The 10th Annual Developmental Disabilities Public Policy Conference

April 4, 2017 By Margaret Fulton

I attended the very informative 10th Annual Developmental Disabilities Public Policy Conference sponsored by The Arc of California and United Cerebral Palsy. The conference was held March 26 through March 28, 2017, in Sacramento, California. The first agenda item was a discussion from the Lanterman Coalition 2017 on their policy issues, including rates for service providers, and possible changes which would be brought about by repeal of the Affordable Care Act. Peter Berns, CEO of The Arc of the United States, discussed what is at stake and where things stand with the new Congress and the new Administration. Thomas Coleman, the Legal Director of the Spectrum Institute, provided substantial information on supported decision-making, which provides more independence for people with disabilities. John Ariale, the principal drafter of the ABLE Act, discussed its current provisions and also discussed possible future legislation involving ABLE. Christina Elliott, Executive Director of the CalABLE Board, discussed the proposed ABLE program in California. Scott Graves, Director of Research, California Budget & Policy Center, spoke on the current California budget and programs for persons with disabilities. A presentation was made on In-Home Supportive Services (IHSS) and Federal and State activities that may impact IHSS consumers and providers. A final program on employment issues for individuals with intellectual and developmental disabilities was presented by Joe Xavier, Director of the Department of Rehabilitation, and several others.

The program also included an ABLE Act intensive training session for attorneys and private fiduciaries. This special breakout session explored the ABLE Act and housing, the ABLE Act and divorce, and the ABLE Act and structured settlements. I was a presenter in this session. The entire program provided an excellent review of public policy issues impacting persons with disabilities.

Comparing an ABLE Account with a Third Party Special Needs Trust

March 22, 2017 By Margaret Fulton

There has been much discussion about the recent legislation involving the Achieving a Better Life Experience (ABLE) Act. For a discussion of ABLE accounts, please scroll down to read about the ABLE Act.

ABLE accounts are an incredible resource for persons with a disability. ABLE accounts are a great tool to use in conjunction with special needs trusts. However, ABLE accounts are not always a replacement for special needs trusts. Each person has his or her own individual needs and that person’s situation needs to be assessed to determine what will work best for the person with special needs and his or her family.

This chart is here to assist you in understanding the important differences between an ABLE account and a third party special needs trust.

You can view and print this chart here: ABLE Account compared with SNT (edited March 2017)

Issues	ABLE Account	Third Party Special Needs Trust
Who can use?	Only persons disabled before age 26	Any person with a disability
Who can fund?	Anyone, including person with a disability	Anyone, including person with a disability IF (s)he has capacity (recent legislation in December 2016 allows this)
How many can person have?	One	Unlimited
Who can control?	Person with a disability and likely their legal guardian, conservator, or agent	Anyone except the person with a disability and their spouse
Who inherits on death of person with disability?	Medi-Cal must be repaid for amounts paid by Medi-Cal after the creation of the ABLE account; then can go to heirs	Person with a disability’s heirs or whomever is named in document
How much can be funded in a year?	$14,000 (or annual gift exemption)	Unlimited
Is funding gift-tax free?	Yes	No, but no gift tax will be paid until the donor has given more than $5 million (indexed to inflation)
Is there a cap on how much can be in account?	Yes, currently $100,000 limitation for SSI recipients and up to State 529-plan limitations ($475,000 in CA)	No
How is income taxed?	No income tax	Taxed as a non-grantor trust at highest marginal tax rate
What type of distributions can be made?	Distributions can be made for “qualified disability expenses” such as housing transportation, assistive technology and more	No limitation, except for certain disbursements, such as for housing, may reduce or eliminate SSI or Medi-Cal eligibility

Special Needs Trust and the ABLE Act

October 12, 2016 By Margaret Fulton

Chances are that you have heard of a Special Needs Trust. What is a Special Needs Trust and why is it necessary? You may have also heard about the ABLE Act. Both the ABLE Act and special needs trusts are important tools in planning for the future of your special needs child.

Parents of a child with special needs, or other family members, can leave that child’s inheritance to the special needs trust instead of directly to the child. If your child will not able to work or live independently, he or she may need to remain eligible for “means-based” public benefits, such as SSI or Medi-Cal. The receipt of an inheritance by your disabled child might cause the child to lose eligibility for these vital benefits. A properly drafted special needs trust can hold assets for the benefit of a disabled person without those assets counting as the property of the disabled person. The assets of the special needs trust will supplement the public benefits the disabled person may be eligible to receive and will make it possible for the disabled person to have the same quality of life in the future.

Another new option for parents and special needs persons is to open an ABLE Account. The Achieving a Better Life Experience (ABLE) Act of 2014 allows people who have disabilities that began before they turned 26 to keep money in a special tax-advantaged account. The first $100,000 in an ABLE account does not count against the $2,000 Supplemental Security Income (SSI) resource limit, and none of the money in an ABLE account is counted for determining Medi-Cal eligibility. Each state is authorized to open its own ABLE account program, and California recently passed legislation to establish an ABLE program. However, the California program is not available yet and may not be ready for some time. The federal legislation does provide that you can open an ABLE account in another state. Ohio is the first state to establish this program and Tennessee has just opened an ABLE program. Both states allow contributions from residents of all states.

Article was written for Parents Resource Guide Summer 2016 and can be viewed at: parents-resource-guide-summer-2016.

Decision Making for Your Eighteen Year Old Special Needs Child

October 12, 2016 By Margaret Fulton

When your child reaches age eighteen, your son or daughter is legally an adult. Adulthood, for all persons, brings legal rights and responsibilities. An adult can legally enter into a contract and make medical decisions. Moms and dads, including the author of this article, are surprised to learn that, after they have made decisions for their child for eighteen years, now medical providers ask them to leave the room during doctor’s appointments and are no longer able to share information with them. This situation can be even more challenging for the parents of a child with special needs. Before your disabled child turns eighteen, it is important to determine whether a parent should continue to be involved in her financial and medical decisions. Will a court conservatorship be necessary, or will there be a less expensive and less restrictive option which will allow parents and others to continue to participate in decision-making? There are several alternatives to consider.

If the disabled person has sufficient capacity to understand and execute documents, she can sign powers of attorney to allow an agent, such as a parent, to handle health and financial affairs without court supervision. In California there are two types of powers of attorney: one which deals with finances, and another which deals with health. By signing a financial power of attorney, the adult child can give a parent or other trusted person the authority to make financial decisions for her. The power of attorney can be effective while the person with disabilities has capacity, or it can become effective at a future time when the individual loses capacity. A health care power of attorney, also called an advance directive, gives a parent or other individual the ability to make heath care decisions for the adult child. In addition, the adult child with sufficient capacity can sign a HIPAA authorization which will permit parents or other individuals to access the child’s health records and other medical information. Of course, with the young adult’s consent, parents or others can always informally assist her in making her own independent medical and financial decisions.

If the person with a disability does not have the capacity to understand and sign documents, it may be necessary to establish a court conservatorship. Before authorizing the establishment of a conservatorship, the court must determine that a conservatorship is the “least restrictive alternative” for making decisions for the disabled person. There are two kinds of conservatorships. A regular conservatorship gives the court-appointed conservator full decision- making powers. Limited conservatorships are similar to regular conservatorships, except they are only established for developmentally disabled adults. A limited conservator’s duty is to help the limited conservatee develop self-reliance and independence. The judge will only give the limited conservator powers to do things the disabled person cannot do without help.

If a conservatorship is necessary, it’s a good idea to start the process well before the disabled person’s eighteenth birthday. An estate planning and special needs attorney can help you evaluate your child’s individual situation and arrive at the appropriate arrangement for your child.

Article was written for Sacramento Parent. You can view it here.

Margaret Heiser Fulton Attends Annual Special Needs Planning Meeting

March 10, 2016 By Margaret Fulton

Margaret Heiser Fulton attended the 10th annual meeting of the Academy of Special Needs Planners, held in Tucson, Arizona, March 10-12, 2016. The 235-member Academy is the nation’s leading organization of special needs planning professionals. Members of the Academy devote a significant part of their practices to working with individuals with special needs and their families to plan for the future and ensure that children with special needs receive ample financial protection.

The Academy’s annual meeting featured presentations by some of the nation’s leading experts in special needs planning, who kept attendees current on the latest regulatory changes and legal decisions and shared strategies for better serving clients and their families in this fast-growing legal field. Meeting sessions included “An Update on SSI Rules,” “Special Needs Trusts and Retirement Benefits,” “Recent Trends in Special Needs Planning,” “Identifying and Handling ‘Tricky Issues’ in SNT Administration,” as well as an “Ask the Experts” panel discussion. Perhaps most importantly, the meeting afforded the chance for attendees to exchange planning ideas and strategies with fellow members working in special needs planning around the nation.

This year’s meeting was held concurrently with the Society of Settlement Planners, giving attendees invaluable insights into how to best work with these key players in the special needs arena.

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