May 27, 2015
By Estate Planning and Elder Law Attorney Rick Law of the Estate Planning Center at Law Elder Law. Focusing on wills, trusts, medicaid crisis planning, guardianship, probate, and much more in the western Chicago suburb of Aurora, IL
A properly drafted supplemental-needs trust that is funded appropriately is going to wind up in one of two categories: it may be a payback trust, meaning at the end of a person’s life any funds in the trust will need to be repaid to the state for a Medicaid lien, or it may be a non-payback trust. Non-payback trusts most often are the special-needs trusts created by a third party where the third-party was never legally obligated to pay for the person’s health care.
In too many circumstances, a special-needs trust is used that doesn’t fit the circumstances of an aged individual needing long-term care. The most common uses of special-needs trusts are to assist either younger individuals who receive monies from a personal injury award due to an accident, or a child with special needs who has been left money in the estate of a parent. These are more common types of special-needs trusts but they are not appropriate for elderly clients with Alzheimer’s disease.
When trying to determine the proper use of a special-needs trust when dealing with a mature couple, lawyers are there to assist their clients in making sure that dignity is preserved for the ill spouse in the unlikely, but still extremely possible, event that the healthy spouse predeceases the ill spouse.
One of the real challenges of trying to create a special-needs trust when one spouse is the grantor and the other spouse is to be the special needs trust beneficiary is that typical state and federal laws view spouses as having a duty of paying for the health care of their spouses. This concept goes back to the middle ages under common law; it was deemed that spouses have a duty to pay for the necessaries of their spouse and nothing could be more necessary than health care.
However, with the proper planning and administration, the funds in such a trust may be devoted to enhancing the quality of life of a person with disabilities, while at the same time allowing the person to still qualify for as many governmental benefits as possible.
If you’re ready to start getting your estate in order and secure your assets for the “worst-case” scenario, please give our office a call 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