions independently. There are two types: "of the person" has the power to make decisions concerning living arrangements, day programs, medical care, and other personal decisions; "of the property" has the power to make decisions regarding the individual’s personal finances. That being said, a guardian or conservator of the property does not have control over assets held in trust unless also the trustee of the trust.

 

Accessing Federal & State Disability-Based Benefits

There are a variety of benefits through the Federal and State governments for those who qualify based on their disability and, under some programs, financially. Federally, The Social Security Administration provides Supplemental Security Insurance (SSI), Social Security Disability Insurance (SSDI), and Social Security (SS) benefits. Individuals who are eligible for SSI automatically (in most states) qualify for State Medicaid benefits. Individuals who are disabled for two years under the SSDI program also received Medicare coverage. On the state level, there are a variety of disability-based programs that provide services such as residential, day, and vocational programming. Valerie has spent her entire legal career assisting individuals in understanding, accessing, and maintaining the various benefits programs.

 

Disability Insurance

Unfortunately, many individuals will find themselves disabled at some stage in his/her life. Often, in addition to the federal and state disability systems, individuals have proactively planned for their potential disability and have obtained a private disability insurance plan. Valerie has assisted countless individuals to access these benefits once disability occurs providing peace of mind and financial security.

 
 

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