Florida Special Needs Law Blog : Florida Special Needs Lawyer & Attorney : David J. Lillesand : Lillesand & Wolasky Law Firm : Disability, Medicaid, Special Needs Trusts : Miami, Gainesville, Florida

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Special Needs Trusts in Florida and around the nation will be impacted by the new POMS on Special Needs Trusts issued in January.  The March meeting of the Academy of Special Needs Planners will have top experts discussing the changes, and other important information on Special Needs Trusts.  If you are an attorney, plan to attend.  You can register at the Academy's website, http://www.specialneedsplanners.com/. 

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The Social Security Administration published new POMS, the staff operating manual, on Special Needs Trusts.  As Chair fo the Special Needs Trust Committee of the Florida Bar's Elder Law Section, I have set a meeting to review the new POMS in detail for March 19th, in Tampa.

Here's a "CLEAN COPY" of the new 2009 POMS on Trusts.

I also prepared a word-by-word analysis of the 2009 changes from the original 2001 POMS.  Deletions are indicated by striking through the word, and additions by underlining.  See "THE CHANGES HERE."  See also the  5 PAGE MEMORANDUM that highlights the changes.

Generally, the POMS are claimant friendly, although attorneys who do not follow them closely, can cause some significant problems for their clients.  The new POMS specifically approve of child support Special Needs Trusts and Alimony Special Needs Trusts, which will go a long way in ehlping to resolve family law disputes where continued health insurance is an issue.

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The Social Security Administration (SSA)  has provided attorneys and the general public with very useful information on their analysis of Special Needs Trusts - are you eligible or ineligible if you have such a trust.  There are a lot of ways that attorneys can inadvertently cause a Special Needs Trust to be found in violation of the many SSI resource rules.  While Special Needs Trusts are perfectly legal and will keep SSI benefits for disabled persons, simple drafting errors by attorneys can result in loss of SSI and Medicaid health insurance.

Fortunately, SSA is trying to help clients stay eligible by educating the public and attorneys.

Unfortunately, although the Regional Chief Counsel opinion letters, called "Precedents" in SSI-speak, are availabe as a category on the Internet in the POMS, they are poorly organized and not indexed.

The good news:  attached is a LENGTHY ANALSYS OF THE RCC OPINION LETTERS issued between 2006 through 2008, with a table that summarizes the issues and the holding, and an 18 page explanatory text of the "Top Ten Things Learned by Reviewing RCC Opinion Letters" and a 6 page chart, as well as the RCC opinion letters themselves.  The total package is 176 pages. 

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A lot of people in general, and professionals (attorneys, CPAs, financial planners, social workers, and others) confuse Social Security Disability Benefits (SSDI) and SSI Disability Benefits.  Also, receipt of SSDI triggers Medicare health insurance, and SSI triggers Medicaid.

It is important to understand the differences.  Social Security Disability Insurance benefits can be paid to millionaires.

SSI disability benefits are paid to individuals who are disabled, but also meet two financial eligibility tests, less than $2,000 of countable resources (assets) and low monthly income.  Although the $2,000 limitation seems harsh, SSI does not count a home of any value, one car of any value, the contents of the home, personal effects such as clothing and jewelry, and extra cash held in a Special Needs Trust.

To aid in seeing these relationships, we created a Matrix with updated 2009 eligibility figures.

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We've updated our Q and A BOOKLET with the most common questions and answers on Special Needs Trusts as a method to legally shelter, with governmental approval, funds from personal injury awards and from inheritances.

Email us at Lillesand@bellsouth.net if you have additional questions or need more general information.

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Although it is like filling out a tax return, it is possible to accurately calculate the amount of parents' income that will be deemed against a disabled minor child's SSI and Medicaid eligibility.  The attached ARTICLE ON SSI DEEMING CALCULATIONS explains how.

The FORMS FOR CALCULATING PARENT TO CHILD, and FORMS FOR CALCULATING SPOUSE-TO-SPOUSE deeming are included, along with an EXAMPLE OF CALCULATED DEEMING FOR A CHILD from the article.

Our firm does SSI deeming calculations for individuals and for bank trust officers upon request.

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Attached is a TABLE OF SSI DEEMING BREAKEVEN POINTS, that is, how much income a parent of a minor child, a spouse, or a sponsor of an alien, could earn and still have the disabled SSI child, spouse, or alien be eligible for at least $1 of SSI benefits.  Receiving at least $1 of SSI is important in Florida, and 31 other States, since receipt of any amount of SSI benefits triggers full eligibility for Florida Medicaid pursuant to Florida Statute, Section 409.903(2) and SEction 1634 of the federal Social Security Act.

Be careful when using this chart.  Note the limitations on when it cannot be used.  The only way to accurately determine the amount of parents' income, for example, that will cause the loss of SSI benefits is to do a step-by-step calculation using the fairly complicated SSI income rules.  We will post shortly a paper that describes, in detail, with forms, how to do that calculation.  Also note, our firm does these calculations for clients and for bank trust officers who are administrators of Special Needs Trusts.

Call us if you want help.

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We are pleased to announce that Lillesand and Wolasky, P.L., has opened a new office in Gainesville, Florida to provide legal services to North Florida.  The practice is limited to Special Needs Trust, SSI disability and Social Security Disability Insurance Benefit Claims, and related Medicaid and Medicare issues.

Contact us at (352) 376-6666.

We are located in the Haile Village Center, SunTrust Bank Building, Second Floor, 5303 S.W. 91st Drive, Gainesville, Florida 32608.

We look forward to assisting other attorneys and clients from our new North Florida location.

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With millions upon millions of baby boomers about to retire, the Social Security Administration has created an online  "retirement benefits estimator" that is a substantial improvement over the previous Internet version. Go to  www.socialsecurity.gov/estimator.

There are a number of things that are significant improvements.  Unlike previous versions, this one uses your actual Social Security taxes paid over your lifetime, to calculate the benefit for you -- exactly.  Secondly, it provides an opportunity to ask for different scenarios - such as, what if I retire early at age 62, or age 64, versus my full retirement age of 66.  Finally, it is FAST!  Two simple pages of input items (name, SSN, date of birth, mother's maiden name), and you'll instantly have the amount of your Social Security check.

With over 1 million people visiting Social Security local offices each week, anything that will cut down on unnecessary trips to SSA will benefit both individuals who need the information as well as the number of SSA employees needed to respond to requests for information.