Jun 11, 2015
By Elder Law attorney Rick Law. Estate Planning and Elder Law lawyer at the Estate Planning Center of Law Elder Law in suburban Aurora, Illinois. Just West of Chicago off of the I-88 tollway Farnsworth exit
Another tool often used is the third-party trust created for a public benefits recipient. This type of special-needs trust is more commonly used to protect a child with disabilities.
The creation of that trust is not necessarily patterned upon either asset-protection-trust concepts or language applicable to the creation of a special-needs trust by a parent for a child with special needs. Neither of these two concepts will succeed in the creation of a special-needs trust between spouses. In the intra-spousal special-needs trust arena, there is a hidden adversary that can pierce the shield of the purported special-needs trust erroneously founded on the traditional concepts noted above.
This hidden and powerful adversary is the state’s Medicaid department. The Medicaid department has the power to deem any assets funded into an unallowable special-needs trust “available” to be used for an individual’s care in the event that the individual applies for nursing home Medicaid benefits. Failure to consider the destructive power of this adversary can leave many practitioners subject to malpractice claims.
It is almost impossible to successfully use an inter vivos trust to transfer assets to a special-needs trust for the benefit of a spouse and also protect those assets from being deemed available by a state’s Medicaid authorities.
If your loved one has memory problems and you’re afraid of the consequences that may bring, give our office a call today at 800-310-3100. Your first consultation is absolutely free. We’ll let you know what steps you need to take, right now, to protect yourself and your family. Call now.
Rick L. Law, Attorney, Estate Planner for Retirees.
Rick was named the #1 Illinois elder law estate planning attorney by Leading Lawyer Magazine. He has been quoted in the Wall Street Journal, AARP Magazine, TheStreet.com, and numerous newspapers and articles. Rick is the lead attorney for Law Elder Law, LLP, focusing in Estate Planning, Guardianship, and Nursing Home Solutions. His goal is to give retirees an informed edge when it comes to dealing with an uncertain future. Get flexible retirement strategies that work during good times and bad, plus information on how you can save your home and assets from being used to pay for long term care. Call 800-310-3100 for your free consultation now!
My wife and I had our first child three years ago. That’s when we decided to set up a trust, should anything happen to either of us. We reached out to Zach Hesselbaum to help us out. He was very thorough and professional throughout the whole process. Zach went above and beyond to make sure that we understood every detail of setting it up and he did an excellent job. We recently had our second child a few months ago. With the new baby, he helped us make the necessary revisions to the trust. Zach made this process great for us! I would definitely recommend using him for any of your estate planning needs!
Tom G., Naperville, IL