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Protecting The Home When Medicaid Planning

October 26, 2015

by David Zumpano with No Comment Asset Protection Estate Planning Drafting Software

Many people who are seeking to qualify for Medicaid are concerned about protecting their assets from long-term care costs. For most people, their primary asset is their home. So what are the options to protect it when considering Medicaid planning?

First and foremost, it is essential to be clear that Medicaid law provides that the home is an exempt asset from being included in determining one's eligibility for Medicaid. A core distinction comes into play, however, when considering whether the Medicaid applicant is married or single. If married, the Medicaid law provides that any transfer between spouses is permissible and does not trigger any ineligibility. Therefore, if a husband and wife own a home, and one of them goes into the nursing home, the nursing home spouse can convey their interest to the community spouse and no penalty will result, and the house will remain exempt under the community spouse's exemption. The question as to whether Medicaid can access the equity in that home after the death of the community spouse is a question of who dies first – the institutionalized spouse or community spouse.

The bigger challenge, however, is in protecting the home for single applicants, or after one of the spouses has entered a nursing home or dies, thus leaving the remaining spouse single. Accordingly, there are additional challenges for single individuals who own a home. While the home is exempt in determining eligibility for Medicaid benefits, it is not exempt from estate recovery for single Medicaid recipients. So, for single people or those who are married, with one spouse at a nursing home, the mechanism to protect the house requires an outright transfer of it to ensure its protection. Retention of the house by a single individual subjects it to estate recovery after death, thus delaying the loss, but not eliminating it. The question as to whether a house is subject to estate recovery is dependent on each individual state, estate recovery rule and Medicaid.

The next challenge is, if a single individual or the community-based spouse transfers the home to a third party or irrevocable trust, it will trigger an "uncompensated transfer" and lead to a period of ineligibility. The period of ineligibility depends upon the value of the conveyed house divided by the regional divisor (the average cost of one month of nursing home care in the region).

For example, a $200,000 house conveyed away in a jurisdiction where the regional divisor is $10,000 would create a 20-month ineligibility period. In order to mitigate this penalty period, one may consider transferring the home and reserving a life estate. By reserving a life estate, the underlying transfer is reduced by the value of the life estate. For example, transferring the same $200,000 house and reserving a life estate to an individual who is age 72 provides for a .2369 interest being retained. In this case, the remainder of .7134, or 71 percent of the $200,000, is deemed to be the uncompensated transfer (S. 142,680). By reserving the life estate, this particular client will have reduced the penalty period by 5.73 months (penalty of 20 – new penalty of 14.27). Obviously, reserving a life estate provides for a discount in the uncompensated transfer, which in most states disappears at death because there will be no value to the life estate as it extinguishes at death. Some states have begun pursuing life estates after death. For example, in Ohio, the discount really has no advantage because the state could pursue the remaining beneficiary for 5.72 months differential.

The question of how to protect the home is prominent in most people's goals. Another way to protect the home is to sell it. The question is how best to do it to achieve the best result in the shortest period of time. Utilizing the LWP Medicaid qualification software will allow you to determine the best approach and the cost benefit analysis on each choice you make. If you would like a free demo of our estate planning drafting software, click here now to schedule a call. We'll show you first hand how it can help you grown your estate or elder law practice.

David J. Zumpano, Esq, CPA, Co-founder Lawyers With Purpose, Founder and Senior Partner of Estate Planning Law Center

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Can A Grantor Be Trustee Of His Irrevocable Trust?

October 21, 2015

by David Zumpano with 8 Comments Asset Protection Estate Planning Drafting Software

Many lawyers shudder at the idea of allowing the grantor of an irrevocable trust to be the trustee. But the primary reason for this fear is long-rooted in traditional estate tax planning principles. Particularly, § 674 of the Internal Revenue Code provides that any trust wherein the grantor retains the power to control the beneficial enjoyment of the income or principal of the trust will make all of the income on that trust taxable to the grantor, and Internal Revenue Code § 2036 provides that any trust where the grantor retains the right to possess or enjoy the property or designate who will possess and enjoy the trust property will make the principal of the trust includable in the grantor's estate at death for estate tax purposes. Prior to 2001, irrevocable trusts were predominantly utilized for estate tax protection. Triggering code Section 2036 would violate estate tax planning goals.

However, after the Tax Act of 2001, wherein the estate tax exemptions were increased to in excess of $5,000,000, the traditional tax planning rationale was no longer valid. Currently, the estate tax rule is triggered only on individuals who have assets greater than $5,430,000, and on married couples who have twice that amount. Recent statistics indicate that only two in 1,000 Americans have assets that exceed the federal estate tax exemption limits, which represents .2 percent, leaving 99.8 percent of Americans without an estate tax concern. The key question is, why do lawyers continue to hold 99.8 percent of clients prisoner to the rules meant for the .2 percent?

The Restatement Second of Trusts § 99 – and the cases cited thereunder, particularly Markham v. Faye, 74 F.3d 1347 – clearly states that creditors can only access the assets of a trust to which the grantor has retained rights. The question as to what rights the grantor has to access income or principal is a designing issue related to the beneficiary designations in the trust, not the trustees. The Baldwin case goes on to clarify that a grantor, as trustee, has the same fiduciary duties to the beneficiaries as any other trustee. Restatement Second of Trusts § 266 and the cases thereunder further clarify that it is well-established law that assets of a trust are not subject to personal claims against the trustee, even if the liability arises out of his trustee capacity. Further, Restatement Second of Trusts § 170 provides that a trustee is prohibited from self-dealing or acting in his or her own best interests. Nothing in the law is better settled than the provision that a trustee may not advantage himself or herself in dealings with the trust estate. Gibson v. Sec. Trust Co., 107 F.Supp. 766. A grantor's creditors are only entitled to income or assets available to the grantor, as is well-established under Uniform Trust Code § 505, and as further clarified under the Restatement Second of Trusts § 156. So in order to properly provide asset protection, the trust by its terms must prohibit distribution of the principal and/or income to the grantor, and no discretion shall be permitted to the trustee or anyone else to distribute it to the grantor. This will ensure asset protection.

The key question then becomes what the grantor is seeking protection for. If one wants to protect income and principal, then no benefits should be retained, but the right to be trustee is still permitted. The only adverse consequence is that all of the income is taxed on the personal income tax returns of the grantor, and they are responsible for the income tax on the trust income. Further, all of the trust principal is included in the estate of the grantor at death, but for the 99.8 percent of Americans who are not subject to estate tax, this is not an adverse result; in fact it's usually a preferred result. If there is any question as to whether the grantor has the ability to pay the income taxes, then the trust can contain a provision that allows the trustee to pay any income tax due to the taxing jurisdiction exclusively (not the grantor) by reason of the inclusion of the income from the trust on the personal tax return of the grantor. This restricts distributions to the grantor, and only allows the trustee to distribute to the taxing jurisdiction, and only as to the income tax caused by the inclusion of the trust income on the tax return of the grantor.

The key benefit of letting the grantor be trustee, and the one most important to clients, is maintaining control. Most people who have worked their whole lives accumulating assets are not ready to just turn them over to the kids or other third parties. Doing so not only puts the assets outside of the control of the grantor, but it also creates a risk of losing the assets to the creditors, predators, and lawsuits of the individual to whom they are transferred. Nothing could have a more adverse impact or be a greater risk to a client than that. Whereas the ability to control the assets, and to continue to manage the investments of the assets and keep them in the form they are currently in or change them as they desire along the way, is one of the greatest benefits to grantors when serving as trustee of their irrevocable asset protection trust. All of these provisions are permitted in the Lawyers with Purpose iPug® Trust system. The iPug Trust system monitors all of the various legal provisions to ensure the trust being utilized is proper to benefit clients in the ways they desire. So being a trustee and grantor of your trust does not subject it to risk. There is no legal authority anywhere that indicates being a trustee of your own trust makes it subject to your creditors. There is an entire line of cases where courts have invaded trusts where the grantor is the trustee, but in every case it is due to the grantor's “fraudulent conveyance and management” of the assets where the trust was invaded, not because the grantor was trustee. So, be informed and be conscious of your clients' needs, and share with them the many advantages of having them stay in control of their assets.

If you want to learn more about iPugs and in particular about iPug business planning, register for our FREE webinar this Tuesday at 4 EST. Click here to register now and check out the bullets below for just some of what you'll discover…

Learn the difference between General Asset Protection, DAPT Protection, Medicaid Protection and iPug® Protection
Comprehensive outline of the 2 primary iPug® Business Protection Strategies
Learn why clients choose single purpose Irrevocable Pure Grantor Trusts™ over LLCs
Learn how it all comes down to Funding
And much much more…

Just register below and reserve your seat… it's 100% FREE!

David J. Zumpano, Esq, CPA, Co-founder Lawyers With Purpose, Founder and Senior Partner of Estate Planning Law Center

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Distinguishing Between Irrevocable Trusts When Planning for Public Benefits

October 19, 2015

by David Zumpano with 2 Comments Asset Protection Estate Planning Drafting Software

A question comes up for many practicing lawyers and allied professionals as to what trust to use when clients want to protect their assets and ensure eligibility for Medicaid and other needs-based benefits, should the need for long-term care arise. The Irrevocable Pure Grantor Trust (iPug®) has long been a trust of choice in providing clients with the most flexibility, the greatest protection and the greatest amount of control. Understanding the distinctions between the various iPug Trusts, and how to use them to accomplish your client's goal, is essential.

There are three iPug protection trusts utilized for clients, and each of them are Medicaid compliant, ensuring the assets within them are not considered available resources in determining their eligibility for Medicaid benefits.

The three iPug Trusts are the MIT, the FIT and the KIT. Let's cover each of them separately.

The MIT, My Income Trust, is an income-only trust that allows the grantor to be the trustee to manage and distribute the assets as the grantor desires, other than to themselves or their spouse. Under Medicaid law, any trust created by an applicant or a spouse shall be deemed an available resource to the extent the applicant or spouse is able to benefit from it. That's why it is essential in all three trusts that the grantor does not have access to the principal directly or indirectly by any means.

For example, the court in Doherty held that a trust that contained the provision that allowed the trustee to terminate the trust if they deemed it appropriate and return the trust to the "beneficiary" was an available resource because, even though the trustee did not terminate the trust, the authority for them to do so would have resulted in the assets being re-conveyed back to the grantor. This incidental approach was enough to have it be considered an “available resource.” That's why it's essential that attorneys be certain that within the four corners of the trust document, there is no authority in any person or any condition which could occur so as to permit the grantors to access principal.

The Doherty discussion has no impact on iPug Trust use because iPug protection trusts have long stated that if the trust is terminated for any reason, the proceeds go to the "remainder" beneficiaries. This is an example of how to ensure that there is no way for the trust assets ever to get back to the grantors. iPug Trusts also permit the grantor the power to change the beneficiaries of the trust and the time, manner and method of distribution of trust assets at any time but without the right to change it back to the grantor or their spouse. This gives the client the maximum control available under the law. While the grantor as trustee and the retained powers and protection for beneficiaries are unusual to all iPug Trusts, let's examine the distinctions between these iPug Trusts. The MIT permits the grantor to retain a right for their life to the income from the trust. This ensures that the grantor can still control all of the assets and retain all of the beneficial interests from the assets, such as the interest on the bank income and the dividends from the brokers' accounts and right to live in or use the trust real estate, all without subjecting the assets to risk, and ensuring the assets are not included as an available resource in determining Medicaid benefits. The second iPug Trust is the partial MIT, wherein the grantor retains a right to only part of the income, not all of it. In that case, only the income right retained will be at risk to creditors, predators, and long-term care costs. The MIT is commonly referred to as the income only version of the iPug.

The second trust in the iPug trilogy is the control-only version, which is known as the Family Irrevocable Trust (FIT). In the FIT, the grantor retains all the rights to control and manage the assets, and has full 100 percent authority to distribute the assets to anyone they determine other than themselves or their spouse during their lifetime, but the grantor retains no right to the income or principal. The primary use of a FIT is when the client does not need the income from their assets to maintain their lifestyle because they have sufficient other income to meet their needs. The predominant benefit to the FIT Trust is allowing the grantor to remain in full control of their assets and to distribute them to the beneficiaries they choose, when they choose to distribute them (during life or after death).

In addition, the assets accumulated and held in the FIT can be held and delivered to the beneficiaries at a "step-up" in tax basis at death, which ensures the beneficiaries inherit it at the tax value as of the date of death. This will eliminate any capital gains tax to the beneficiary if they were to sell it. [All iPug Trusts ensure the assets transferred to the beneficiaries after the death of the grantor can continue in an asset protection trust for the beneficiaries for their lives, wherein the beneficiaries can have full control of the trust and full rights to the income and principal of the trust. But creditors, predators, and lawsuits will not have access to it, nor will the principal of the trust be considered an available resource for the beneficiaries' Medicaid intentions and it will not be considered a resource for purposes of the application for financial aid for children who may be in college.] The FIT is a great trust for clients who are successful and no longer need the benefits of their money but want to continue to manage and grow it during their lifetimes for their beneficiaries.

Finally, the third trust in the iPug trilogy is the KIT, this is the Kids Irrevocable trust. This trust is typically utilized to undo improper transfers done by the grantor during their lifetime. Many times clients come to attorneys having already transferred the farm to the kids. Transferring this farm or other assets such as bank accounts or brokers' accounts not only puts the assets outside the reach of the grantor's control, but more horrifically, subjects them to the risk of the transferees' creditors and predators. For example, if the child of the grantor who received the asset got divorced, died, got sued, or went bankrupt, the very assets transferred to the child by the parent will be subject to those liabilities, thereby putting at risk the parent who initially transferred them. The way to protect assets already transferred to third parties is to use the KIT. The KIT is an irrevocable trust created by the children who receive the assets, who then agree that, during the lifetime of their parent(s), they give up all right to control and access to those assets, so as to ensure they are protected from their creditors and predators at least during the lifetime of the parents. A properly drafted KIT will also ensure that the assets are protected after the death of the parents and are given back to the kids in a separate share MIT or FIT, depending upon the individual goal of each child. LWP is the only organization in the industry that provides a KIT trust that permits this type of drafting. The Kids Irrevocable Trust is also a usable tool when doing planning to ensure that a client is eligible for veterans aid and attendance and housebound pension benefits.

So utilizing irrevocable pure grantor trusts is essential in today's estate planning environment. The use of MITs, FITs, or KITs further distinguishes your skills as an attorney to meet the individual needs of clients. The LWP iPug Trust Drafting system carefully identifies each of these trusts and triggers warnings and instructions when choices are made that can be better served in one of the other trusts. Don't go it alone. Trust the technology and support LWP gives you to provide the best options for your client. To request a complementary live demo of our Drafting Software, click here now.

David J. Zumpano, Esq, CPA, Co-founder Lawyers With Purpose, Founder and Senior Partner of Estate Planning Law Center

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Focus on Forms: Getting Benefits for Widows

October 13, 2015

by Lawyers With Purpose with No Comment Estate Planning Drafting Software Systems & Processes VA

Today’s post is another installment in the Focus on Forms series that considers and discusses some of the most common forms associated with Department of Veterans Affairs (VA) pension claims. The goal of the Focus on Forms series is threefold: to define the purpose of the forms; to discuss how they should be completed; and to recommend what to file with these forms. Today’s subject is the 21-534EZ Application for DIC, Death Pension, and/or Accrued Benefits.

The VA form 21-534EZ is used by a veteran’s surviving dependent to apply for non-service-connected pension, Dependency and Indemnity Compensation (DIC), and accrued benefits. The veteran’s surviving dependent may be a spouse, a parent, or a child. This form is the counterpart to the VA form 21-527EZ, however the 21-534EZ can be used to apply for the various types of benefits outlined above, while the 21-527EZ can only be used by a veteran applying for non-service-connected pension. If you are seeking service-connected compensation benefits for a veteran, you would use the VA form 21-526EZ.

When you download the 21-534EZ from the VA website, the document has 11 pages: six pages of instructions and five pages of form. There is much valuable information provided here. The first few pages of instructions explain what is, and how to file, a Fully Developed Claim (FDC), which is a relatively quicker claim process compared to the Standard Claim Process. The remaining instruction pages discuss what evidence you should provide to support your claim, depending on the type and/or level of benefit sought: Base, Housebound, or Aid & Attendance. The last page of instructions also includes information regarding benefits for a helpless child of a veteran, validity of marriages, and the effective date.

There are 13 sections to VA form 21-534 EZ, numbered with Roman numerals. Three of these are labeled “Must Complete,” while the other 10 sections are to be completed only if applicable. You may recall that this is the opposite of VA form 21-527EZ, which has 10 compulsory sections and three optional. The reason for this is partly because the form 21-534EZ can be used for more than one type of benefit, thus some sections only apply to a particular benefit. Another reason is that, since there usually is a prior claim already on file with the VA, there is certain info that the VA already has, and thus it does not need to be provided again. The sections you should complete for death pension are sections I to III, VII to IX, and XI to XII – that is 8 sections total.

Sections I and II are for the veteran’s and claimant’s Personal and Service Information, respectively. Most of the fields here are self-explanatory. If the surviving spouse previously filed a claim with the VA or you already filed an informal claim/intent to file claim, you may have the VA file number to put in field 6; otherwise put “Unknown.” If the VA ever assigned the veteran a file number, the surviving spouse inherits that same file number. Field 13 asks if the claimant is a veteran, oddly enough because if the claimant is a veteran, he/she should be filling out forms other than the VA form 21-534EZ. Field 16 allows you to select which benefits the claimant is seeking, and you may check all that apply. The instructions for Section II Veteran’s Service Information indicate that it need not be completed if the veteran was receiving VA Compensation or Pension benefits at the time of death, because it is assumed that this would already be on file with the VA; however, as incomplete forms are not always received well by the VA, it is recommended that you complete this section despite these instructions.

Section III is for Marital Information and by definition is applicable only when the surviving spouse is completing this form. Completion of this section may make or break a claim, the reason being that with very few exceptions the surviving spouse only has a claim to the veteran’s pension by virtue of marriage. In most cases, if the claimant cannot prove a valid marriage to the veteran, the claim will be denied regardless of how eligible he/she otherwise might be. The next three sections are only required if the claimant is a dependent child (Section IV), the veteran’s parent (Section V), or is seeking Dependency and Indemnity Compensation (Section VI); otherwise they can be crossed off as non-applicable.

The next three sections (VII to IX) are related to finances and are similar to those same-numbered sections in VA form 21-527EZ. Section VII: Net Worth is for reporting all countable assets of the claimant, and any dependents should be listed here as of the effective date. Sections VIII and IX are both for reporting income of the claimant and any dependents as of the effective date. The difference is that Section VIII: Gross Monthly Income should be used to report income that is received in fixed, monthly payments, such as Social Security or retirement pension, while Section IX: Expected Income is for reporting annual amounts of income that are not received in fixed, monthly payments. The effective date is the date that the informal claim or intent to file a claim was filed, or if not filed, the date the formal claim was submitted. Every source of income received by the claimant and any dependent should appear in either section VIII or IX, but never in both.

Section X may be used for reporting unreimbursed medical, last illness, burial, or other expenses; however, if there are many expenses, the VA form 21P-8416 Medical Expense Report can be used, in which case section X is completed by cross referencing VA form 21P-8416. The last page and the three last sections of form 21-534EZ consist of Direct Deposit Information (XI), Claim Certification and Signature (XII), and Witnesses to Signature (XIII). The first two of these sections must be completed and the claimant must sign Section XII, as the VA does not recognize Powers of Attorney. The final section is only applicable if the claimant signed the previous section with an “X,” in which case two witnesses must also sign to vouch for the identity of the signer.

What you file with the VA form 21-534EZ should support the data you entered in the 13 sections of the form. This would include photo identification, birth certificate and military discharge paperwork. More importantly, include marriage certificates, divorce decrees and/or death certificates to properly document marriage to the veteran and the proper dissolution of any prior marriages. The practice in our firm is also to provide financial statements to support the net worth and income as of the effective date reported in sections VII to IX, although this is not required by the VA.

In summary, the VA Form 21-534EZ is the primary application form for a veteran’s surviving dependent seeking death pension benefits, Dependency and Indemnity Compensation (DIC), and/or accrued benefits. It is best practice to complete all three mandatory sections of this form and any of the remaining 10 sections, if applicable, and to provide all documents that support what is declared on the form. Keep up to date with changes to VA forms by updating your LWP-CCS software whenever new releases are available and by checking the VA website regularly.

Did you know we offer a FREE "VA Tech School" webinar every month? Click here to register now for this complementary webinar on Wednesday, November 4th where we'll be talking about all the changes that have happened and will happen to VA Benefits in 2015 and 2016 that may impact how you do VA planning in your firm. Register now to find out what you will miss from the Tri-annual Practice Enhancement Retreat legal-technical focus session “Changes to VA Benefits in 2015/16 and How to Profit From Them”.

By Sabrina A. Scott, Paralegal, The Elder & Disability Law Firm of Victoria L. Collier, PC and Director of VA Services for Lawyers with Purpose.

Victoria L. Collier, Veteran of the United States Air Force, 1989-1995 and United States Army Reserves, 2001-2004. Victoria is a Certified Elder Law Attorney through the National Elder Law Foundation; Author of “47 Secret Veterans Benefits for Seniors”; Author of “Paying for Long Term Care: Financial Help for Wartime Veterans: The VA Aid & Attendance Benefit”; Founder of The Elder & Disability Law Firm of Victoria L. Collier, PC; Co-Founder of Lawyers with Purpose; and Co-Founder of Veterans Advocate Group of America.

The VA Fiduciary Process

October 9, 2015

by Lawyers With Purpose with 2 Comments Estate Planning Drafting Software Systems & Processes VA

What is the VA Fiduciary Process?

The veterans benefits fiduciary process occurs when the Department of Veterans Affairs (VA) has approved a claim but has proposed a finding of incompetency of the claimant. This means that the VA believes the claimant does not have the mental ability to manage receipt of VA funds. To help the claimant with his or her VA benefit, a fiduciary needs to be appointed. The term “fiduciary process” is used to describe what happens from the time the VA approves a claim with a proposed finding of incompetency through the time the VA appoints a fiduciary and releases any withheld retroactive benefits. This process can take from three months to over a year to complete.

When can you expect to encounter the VA Fiduciary Process?

You will generally know from the first meeting with a client or client’s family members whether to expect a proposed finding of incompetency that would require that a fiduciary be appointed. At that meeting, you should note for the file the client’s medical condition, especially as it relates to competency. Another alert is the way that the doctor completes the physician statement (VA form 21-2680). If a claimant has a diagnosis of dementia, and/or if the physician indicates on the statement that the claimant does not have the ability to manage his or her own financial affairs, you can expect a proposal of incompetency by the VA.

What should you do when filing the original claim?

If you expect a proposal of incompetency, include a VA form 21-4138, Statement in Support of Claim, regarding the fiduciary process with the fully developed claim. Your statement should acknowledge evidence of incompetency, waive the right to carry a gun under the Brady Handgun Bill, waive the right to a hearing, and include the name, relationship, and contact information for the person who will be nominated as fiduciary (usually a competent spouse or other family member). The purpose of the proposal of the finding of incompetency is to give the claimant a 60-day due process period to object to this proposal. In submitting VA form 21-4138 acknowledging evidence of incompetency, the goal is to expedite the process by waiving the due process period.

What about after a claim is approved?

After filing the formal claim, you will not hear anything about the proposal of incompetency or the fiduciary process until the approval letter arrives. This letter may state that retroactive benefits are being withheld because a finding of incompetency has been proposed. However, the claimant may also receive a separate fiduciary letter regarding their legal rights during the fiduciary process. The VA will start to pay the monthly awarded benefit shortly after the date of the award letter, but any money owed back to the effective date of the claim will be withheld until a fiduciary has been appointed. Even though you may have already submitted a waiver of this waiting period with the formal claim (on the aforementioned 21-4138, Statement in Support of Claim), you should respond again by re-sending the VA form 21-4138 regarding the fiduciary process. This time, file the statement with the Pension Management Center as well as mail it directly to the appropriate fiduciary hub (the VA department that administrates the fiduciary program).

The law firm generally does not get copied on any correspondence from the fiduciary hub, even when the lawyer is acting as the VA representative. The attorney is kept in the loop for the purpose of the claim adjudication process, but once there is an approval with a proposed finding of incompetency, the fiduciary hub deals directly with the nominated fiduciary. Thus, the representative must rely on the claimant or proposed fiduciary to get information and updates. However, you can call the fiduciary hub as long as you are the VA-recognized authorized representative at (888) 407-0144 for a status update.

Then what?

Then it is a waiting game until a fiduciary hub field examiner contacts the nominated fiduciary to schedule an in-person interview. You should instruct the client to contact you when they have scheduled this interview so you can then provide further guidance as to what they should say or not say during the interview. The nominated fiduciary should expect to provide references, a credit check and possibly a surety bond if the retroactive benefit is large. After the interview has taken place, the fiduciary hub will send a letter appointing the fiduciary. The last action the firm takes is to follow up with the fiduciary to confirm that the withheld benefits are deposited and that the lump sum deposit is correct.

If you're a Lawyers With Purpose, for further information regarding the fiduciary process, especially recommendations regarding the interview and the yearly accounting, log into the members section of the website and take a look at the webinar “VA Tech School – Fiduciary Process”. The Lawyers with Purpose software and systems have an automatic workflow to assist members with this part of the VA application process.

Did you know we are hosting a FREE webinar on October 15th at 5 EST on the VA Proposed Rule Changes. Attend this webinar presented by Victoria L. Collier, CELA, the nation’s expert on VA Pension Benefits and Lawyers With Purpose to discuss these sweeping changes to the laws. At the webinar you will learn the details of the proposed changes, how to advise your clients between now and when the law changes, when we can expect the laws to change and how you can influence a more positive change. Click here to register now.

By Sabrina A. Scott, Paralegal, The Elder & Disability Law Firm of Victoria L. Collier, PC, and Director of VA Services for Lawyers With Purpose.

Victoria L. Collier, Veteran of the United States Air Force, 1989-1995, and United States Army Reserves, 2001-2004. Victoria is a Certified Elder Law Attorney through the National Elder Law Foundation; Author of “47 Secret Veterans Benefits for Seniors”; Author of “Paying for Long Term Care: Financial Help for Wartime Veterans: The VA Aid & Attendance Benefit”; Founder of The Elder & Disability Law Firm of Victoria L. Collier, PC; and Co-Founder of Lawyers With Purpose.

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Understanding Grantor Trusts

October 7, 2015

by David Zumpano with No Comment Estate Planning Drafting Software

Many lawyers are perplexed when utilizing grantor trusts in estate, asset protection and benefit planning. It is easy to become confused when comparing grantor trusts with pure grantor trusts. Let's review these issues systematically.

The Internal Revenue Code provides that if a trust triggers any of the provisions identified in Sections 671 through 679 of the Internal Revenue Code, all income from that trust will be taxed to the grantor regardless of who receives it. The most typical provisions in a trust that trigger grantor trust status are if the grantor retains an interest in the income or principal from the trust, the power to control who gets the income or principal, the power to revoke the trust, or the right to borrow money from the trust without adequate interest or security. Grantor trust status also occurs if the grantor has the right to pay premiums on life insurance on the grantor. Interestingly, triggering a "grantor trust" status does not necessarily trigger the principal of the trust to be included in the estate of the grantor at death. It's merely an income tax impact.

To determine if assets in a trust are included in the grantor's estate at death for estate tax purposes, one must look to the provisions of Sections 2035 through 2042 of the Internal Revenue Code to determine whether estate tax inclusions are triggered. Inclusions are typically caused by provisions that allow the grantor the right to possess or enjoy the property of the trust or receive the income or principal of the property from the trust, or to be able to designate who will.

Other provisions include maintaining a revisionary interest to the grantor in excess of 5 percent, or permitting the grantor to have any other interest in the trust at death. While some of the grantor trust provisions can also trigger estate tax inclusion, one can often craft a trust to ensure that the principal of the trust is not included in the estate of the grantor, but the income tax is. This strategy of “Grantor Trust” status allows additional gifts by the grantors that are not subject to the annual gift tax exclusion. Restated, the additional income tax being paid by the grantor is money that would otherwise have been paid by the trust to beneficiaries who received the proceeds. Having the income taxes come out of the grantor's assets, and not the trust principal, permits the additional accumulation of funds for the beneficiaries without any gift tax consequence for the grantor. Most typically, irrevocable life insurance trusts are grantor trusts for income tax purposes, but are not included in the estate of the grantor at death.

So then, what is a Pure Grantor Trust? That is a term of art to describe a trust that taxes the grantor on the income (grantor trust) and ensures that the assets of the trust are included in the estate of the grantor. A Pure Grantor Trust is both a grantor trust for income tax purposes and is included in the estate of the grantor at death. Fifteen years ago, many would consider such a trust as malpractice, but since the change in the estate tax laws in 2001, this has become the preferred plan of 99.8 percent of Americans.

Why?

Because they are not subject to federal estate taxes, and including the assets of the grantor in their estate provides for a "step up" in tax basis after death. This ensures that their heirs inherit the property at the fair market value determined at the grantor's date of death, rather than carry-over tax basis, in which the heirs inherit the property at the cost the grantor paid for it. Unfortunately, many lawyers are still stuck in the pre‑2001 mindset and restrict clients to plans based on the estate tax avoidance rules. The key now is understanding when to use each type of trust.

Typically individuals with more than $5,430,000 or couples with more than $10,860,000 are concerned with the estate tax and would be more likely to use the traditional irrevocable trust that avoids estate tax inclusion in the grantor's estate at death. Individuals with less than $5,430,000 are better served using the Irrevocable Pure Grantor Trust™ (iPug®) to achieve asset protection from creditors, predators, and long-term care costs, and to ensure they remain eligible for needs-based benefits such as Medicaid.

Distinguishing the different trusts and their uses comes down to identifying the need of the individual client. Obviously, revocable trusts are pure grantor trusts and have all income taxed to the grantor, and all of the principal is included in the estate of the grantor. Revocable trusts are traditionally used to provide for the proper distribution and management of assets during the life or after the death of the grantor. Alternatively, if an individual has a taxable estate under federal or state law, then a non‑grantor trust is typically the trust of choice to ensure that the principal of the trust is not included in the grantor's estate. Whether the income is taxed to the grantor or not is also client goal specific. Notwithstanding, in most cases practitioners will choose to make irrevocable trusts grantor trusts to take advantage of the additional reduction in the grantor's estate and to benefit the beneficiaries by having income tax paid by the grantor.

Individuals who are not subject to estate tax and who are concerned about asset protection are better served with the iPug Trust, which allows them to be the trustee and maintain full control of the trust assets, and even allows them to retain benefits from them to the extent they are willing to risk them. For example, an income-only iPug Trust will allow the grantor rights to all of the income, which also makes the income available to the grantor's creditors and predators. These trusts have become the trusts of choice when doing Medicaid benefits planning, because they are compliant with federal and state Medicaid laws so as to ensure that the assets in the trust are not considered an available resource in determining the Medicaid eligibility of the grantor.

Finally, when planning for veteran's benefits, particularly Aid and Attendance Pension Benefits, the traditional Irrevocable Non-Grantor Trust is the trust of choice that provides the grantor is not deemed to be the owner for income tax purposes, and it is not included in the grantor's estate at death. While often these individuals are not concerned about estate taxes, the current policy of the Veterans Administration is that if any trust created by the applicant provides any benefits to the grantor, all assets in the trust are deemed available to the grantor in determining eligibility for Aid and Attendance Benefits. Therefore, when doing veteran benefits planning, the same trust is used as if doing advanced estate tax planning.

So which is the best trust for your client? All of them depend upon your client's needs. It is your responsibility to ensure how to draft the trusts in regards to the provisions of IRA Sections 671 to 679 and 2036 to 2042 and the resulting impact of Non-Grantor Trusts starters, Grantor Trust starters, or Pure Grantor Trusts starters. That's why the Lawyers with Purpose client-centered trust software system is your answer to keep it all straight, because it warns you if you choose inconsistent options that may trigger different results based on the client's intentions. Don't go it alone, let Lawyers with Purpose show you how.

If you want to know more about our estate planning drafting software, schedule a free live demo by clicking here and discover the most powerful, flexible and easy to use software that will help your grow your practice.

David J. Zumpano, Esq, CPA, Co-founder Lawyers With Purpose, Founder and Senior Partner of Estate Planning Law Center

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Analyzing the Zahner Holding: Moving Forward Using Short-Term Annuities as Successful Planning Tools

October 1, 2015

by David Zumpano with No Comment Asset Protection Estate Planning Drafting Software

In 2014, the U.S. District Court for the Western District of Pennsylvania held that three separate Medicaid Compliant Annuities with "short" term repayments were sham transactions for less than fair market value, as the intentions of these annuities were to shield resources from Medicaid eligibility. The claimants appealed the decision. This month, the United States Circuit Court of Appeals for the Third Circuit issued their decision regarding the claimants’ appeal. The Third Circuit’s decision sets a precedent is important for Elder Law practitioners, not only in Pennsylvania, but potentially in our field at large.

The Holding

Each case involved Medicaid claimants who purchased annuities after making uncompensated
transfers to qualify for Medicaid benefits. Two of the purchasers were married at the time of purchase and one was not. One case involved an 18-month annuity purchase, while the applicant's life expectancy was 9.5 years. The second appellant purchased a 14-month annuity, with a life expectancy of almost 7 years. The third appellant purchased a 12-month annuity, with a life expectancy of 11.3 years.

The District Court made two holdings in the Zahner case. First, the District Court held that federal law preempted the Pennsylvania rule stating all annuities held by a Medicaid applicant and / or his spouse are not assignable, and thereby countable resources, as the Pennsylvania rule was in direct conflict with federal Medicaid law. The Third Circuit upheld this portion of the District Court decision. Second, the District Court ruled that the purchases of the annuities were sham transactions for less than fair market value. The District Court reasoned that because the annuity terms were not correlated closely enough to the life expectancies of the claimants, they were actuarially unsound. The Third Circuit overturned this portion of the District Court’s decision, opining that an annuity is actuarially sound if its term is less than the annuitant's reasonable life expectancy under the safe harbor provision.

What We Have Learned as Practitioners

By examining in detail the Third Circuit’s Zahner holding, we can get a much better picture of what to look for in annuities moving forward, and how to protect our clients in their purchases of Medicaid Compliant Annuities. It is exciting knowing that short-term annuities are a valid planning tool, in accordance with the Third Circuit’s decision.

The Safe Harbor Provision

The Safe Harbor Provision, 42 US §1396p(C)(1)(F), (G)(ii), states that certain annuities do not disqualify those otherwise eligible from receiving Medicaid benefits. The federal Medicaid law, through the Deficit Reduction Act (DRA), establishes a four-part test for annuities to fall within the Safe Harbor Provision. An annuity must (1) name the State as remainder beneficiary; (2) be irrevocable and non-assignable; (3) be actuarially sound; and (4) provide for payments in equal amounts, during the term of the annuity with no deferral or balloon payments. The Pennsylvania Department of Human Resources (DHS) attacked the annuities on two separate grounds. The first ground was that the annuities were not irrevocable, and the second ground was that the annuities were not actuarially sound. These are the prongs of the Safe Harbor Provision that we will look to in analyzing the Third Circuit’s decision.

Assignability

Pennsylvania Statute Sec. 441.6(b) states that "any provision in any annuity … owned by an
applicant or recipient of medical assistance … that has the effect of limiting the right of such
owner to … assign the right to receive payments thereunder … is void." Pennsylvania DHS argued that this law caused all annuities purchased by Medicaid applicants in Pennsylvania to fail the safe harbor test. The District Court and the Third Circuit held that this is untrue. The Third Circuit opined that all states that wish to participate in the federal Medicaid program must comply with federal eligibility requirements. The Federal Medicaid Act allows states to establish more liberal requirements than the federal rules when implementing the State Medicaid plans, but they cannot provide more restrictive ones. Therefore, citing the Supremacy Clause, the Third Circuit said that the state rule was pre-empted by the federal law and the state must acknowledge the assignability of an annuity in accordance with the intent of Congress. The Third Circuit went on to further express Congress' intent by stating that in married cases any annuity that was payable to the community spouse would count as an income source to the community spouse and could not be a resource for the institutionalized spouses.

Actuarially Sound

The Pennsylvania DHS made two arguments that the annuities were not actuarially sound. First, they argued that the annuities were trust-like in that they were transfers made to a trustee or trustees with the intention that the annuity be held, managed, or administered by the trustee(s) for the benefit of the grantor or certain designated individuals (beneficiaries). Pennsylvania Transmittal 64. The Third Circuit stated strongly that there is no fiduciary relationship between the insurance company and the annuitant like that of a trustee and a beneficiary, as the insurance company has no duty to invest for the benefit of the annuitant, as long as the payments are made on schedule.

Second, the Pennsylvania DHS argued that the annuities were not actuarially sound because the annuity terms were shorter than a "term of years," and the annuitants lost money in each fact pattern presented to the Court. The Third Circuit held that as long as annuity terms are not longer than the reasonable life expectancy of the individual, the transfer is not being made for less than fair market value and the trust remains actuarially sound. The Third Circuit further interpreted "term of years” to be any reasonable time period, and while minutes or days may be a sham period of time, that was not the case here, as the term of months comported with the annuitants’ life expectancies.

National Impact

As Lawyers with Purpose attorneys desiring to use the best planning tools for our clients moving into the future, this ruling is important in many of its findings. The ruling holds that while the state may allow more liberal interpretations of the federal Medicaid rules, it is against the U.S. Congressional intent and in violation of the Supremacy Clause for the state to be more restrictive on Medicaid eligibility than the federal rules allow. The holding further makes a clear distinction between annuities and trusts on the federal level, stating that there is no fiduciary relationship between the annuitant and the insurance company as the insurance company has no obligation to invest in any way in the best interest of the annuitant. The Third Circuit also offers a more clear definition of what a period of time is for purchases of Medicaid Qualified Annuities, allowing purchases for less than a term of years if the time period of payout is in proportion to the annuitant’s life expectancy. In conclusion, the Zahner decision provides solid legal precedent for the continued use of short-term annuities in Medicaid planning.

Please join Dave and me in Phoenix as we discuss the potential implications of the ruling on Medicaid Compliant Annuities in our focus session on Wednesday, October 21st at the Tri-Annual Practice Enhancement Retreat. There are only a few spots left and the doors close TODAY at 5!

Kimberly Brannon, Legal-Technical and Software Trainer at Lawyers With Purpose

Focus on Forms: Third Party VA Forms – the 21-22a and 21-0845

September 29, 2015

by Lawyers With Purpose with 5 Comments Estate Planning Drafting Software Legal Technical VA

This post is an installment in the Focus on Forms series, which considers and discusses some of the most common forms associated with Department of Veterans Affairs (VA) pension claims. The goal of this post – like all those in the Focus on Forms series – is threefold: to define the purpose of the forms; to discuss how they should be completed; and to recommend what to file with these forms. Today’s subject is the forms related to third parties that may be involved in a pension claim, specifically, the 21-22a and the 21-0845.

Purpose of the 21-22A and the 21-0845

The VA forms 21-22a and 21-0845 are used to establish representation of a claimant by a third party and authorize the release of information to a third party, respectively. The VA does not recognize Powers of Attorney and will only speak or release information to a claimant unless a third party has been recognized by the VA as the claimant's authorized representative or recipient of personal information. The only other person who would be able to communicate or obtain information from the VA regarding a claimant would be the person appointed as fiduciary after an award has been adjudicated and when a claimant has been deemed incompetent. These forms do not have any impact on the processing of the VA claim other than to identify to whom the VA can disclose information. If there is no third party representing the claimant, these forms do not need to be submitted to the VA.

Form 21-22a is entitled, “Appointment of Individual as Claimant’s Representative” and is to be used by accredited attorneys, accredited agents, private individuals, or service organization representatives who want to be recognized in the “preparation, presentation, and prosecution of claims for VA benefits for a particular claimant.” It is a two-page form with instructions embedded in the fields. The individual named on this form should be copied on all correspondence issued by the VA regarding the claimant.

Form 21-0845 is the Authorization to Disclose Personal Information to a Third Party and was recently updated by the VA. The current version is dated May 2015 on the lower left corner of the form. The new version is available in the latest release of the Lawyers with Purpose VA software. It consists of a single page with an introductory first page of general information and specific instructions. It is used to identify non-accredited third parties that can be given information about the claim, but it does not imply that these parties in any way “represent” the claimant. For example, a child, home health care company or assisted living facility may be listed as having authority to obtain information. Note that forms 21-0845 signed by VA beneficiaries who have been deemed incompetent will not be accepted. Therefore, it is best practices to have the claimant sign this form before submitting a claim for benefits, which is a time frame wherein the VA presumes the person is competent.

Completing the 21-22a and the 21-0845

Both of these forms are fairly straightforward. Per the Respondent Burden field in the upper right corner of these files, they should each take no more than 5 minutes to complete. This is an accurate assessment. What is likely to take more time on the VA form 21-22a is getting all the necessary signatures in the appropriate places. It can be confusing, but the claimant and the representative each sign twice – once on each page. Most of the other fields are self-explanatory. An important feature that may easily be overlooked on the 21-22a is a cleverly hidden field that has no number. It is on the second page in the section called “Conditions of Appointment.” The very fine print here indicates that if the individual named on the form as representative is “an accredited agent or attorney, this authorization includes the following individually named administrative employees of my representative.” In the space that follows, you may list all such non-accredited team members who may need to call the VA regarding the status of a claim.

The 21-0845 has similar fields to those in the 21-22a, with the notable exception that the latest version of the 21-0845 now sports the individual character boxes to aid the VA in computer processing of forms at intake. The 21-0845 also allows you to select a security question and answer that you may need to provide as confirmation that you are the person identified when you telephone the VA.

What to file with the 21-22a and the 21-0845

There is nothing in particular that is required to be filed with either of these two forms. They both should be submitted with an Intent to File a Claim or the Fully Developed Claim. They should also be included with any other correspondence you may need to address to the VA, particularly when the third party is the individual signing the correspondence.

The individual appointed as the claimant’s representative on the form 21-22a will automatically be authorized to receive the information accessible by the form 21-0845. So you may ask, why file the 21-0845 in addition to the 21-22a? Some VA call center agents employ the extra security layer provided by the form 21-0845 and will require the response to the security question before they release any information over the telephone. Furthermore, you cannot have more than one 21-0845 on file with the VA at any one time. By filing one with your client’s claim, you ensure from the outset that your firm is the only third party with access to that claim information. Subsequent 21-0845s that are filed will not replace the active one on file until the claimant has notified the VA that he/she wishes to withdraw it.

As mentioned above, neither of these forms will directly affect the adjudication of a pension claim, but when in place they allow you to manage the claim more effectively. Without the powers these forms bestow, you are dependent on receiving information secondhand and perhaps not in a timely manner, which can in turn lead to unnecessary denials.

If you want to sharpen your VA technical legal saw, we offer a free "VA Tech School" webinar the first Wednesday of every month. Click here and join us on Wednesday, October 7th at 12 EST. This month's topic is "Denied Benefits Due to Transfers of Assets: How to Appeal and Win!" Register today!

By Sabrina A. Scott, Paralegal, The Elder & Disability Law Firm of Victoria L. Collier, PC and Director of VA Services for Lawyers with Purpose.

Victoria L. Collier, Veteran of the United States Air Force, 1989-1995 and United States Army Reserves, 2001-2004. Victoria is a Certified Elder Law Attorney through the National Elder Law Foundation; Author of “47 Secret Veterans Benefits for Seniors”; Author of “Paying for Long Term Care: Financial Help for Wartime Veterans: The VA Aid & Attendance Benefit”; Founder of The Elder & Disability Law Firm of Victoria L. Collier, PC; and Co-Founder of Lawyers With Purpose, www.LawyersWithPurpose.com.

Is Your Practice … Uhmmmm, Easy?

September 28, 2015

by David Zumpano with No Comment Coaching & Implementation Estate Planning Drafting Software Systems & Processes Team Building

Many lawyers are frustrated when it comes to operating the "business" of their practice. Law school taught us how to think critically and help people, but it did not teach us how to run a business. As a result, much pain and long hours of work and frustration are created. Balancing the needs of your clients and operating your business is one of the most frustrating elements of running a law practice. The good news is, fixing it is not hard, it just requires a basic understanding you never got in law school. Let's begin by identifying whether you have effective employees.

In coaching hundreds of law firms over the past 15 years, I have a question I ask consistently: "Is it occurring?" What does that mean? Essentially, if what you want to be happening is happening, then it's occurring. If what you want happening is not happening, then it's not occurring. Simple enough? So let's analyze this in your practice. If you're frustrated with a certain part of your business, like hiring employees, because it's not being done effectively, then it's not occurring. If it's not occurring, then the person responsible for doing it does not have the proper skill set. Unfortunately, in a small practice that's usually you. So you must find others who know how to do it so you can get the employee hired effectively. This can be someone in your firm, or you can reach out to others and outsource your need. (LWP has many system services for estate planning attorneys; that’s what distinguishes this organization from most others.)

The interesting thing is, for those individuals you reach out to for help, it's really easy for them, which amazes most attorneys because we don't get it and it's so frustrating to us. (I personally hate it.) But for those who have the skill set, it's easy and it occurs! So as you look around your practice, if there's an area causing you pain, it is a clear message that you lack someone with a natural skill set to perform that task or duty. If drafting is not happening effectively, then you need to get someone who does it easily. They're out there and you can't stop until you find someone, because once you do, your life and your practice will change dramatically.

In building companies over the last 15 years, the level of pain I have endured along the way sometimes was unbearable. But now, as I have reached a point where many of those companies are operating without me, I look back at what the key issues were that I had to overcome. The answer? It all came down to skill set and ease!

What was difficult and frustrating for me was very easy for other people with the right skill set. To identify what five skill sets you need, your role and what roles you need to fill to support you, join us at our Tri-Annual Retreat in October. So the stress of running your business can subside and you can focus on what you do best and what is "easy" to you, and leave the other roles to the people who find them "easy" to do. Doors close October 2nd and we will NOT have any seats remaining, I promise you that!. It's not hard. Let Lawyers with Purpose show you how. Click here to register now.

David J. Zumpano, Esq, CPA, Co-founder Lawyers With Purpose, Founder and Senior Partner of Estate Planning Law Center

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Annuity or Promissory Note?

September 23, 2015

by David Zumpano with One Comment Asset Protection Estate Planning Drafting Software

I'm intrigued with how many lawyers use Medicaid-qualifying annuities when doing crisis Medicaid planning. Medicaid-qualifying annuities address a core issue in crisis Medicaid planning for applicants with excess resources. The annuity acts as a “spend down,” which often leads to immediate eligibility for the client. The promissory note has the exact same impact and use in this fact pattern, but interestingly, it is used less often, even though it’s much easier to achieve eligibility, which will disqualify the individual for benefits for a period of time. The question becomes which to use and why.

The Omnibus Reconciliation Act of 1993 (OBRA) was the first legislation that began to set parameters for annuities to be Medicaid-qualifying. Essentially, it requires the annuity to be irrevocable, non-assignable, to have no cash value, and to be payable over the life expectancy of the annuitant. The Medicaid-qualified annuity rules are further enhanced by the Deficit Reduction Act of 2005 (DRA), wherein it also required that all annuities must have equal monthly payments with no delay in or balloon payments, and the annuity must name the state as the irrevocable beneficiary after the death of the annuitant. This significantly reduced the use of Medicaid annuities as a spend-down strategy to only married applicants, but it still allows them to be used in a crisis case to become “otherwise eligible” and use the annuity funds to be used for payment of long-term care costs during any disqualification period created by any uncompensated transfer.

DRA 05 also provided the first legislative permission for Medicaid-qualified promissory notes. DRA specifically provides that a loan to a third party by a Medicaid applicant will be deemed as a compensated transfer if it is irrevocable and pays over the life expectancy of the applicant. Essentially, DRA 05 permitted every individual to create a private annuity. The one risk, however, is that the statute does not require a promissory note to be non-assignable, so if it is assignable, it will be a countable resource in determining Medicaid eligibility because it is saleable and has a value. To avoid this, ensure that your promissory note is non-assignable.

So the question becomes, if you can do your own promissory note, why would you ever use a Medicaid-qualifying annuity?

The answer comes down to your state's application of the DRA 05 laws regarding promissory notes. While the federal law is clear that they are permissible, some states still don't permit them and count them as an available resource in determining the eligibility of a Medicaid applicant. This perplexes me, as federal law is clear, and under federal law, the state law cannot be more restrictive than the federal law. Most states that have taken a position against promissory notes have seen that position overturned by legal proceedings, whereas many states that do not permit promissory notes have not been effectively challenged.

Notwithstanding, as estate planners we are not litigators, and we strive to avoid litigation. So if your state does not permit promissory notes, then the path of least resistance is using Medicaid-qualifying annuities. When given the choice, a promissory note is easier, it can be done within the confines of your own office and it can be customized to the individual needs of the client, whereas Medicaid-qualifying annuities are typically restricted by the minimum period of time required by the insurance companies (typically a 24-month payout). To learn how to effectively use a Medicaid annuity versus a promissory note, let LWP show you.

We still have a few spots left in the room at the Tri-Annual Practice Enhancement Retreat but register now. Registration closes October 2nd and we WILL reach capacity … (we always sell out)! If you're an estate or elder law attorney, you don't want to miss this! Click here to register now.

David J. Zumpano, Esq, CPA, Co-founder Lawyers With Purpose, Founder and Senior Partner of Estate Planning Law Center