Planning for Long-Term Care with Irrevocable Trusts

April 17, 2023

One of the best strategies to plan for long-term care involves using an irrevocable trust. However, the word “irrevocable” makes people a little wary. It shouldn’t. Planning for long-term care with irrevocable trusts can provide peace of mind for your family. The use of the Intentionally Defective Grantor Trust, a type of irrevocable trust, provides both protection and flexibility, explains the article “Despite the name, irrevocable trusts provide flexibility” from The News-Enterprise.

Trusts are created by an estate planning attorney for each individual and their circumstances. Therefore, the provisions in one kind of trust may not be appropriate for another person, even when the situation appears to be the same on the surface. The flexibility provisions explored here are commonly used in Intentionally Defective Grantor Trusts, referred to as IDGTs.

Can the grantor change beneficiaries in an IDGT? The grantor, the person setting up the trust, can reserve a testamentary power of appointment, a special right allowing grantors to change after-death beneficiaries.

This power can also hold the trust assets in the grantors’ taxable estate, allowing for the stepped-up tax basis on appreciated property.

Depending on how the trust is created, the grantor may only have the right to change beneficiaries for a portion or all of the property. If the grantor wants to change beneficiaries, they must make that change in their will.

Can money or property from the trust be removed if needed later? IDGT trusts should always include both lifetime beneficiaries and after-death beneficiaries. After death, beneficiaries receive a share of assets upon the grantor’s death when the estate is distributed. Lifetime beneficiaries have the right to receive property during the grantor’s lifetime.

While grantors may retain the right to receive income from the trust, lifetime beneficiaries can receive the principal. This is particularly important if the trust includes a liquid account that needs to be gifted to the beneficiary to assist a parent.

The most important aspect? The lifetime beneficiary may receive the property and not the grantor. The beneficiary can then use the gifted property to help a parent.

An often-asked question of estate planning attorneys concerns what would happen if tax laws changed in the future. It’s a reasonable question.

If an irrevocable trust needs a technical change, the trust must go before a court to determine if the change can be made. However, most estate planning attorneys include a trust protector clause within the trust to maintain privacy and expediency.

A trust protector is a third party who is neither related nor subordinate to the grantor, serves as a fiduciary, and can sign off on necessary changes. Trust protectors serve as “fixers” and are used to ensure that the trust can operate as the grantors intended. They are not frequently used, but they offer flexibility for legislative changes.

Planning for long-term care with irrevocable trusts is an excellent way to protect assets with both protection and flexibility in mind. If you would like to learn more about long-term care planning, please visit our previous posts.

Reference: The News-Enterprise (March 18, 2023) “Despite the name, irrevocable trusts provide flexibility”

Qualified Disability Trust can reduce Tax Burden

April 4, 2023

A qualified disability trust can help reduce the tax burden associated with special needs trusts. A qualified disability trust, or QDisT, qualifies for tax exemptions and applies to most trusts created for an individual with special needs. In most cases, explains a recent article from Investopedia, “Qualified Disability Trust: Meaning and Tax Requirements,” the person receiving income from the trust must pay income tax. However, in 2003, the IRS added a section allowing some disability trusts to reduce this tax liability. This is another example of why reviewing estate plans every few years is important.

Trusts need to meet several requirements to be considered qualified disability trusts for tax purposes. However, if a special needs trust meets these criteria, it could save a lot in taxes.

Most special needs trusts already meet the requirement to be treated as qualified disability trusts and can be reported as such at tax time. For 2022 tax year, the tax exemption for a QDisT is $4,400. For tax year 2023, the amount will increase to $4,700. Income from a QDisT is reported on IRS Form 1041, using an EIN, while distributions to the beneficiary will be taxed on their own 1040 form.

The best way to fully understand a QDisT is through an example. Let’s say a child is diagnosed with a disability, and their grandparents contribute $500,000 to an irrevocable special needs trust the child’s parents have established for the child’s benefit. The trust generates $25,000 in annual income, and $10,000 is used annually for expenses from the child’s care and other needs.

Who pays the income tax bill on the trust’s gains? There are a few options.

The parents could include income from the trust as part of their taxes. This would be “on top” of their earned income, so they will pay their marginal tax on the $25,000 generated from the trust—paying $8,000 or more.

Alternatively, trust income spent for the child’s benefit can be taxed to the child—$10,000, as listed above. This would leave $15,000. However, this must be taxed to the trust. Trust income tax brackets are high and increase steeply. Paying this way could lead to higher taxes than if the parents paid the tax.

The QDisT was designed to alleviate this problem. QDisTs are entitled to the same exemption allowed to all individual taxpayers when filing a tax return. In 2012, for instance, the personal tax exemption was $3,800, so the first $3,800 of income from QDisTs wasn’t taxed.

The deduction for personal exemptions is suspended for tax years 2018 to 2025 by the Tax Cuts and Jobs Act, except the same law said that in any year there isn’t a personal exemption, the exemption will be allowed for a QDisT.

For tax year 2022, $4,400 is the indexed tax exemption amount for these trusts, including most special needs trusts. For tax year 2023, the amount will increase to $4,700.

To be reported as a qualified disability trust, specific requirements must be met:

The trust must be irrevocable.
The trust must be established for the sole benefit of the disabled beneficiary.
The disabled beneficiary must be under age 65 when the trust is established.
The beneficiary must have a disability included in the definition of disabled under the Social Security Act.
The trust must be a third-party trust, meaning all funding must come from someone other than the disabled beneficiary.

An experienced estate planning attorney can help set up a qualified disability trust that can help reduce the tax burden and allow you to enjoy the benefits the statute grants. If you would like to learn more about special needs planning, please visit our previous posts.

Reference: Investopedia (March 4, 2023) “Qualified Disability Trust: Meaning and Tax Requirements”

ABLE Accounts are a lifesaver for Special Needs Children

February 16, 2023

For many families, a plan for the future includes an Achieving a Better Life Experience, or ABLE, account to allow those with disabilities to set aside extra money without interfering with their federal aid. ABLE accounts are a lifesaver for special needs children. All but four states—Idaho, North Dakota, South Dakota, and Wisconsin—provide ABLE accounts, according to a recent article titled “ABLE Accounts Give Help For People with Disabilities” from AARP.

Other states, including California and Pennsylvania, allow people from other states to invest in their ABLE program.

Account owners are permitted to invest their money and shield earnings from taxes. Withdrawals are tax-free, as long as the money is used for approved expenses related to the account owner’s condition. Much or all of the money in an ABLE account does not count against asset limits which impact eligibility for safety-net programs, like Medicaid and Supplemental Security Income (SSI).

To be eligible for an ABLE account, the person must have a disability which began by the time they reached age 26 and in most cases, be receiving SSI or Social Security Disability Insurance (SSDI). If a person has reached the age requirement but isn’t receiving SSI or SSDI benefits, they may still be able to open an ABLE account if they meet Social Security’s disability definitions and can get a letter of disability from a doctor certifying their condition.

A person with disabilities may only have one account. However, anyone can contribute to it. The maximum contribution is 2023 is $17,000. However, those who work may deposit an additional amount up to their annual gross salary or the individual Federal Poverty Level (FPL). For an individual, the FPL in 2023 is $13,590. In some states, contributions are deductible from state income taxes.

Account owners may keep $235,000 to $550,000 in an ABLE account, depending upon state limits. If there is more than $100,000 in an ABLE account, the excess could cause SSI to be suspended, assuming they had $2,000 in other accounts. SSI can be reinstated if assets fall below the cap. The $100,000 ABLE limit does not apply to benefits from Medicaid or the Supplemental Nutrition Assistance Program, formerly known as food stamps.

Without an ABLE account, many people with disabilities face a choice between building savings and keeping benefits. If ABLE money is spent on a qualified disability expense, such as food, housing, transportation, and other things that improve health, independence or quality of life, withdrawals are free from federal and state taxes.

When the ABLE account owner dies, their estate may use funds from the account to pay for any qualified disability expenses, funeral and burial costs. The state may file a claim on the account equal to the amount the state spent on the individual’s Medicaid program. Any remaining amount passes to the owner’s estate.

Each state’s plan is different, so it makes sense to look at ABLE accounts offered by other states. Several states offer state income tax deductions for in-state residents who make contributions to an ABLE account. ABLE accounts are a lifesaver for special needs children. Discuss with your estate planning attorney how you can incorporate an ABLE account into your overall planning. If you would like to learn more about special needs planning, please visit our previous posts.

Reference: AARP (Jan. 4, 2023) “ABLE Accounts Give Help For People with Disabilities”

There is Great Value in Special Needs Trust

November 21, 2022

Parents with children who have special needs know they play a pivotal role in their child’s medical, social, emotional and mental health. They also face the challenges of figuring out government assistance programs like Medicaid and how these and other programs provide much-needed help throughout a child’s life. Another important way that parents of children with special needs help is with the creation of a special needs trust, as explained in the article “Special Needs Trust (SNT): What It Is and How It Works” from Forbes. There is great value in a special needs trust.

A special needs trust is used to hold assets in an account to be used to support an individual with special needs. The funds belong to the trust and not the individual, so they are not factored into their eligibility for government benefits.

SNTs are typically set up by a parent, grandparent, or guardian. The person who sets up the account, called the “grantor,” funds the account, as may any other individuals who wish to provide for the child.

The grantor names a trustee, or a third party, who administers the trust. The trustee is a fiduciary and must act in the best interest of the beneficiary. Funds are to be distributed in accordance with the directions in the trust. The trustee will be responsible for distributing funds, following government benefit rules and requirements, and managing tax obligations, among other things.

Parents are often the trustees, although others, like siblings or close relatives, may also be trustees. Parents who are both grantor and trustee generally name a successor trustee to take over after they die, become incapacitated or resign from their role.

A person who may not be able to support themselves due to a medical condition or a disability can gain financial security from an SNT. This is one of the great values of a special needs trust.

Someone with special needs is likely to rely on means-tested government benefits, like Supplemental Security Income (SSI) or Medicaid. These benefits are only available to people with limited income or assets. Anyone receiving SSI, for example, may not have more than $2,000 of countable resources.

A parent who wishes to provide support after they die must plan in advance, so their bequest does not result in the person losing their benefits. This could happen if money is left through anything except a special needs trust. An estate planning attorney will know how to structure the parent’s estate plan to protect the individual with special needs and their government benefits.

Assets in an SNT can be used for a wide variety of expenses, including out-of-pocket medical or dental expenses, personal care givers, rehab services, education, vacations, and other permissible uses.

There is a lot of complexity involved with creating a special needs trust. For one, there are several different kinds of SNTs. You’ll want to select the one best suited for your family. Laws about means-tested benefits vary across states, so you’ll need to work with an estate planning attorney familiar with the laws of your state.

A well-drafted estate plan, incorporating a special needs trust can be of great value to the parents of a child with special needs. It will provide your loved one with the resources to maintain as much normalcy as possible as they adjust to life without their parents. If you would like to learn more about special needs planning, please visit our previous posts.

Reference: Forbes (Sep. 22, 2022) “Special Needs Trust (SNT): What It Is and How It Works”

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A Life Estate can help Protect your Property

October 12, 2022

If you are concerned about your loved ones losing control of the family home, a life estate can help protect your property. A life estate is a type of property ownership that divides the control and ownership of a property. The person who creates the life estate for their home and assets is known as the “life tenant.” While a tenant retains control of the property, he or she shares ownership during their lifetime with the remainderman (the estate’s heir).

Quicken Loans’ recent article entitled “What Is A Life Estate And What Property Rights Does It Confer?” explains that while the life tenant lives, they’re in control of the property in all respects, except they can’t sell or encumber the property without the consent of the remaindermen. After the life tenant passes away, the remainderman inherits the property and avoids probate. This is a popular estate planning tool that automatically transfers ownership at the life tenant’s death to their heirs.

The life estate deed shows the terms of the life estate. Upon the death of the life tenant, the heir must only provide the death certificate to the county clerk to assume total ownership of the property.

Medicaid can play an essential role in many older adults’ lives, giving them the financial support needed for nursing facilities, home health care and more. However, the government considers your assets when calculating Medicaid eligibility. As a result, owning a home – or selling it and keeping the proceeds – could impact those benefits. When determining your eligibility for Medicaid, most states will use a five-year look-back period. This means they will total up all the assets you’ve held, sold, or transferred over the last five years. If the value of these assets passes above a certain threshold, you’ll likely be ineligible for Medicaid assistance.

However, a life estate can help protect elderly property owners by allowing them to avoid selling their home to pay for nursing home expenses. If your life estate deed was established more than five years before you first apply for benefits, the homeownership transfer would not count against you for Medicaid eligibility purposes.

To ensure you’re correctly navigating qualifying for Medicaid, it’s smart to discuss your situation with an attorney specializing in Medicaid issues. If you would like to learn more about life estates, please visit our previous posts.

Reference: Quicken Loans (Aug. 9, 2022) “What Is A Life Estate And What Property Rights Does It Confer?”

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Preparing for Retirement with a Special Needs Child

September 22, 2022

For parents of children with disabilities, the challenges of preparing for retirement with a special needs child are far higher than for families with healthy, high-functioning adults. Planning for your own retirement, while needing to secure the stability and basic needs of a child who will be a dependent forever often feels impossible, according to the recent article “Planning for Your Retirement, and for a Child’s Special Needs, All at Once” from The New York Times.

Even under the best of circumstances, where there’s plenty of money available and many hands to help, caring for an adult child with special needs is emotionally and physically challenging. As parents age, they have to address their own needs plus the needs of their adult dependent. Who will care for them, provide safe and comfortable housing and care for them when their parents no longer can?

Understanding the entire picture can be difficult, even for parents with the best of intentions. First, they need to understand how preparing for their retirement will be different than other families without a special needs child. Their investments need to be multi-generational to last not just for their lifetimes, but for their child’s lifetime. They can’t be too conservative because they need long-term growth.

In addition, special needs parents need to keep a certain amount of funds liquid and easily accessible, for times when their child needs a new piece of expensive equipment immediately.

One of the parents will often leave the workforce to provide care or take a lower paying position to be more available for care. This creates a double hit; the household budget is reduced at the same time its strained by costs not covered by benefits or insurance. Paying for gas to drive to therapy appointments and day program, buying supplies not covered by insurance, like adult diapers, waterproof bedding, compression garments to promote circulation, specialized diets, etc. adds up quickly.

Even with public health assistance, finding affordable housing is not easy. One adult may need supervised care in a group home, while others may need in-home care. However, the family home may need to be modified to accommodate their physical disabilities. With wait times lasting several years, many families feel they have no choice but to keep their family member at home.

Another challenge: if the parents wanted to downsize to a smaller house or move to a state where housing costs are lower, they may not be able to do so. Most of the public benefits available to special needs people are administered through Medicaid at the state level. Moving to a state with a lower cost of housing may also mean losing access to the disabled individuals’ benefits or being placed at the end of the waiting list for services in a new state.

For disabled individuals, maintaining eligibility is a key issue. Family members who name a disabled individual as a beneficiary don’t understand how they are jeopardizing their ability to access public benefits. Any money intended for a disabled person must be held in a specialized financial instrument, such as a special needs trust.

The money in a special needs trust (SNT) may be used for quality-of-life enhancements like a cellphone, computer, better food, care providers, rent and utilities among other qualified expenses.

There are two main categories of SNTs: first party trusts, created with assets belonging to the individual. Any money in this trust must go to reimburse the state for the cost of their care. Another is a third-party special needs trust, established and funded by someone else for the benefit of the disabled individual. These are typically funded by parent’s life insurance proceeds and second-to-die life insurance policies. Both parents are covered under it, and the policy pays out after the second spouse dies, providing a more affordable option than insuring both parents separately. Your estate planning attorney can assist you in preparing for retirement with knowledge that your special needs child’s future is secure. If you would like to read more about planning for families with a disabled loved one, please visit our previous posts.

Reference: The New York Times (Aug. 27, 2022) “Planning for Your Retirement, and for a Child’s Special Needs, All at Once”

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Important to consider Long-Term Care Insurance

September 8, 2022

It becomes especially important to plan for the future when the world around us seems so volatile and unpredictable. We can’t control future health care costs, but we can plan for them, says a recent article titled “Economic instability and the need to plan for long-term care” from The Indiana Lawyer. Failing to plan could mean lost assets and a lost legacy. It is important to consider long-term care insurance as you get older.

According to Genworth’s Cost of Care survey, from 2004 to 2021, the cost of long-term care has outpaced inflation by a large margin. Many of the increases were driven by supply and demand issues. There aren’t enough people to care for the growing population of people needing services, which will continue to be the case for at least the next decade. A total of 10,000 boomers turn 65 every day and 70% will require care and support services in their lifetimes.

How can assets be protected from long-term costs?

One of the most frequently used tools is an asset protection trust or an irrevocable trust. The irrevocable trust cannot be modified, amended, or terminated without permission of the grantor’s beneficiary or beneficiaries. Once the grantor transfers assets into the trust, the grantor no longer has the rights of ownership. The trust can be designed to minimize taxation, maximize access to long-term benefits and protect assets.

The trust must be drafted properly, so trust income and principal, if needed, can be accessed.

The timing is critical. Asset protection trusts must be created when there is no immediate health care crisis, and the grantor has no need for long-term care. The best trust is created when the person is in good health and of sound mind.

Those who are nearing retirement, passed retirement age or who may have health issues in the distant future and expect to need Medicaid in the future are best candidates for an asset protection trust.

Medicaid’s Five Year Look Back Period

Planning needs to be done at least five years in advance, as Medicaid looks at the applicant’s past five year’s finances to see if any assets were sold or gifted for under market value. Transferring assets to an irrevocable trust is treated as a gift and violates the five-year look back, making the person ineligible for Medicaid coverage. Nursing home care will have to be paid out-of-pocket until the person becomes eligible.

Asset protection strategies are available for those who need immediate protection of assets. However, they have to done quickly and correctly with an estate planning elder law attorney. People who have suffered a fall and have significant injuries or who have received a diagnosis of a difficult disease should speak with an elder law attorney in a timely manner. They’ll need to discuss preparing for a Medicaid application, what assets can be protected and steps they need to take. It is important to consider long-term care insurance before you reach a point when it is needed. The earlier the plan is put into place, the better. If you would like to learn more about long-term care insurance, please visit our previous posts.

Reference: The Indiana Lawyer (Aug. 3, 2022) “Economic instability and the need to plan for long-term care”

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Protecting the Community Spouse is Necessary

August 30, 2022

Despite the intent of the law, allowing one spouse to remain in the family home and having enough income to live on when the other spouse needs Medicaid to pay for nursing home care does not happen automatically. According to the article “What a ‘Community’ spouse can keep” from The Bristol Press, protecting the community spouse is necessary if they are to maintain their prior standard of living.

The community spouse is entitled to have a minimum monthly maintenance needs allowance (MMNA), which changes every year. If the MMNA is $2,288.00, and the healthy spouse has an income of $1,000.00, Medicaid allows a diversion of the sick spouse’s income of the difference, or $1,288.00 per month to the healthy spouse. In most situations, this is not enough to maintain a home, pay bills and enjoy a well-deserved retirement.

An elder law lawyer can help protect assets for the community spouse. The family home is exempt, if it is in the name of the healthy spouse, although most states have a limit to the allowed value. If the sick spouse is approved for Medicaid, the healthy spouse may choose to sell the home and keep the proceeds or downsize to a smaller home.

The community spouse may keep up to $137,400.00 in investment assets in 2022. That’s considered one half of the couple’s total “countable” assets. If the couple’s investment exceeds this amount, there are a number of strategies used to protect the life savings, as long as they stay within the “spend down” rules. Money may be spent on house expenses or improvements. A new car could replace an old model.

Another method is the use of a Single Premium Immediate Annuity, sometimes referred to as a Medicaid Annuity Trust. The well spouse can purchase this and protect their life savings. However, if the well spouse dies before the sick spouse, the balance of the annuity will need to be paid to Medicaid to reimburse it for expenses paid for the care of the sick spouse.

One positive note: personal property is not considered a countable asset. Things like home furnishings, decorations, jewelry, etc., and any personal property will not be counted. Embarking on a spending spree with an eye to reselling personal property to raise cash is not a good idea, since few items maintain their value after the initial purchase.

Planning should be done in advance, when both spouses are well and healthy, because Medicaid strictly enforces the five-year look back rule. Protecting the community spouse is necessary if they are to maintain their prior standard of living. Any assets transferred within five years of a Medicaid application will make the sick spouse ineligible for Medicaid coverage, and healthcare expenses will have to be paid out of pocket. If you would like to learn more about Medicaid planning, please visit our previous posts.

Reference: The Bristol Press (July 29, 2022) “What a ‘Community’ spouse can keep”

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Differences between ABLE Accounts and Special Needs Trusts

August 24, 2022

The cost of care and support can be as much as $100,000 per year. As a result, most individuals with disabilities will require government assistance, such as Supplemental Security Income and Medicaid. However, these individuals must shelter their assets carefully to not be disqualified from these programs. That’s why people many use special needs trusts and ABLE accounts. There are differences between ABLE accounts and special needs trusts.

As CNBC’s recent article entitled “Here’s how ABLE accounts, special needs trusts differ … and how they can work together” explains, there are two kinds of special needs trusts:

A third-party trust is funded with the parents’ [or others’] money, for only the disabled child’s needs. It isn’t in the child’s name, and when the child passes away, the funds go to someone other than the child.
A first-party trust is created with the individual’s own assets to shelter any income, whether earned or inherited, to not go above Medicaid income and asset limits. Distributions must be approved by the trustee. Any funds remaining after the child’s death may be claimed by Medicaid, if the child was a recipient.

Special needs trusts can’t be used for certain basic expenses that are covered by government programs. These are things like groceries, which are covered by Supplemental Nutrition Assistance Program; medical expenses, covered by Medicaid; and housing expenses, covered by SSI.

ABLE accounts, defined as “tax-advantaged savings accounts that can fund disability expenses,” can be used for a range of “qualified disability expenses.”

This is expenditures that help the individual “in maintaining or improving his or her health, independence, or quality of life.” These can cover a computer, communication devices, education, training, financial management, support services, assistive technology, and more.

The individual always has control, as opposed to a special needs trust, where the trustee makes the decisions. ABLE accounts are inexpensive and easy to set up and can be funded immediately with small amounts.

A major feature of an ABLE account is that it lets the individual accumulate more than $2,000 without jeopardizing means-tested benefits. ABLE account holders can keep their funds in cash or they can invest them. A certified elder law attorney will have the experience to help you understand the differences between ABLE accounts and special needs trusts. If you would like to learn more about special needs issues related to estate planning, please visit our previous posts.

Reference: CNBC (July 30) “Here’s how ABLE accounts, special needs trusts differ … and how they can work together”

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Geriatric Care Managers can make Life Easier

August 3, 2022

Geriatric care managers (or GCMs) help seniors deal with their burdens in an efficient, organized manner. Geriatric care managers can simply make life easier for both you and your senior, says Seniors Matter’s recent article entitled “What is a geriatric care manager?”

Seniors Matter created a guide to provide seniors with detailed information about geriatric care managers, including what they do and how to locate the most qualified individuals in your area. If you’re not sure about the role of a geriatric care manager, it can be broken down into two parts: First of all, “geriatric care” simply refers to geriatric medicine, which focuses on health care services for elderly individuals. The second part of the phrase is quite straightforward, since a “manager” is simply someone with strong organizational skills who is in charge of making important decisions.

Geriatric care managers are knowledgeable and organized individuals skilled in advocacy and care coordination for seniors. They are specialists in senior care who can guide family caregivers and others in providing the best support for their seniors. In fact, many family caregivers think of senior care managers as unofficial family members.

They’re people you can trust to make the right choices when it comes to eldercare services, and they often develop bonds with the entire family.

Geriatric care managers have strong qualifications. Many of them have professional experience in case management, physical therapy, nursing, social work, or occupational therapy. Some have worked as gerontologists. Note that a GCM doesn’t need to directly provide seniors with all of the medical treatment they need. A significant part of their role involves finding other qualified medical professionals and senior care providers who can offer more specialized assistance.

GCMs are especially helpful in long-distance care situations. They can ensure quick response times in the case of an emergency.

Even if the time commitment of informal caregiving isn’t an issue for you, a geriatric care manager can be a welcome source of advice, guidance, and advocacy.

You can make life easier and feel confident about important decisions when you consult with qualified geriatric care managers. They can help you with the complex issues associated with proper care coordination. If you would like to learn more about elder care and elder law, please visit our previous posts.

Reference: Seniors Matter (July 7, 2022) “What is a geriatric care manager?”

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Category: Medicaid

Planning for Long-Term Care with Irrevocable Trusts

Qualified Disability Trust can reduce Tax Burden

A Life Estate can help Protect your Property

Important to consider Long-Term Care Insurance

Protecting the Community Spouse is Necessary

Geriatric Care Managers can make Life Easier

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