State, Not Nursing Home, Must Pay Fees of Residents’ Court-Appointed Guardianship Attorney

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In two separate cases, a Maryland appeals court rules that a nursing home does not have to pay attorney’s fees to an attorney appointed to represent residents in guardianship proceedings. Rather, the state must pay the fees, at a much lower reimbursement rate. In Re Jon (Md. Ct. Spec. App., No. 361, Feb. 8, 2019) and In Re Selby (Md. Ct. Spec. App., No.360, Feb. 8, 2019).

When family members were not able to assist with the Medicaid applications of two nursing home residents, the nursing home filed petitions for guardianship of the residents, Hyung Bok Jon and Margo Selby. The court appointed attorney Nina Helwig to represent both residents. The court-appointed guardians for the residents and Ms. Helwig filed a petition for attorney’s fees. Ms. Helwig claimed that because both residents were indigent and could not pay the fees, the nursing home should pay them.

The nursing home opposed the fee petitions, arguing that the state is required to pay attorney’s fees when the ward is indigent. State law requires the state to pay attorney’s fee in a guardianship of the person case, but there is no attorney’s fee provision in guardianship of the property cases. A state rule interpreting the statute, however, provides that the state must pay attorney’s fees. Ms. Helwig argued that the nursing home benefited from her services because the residents needed a guardian to qualify for Medicaid and that the rate paid by the state was $75 per hour, which is $175 less than her hourly rate. The trial court ordered the nursing home to pay the attorney’s fees in both cases, and the nursing home appealed.

The Maryland Court of Special Appeals reverses both cases, holding that the state is required to pay attorney’s fees for indigent clients in guardianship cases. According to the court, the rule requiring the state to pay attorney’s fees is not inconsistent with the statute simply because the statute does not make a provision for attorney’s fees.

Worst States If You’re Caring For An Aging Parent

Via FA-Magazine  

#7 In Survey New York Stateimage.png

Some states make it harder for those caring for an aging parent, according to a new survey. 

Caring.com conducted a national survey to determine which states offer the best overall cost of living, and accessibility to senior support programs and resources for caregivers. 

While some states were praised for providing an affordable and helpful environment for caregivers, other states inevitable ended up at the bottom of the list.

“It hasn’t always been so expensive, but the cost of caring for our parents is so out of control now that it has the capacity to actually bankrupt families,” Jim Miller, a senior advocate and author of SavvySenior.org, said in the report. “I think that’s why it’s so important to consider these costs far in advance of needing to provide care so you’re prepared instead of panicked.”

These 10 states, in descending order, were deemed the most expensive for caregivers by Caring.com:

10. Maine

While the state is expensive for seniors, the availability of senior care support and services ranked 13th overall. The median cost for a home health aide was $4,500 more than the national average. Nursing home expenses were $24,00 more than the national average, according to caring.com.

 

9. New Hampshire

The state ranked 44th for cost of living. Costs for a nursing home stay for a year were over $100,000, well above the national average. The state did rank well for offering accessible senior programs and caregiver resources.

8. Delaware

For your aging parent to live in a nursing home in Delaware, expect to pay the median price of $127,750. The state ranked 28th in the survey for senior and caregiver programs and support.

 

7. New York

Earning a good rank for senior support and services, the state offers numerous resources for caregivers and seniors. While the costs for a home health aide and assisted living are competitive, the median for a nursing home is well above the national average by over $40,000.

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New Federal Law Helps To Prevent Elder Abuse

A new federal law is designed to address the growing problem of elder abuse. The law supports efforts to better understand, prevent, and combat both financial and physical elder abuse.

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The prevalence of elder abuse is hard to calculate because it is underreported, but according to the National Council on Aging, approximately 1 in 10 Americans age 60 or older have experienced some form of elder abuse. In 2011, a MetLife study estimated that older Americans are losing $2.9 billion annually to elder financial abuse.

The bipartisan Elder Abuse Prevention and Prosecution Act of 2017 authorizes the Department of Justice (DOJ) to take steps to combat elder abuse. Under the new law, the federal government must do the following:

  • Create an elder justice coordinator position in federal judicial districts, at the DOJ, and at the Federal Trade Commission
  • Implement comprehensive training on elder abuse for Federal Bureau of Investigation agents
  • Operate a resource group to assist prosecutors in pursuing elder abuse cases

The law requires the DOJ to collect data on elder abuse and investigations as well as provide training and support to states to fight elder abuse. The law specifically targets email fraud by expanding the definition of telemarketing fraud to include email fraud. Prohibited actions include email solicitations for investment for financial profit, participation in a business opportunity, or commitment to a loan.

The law also addresses flaws in the guardianship system that have led to elder abuse. The law enables the government to provide demonstration grants to states’ highest courts to assess adult guardianship and conservatorship proceedings and implement changes.

“Exploiting and defrauding seniors is cowardly, and these crimes should be addressed as the reprehensible acts they are,” said Senator Chuck Grassley (R-Iowa), a co-sponsor of the legislation, adding that the legislation “sends a clear signal from Congress that combating elder abuse and exploitation should be top priority for law enforcement.”

For more information about the law, click here and here.

Should you sign that Nursing Home Admissions Agreement you were given?

elder law news
Read the agreement carefully before signing.
Nursing Home Agreements can be complicated and confusing

Admitting a loved one to a nursing home can be very stressful. In addition to dealing with a sick family member and managing all the details involved with the move, you must decide whether to sign all the papers the nursing home is giving you. You don’t need to decide at the moment or alone. Nursing home admission agreements can be complicated and confusing, so what do you do?

It is important not to rush, but rather to read. If possible, have your attorney review the agreement before signing it. Read the agreement carefully because it could contain illegal or misleading provisions. Try not to sign the agreement until after the resident has moved into the facility. Once a resident has moved in, you will have much more leverage. But even if you have to sign the agreement before the resident moves in, you should still request that the nursing home delete any illegal or unfair terms.

Two items commonly found in these agreements that you need to pay close attention to are a requirement that you be liable for the resident’s expenses and a binding arbitration agreement.

The Responsible party
A nursing home may try to get you to sign the agreement as the “responsible party.” It is very important that you do not agree to this. Nursing homes are prohibited from requiring third parties to guarantee payment of nursing home bills, but many try to get family members to voluntarily agree to pay the bills.

If possible, the resident should sign the agreement him- or herself. If the resident is incapacitated, you may sign the agreement, but be clear you are signing as the resident’s agent. Cross out the words ‘responsible party’. Don’t think because it is printed the whole document will need to be re-done. Signing the agreement as a responsible party may obligate you to pay the nursing home if the nursing resident is unable to. Look over the agreement for the term “responsible party,” “guarantor,” “financial agent,” or anything similar. Before signing, cross out any terms that indicate you will be responsible for payment and clearly indicate that you are only agreeing to use the resident’s income and resources to pay.

Arbitration provision
Many nursing home admission agreements contain a provision stating that all disputes regarding the resident’s care will be decided through arbitration. An arbitration provision is not illegal, but by signing it, you are giving up your right to go to court to resolve a dispute with the facility. The nursing home cannot require you to sign an arbitration provision, and you should cross out the arbitration language before signing.

Other provisions
The following are some other provisions to look out for in a nursing home admission agreement.

Private pay requirement. It is illegal for the nursing home to require a Medicare or Medicaid recipient to pay the private rate for a period of time. The nursing home also cannot require a resident to affirm that he or she is not eligible for Medicare or Medicaid.
Eviction procedures. It is illegal for the nursing home to authorize eviction for any reason other than the following: the nursing home cannot meet the resident’s needs, the resident’s heath has improved, the resident’s presence is endangering other residents, the resident has not paid, or the nursing home is ceasing operations.
Waiver of rights. Any provision that waives the nursing home’s liability for lost or stolen personal items is illegal. It is also illegal for the nursing home to waive liability for the resident’s health.

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For more information regarding this article feel free to contact me.

Regards, Brian
Brian A. Raphan, P.C.
7 Penn Plaza   |   7th Ave/31st Street   |   New York, NY 10001
212-268-8200  braphan@raphanlaw.com
http://www.raphanlaw.com

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When Is A Guardian Required for an Adult?

Guardianships are set up to protect and help people in need, such as an elder or loved one unable to care for their own financial or health related well being. When is it required? What is the process?

When is a Guardianship Required For An Adult?

It may be necessary to petition a court to appoint a legal guardian for persons: Who have a physical or mental problem that prevents them from taking care of their own basic needs; Who as a result are in danger of substantial harm; and Who have no person already legally authorized to assume responsibility for them. Under some circumstances, it may be necessary for a court to appoint an emergency guardian, who can act on your behalf during a crisis (such as immediately following a car accident) until you regain your ability to make your own decisions.

Free Will

How is a Guardian Appointed?

The precise procedure will vary to some degree from jurisdiction to jurisdiction. The typical steps are as follows:The person seeking the appointment of a guardian files a petition with the probate court for the jurisdiction where the allegedly legally incapacitated person resides. This petitioner is often a relative, an administrator for a nursing home or health care facility, or other interested person. A petition is ordinarily accompanied by medical affidavits or other sworn statements which evidence the person’s incapacity, and either identifies the person or persons who desire to be named guardian or requests the appointment of a public guardian.The court arranges for any necessary evaluation of the allegedly legally incapacitated person. Often, this will involve the appointment of a “guardian ad litem”, a person who is appointed to provide an independent report to the court on behalf of the allegedly legally incapacitated person.

If appointed, the guardian ad litem will meet with the allegedly incapacitated person, inform that person of his or her legal rights, and report back to the court on the person’s wishes. The guardian ad litem may also speak to the petitioner, to health care providers, and to other interested individuals in order to provide the court with full information about the allegedly incapacitated person’s condition and prognosis. Depending upon state law, the court may appoint a doctor or professional to examine the allegedly incapacitated person. If the person contests the appointment of a guardian, a trial is scheduled during which sworn testimony will be given, and at the conclusion of which the judge will decide if the petitioner met the requisite burden of proof for the appointment of a guardian. The allegedly incapacitated person is ordinarily entitled to appointed counsel, if unable to afford a private attorney.If the allegedly incapacitated person consents to the petition, or is unable to respond to inquiries due to disability, the court will hold a hearing at which witnesses will provide sworn testimony to support the allegations in the petition. If the evidentiary basis is deemed sufficient, the guardian will be appointed.If a guardian is appointed, the judge will issue the guardian legal documents (often called “letters of authority”) permitting the guardian to act on behalf of the legally incapacitated person.What Are a Guardian’s Duties?The guardian makes decisions about how the person lives, including their residence, health care, food, and social activity. The guardian is supposed to consider the wishes of the incapacitated person, as well as their previously established valued, when making these living decisions. The guardian is intended to monitor the legally incapacitated person, to make sure that the person lives in the most appropriate, least restrictive environment possible, with appropriate food, clothing, social opportunities, and medical care.A guardian may be required to post a bond, unless the requirement is waived by the court. In most jurisdictions where bond is required, waivers are routine.

What’s the purpose of court supervision?

The court supervises the guardian’s choices on behalf of the ward. After the initial appointment of a guardian, an initial review is usually scheduled, followed by annual reports by the guardian to the court. The purpose of this supervision is to ensure that the legally incapacitated person is in fact benefiting from the most appropriate, least restrictive living environment possible, with appropriate food, clothing, social opportunities, and medical care.

Avoiding Guardianship:

It is possible to avoid the necessity of a guardianship through estate planning. A good estate plan will include a medical power of attorney which will enable a trusted individual to make health care decisions for you in the event of incapacity, and a general durable power of attorney to permit a trusted individual to manage your personal affairs. To a considerable extent, those documents can specify how you wish to live, and how you wish to be treated, in the event of disability – whereas a court or guardian may make decisions with which you would disagree. In most cases, when these documents have been executed in accord with the laws of your state, it will not be necessary for your loved ones to seek the appointment of a guardian or conservator should something happen to you – something that can be cumbersome and emotionally taxing at an already difficult time.

Son Must Pay for Mother’s Care Under Filial Responsibility

A Pennsylvania appeals court holds that a son is required to pay for his mother’s care under the state’s filial responsibility law even though the mother does not have outstanding medical bills and the son claims he had an abusive childhood. Eori v. Eori (Pa. Super. Ct., No. 1342 WDA 2014, Aug. 7, 2015).
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Joseph Eori is attorney-in-fact for his mother, Dolly Eori, who requires 24-hour care.  Ms. Eori lives with Mr. Eori, and her medical and caregiving expenses exceed her income.

Mr. Eori filed a complaint on behalf of his mother seeking filial support from his brother, Joshua Ryan. Mr. Ryan objected, arguing, among other things, that his mother was not indigent because she did not have outstanding medical bills and that he had an abusive childhood. Pennsylvania’s filial responsibility law negates the support obligation if the parent abandoned the child for a 10-year period. The trial court granted the petition for support, and Mr. Ryan appealed.

The Pennsylvania Superior Court affirms, holding that Mr. Ryan is required to provide support to his mother. The court agrees with the trial court’s decision that the filial responsibility law doesn’t require a showing of unpaid bills or liabilities to justify a claim. In addition, the court affirms the trial court’s ruling that while Mr. Ryan may not have had an ideal childhood, there was no evidence that his mother abandoned him.

For the full text of this decision, click here.

Q: When Do I Need a Guardianship?

A:

The standard under which a person is deemed to require a guardian differs from state to state. And even within some states the standards are different, depending on whether a complete guardianship or only a conservatorship over finances is being sought. Generally a person is judged to be in need of guardianship when he or she shows a lack of capacity to make responsible decisions.

A person cannot be declared incompetent simply because he or she makes irresponsible or foolish decisions, but only if the person is shown to lack the capacity to make sound decisions. For example, a man may not be declared incompetent because he spends money in ways that seem odd to someone else. In addition, a developmental disability or mental illness is not, by itself, enough to have a person declared incompetent.

Guardianship and Conservatorship

Every adult is assumed to be capable of making his or her own decisions unless a court determines otherwise. If an adult becomes incapable of making responsible decisions due to a mental disability, the court will appoint a substitute decision maker, often called a “guardian,” but in some states called a “conservator” or other term. Guardianship is a legal relationship between a competent adult (the “guardian”) and a person who because of incapacity is no longer able to take care of his or her own affairs (the “ward”).

The guardian can be authorized to make legal, financial, and health care decisions for the ward. Depending on the terms of the guardianship and state practices, the guardian may or may not have to seek court approval for various decisions. In many states, a person appointed only to handle finances is called a “conservator.”

Some incapacitated individuals can make responsible decisions in some areas of their lives but not others. In such cases, the court may give the guardian decision making power over only those areas in which the incapacitated person is unable to make responsible decisions (a so-called “limited guardianship”). In other words, the guardian may exercise only those rights that have been removed from the ward and delegated to the guardian.

Incapacity

The standard under which a person is deemed to require a guardian differs from state to state. In some states the standards are different, depending on whether a complete guardianship or a conservatorship over finances only is being sought. Generally a person is judged to be in need of guardianship when he or she shows a lack of capacity to make responsible decisions. A person cannot be declared incompetent simply because he or she makes irresponsible or foolish decisions, but only if the person is shown to lack the capacity to make sound decisions. For example, a person may not be declared incompetent simply because he spends money in ways that seem odd to someone else. Also, a developmental disability or mental illness is not, by itself, enough to declare a person incompetent.

Process

In most states, anyone interested in the proposed ward’s well-being can request a guardianship. An attorney is usually retained to file a petition for a hearing in the probate court in the proposed ward’s county of residence. Protections for the proposed ward vary greatly from state to state, with some simply requiring that notice of the proceeding be provided and others requiring the proposed ward’s presence at the hearing. The proposed ward is usually entitled to legal representation at the hearing, and the court will appoint an attorney if the allegedly incapacitated person cannot afford a lawyer.

At the hearing, the court attempts to determine if the proposed ward is incapacitated and, if so, to what extent the individual requires assistance. If the court determines that the proposed ward is indeed incapacitated, the court then decides if the person seeking the role of guardian will be a responsible guardian.

A guardian can be any competent adult — the ward’s spouse, another family member, a friend, a neighbor, or a professional guardian (an unrelated person who has received special training). A competent individual may nominate a proposed guardian through a durable power of attorney in case she ever needs a guardian.

The guardian need not be a person at all — it can be a non-profit agency or a public or private corporation. If a person is found to be incapacitated and a suitable guardian cannot be found, courts in many states can appoint a public guardian, a publicly financed agency that serves this purpose. In naming someone to serve as a guardian, courts give first consideration to those who play a significant role in the ward’s life — people who are both aware of and sensitive to the ward’s needs and preferences. If two individuals wish to share guardianship duties, courts can name co-guardians.

Reporting Requirements

Courts often give guardians broad authority to manage the ward’s affairs. In addition to lacking the power to decide how money is spent or managed, where to live and what medical care he or she should receive, wards also may not have the right to vote, marry or divorce, or carry a driver’s license. Guardians are expected to act in the best interests of the ward, but given the guardian’s often broad authority, there is the potential for abuse. For this reason, courts hold guardians accountable for their actions to ensure that they don’t take advantage of or neglect the ward.

The guardian of the property inventories the ward’s property, invests the ward’s funds so that they can be used for the ward’s support, and files regular, detailed reports with the court. A guardian of the property also must obtain court approval for certain financial transactions. Guardians must file an annual account of how they have handled the ward’s finances. In some states guardians must also give an annual report on the ward’s status. Guardians must offer proof that they made adequate residential arrangements for the ward, that they provided sufficient health care and treatment services, and that they made available educational and training programs, as needed. Guardians who cannot prove that they have adequately cared for the ward may be removed and replaced by another guardian.

Alternatives to Guardianship

Because guardianship involves a profound loss of freedom and dignity, state laws require that guardianship be imposed only when less restrictive alternatives have been tried and proven to be ineffective. Less restrictive alternatives that should be considered before pursuing guardianship include:

Power of Attorney. A power of attorney is the grant of legal rights and powers by a person (the principal) to another (the agent or attorney-in-fact). The attorney-in-fact, in effect, stands in the shoes of the principal and acts for him or her on financial, business or other matters. In most cases, even when the power of attorney is immediately effective, the principal does not intend for it to be used unless and until he or she becomes incapacitated.

Representative or Protective Payee. This is a person appointed to manage Social Security, Veterans’ Administration, Railroad Retirement, welfare or other state or federal benefits or entitlement program payments on behalf of an individual.

Conservatorship. In some states this proceeding can be voluntary, where the person needing assistance with finances petitions the probate court to appoint a specific person (the conservator) to manage his or her financial affairs. The court must determine that the conservatee is unable to manage his or her own financial affairs, but nevertheless has the capacity to make the decision to have a conservator appointed to handle his or her affairs.

Revocable trust. A revocable or “living” trust can be set up to hold an older person’s assets, with a relative, friend or financial institution serving as trustee. Alternatively, the older person can be a co-trustee of the trust with another individual who will take over the duties of trustee should the older person become incapacitated.

For more information visit http://www.RaphanLaw.com or contact me at 212-268-8200 for a free initial consultation.

Regards,

Brian

Why your Medicaid Application should be entrusted to an Elder Law Attorney:

The New York State Bar Association provides this informational pamphlet for long term care and Medicaid needs.

New York State Bar Association - Elder Law

What Is Medicaid?
Medicaid is the government funded program through which many persons receive care at home or in a nursing home. Medicaid is a state-wide and state specific program, currently admin- istered through each county’s Department of Social Services (with the exception of the five counties comprising metropolitan NewYork, which are administered through the single NYC entity, Human Resources Administration).
The process of applying for Medicaid is complex and often times confusing. Because Medicaid offers many different programs, the eligibility rules and application processes differ. Having an attor- ney who has a full and thorough understanding of the benefits available through Medicaid, the rules for eligibility, and the process by which to secure those benefits provides a tremendous advantage to the applicant for Medicaid benefits.
The Medicaid Application Process
Information Needed
Depending upon the program for which you are applying, different information may be required. All Medicaid applications, regardless of benefits sought, require extensive personal documenta- tion and detailed proof of income. Certain pro- grams require proof of assets and sixty months of records for all assets held during that period.
Help with the Application
An experienced Elder Law Attorney can advise you on the benefits available, the process for obtaining the benefits you need, the provisions of the law that might enable your family to protect assets, and the rights that certain family members of the applicant may have.
In New York State, it is not required that an attor- ney assist with the Medicaid appli- cation. In fact, you can prepare the appli- cation yourself. There are many entities, agencies, or divisions within hospitals and nursing homes which may offer to prepare and submit the application for you
for free or for a reduced fee. However, you must exercise great caution when accepting that help, as those entities and agencies are not obligated to advise you of your rights and are not permitted to give legal advice or implement legal strategies. Using these services might expose you and your family to risk.
Be Wary Of:
• Offers to prepare the Medicaid application free of charge or at a significantly reduced rate—
if it’s“too good to be true,”it probably is!
• Persons holding themselves out as attorneys or giving legal advice without confirming they are admitted to the New York State Bar.
• Guarantees of Medicaid eligibility or other government benefits.
• Agencies, entities or groups which have as their “sole job”the securing of Medicaid benefits for you. These entities may not have any liability to you if they fail to secure Medicaid eligibility.
Exposure to Risks When an Elder Law Attorney Is Not Used 

The law has many nuances and intricacies. An Elder Law Attorney has the obligation to ensure
that you are fully informed of all the provisions of law related to Medicaid, and to accurately answer any questions you may have. The Elder Law Attorney does not work for the nursing home. In fact, the Elder Law Attorney has an ethical duty to advocate for you and your interests.

Failing to use an Elder Law Attorney could expose you to the following risks:
• Failure to be fully informed of spousal rights;

• Failure to be informed of oppor-tunities for asset protection;
• Incomplete or inaccurate application submission;
• Denial of application due to failure to provide information;
• Failure to be informed of consequences of prior actions;
• Imposition of a penalty period for which mitigation strategies could have been implemented;

• Failure to have a dedicated advocate working with you through the process.

To learn read THE TOP 8 MEDICAID PLANNING MISTAKES click here.

Regards,

Brian

Some Potential Problems With SSA’s New Trust Guide

Social Security News

As previously reported, the Social Security Administration (SSA) recently instituted a nationally uniform procedure for review of special needs trusts for Supplemental Security Income (SSI) eligibility, routing all applications that feature trusts through Regional Trust Reviewer Teams (RTRTs) staffed with specialists who will review the trusts for compliance with SSI regulations.

The SSA has also released its Trust Training Fact Guide, which will be used by the RTRTs and field offices when they evaluate special needs trusts.  In an article in the July/August 2014 issue of The ElderLaw Report, New Jersey attorney Thomas D. Begley, Jr., and Massachusetts attorney Neal A. Winston, both CELAs, discuss the 31-page guide in detail and caution that while it is a significant step forward in trust review consistency, it contains “a few notable omissions or terminology that might cause review problems.”  Following is the authors’ discussion of the problematic areas:

• Structured Settlements. The guide states that additions/augmentations to a trust at/after age 65 would violate the rule that requires assets to be transferred to the trust prior to the individual attaining age 65. It does not mention that the POMS specifically authorizes such payments after age 65, so long as the structure was in place prior to age 65. [POMS SI 01120.203.B.1.c].

• First-/Third-Party Trust Distinction. Throughout the guide, there are numerous references to first-party trust terms or lack of terms that would make the trust defective and thus countable. These references do not distinguish between the substantial differences in requirements for first-party and third-party trusts.

• Court-Established Trusts/Petitions. This issue is more a reflection of an absurd SSA policy that is reflected accurately as agency policy in the guide, rather than an error or omission in the guide itself. This section, F.1.E.3, is titled “Who can establish the trust?” The guide states that creation of the trust may be required by a court order. This is consistent with the POMS. It would appear from the POMS that the court should simply order the trust to be created based upon a petition from an interested party. The potential pitfall described by the guide highlights is who may or may not petition the court to create a trust for the beneficiary. It states that if an “appointed representative” petitions the court to create a trust for the beneficiary, the trust would be improperly created and, thus, countable. Since the representative would be considered as acting as an agent of the beneficiary, the beneficiary would have improperly established the trust himself.

In order for a court to properly create a trust according to the guide, the court should order creation of a trust totally on its own motion and without request or prompting by any party related to the beneficiary. If so, who else could petition the court for approval? The plaintiff’s personal injury attorney or trustee would be considered an “appointed representative.” Would a guardian ad litem meet the test under the guardian creation authority? How about the attorney for the defendant, or is there any other person? If an unrelated homeless person was offered $100 to petition the court, would that make the homeless person an “appointed representative” and render the trust invalid? The authors have requested clarification from the SSA and are awaiting a response.

Until this issue is resolved, it might be prudent to try to have self-settled special needs trusts established by a parent, grandparent, or guardian whenever possible.

• Medicaid Payback/Administrative Fees and Costs. Another area of omission involves Medicaid reimbursement. The guide states that “the only items that may be paid prior to the Medicaid repayment on the death of the beneficiary of the trust are taxes due from the trust at the time of death and court filing fees associated with the trust. The POMS, [POMS SI 01120.203.B.1.h. and 203B.3.a], specifically states that upon the death of the trust beneficiary, the trust may pay prior to Medicaid reimbursement taxes due from the trust to the state or federal government because of the death of the beneficiary and reasonable fees for administration of the trust estate such as an accounting of the trust to a court, completion and filing of documents, or other required actions associated with the termination and wrapping up of the trust.

While noting that the guide, in coordination with training, “is a marked improvement for program consistency for trust review,” Begley and Winston caution advocates that “the guide should be considered as a summarized desk reference and training manual and not a definitive statement of SSA policy if inconsistent with the POMS.”

Regards,

Brian A. Raphan, Esq.

The Law Offices of Brian A. Raphan, P.C.

www.RaphanLaw.com

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