For families with special needs individuals, ensuring the care for their loved ones once the caretakers are gone is of the utmost priority. The loss of specialized care and Medicaid or SSI benefits is a very real danger if proper special needs planning is not put in place, which is why Atlanta special needs lawyers often share the benefits of special needs planning involving Special Needs Trusts.
What is a Special Needs Trust?
Since even a small amount of cash assets can disqualify special needs individuals from the care and assistance they need, it is important to not let these assets pass directly to them upon your passing. A Special Needs Trust is the best way to ensure your special needs loved one keeps their care and assistance while also benefiting from the legacy you leave behind. Atlanta special needs lawyers design these Trusts in such a way that the assets in it do not belong to your special needs beneficiary; instead, they are owned by the Trust and managed by a Trustee of your choosing who will direct the assets to be used for the benefit of your special needs loved one. Medicaid and SSI will ignore the assets in the Special Needs Trust as they are not directly owned by your special needs loved one.
How may the assets in a Special Needs Trust be spent?
Assets in a Special Needs Trust can be spent in a number of ways which benefit the special needs individual. These include education, recreation, vacations, home improvement, and certain out-of-pocket medical expenses. These expenses are considered “non-countable” by Medicaid and SSI since they do not count as the special needs individual’s personal assets. Atlanta special needs attorneys caution that assets in a Special Needs Trust may not be given directly to the special needs individual, as this will oftentimes disqualify them from receiving state assistance.
What if I don’t have a Trustee or I’m not leaving behind a large sum of money?
In cases where a suitable Trustee cannot be chosen or a small or moderate sum of money is being left behind, Atlanta special needs lawyers often direct their clients towards Pooled Trusts. Pooled Trusts are typically run by non-profits which manage the assets for special needs individuals. The non-profit will assign a Trustee who is responsible for managing the assets on behalf of the special needs individual; the benefit of such an arrangement is that the Trustee and the non-profit are both heavily involved in the special needs community and understand the care and compassion needed to look after your special needs loved one. While there are fees and different types of services attached to Pooled Trusts, they are often a good alternative to an individual Special Needs Trust in certain situations.
If you have any questions about how a Special Needs Trust can benefit you and your loved ones, please contact us at 770.425.6060 to schedule a consultation.
Identity theft is the fastest rising crime in America today. Criminal syndicates located overseas are gaining access to your personal information through a variety of tactics and using that information to open credit cards and bank accounts to buy products that they are then selling for profit.
Due to complex international laws most of these criminals are never prosecuted and you are left to deal with the aftermath. If you know anyone that has had their identity stolen, you know that the problems that arise from this can last years. These criminals have relied on hacking into computer systems to gain access to your personal information, but they have now turned to “phishing scams” where they trick you into given them your personal information. The criminals will pose as IRS agents, credit card operators and now estate planners.
When posing as estate planning lawyers, criminals in Atlanta will use several different tactics. One common tactic is a telemarketing scam. On the phone they will exaggerate the benefits of estate planning, likely promising a tax free transfer of all your assets once you pass away.
Since they have no intention of making good on these promises they will tell you whatever you want to hear. They will aggressively insist that this offer is only good for a limited time and will do everything to keep you on the phone until you give over your personal information. They know once you get off the phone they will have lost you as a victim. As a general rule never give out your social security number over the phone.
Another common tactic is to use a mass marketing approach. They will send emails or sometimes letters through the regular mail. They will again over-promise what is legally possible in the hope that you will want to sign up. They will then ask you to send your personal information as well.
The bottom line is if the offer is too good to be true it usually is. If you have any doubt, always follow up with a qualified estate planner. Even if it is not a case of identity theft there are many companies that will oversell a flimsy, one-size fits all estate plan that will not make it through the probate process.
If you are contacted by someone claiming to be an Atlanta estate planner and they are asking for your personal information, you should contact us to review the information they sent you. You can call our office at 770.425.6060 with any questions you may have regarding potential identity theft scams.
As an East Cobb Estate Planning Lawyer, I occasionally deal with charges or concerns about undue influence over a person signing a will or other estate planning documents. Saying that there has been “undue influence” is often used as a reason to contest a will or estate plan, but what does it mean?
Undue influence occurs when someone exerts pressure on an individual, causing that individual to act contrary to his or her wishes and to the benefit of the influencer or the influencer’s friends. The pressure can take the form of deception, harassment, threats, or isolation. Often the influencer separates the individual from their loved ones in order to coerce. The elderly and infirm are usually more susceptible to undue influence.
To prove a loved one was subject to undue influence in drafting an estate plan, you have to show that the loved one disposed of his or her property in a way that was unexpected under the circumstances, that he or she is susceptible to undue influence (because of illness, age, frailty, or a special relationship with the influencer), and that the person who exerted the influence had the opportunity to do so. Generally, the burden of proving undue influence is on the person asserting undue influence. However, if the alleged influencer had a fiduciary relationship with your loved one, the burden may be on the influencer to prove that there was no undue influence. People who have a fiduciary relationship can include a child, a spouse, or an agent under a power of attorney.
When drawing up a will or estate plan, it is important to avoid even the appearance of undue influence. For example, if you are planning on leaving everything to your daughter who is also your primary caregiver, your other children may argue that your daughter took advantage of her position to influence you. To avoid the appearance of undue influence, do not involve any family members who are inheriting under your will in drafting your will. Family members should not be present when you discuss the will with your attorney or when you sign it. To be totally safe, family members shouldn’t even drive or accompany you to the attorney’s office. You can also get a formal assessment of your mental capabilities done by a medical professional before you draft estate planning documents.