January 29

How To Write a Letter of Intent

Special Needs Planning Basics

letter of intentIt’s difficult to know where to start with writing a letter of intent. The information provided here is designed to give you some ideas of what you might want to include, and we’ve provided a downloadable template to help you get started. Keep in mind that the letter of intent is not considered a legal document. However, it has the advantage of going beyond legal instruments to help caregivers and the courts better understand the person it is established for and their needs as well as your personal care wishes for them. Also, please treat your letter of intent as a “living” document, one you review and update regularly (at least yearly).

Here are some areas to consider when writing your letter of intent. They are not exclusive, but a good place to begin:

January 15

What Does an Executor Do?

executor of estateYour father recently passed away, and you’ve learned that your sister has been named executor of his estate. Where does that leave you?

If you’ve lived through the death of someone close to you, you understand how complicated estate-related questions can become. Just as an individual can’t own property or act in a legal capacity after his or her death, anyone acting under a power of attorney for such individual no longer has the authority to manage assets or make any decisions. One mechanism that is available to settle the inevitable questions of debt repayment and the transfer of assets is commonly referred to as “probate.” Probate is a legal process overseen by the state’s probate court, and each estate is assigned a person to act as executor. An executor is responsible for handling the details of administering the estate and is usually named by the deceased in a will, or an executor may be assigned by the probate court upon the filing of a petition. If someone dies without a will, and thus without naming an executor, the individual who handles the estate often is called an “administrator” – the roles of an executor and an administrator are identical.

Individuals who are named as executor and other family members often have questions about the probate process and next steps.  Here are some common questions:

I’ve been named an executor. What does that mean? You are the person who is expressly named to make sure the wishes of the deceased individual, as stated in a will, are carried out and the estate is properly administered.

Do I have to be the executor if named? In short, no. The deceased was stating a preference, but you cannot be forced to do the work. If you decide to decline, the probate court will appoint someone else to serve as executor, whether another person named in the will, or an outside individual.

Why was my sibling named executor? Many factors typically go into the decision as to who to name as executor. Executor duties can be time-consuming, can last months or even years, and often require considerable effort, so an individual should be nominating people who can fulfill those duties. An executor serves as a fiduciary, and is required to always act in the best interests of the entire estate. An executor has no greater entitlement to the estate above and beyond what is written in the will.  Whoever is named executor should be able to work cooperatively with all family members to ensure everything is properly handled and that everyone is kept informed.

What does the executor do? The executor handles all details of managing the estate, including submitting the will to the court, attending applicable hearings, locating and inventorying assets, maintaining those assets from the estate, paying debts and any estate taxes, selling assets (such as a home), etc. Every action the executor undertakes is under the oversight of the probate court. Exact duties vary greatly depending on factors such as the condition of the estate, how assets are held, whether there was a valid will, etc.

Can the executor get paid? In general, the answer is “yes.” Compensation can be based upon time expended, a flat fee or a percentage of the estate, depending on the size and complexity, although not all of these options are allowed in every state.  In New Hampshire, any fees that are paid to an executor or administrator from the estate are subject to approval by the court.

If you have specific questions or want to know more about the probate process, please get in touch.

December 30

Caring for a Loved One from a Long Distance

Susan’s mother had always been extremely independent, working as a school superintendent well into her 70’s and living alone after the death of her husband over 20 years ago. Then it all changed in the space of just a few months. Her mother became forgetful, and at times would become disoriented. She had to step down from the job she loved, and it was not long before she could not safely live alone. Of her three children, two lived out of state, including Susan, and the son who lived closest declared himself incapable of providing support while Susan’s sister seemed overwhelmed at the prospect.

The above is a hypothetical and the people are fictional, but sadly, this is a common scenario. In the US, according to statistics provided by Merck, nearly 29% of older adults live alone, 70% of whom are women. In many cases, their children have moved away to establish their own lives and families, making it difficult to monitor emerging symptoms or issues. When those issues do become apparent, it is often as a result of a significant development such as a medical emergency or other incident that makes it clear the parent urgently needs assistance. Even when parents live together, a health crisis for one may be enough to make independent living no longer feasible.

If this situation describes you, know you’re not alone. According to recent numbers from the U.S. Bureau of Labor Statistics, there are 40.4 million unpaid caregivers of adults aged 65 and older in the U.S. alone, 13 million of whom are to provide that care from a distance. Even if you are not currently caring for an aging parent, you probably expect to at some point. A recent Pew Research Study found that nearly seven-in-ten adults in their 40’s and 50’s thought it was very or somewhat likely they would care for an elderly family member in the future.

Fortunately, wherever you may be on the caregiver spectrum, there are steps you can take to make it easier on yourself and your family. Know there is no one right way to care for a loved one from a distance. Each situation is unique and depends on a number of factors – care needs, resources, family dynamics, and how much or little your parent(s) can assist in the process. Before committing time and resources or rushing to a solution, do take the time to gather the information you need to make informed decisions and work on creating a family communication plan with any other siblings to make it easier to work together on care solutions.

In addition to all the logistics associated with developing a plan for caregiving, including identifying and accessing available resources, consideration will need to be given to the legal documents that may be needed such as powers of attorney, to help make those care decisions on behalf of your loved one. It’s never too early to contact an attorney knowledgeable in elder law and estate planning to ensure you and your family are prepared when the time comes. Providing long-distance care is never simple, but it can be easier if you anticipate those needs now.

Understanding NH Medicaid Rules - Updated Jan 2020

October 31

Doing More With ABLE Funds | Special Needs Planning

Here’s a scenario that may be familiar to families whose adult children receive federal or state benefits, and who are concerned with how various expenses can be covered without negatively impacting those benefits.

Consider this hypothetical: It’s the start of a new school year, and your young adult son with a disability is very interested in taking a course in graphic design at a school about 50 miles away. He also is eager to live independently, and there is a suitable apartment complex near the school both within walking distance and serviced by the campus bus system. The problem is that expenses associated with the course and living away from home will far exceed his monthly Supplemental Security Income (SSI) check. Can he go to school and live independently without jeopardizing this and other important benefits? How do you best support him while protecting critical support?

Caring for an individual with special needs, or living as an adult with special needs, brings unique challenges. Because the rules which govern critical government benefits like SSI or Medicare are so complex, Special Needs Trusts (SNTs) long have served the function of helping individuals meet stringent income standards for benefits eligibility while preserving some financial independence. However, SNTs are not directly controlled by the beneficiary and carry their own limitations, including the restrictions on paying for basic living expenses such as food and rent. Recognizing the need for access to more resources, the ABLE (Achieving a Better Life Experience) Act was passed in 2014.

ABLE accounts are a genuine game-changer for individuals with disabilities. Unlike SNTs, ABLE accounts are investment accounts that can be owned and controlled directly by the beneficiary. Even more attractive is that ABLE accounts are non-taxable investment accounts (invested with post-tax dollars) that, when properly managed, do not interfere with eligibility for federal needs-based benefits. And, unlike SNTs or direct supports, ABLE funds can be used for basic living expenses, including rent, utilities and food, without jeopardizing or reducing federal needs-based government benefits.

By allowing funds to be used tax-free for “qualified disability-related expenses,” ABLE accounts provide spending flexibility previously unavailable to individuals with special needs. So, what are “qualified disability-related expenses?” The law doesn’t describe these in detail, but does specify that these may include expenses related to:

  • Education
  • Housing
  • Transportation
  • Employment Training and Support
  • Assistive Technology
  • Personal Support Services
  • Health Care Expenses
  • Financial Management
  • Administrative Services
  • Other Qualified Expenses

If the son in our previous example had an SNT and an ABLE account, he and the trustee of the SNT would have the flexibility of using either SNT or ABLE funds to pay for his jewelry course, which is an education/training expense, and also could utilize ABLE funds for his housing related expenditures. Determining which pocket of funds to use for a particular expense requires a thorough understanding of the relevant rules and restrictions. Certain expenditures permissibly can be paid from either an SNT or an ABLE account but, in some circumstances, one might be the better choice (for example, an SNT to pay for vacation or education expenses, and an ABLE to cover housing and shelter costs).

ABLE accounts are a valuable complement to an SNT when designing the comprehensive care plan for individuals with disabilities, especially given the ability to cover costs of the individual’s day-to-day living. Also, in instances when there is no SNT in place, an ABLE account may provide a needed source of funds for a variety of disability and living-related expenses without jeopardizing benefits. With an ABLE account, capable beneficiaries now may have direct control over funds, and can save assets above the very modest resource limits for Supplemental Security Income (SSI) and many Medicaid programs. Individuals with disabilities who own an ABLE account are afforded more autonomy and need not seek approval from a trustee to pay for a permissible expense, thus leaving them free to pursue and fund independent experiences

However, there are rules regarding who can participate in an ABLE program, how much the account can receive annually and other important spending and funding parameters which may vary from state to state. It’s always best to consult an experienced special needs attorney and your financial advisor to determine what financial tools will best meet the specific needs of your family member.

Milestone Ages Special Needs Planning

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