De Castroverde Law Group is proud to bring you a criminal defense team with unparalleled knowledge and experience. The team is led by two former prosecutors who are universally well-liked and exceptionally respected. ALSO HELPING ATTORNEYS WITH ANY DISCIPLINARY MATTERS. Special Needs Trust Planning Provides Guaranteed Supplemental Relief for Individuals Receiving Government Needs-Based Assistance BY STEPHANIE HARTMAN ROJO, ESQ.

Individuals receiving government needs-based The three categories of SNTs are assistance (benefits recipients), such as Medicaid or summarized below. Supplemental Security Income, must delicately manage their exempt First Party or d(4)(A) assets and personal asset limits (resource exclusions)1 in order to Special Needs Trust4 maintain their ongoing public benefits eligibility. A creation of federal law, a First Party CRAIG HENDRICKS FRANK JOHAN COUMOU A relatively small amount ($2,000 or less)2 can disqualify a benefits SNT is an irrevocable, self-funded trust Craig’s vast experience and wealth of knowledge comes from his Frank joins the Dream Team after serving in the United States recipient. With this in mind, even a small settlement, damages award, established by a benefits recipient (aged decades with the Clark County District Attorney’s Offi ce, culminating in Attorney’s Violent Crimes and Strike Force Unit. Prior to that, he spent or outright gift, despite the best of intentions, if not planned for 65 and younger), their legal guardian or his tenure as Chief of the Special Victims Unit. He supervised attorneys 25 years as a prosecutor in the Clark County District Attorney’s Offi ce properly can be detrimental, resulting in disqualification and lapse in benefits. even by court order, using the benefits on the general litigation team, and specialized in cases such as rape, where he rose to Chief of the Homicide Unit. He has prosecuted more Lack of information in this regard may cause a benefits recipient recipient’s personal assets. Assets child abuse, and molestation. As one of the most respected trial than 120 felony jury trials, and has extensive experience in handling to: 1) receive an unstructured inheritance, disqualifying them from their contributed into a First Party SNT may attorneys in the community, he has spent several years volunteering high-profi le cases. Frank is also fl uent in Spanish. come from any funds directly owned or to assist with mock trial programs at UNLV’s William S. Boyd School benefitsor 2) be unnecessarily disinherited. In the first scenario, the public benefits program’s purpose is undermined entirely. In the second scenario, distributable to the benefits recipient as of Law and at local high schools throughout Las Vegas. 3 disinheritance effectively eliminates the opportunity for supplemental an inheritance, a award, a support. This is why proper planning is essential. judgment or settlement award or even a Attorneys are uniquely situated to navigate clients, specifically those wrongful death award after the loss of a concerned with maintaining their own or someone else’s ongoing needs-based loved one. benefits eligibility, toward sound and valuable resources available to help the There are strict requirements Nevada Lawyer Lawyer Nevada

surrounding the creation of a First Party benefits recipient. This article highlights one particularly helpful technique: SNT as well as the use and management • the Special Needs Trust (SNT). SNTs are used to provide financial support for a of trust-owned assets. For example, a 702.222.9999 benefits recipient cannot serve as their benefits recipient, without jeopardizing their public benefits eligibility. An SNT own . If the benefits recipient has

can meet a benefits recipient’s needs where their current assistance programs April 2021 3 are lacking, drastically improving the benefits recipient’s quality of life. CONTINUED ON PAGE 22 21 TRUST COMPARISON CHART

CONTINUED FROM PAGE 21

already provided by existing benefits). Special Needs Trust Planning Such funds are not considered a resource of the benefits recipient and Provides Guaranteed Supplemental therefore will not affect their ongoing eligibility requirements. Relief for Individuals Receiving Unlike First Party SNTs, there is no age limit with respect to the benefits Government Needs-Based Assistance recipient. A payback provision is not required and should not be included any control over their SNT, its assets The benefits recipient or their in the terms of the trust. Instead, will be considered a resource to the legal guardian must disclose and upon the benefits recipient’s death, if benefits recipient and will therefore be provide a copy of their First Party SNT assets remain in trust, property may counted against their eligibility asset directly to the Division of Welfare be distributed to any combination of limit. Further, direct cash distributions and Supportive Services (DWSS) for beneficiaries as determined by the or cash equivalents (like gift cards) review and approval. If not approved, grantor, without Medicaid Estate larger than $20 are never allowed. There the assets will be a countable resource Recovery. are also specific restrictions regarding to the benefits recipient, causing Depending on the grantor’s how and in what manner SNT funds disqualification and a lapse in benefits. wishes, Third Party SNTs can either may be used. Primarily, no one else may Therefore, it is critical that a party be revocable or irrevocable during the directly benefit from the trust. Funds to the trust, whether trustee or trust grantor’s lifetime. If the Third Party may be used for a variety of expenses, protector, have authority to amend the SNT is revocable, there is flexibility to including the benefits recipient’s travel, trust for limited compliance purposes. modify the Third Party SNT provisions hobbies, education and other needs that Once the SNT is established, in the event that the grantor or benefits current benefits do not cover. funded and approved, the trustee recipient’s finances change, needs has ongoing change, other opportunities arise, or responsibilities that the benefits recipient dies. heT trust must be strictly terms may also include a provision followed to avoid allowing for the trust to convert to disruption to the a general if the benefits recipient’s benefits recipient’s condition improves, eligibility. For eliminating their need for benefits. instance, the trustee must notify DWSS of 6 expenditures larger Pooled or d(4)(C) Trust than $5,000, prepare A Pooled Trust, another creation of and provide an annual federal law, is an option when neither accounting, and notify a First Party nor a Third Party SNT DWSS in the event of is practical, as in situations where a the benefits recipient’s benefits recipient inherits an amount death. exceeding the exemption limit but that is too small to warrant the cost of creation and administration of the other The terms of the First Party SNT Third Party Special Needs SNT options. must also include a payback provision Trust or Discretionary Trust Pooled Trusts are irrevocable whereby, upon the benefits recipient’s trusts established and administered by a

death, any assets remaining in the Third Party SNTs are established non-profit organization. With a Pooled SNT are payable first to the state, via with funds belonging to someone other Trust, the benefits recipient or a third Medicaid Estate Recovery (with some than the benefits recipient, although party enters into an agreement with the exceptions) up to the total amount of typically by family member(s), such as non-profit that administers the Pooled the lifetime assistance received by a parent or grandparent. Trust, detailing what funds are to be

Nevada Lawyer Nevada 5 the benefits recipient. If, after full Just as with First Party SNTs, contributed and then earmarking their • repayment to the state, additional trust the benefits recipient may not be the use for the specific benefits recipient. assets remain, then such assets are trustee or have control or direct access Pooled Trusts are unique in that distributable to the other beneficiaries to the trust funds, and funds may only assets of various benefits recipients are

April 2021 named in the trust. be used for supplemental purposes (not combined or pooled for investment and

22 the charitymaykeepremaining reimbursement. After thepayback, Estate Recoveryhaspriorityfor meaning, onceagain,Medicaid the inclusionofapaybackprovision, the Pooled Trust formalitiesrequire benefits recipientinthepooledgroup contributed andallocatedforeach maintains anaccountingoffunds making optimization. The non-profit management efficiency, anddecision- 1. ENDNOTES: mandatory payback provision? mandatory include a the trust Must ? the benefitsrecipient/trust isthere an age limit for trust, the establish to In order recipient? the benefits directly to May assets be paid trust as trustee? serve eligible to Is the benefits recipient the trust? Who establishes fund the trust? Whose assets are used to 14, 2021). nsf/lnx/0501130000 Exclusions, (POMS): SI01130.000 Resource Program OperationsManualSystem Just aswiththeFirstPartySNT, https://secure.ssa.gov/poms. (lastvisitedJanuary

Yes, age 65 and younger No No order recipient, or by court of the benefits guardian The benefits recipient, the benefits recipient in owned byAsset(s) or vested Yes . FIRST PARTY SNT FIRST 2. save abenefitsrecipientfrombeing attorney. Intheprocessy an appropriatetrustand/orpracticing planning, benefits eligibilityorspecial-needs about maintainingtheirpublic- If comes tospecialneedstrustplanning. clients’ needsandconcernswhenit purposes. trust assetsfortheirgeneralcharitable January 14,2021). medicaid-eligibility-nevada/ www.medicaidplanningassistance.org/ American Councilon Aging, Term Care:Income& Asset Limits Nevada MedicaidEligibilityforLong your clients Keep aneyeandearopentoyour youcansteerthemtoward 7

areatallconcerned recipient other than the benefits owned byAsset(s) someone No No No No benefits recipient Someone other than the ou mayhelp THIRD PARTY SNT (lastvisited https://

3. their comfortandqualityoflife. benefits intactwhileincreasing help abenefitsrecipientkeeptheir appropriate resources,youcan By directingyourclientsto current that couldreduceoreliminatetheir member orfromfaultyplanning disinherited byanaïvefamily Manual Manual. Services (DWSS)Medical Assistance Department ofWelfare andSupportive located insectionF-500 Special Needs Trust requirementsis More informationaboutNevada DepartmentofHealth and needs-based assistance. See someone else benefits recipient or owned byAsset(s) the Yes by state vary Generally, no; but may No No order. or by court guardian legal parent, grandparent, by the benefits recipient, may be made organization with the non-profit Pooled Trust. An agreement the general establishes organization A non-profit

Medical Assistance POOLED TRUST CONTINUED ON PAGE 25 et al. ofthe

23 April 2021 • Nevada Lawyer 3

Assistance Needs- Government Individuals Receiving ReliefSupplemental Provides Guaranteed Trust Planning Special Needs 7. 6. 5. 4. CONTINUED FROM PAGE 23 nvestateplan.com or byemailat by phoneat702-998-0444 matters. Shecanbereached administration andprobate on estateplanning,trust regularly counselsclients effective estateplansand Offices Ltd.,shedesigns attorney forStoneLaw (’14). As anassociate University SchoolofLaw Regent (2009) and University of Stanford is agraduate ROJO HARTMAN STEPHANIE January 20,2021). estate-planning-2/ voice/using-pooled-trusts-in- specialneedsalliance.org/the- Needs Alliance, Estate Planning Using Pooled Trusts in 42 U.S.C.§1396p(d)(4)(C). (last visitedJanuary14,2021). dhcfp.nv.gov/Pgms/CPT/xMER/ Care FinancingandPolicy, Human ServicesDivisionofHealth Nevada DepartmentofHealthand Medicaid EstateRecovery(MER) 42 U.S.C.§1396p(d)(4)(A) January 21,2021). Manual-3-CONT/ dwss.nv.gov/Medical/Medical- and SupportiveServices, Human ServicesDivisionofWelfare Based stephanie@ . Special https://www. (lastvisited

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25 April 2021 • Nevada Lawyer 3