Supplemental Needs Trust

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Admitted to Practice New York & New Jersey

When it comes to legal issues, especial ones involving trusts, nothing pays like having experienced counsel you can trust. Here at Geoffrey Long Esq., we have over 22 years of experience handling delicate legal issues just like yours. The law firm of Geoffrey Long, Esq. provides estate planning and related legal services to clients of all ages, with a special focus on the needs of older and disabled individuals and their families. Admitted to practice since 1985, Geoffrey Long, Esq., is the parent of a disabled child who was diagnosed in 1980. Mr. Long is well versed in questions regarding real estate transfers, protection of assets, trusts, guardianships, Social Security Disability applications and other legal issues which arise when dealing with disabled children.

The Letter of Intent

In the day to day care-taking of your disabled child, you have exerted yourself to maintain as healthy and meaningful a life for your child as possible.  In doing so, you have amassed a wealth of  information about him or her and what he or she needs to maintain that quality of life.  When the time comes for others to step into your shoes as your child’s primary caretakers, they will need all of this information.

A Letter of Intent provides a framework through which you can transmit this information.  It is not a formal legal document, but rather an invaluable guide to all the major areas of your child’s life.  Some categories are obvious, such as medical history, family structure, special dietary needs and future living arrangements. Other categories do not necessarily spring to mind as quickly, but are nevertheless vital to your child’s quality of life.  These areas include education, daily schedule, favorite stores, leisure activities, vacation preferences, friendships, value systems, self identity, future plans, and areas of daily living and interactions that your child finds particularly problematic.

Some guidelines on writing the Letter of Intent:

• You might want to start by filling out the more general information, then adding in details as they come to mind. The Letter of Intent can handle as much detail as you can manage to put in.
• Be as specific as possible so that the information you are conveying is clearly understandable, not only to the caregivers you designate to succeed you, but also to  the caregivers who succeed them;
• Feel free to add any topics or include any information that you think may be significant. 
• Each year you should review the Letter and bring it up to date, changing it as necessary to reflect your child’s current situations.  It is helpful to do this on the same day each year; many people choose their child’s birthday so they won’t forget.
• Siblings, friends and others may have valuable input that should be included in the Letter.
• Obviously, your child should be as much a part of the letter-writing process as possible.

The Letter of Intent is one part of a comprehensive life care plan for families of disabled children.  After a thorough consultation, a qualified attorney can prepare an estate planning strategy best suited to you and your family’s needs.

The Revocable Living Trust

A living trust, also known as a Revocable Living Trust is a legal document that holds title or ownership to your real property and assets. When you create a Revocable Living Trust you transfer ownership of your assets to the trust WITHOUT relinquishing any control.  You can still buy, sell, borrow or transfer title to the property.  A living trust enables you to pass property after your death to family, friends and/or loved ones and allows you to appoint someone (a successor trustee) to make certain your property goes to the ones you choose after your death.

Although the living trust looks a lot like a will and includes the details and instructions for how you want your estate to be handled at your death, it differs from a will in that it:

• Does not go through probate.
• Prevents the courts from controlling your assets at incapacity.
• Gives you control over the assets you leave to your minor children or grandchildren.

Many individuals are under the impression that their will alone is sufficient to avoid probate. Unfortunately, a will is simply an expression of your wishes and must go through some kind of court process before the assets can be distributed to the heirs.

Probate is the legal process of taking the name of the deceased owner of an asset off the title of an asset and putting it in the name of the new owner.  When you “Fund” a living trust, you are transferring the name on your accounts or property into the name of the trust; hence there is no need for probate.  For example, accounts in the name of John and Emily Williams would now be known as John and Emily Williams, Trustees of the John and Emily Williams Revocable Living Trust of 2008.

When the assets are in the name of the trust there is no need for probate since the estate is now controlled by the trustee of the trust. You or you and your spouse can be the primary trustees receiving full control to buy, sell, borrow or transfer in the case of a spouse's death. After both spouses pass, the trust identifies the person who will act as successor trustee. The trust gives that person the right to manage all assets on behalf of your wishes made known in the trust document. Remember, you and your spouse will decide who will manage all affairs.

Additionally, it is almost impossible to contest a Living Trust. When a will is contested the assets are frozen and they cannot be distributed until the claim is resolved. Assets placed in a living trust are not frozen pending the outcome of a legal challenge. Anyone wishing to contest the trust must file suit against each of the beneficiaries; in the meantime the assets in the trust can be distributed. 

The Cast of Characters in a Living Trust:

Grantor
This is the person who sets up the trust. This would be you, or you and your spouse. The grantor has many names such as the creator, settlor or trustor. As the grantor, you have full control to manage or change the trust at any time.

Trustee
The trustee is the person who will manage the assets in the trust. Again, this will most likely be you while you are alive. When a trust is created, the trustees are usually the same individuals as the grantor. For married couples, usually the husband and the wife both act as co-trustees. You do not have to be your own trustee if you do not want to or do not feel you are able to. You can name a child or friend or even an institution to manage your affairs for you while you are alive.

Successor Trustee
This is the person who will manage your assets for you when you die or if you should become incapacitated. This person or persons will have the right to manage your affairs without the need for any probate court. The successor trustee will immediately have the same powers that you as grantor/trustee had to buy, sell, borrow, or transfer the assets inside the trust. More importantly, the successor trustee has the right to distribute the trust's assets according to your instructions in the trust. This immediate control can allow your estate to be transferred to your children or loved ones right away avoiding the time delay of probate which can usually consume anywhere from 6 months to 2 years.

Fortunately for you and your heirs, the successor trustee does not have the legal right to change your trust. The trust becomes irrevocable or unchangeable after the death of the grantor(s). However, the successor trustee does have the right to manage the assets in the estate, but must do so for the benefit of the beneficiaries.

If an illness or accident leaves you incapacitated, your successor trustee can handle your financial affairs without the need for a court appointed guardian or conservator.

There are other advantages, including federal tax savings, to having a Living Trust.  A qualified attorney can further explain these to you and, after a thorough consultation, prepare an estate planning strategy best suited to you and your family’s specific needs.

Beneficiaries
The people who will receive the benefit of the trust's assets are called the beneficiaries. Typically the estate will go to the surviving spouse. If there is no surviving spouse, assets will pass to the people you named in your trust. You are not limited to who you want to receive your estate. You can name your children, relatives, friends, or a charitable organization to be your beneficiary

Why a Will?

If you don't make a will or use some other legal method to transfer your property when you die, state law will determine what happens to your property. Generally, it will go to your spouse and children or, if you have neither, to your other closest relatives, but only after a lengthy process entailing the appointment of an Administrator for your estate. If no relatives can be found to inherit your property, it will go to the state.

In addition, if you have young children and die intestate (without a will), a court will have to determine who will care for your young children and their property if the other parent is unavailable or unfit to do so.

If both parents of a child die or become otherwise unable to care for a minor child, another adult -- called a "personal guardian" -- must step in. The personal guardian will be responsible for raising your children until they become legal adults. You and the child's other parent can use your wills to nominate someone to fill this position. To avert conflicts, you should both name the same person.

With regard to property, if you and your spouse both have your name on the title, you each own a half-interest in the property. Your freedom to give away or leave that half-interest depends on how you and your spouse share ownership. If you own the property in "joint tenancy with right of survivorship" or "tenancy by the entirety," the property automatically belongs to the surviving spouse when one spouse dies -- no matter what the deceased spouse's will says. But if you instead own the property in "tenancy in common" (less likely), then you can leave your half-interest to someone other than your spouse if you wish.

Today the Last Will and Testament is prepared as part of a package of documents, including a Health Care Proxy, a Living Will and a Durable General Power of Attorney.

There are other advantages to having a Last Will and Testament.  A qualified attorney can further explain these to you and, after a thorough consultation, prepare an estate planning strategy best suited to you and your family’s specific needs.

Health Care Proxies & Living Wills

What is a health care proxy?

A health care proxy is a document executed by a competent person (the principal) giving another person (the agent) the authority to make health care decisions for the principal if he or she is unable to communicate such decisions him or herself.

Why have a health care proxy?

In case you ever become incapacitated, it is important that someone has the legal authority to communicate your wishes concerning medical treatment.  This is true especially if you were to disagree with family members or they were to disagree among themselves about your treatment.  By executing (signing) a health care proxy, you ensure that the directions that you have given your agent will be carried out in the event of such a disagreement.

Whom should I appoint as my agent?

Since your agent is going to have the authority to make medical decisions for you in the event you are unable to make such decisions yourself, it should be a family member or friend that you trust will follow your wishes.  Before executing a health care proxy, you should talk to the person whom you want to name as your agent about your wishes concerning medical decisions, especially life-sustaining treatment.

When does a health care proxy take effect?

A health care proxy takes effect only when you require medical treatment and are unable to communicate your wishes concerning your treatment.

Should I have a Living Will?

A Living Will provides our agent with instructions on what type of care you would like.  If you wish, you may include a medical directive in your health care proxy with specific instructions concerning the initiation or termination of life-sustaining treatment or a more broad statement granting general authority for all medical decisions that are important to you.