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Advising Trustees of Special Needs Trusts on Spending Issues

Special Needs Trusts are often created with funds received from legal settlements or inheritances. Special Needs Trusts are important documents when established for people who are receiving government benefits. However, as practitioners we must remember that a Special Needs Trust must not only be effectively drafted for those receiving public benefits, the trustee must also make distributions in accordance with the guidelines of the trust so as not to risk loss of Supplemental Security Income (SSI) or Medicaid benefits for the beneficiary.

The first place a trustee should look when making a distribution from an SNT is the four corners of the document. Even though the state code may allow a distribution, if the trust instrument itself does not, the trustee must abide by the language of the trust. For example, most states will allow SNT funds to be used to pay for vacations, but if the trust instrument itself states it is not to be used for “travel expenses,” the trustee is now limited beyond what the state code might allow. However, once the trustee is familiar with the limitations of the trust document, he should look to the state code and what programs the beneficiary is on for any other limitations on disbursement.


Bigstock-School-Kids-on-a-Chalkboard-14563127Special Needs Trust payments are designed for “supplemental” or luxury needs not provided for by government benefits. SNT funds are not intended to be used for basic shelter or food, as those needs are provided for by the government benefits. Any money from the trust spent on food or shelter on a regular basis, or given directly to the beneficiary, can count as income for government benefit purposes.

If a beneficiary is receiving SSI benefits, the trustee should be cautious not to make payments directly to the beneficiary, payments to restaurants or grocery stores, mortgage or rent payments, or tax payments on the home. Some jurisdictions also frown on disbursements to basic utility companies, stating that those payments are covered by the SSI payment. Most of these types of payments will result in a 1/3 loss of SSI income. So, while they are discouraged disbursements, there may be some cases in which the trustee determines that the benefit of making the payment outweighs the loss of SSI income. For example, if the beneficiary is unable to pay the tax notice on his home, the trustee may decide to pay the taxes and let that money count as income for the beneficiary the month it was paid.   In this scenario, the loss of the 1/3 income is far outweighed by keeping the home taxes up to date, assuring that the beneficiary has a place to live.

When institutionalized clients come to us with a Special Needs Trust, we must be cautious with distributions as well. However, there are plenty of supplemental needs the money can pay for. Nursing home patients can use the money in an SNT to pay the additional fee for a private room, a television, eye glasses and tooth care not provided for by Medicaid, the travel expenses and mileage of the sponsor to come and check on the patient, and caregiver expenses. Oftentimes, nursing homes are happy to hear that a patient has a Special Needs Trust to pay for additional expenses that arise, and some homes will look more favorably upon Medicaid and Medicaid-pending patients who have such funds to “supplement” care costs.

The LWPCCS software allows us to create both first-party and third-party Special Needs Trusts that conform with the federal and state requirements and allow the greatest discretion possible to your trustees. It is, of course, important that the trustee understand what distributions he can make and that he contacts an attorney with disbursements he is unsure of. This type of trustee guidance is a great opportunity for us to provide our clients with our understanding and counsel through a maintenance plan.

If you are interested in seeing our estate planning drafting software first hand, just click here and schedule your live complementary demo.

Kimberly M. Brannon, Esq., Legal-Technical and Software Trainer

MOTM

Congratulations to Debra Robinson, Lawyers With Purpose Member of The Month

Greatest success since joining LWP:

For many years I was in practice with a series of different partners.  When I finally broke free and went on my own, I was searching for new and better ways to run my practice.  Molly Hall reached out to me at just the right time, and I believed LWP was a perfect fit for my needs.  Within a few months, I increased my fees, made a scheduling template and stopped interrupting my work flow to answer client calls, and became a much more efficient practitioner.

MOTMFavorite LWP tool: 

My team and I are gearing up to start having workshops.  We moved to new offices in January, with a large enough room to hold workshops in-house.  We have watched Dave’s videos together several times, and are in the process of editing and printing all the wonderful material made available by LWP.  Now all I have to do is learn to tell the jokes.

Impact on my team and my practice:

We are having more frequent staff meetings, I’m sharing more educational material with my team because I realized the more they understand, the more they can take on.  We made a list of everything that needed to be done to start having workshops, and everyone pitched in and did even more than I expected

Share something about yourself that most people don’t know about you:

Most people don’t know that my mother was inspirational in how I interact with my elderly clients.  My mother met the love of her life when she was 84 and he was 87.  They had three wonderful years together before his health failed.  They were head over heels in love, and a joy to watch.  I learned from them that no matter what your age, life can still bring wonderful surprises if you are open to taking chances.   

What is your favorite book and how did it impact your life? 

Little Women – I read it as a teenager and it made me want to be a writer like Jo – Maybe someday.

 

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The Death of Ascertainable Standards

The recent Pfannenstiehl v. Pfannenstiehl case in Massachusetts is a pretty good indication that the use of ascertainable standards in asset protection planning is dangerous. While this may be news to you, the Lawyers with Purpose legal community has known this for some time and has changed its recommended planning strategy more than seven years ago on how to ensure asset protection is maintained.

Bigstock-Question-mark-heap-on-table-co-86579810When creating an irrevocable trust, some of the most important legal determinations made are the discretion granted to the trustee to make distributions to the beneficiaries. The two most common are "wholly discretionary" and "ascertainable standards." What is the difference? Traditionally when a trustee is allowed to make distributions pursuant to the health, education, maintenance and support of the beneficiary, that is traditionally identified as ascertainable standards, otherwise known as HEMS.

This standard was predominantly created through tax law cases where the question became whether the trustee garnered too much control or authority so as to include the assets of the trust in the taxable estate. The court cases resolved that as long as there were ascertainable standards, it would provide sufficient discretion so as not to have the adverse tax impact. So HEMS became the standard of discretion for trustees. Once again, it was a case of the tail wagging the dog. While estate tax planning was a concern in generations past, since 2001 with the passage of EGTRRA and the massive expansion of the estate tax exemption, the HEMS standard for estate tax purposes only applies to less than two out of 1,000 Americans. Why is it, then, that most lawyers still draft their trust for everyone according to the restrictions required for the two-tenths of 1 percent of Americans? The typical answer is, because that's the way they always did it.

At Lawyers with Purpose, we are absolutely present and future-oriented and always looking at the current laws, but more importantly, we consider the relevance of the laws to the needs of the clients. For example, I remember particularly a case where I drafted an irrevocable life insurance trust and granted powers to the spouse that could deem it to be includable in her estate. While this was not the best tax planning strategy for the client, I clearly reviewed all the rules with the client, explained the adverse consequences and the client's response was "I don't care about the tax impacts; I want my wife to have it." In such a case, I had the client sign an acknowledgment that he was made aware of the adverse consequence, but to any third party reviewing the trust, they were confident I committed malpractice. That's the challenge today: Lawyers want to impose their ways on clients. Our job is not to tell clients what to do; our job is to tell clients what they can do, the pros and the cons of each approach, and to let them make the decisions that best suit the needs of their family. Such is true with ascertainable standards.

It is LWP’s recommendation – and has been for many years – wholly discretionary powers are typically worded as that a wholly discretionary standard be used rather than ascertainable standards, “the trustee shall make distributions to any beneficiary in their sole and absolute discretion….” This assures that discretion is held wholly within the trustee and there is less risk of the trust being invaded by outside sources to ensure for the health, education, maintenance and support of the beneficiary. Can you imagine a court looking at a trust that a senior residing in a nursing home was the beneficiary of and the trust provided that that senior was the beneficiary and the trustee can make distributions for health, education, maintenance and support? How can the trustee not deem a distribution for the cost of that nursing home to be for their health or maintenance or support? It's an accident waiting to happen. In fact some states like Ohio have gone as far as to say that any trust that has ascertainable standards can be pierced to make medical payments in accordance with the health, education, maintenance and support provisions. Don't wait. Stop using ascertainable standards now and protect your clients from any undue risk of having their asset protection trust invaded.

If you would like to learn more about our estate planning drafting software and how it can support you in your estate or elder law practice, schedule a live software demo at: https://www.lawyerswithpurpose.com/Estate-Planning-Drafting-Software.php.  Learn how you can (1) regain lost hours (2) train your team so you spend less time drafting (3) effective document prep for 99% of your estate planning clients (4) and much, much more….

David J. Zumpano, Co-founder – Lawyers With Purpose, Founder and Senior Partner of Estate Planning Law Center 

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Utilizing the New LWP-CCS Personal Services Agreement

Personal service agreements, or personal care agreements, are typically agreements between a family member providing care and another needing care. These agreements act as a legal contract between the two parties regarding the range of care one party is providing to the other. As a Medicaid and/or VA planning tool, a personal service agreements may act as a method of spend-down while making sure your elderly client is provided the services needed and is appropriately compensating a family member who is making personal and professional sacrifices to provide the services.

We are excited to share that the LWP Client-Centered Software is now providing a comprehensive Personal Services Agreement that thoroughly addresses the many issues that Medicaid will consider when analyzing a care plan. The care plan also offers the language you will need if a client starts receiving VA benefits and plans to pay those to a child or family member to provide care.

Bigstock-Legal-Law-Rules-Community-Just-94090013First, the software incorporates all parties involved in the plan and requires that all parties sign the plan.

Medicaid wants to make sure that the compensation offered to the caregiver is reasonable in the area of the country where the services are provided. The LWPCCS incorporates the hourly rates of court-appointed guardians, geriatric-care professionals and general-service providers to justify the hourly rate paid to the caregiver. If you opt to do so, the software can calculate the hourly rate of the caregiver as the average of the rates provided for the professionals mentioned above.

Medicaid will want to know where the care is provided. This can be especially important if the child is moving in with the parent to provide care in lieu of nursing care, as they may later qualify for the child caregiver exemption. The software assumes the care is at the home of the person needing care. However, with the click of a button you can choose another place of care, be it in the child’s home, an assisted living facility, an independent living facility or a nursing home.

The terms of the agreement are an important part of creating a valid contract and meeting Medicaid requirements. The LWPCCS allows you to determine the start date of the agreement, the term of the agreement (lifetime, term of years or term of weeks), how often the caregiver will be paid, and the hourly rate the caregiver receives. Another important note: When the caregiver agreement is produced, it defines the caregiver’s role as that of a general contractor and eliminates any tax liability for the person receiving care, providing additional protections for your client.

The feature of the software that allows you to specify which activities of daily living (ADLs) the person needs assistance with can help with Medicaid guidelines and VA guidelines as well.

Finally, alternate caregivers are named for any time periods during which the caregiver is unable to perform the tasks, due to personal illness, vacation, other employment or any other reason.

You can find the new personal services agreement in the LWPCCS under the Medicaid Qualification folder, since we see it as a critical part of Medicaid planning. Incorporating the new LWP Personal Care Agreement into your practice is yet another layer of solid legal planning and documentation we provide for our clients as LWP attorneys.

If you want to learn more about adding medicaid to your estate or elder law practice register for our FREE WEBINAR "Simplifying Medicaid Eligibility & Qualified Transfers" on Tuesday, March 15th at 2 EST. Click here to reserve your spot now.

Here's just some of what you'll discover…

  • Understanding the 12 Key terms of Medicaid
  • Learn the Qualification Standards: Does Client Meet Needs Tests?
  • Learn the Medicaid Terms of Art
  • Learn the Snap Shot, Look Back/Look Forward Distinction: And how to put it all together
  • At the end of the event receive an ALL STATES Medicaid Planning Resource Guide
  • …and much, much more!

Just register here to reserve your seat… it's 100% FREE!

Kimberly M. Brannon, Esq., Legal-Technical & Software Trainer, Lawyers With Purpose

Legacy Stories

Values vs. Valuables

A recent survey conducted by the Allianz Academy of Legacies asked Baby Boomers and their parents to rank priorities when leaving an inheritance.

Overwhelmingly, they preferred passing down their “values” vs. “valuables.”

Yet, only a small fraction of these generations has made provisions for this in their estate plans, mainly due to a lack of professional guidance and a practical legacy plan.

Legacy StoriesAs such, the demand for providing a values solution is expected to increase dramatically in the coming years, and estate planners are in the most advantageous position to benefit.

Not only do families find it difficult to get professional advice on this matter, but also the professionals they consult with have few options to offer – until now.

Over the past decade, the team at Legacy Stories has provided senior care professionals with a life review program that has become an industry standard. Now the methods and technology have been reformatted to serve the estate planning and financial advisor community.

To that end, the “Legacy Values Plan” is designed specifically to be a comprehensive self-guided legacy-building solution that can attract new clients and increase client retention with no added staff or training.

This award-winning solution helps your clients preserve and pass down their life lessons, values and experiences as an essential part of today’s estate plan.

Lawyers with Purpose has made arrangements to offer its members this exceptional program at 20% off.

To learn more go to: https://www.legacystories.org/values

Apply this code for the discount: LWP20

Tom Cormier, Co-founder, LegacyStories.org

Roslyn Drotar, Online Marketing, Content & Social Strategist for Lawyers With Purpose

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Who Should Be Trustee?

There's a constant battle between lawyers as to who should be trustee of an irrevocable asset protection trust. The primary school of thought is that it should never be the grantor, and some schools of thought believe it should never be the beneficiary. At Lawyers with Purpose, we disagree with both of those positions, but we recognize the concerns and rely on sound principles of asset protection law in making the final determinations.

Bigstock-Who--4420521Let's first discuss the question of whether the grantor should be trustee. Many practitioners believe that allowing the grantor to be trustee makes the assets of an irrevocable trust available to the grantor's creditors. Such a proposition is ludicrous. The challenge with most lawyers is that they do not allow the grantor to be trustee of his or her irrevocable trust. When pushed to explain why, they typically assume that's the way it was always done. Few dig further to see why it was done that way. So let's examine why grantors were not traditionally named trustee. The most adverse impact is that, if the grantor is trustee, they're deemed to retain enough control to have the assets of the trust included in their taxable estate when they die. For many generations, this was the death knell? of an asset protection trust. But in the last 15 years it's become irrelevant because of the rise of the estate tax exemption. Today only two in a thousand Americans have a taxable estate, so preventing the grantor from being trustee because of a potential inclusion of the trust asset in the estate of the grantor is not relevant to 99.8 percent of Americans. So why hold them to that standard?

The next major argument is a theory that if the grantor has control of the trust, then he could direct it back to himself. Well, that depends. What does the trust say? If the trust says that the grantor is not a beneficiary, or similarly the grantor is not a principal beneficiary but is entitled to the income, does that mean that the grantor as trustee all of a sudden gains a super power to violate the terms of the trust and give himself the principal when it's not allowed for? Hardly. In fact, there is consistent case law throughout all of the states, including cases that lead all the way up to the Supreme Court, that supports the notion that a grantor as trustee has all of the same fiduciary obligations as any other trustee and by no means has authority to act outside the powers granted to trustee. I specifically refer you to my Law Review article, "The Irrevocable Pure Grantor Trust: The Estate Planning Landscape Has Changed" in the Syracuse Law Review. In this article, I go through in‑depth review of all of the case law nationwide, and I'm excited to say that it is sound law that a grantor can be a trustee without risking the assets to the creditors of the grantor. One caveat, however, is if the grantor does retain the right to the income, then absolutely the income will be available to the creditors of the grantor.

So are there circumstances when the grantor as trustee's trust is invaded? Absolutely, but in every single case the invasion was not due to the grantor being the trustee, but rather was due to the pattern of behavior by a grantor trustee who violated regularly the terms of the trust in favor of themselves, and the trust was thereafter deemed a sham. In such cases, I concur with any court that makes that decision based on people who try to defraud the system. Irrevocable trusts must be managed in an arm's length manner, and as lawyers we do not plan for someone to become fraudulent. They are fraudulent to their own peril. But a properly drawn trust when the trustee is the grantor in no way, shape or form creates any risk of loss of asset protection if the terms of the trust are followed, as they are required to be in every case whether the grantor is trustee or not.

So at Lawyers with Purpose we encourage our members to do good legal work based on sound law, not fear, conjecture or because that's the way it's always been done. In the end, the client wins. It is silly to deny thousands of clients that we serve the ability to manage and control their own assets for the benefit of their families, just because some rogue case in some rogue state from some vile fact pattern allowed the court to invade against the intentions of the grantor. Protect your clients. Teach your clients. Share with your clients how these work. They are very safe and a great planning tool.

If you want to learn more about Lawyers With Purpose you can find all the information about becoming a member by clicking here to download our Membership Brochure.

David J. Zumpano, Esq, CPA, Co-founder Lawyers With Purpose, Founder and Senior Partner of Estate Planning Law Center

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VA form 21-8049 – Request for Details of Expenses

For all you high Fact-finder/Follow through Kolbe types, don’t panic if the VA form 21-8049 number means nothing to you. It shouldn’t necessarily. If you file non-service-connected pension claims with the VA, you may never have had occasion to use this form, which is formally called a “Request for Details of Expenses.” It is not generally part of what Lawyers with Purpose considers a fully developed VA claim, although there are those who routinely include this form with all their VA claims.

Bigstock-Forms-Concept-with-Word-on-Fol-95979155Purpose of the 21-8049

As the name of VA form 21-8049 suggests, its main purpose is to report monthly non-medical expenses as well as expenses of dependents that otherwise are not typically reported on any other forms one submits with a fully-developed claim. The 21-8049 is usually sent to a claimant to be completed when the VA requires further information after the formal claim is filed. In fact, the VA specifically states in the instructions at the top, “We need additional information to determine whether you are entitled to benefits.” The VA may request this additional information because the adjudication manual directs the adjudicator to determine “whether or not the claimant’s financial resources are sufficient to meet his/her basic needs without assistance from VA. If a claimant’s assets are large enough that the claimant could use these assets to pay living expenses for a reasonable period of time, net worth is considered a bar,” M21-1 Adjudication Procedures Manual, Part V, Subpart I, Chapter 3, Section A.1.e. The 21-8049 may not be requested for every claim you file, but if it is requested, it can delay the claim process. For that reason, some choose to include this form with every formal claim they file. Or, you may decide to complete this form only when your claimant has unusually high non-medical living expenses that you want to make evident to the VA.

How to complete the 21-8049

The current version of this form is dated Aug 2007 in the lower left corner of the first page, although the VA still accepts older versions. It is a two-page form that consists of seven sections. The instructions are minimal, but the VA does provide a toll-free number to call for assistance. Like any other VA form, it is recommended that you complete every section. Non-applicable sections should be crossed out, or you should otherwise indicate that these do not apply. Sections I and II are for listing dependents – both those living with the claimant and those not living with the claimant. Furthermore, you can specify the amount, if any, that the claimant contributes to the support of dependents not living with the claimant so that the VA will consider these amounts when evaluating whether the claimant’s net worth is sufficient.

Sections III, IV, V, and VI are for “Monthly Expenses (except medical) for you and those listed above as living with you,” “Hospital and Medical Expenses,” “Educational Expenses,” and “Expenses of Last Illness and Burial of Veteran, Spouse, or Child and Just Debts of Deceased Veteran or Parent’s Spouse,” respectively. The completion of these four sections is fairly straightforward, but a few remarks should be made to avoid potential problems. Section III lists several possible monthly expenses, like Housing, Food, Taxes, etc., and it also provides blanks for inserting other types of expenses, but this section is only for reporting non-medical expenses. For example, the line item “Housing” should not be used for reporting fees for a nursing home or assisted living facility. Instead, total medical expenses that were reported on the VA form 21P-8416 “Medical Expense Report” with the formal claim should be reported in Section IV, “Hospital and Medical Expenses,” along with a brief breakdown of the medical expenses, or simply refer the VA to the already submitted form 21P-8416. Finally, section VII is for reporting “Commercial Life Insurance Payments” to the claimant. While life insurance payouts are not considered income by the VA if the insured was a veteran, these will be considered as part of net worth and could potentially put a claimant over the asset limit unless you can document to the VA that these assets have been spent down.

What to file with the 21-8049

Documentation of the expenses listed on this form is not required but may assist in your claim. If you decide you want to start including the 21-8049 with all your formal claims, you may decide not to include further supporting documentation unless later requested by the VA. If you do refer to the VA form 21P-8416 in Section IV, you may want at least to include a copy of this form for the adjudicator’s convenience. However, if the VA sent you the form 21-8049 to be completed, they may have requested other information as well. In such cases, ensure that you submit the VA form 21-8049 with anything else requested in the VA correspondence, and that you respond by any deadlines the VA may specify.

If you want to lear more about the Veterans Administration Proposed 3 Year Lookback and Other Law Changes join our FREE WEBINAR on Wednesday, March 16th at 4 EST. Just click here to reserve your spot.  Here's what you'll get:

Discover the Nuts and Bolts of the Proposed VA Changes…and What it Means for Your Practice!

On Friday, January 23, 2015, the Veterans Administration proposed changes in the Federal Register that would…

  • Impose a three year lookback for transfers of assets, including gifts to persons, trusts, or purchases of annuities.
  • Deny claims for up to 10 years due to transfers.
  • And exempt only the home and two acres from net worth. If a claimant's property exceeds two acres, it will count toward the net worth figure for eligibility.

By Sabrina A. Scott, Paralegal, The Elder & Disability Law Firm of Victoria L. Collier, PC and Director of VA Services for Lawyers With Purpose.

Victoria L. Collier, Veteran of the United States Air Force, 1989-1995 and United States Army Reserves, 2001-2004. Victoria is a Certified Elder Law Attorney through the National Elder Law Foundation; Author of “47 Secret Veterans Benefits for Seniors”; Author of “Paying for Long Term Care: Financial Help for Wartime Veterans: The VA Aid & Attendance Benefit”; Founder of The Elder & Disability Law Firm of Victoria L. Collier, PC; Co-Founder of Lawyers with Purpose; and Co-Founder of Veterans Advocate Group of America.

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Tips For VA form 21-0779

Purpose of the 21-0779

The VA form 21-0779 “Request for Nursing Home Information In Connection With Claim for Aid and Attendance” is used only for certain non-service-connected pension claims, and its primary purpose is to document the level of care required by a claimant or a claimant’s dependent. The VA form 21-0779 is completed specifically for individuals who are residents of nursing homes. The importance of documenting this level of care is twofold:

  1. To support a claim for additional pension above and beyond the base level;
  2. To support the need for certain medical expenses.

There are three levels of non-service-connected pension that a claimant may qualify for: Base pension, Housebound, and Aid & Attendance. The base pension is the lowest pension that a claimant may be awarded. Additional funds are granted if you can document that the claimant is housebound, and even more funds go to those requiring another individual to assist with at least two activities of daily living, or ADLs. The VA also looks at level of care when considering medical expenses to offset income. Therefore, the VA form 21-0779 should document the level of care that justifies the medical expenses being declared. This applies to the claimant’s dependents as much as to the claimant. So for example, the VA will not consider the nursing home facility expense for a veteran’s spouse unless a form 21-0779 is completed for the spouse indicating the need for this level of care.

Bigstock-Forms-Concept-with-Word-on-Fol-95979155Completing the 21-0779

The VA form 21-0779 is just a single page and is mainly to be completed by a third party; that is, the nursing home. All you need to complete the form is the veteran’s – or claimant’s, if other than the veteran – name(s), and Social Security number(s). When you are completing this form for a living veteran’s spouse or other dependent, that person’s name appears in the field that requests the name of the claimant, even though, strictly speaking, the claimant is the living veteran. When downloaded from the VA website at http://www.va.gov/vaforms/, the 21-0779 has no separate instruction pages. The form is fairly straightforward to fill out, but it still provides a toll-free phone number for those who require assistance completing the form. Despite the fact that you are not completing this form yourself for the most part, you should still review all 21-0779s once completed by the nursing home and before submitting to the VA so that you can confirm that every field is answered.

What to file with the 21-0779

Nothing in particular is required to be filed with the 21-0779 form. If you determine that you do need to file this form, it should be submitted as part of a fully developed claim in order to expedite the processing. If you are filing the VA form 21-0779 with your formal claim, then you do not need to file a VA form 21-2680 “Examination for Housebound Status or Permanent Need for Regular Aid and Attendance” because the former documents that the claimant is in a nursing home and requires skilled nursing care and thus by definition has a permanent need for regular aid and attendance. This will, however, not stop some VA adjudicators from requesting the 21-2680 form in addition to the VA form 21-0779, thus we generally request all our VA clients to get a VA form 21-2680 completed as soon as they have retained us.

Always remember that this form can be used for supporting both a claim for a higher level of pension and the need for certain medical expenses. Keep those two purposes in mind when you are deciding whether or not it needs to be included as part of your VA claim, and when reviewing its completion by the nursing home to make sure there are not unexpected results with your claim.

If you're interested in learning more about the Lawyers With Purpose Cloud Based Workflow System join us on Friday, February 26th at 2EST.  Finally…an AUTOMATED law firm system for Estate and Elder Law Attorneys designed to free up your time and get the work out the door quickly and easily!  Click here to reserve your spot for this FREE LIVE DEMO!  We only have a few spots left so grab your seat today!

By Sabrina A. Scott, Paralegal, The Elder & Disability Law Firm of Victoria L. Collier, PC and Director of VA Services for Lawyers With Purpose.

Victoria L. Collier, Veteran of the United States Air Force, 1989-1995 and United States Army Reserves, 2001-2004. Victoria is a Certified Elder Law Attorney through the National Elder Law Foundation; Author of “47 Secret Veterans Benefits for Seniors”; Author of “Paying for Long Term Care: Financial Help for Wartime Veterans: The VA Aid & Attendance Benefit”; Founder of The Elder & Disability Law Firm of Victoria L. Collier, PC; Co-Founder of Lawyers with Purpose; and Co-Founder of Veterans Advocate Group of America.

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Why You Might Be A Trust Mill

Having practiced in the estate planning field for almost 23 years, I'm amazed when I review many trust plans done by lawyers that are still "boilerplate," with nothing distinguishing them other than the names of the client and beneficiaries. Interestingly, even when reviewing trusts created by software systems from well-known organizations in the estate planning industry, I am perplexed about the over-complexity, but also the under-simplicity, of how they work. Most trust systems in the estate planning industry have many options to designate different legal technical phrases and provisions to enter into the trust document. Unfortunately, once an attorney chooses the "standard provisions," nothing else changes in the document but the client names. So while they believe they have a very comprehensive estate planning trust system, they really have a glorified trust mill system (a better mouse trap?).


Bigstock-Legal-Law-Rules-Community-Just-94090013The Lawyers with Purpose client centered document creation system is unparalleled in the industry. It is the only software in the industry that was reverse-engineered. Rather than identifying the specific legal provisions required, it instead identifies the particular needs and goals of the client. Once those goals and needs are determined, the software then allows you to custom tailor every single core element of the trust to accomplish those client objectives. As you complete the client needs and their particular customizations, the software automatically inserts the necessary legal provisions and clauses to accomplish the client goals. No two LWP drafted trusts are ever the same. There are over 5,000 combinations of choices, and that's not even including the customization element in each of the decision levels.

While it sounds scary, the systemization of it makes it quite easy. In fact, it is the only document creation system in the industry that is integrated into a complete estate planning practice module. What does that mean? The marketing, legal technical training, workshop presentation, and client design are all integrated to facilitate and work with each other. Each one supports the other. For example, the initial client educational workshop helps identify the various issues that can be addressed in planning – which flows into the vision meeting, where, based on a series of questions – the client is able to self-select one of five different plans that will accomplish the specific goals the client identified. Next, the design meeting is tailored to focus on the specific plan (legal documents) chosen by the client. Then, the most exciting part: the attorney can customize every single aspect of the general plan to meet the client’s individual needs.

The cherry atop all of this is that the attorney designs the custom plan using specific design templates that permit others in the office to actually draft the trust (the software follows the template, including all customizations). Don't be a trust mill – learn how to put the client first. Client-centered document creation software is the first key. Click here to discover how the Lawyers with Purpose Client Centered Software can transform a mere practice, and discover the impact you can have on your client. Reserve a day and time that works for you now.

David J. Zumpano, Esq, CPA, Co-founder Lawyers With Purpose, Founder and Senior Partner of Estate Planning Law Center

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(Shhhhh…..) Client vs. Lawyer: TMI

The best way to illustrate the topic of this post is with the following joke:

A man is flying in a hot air balloon when he realizes he is lost. He reduces his altitude and spots a man in a field below. He lowers the balloon toward the man and shouts to him, “Excuse me, can you help me? I am late to meet a friend, but I don’t know where I am.”

The man below says, “I’m happy to help. You are in a hot air balloon, hovering approximately 30 feet above this field. You are between 40 and 42 degrees N. latitude, and between 58 and 60 degrees W. longitude.”


Bigstock-Hush-Emoticon-8840545After a brief pause, the balloonist declares: “You must be a lawyer.”

“I am” replies the man. “How did you know?”

“Well,” says the balloonist, “everything you have told me I am sure is technically correct, but I have no idea what to make of your information, and the fact is I am still lost.”

The man below responds, “Indeed. And you … you must be a client.”

“Why, yes, I am,” replies the balloonist, “how in the world did you know?”

“Well,” says the man, “you don’t know where you are, or where you are going. You have made a promise that you have no idea how to keep, and you expect me to solve your problem. The fact is you are in the exact same position you were in before we met, but now it is somehow my fault.”

(From http://www.milwaukee-business-lawyer.com/my-favorite-lawyerclient-joke/)

Funny, right? But how true! Most of our clients and their families come to us for answers or solutions in the form of information, but sometimes the very information for which they pay us, and that they desperately need, is the source of much frustration and confusion for them. Why is that and what can you do to remedy the situation? One of the most common issues that may occur when relaying information to a client regarding a VA claim is giving too much or too little information. You can also have problems if you do not time the release of information correctly, or worse yet, give out the wrong information.

Some of this is undoubtedly beyond one’s control. For example, gauging the amount of information that your client is going to expect and want has a lot to do with that individual’s particular personality or social style. You can often tell from initial contact if your client or client’s family is going to participate actively in their planning and the application process versus how much they want you to just take care of everything and leave them out of it. Thus you may have to adjust your response and the amount of information you provide to meet individual needs on a client-to-client basis. As a good baseline, resist the urge to discuss how the sausage is made. I actually prefer clients who are engaged in the process and seek to comprehend the information they are given. Clients like this can be strong allies in the process of getting a VA claim completed and filed, as well as great referral sources because they appreciate how much work is entailed.

However, regardless of what the client may want, there is obviously a lawyer’s duty to the clients to keep them informed concerning their representation. Per the Preamble of the American Bar Association’s Model Rules of Professional Conduct, a lawyer's responsibilities include the following: “As advisor, a lawyer provides a client with an informed understanding of the client's legal rights and obligations and explains their practical implications. . . . As an evaluator, a lawyer acts by examining a client's legal affairs and reporting about them to the client or to others.” At the very least, someone in the family has to be made aware of the most basic information regarding the legal services you are performing for them: what you are doing, what is happening next, and what to do if circumstances change.

While you can’t always choose the personality of your client, factors like bad timing of information or giving out wrong information are largely ones that you should be able to control. By bad timing, I mean giving information when it is not required at that particular moment. This could be as simple as explaining the VA appeals process when you haven’t even filed an “Intent to file claim” form yet. It could also be giving necessary information too late to be of use. The best way to avoid either is to anchor back to your VA process and advise and inform your client at every major step as to what you have just done and what to expect next. Also systematize what information should be given at each stage using client handouts, correspondence templates, etc., so the client receives the information when needed and not afterwards. While there is no problem with giving the client an overall summary of the process, avoid giving too much information for future stages in the process that may in fact never occur.

The problem with giving a client the wrong information should be self-evident. The rules and laws impacting VA eligibility can be complex, but there is a wealth of resources online, including original sources like the Code of Federal Regulations and the VA Adjudication manuals, both of which are available at the VA’s Web Automated Reference Material System and which should be consulted regularly to ensure the accuracy of what you are telling your clients. Organizations like Lawyers with Purpose are also indispensable for the support they provide in the form of legal/technical learning opportunities and a network of colleagues facing the same challenges who are ready to answer your questions or act as a sounding board for your daily dilemmas. If you choose to make the time to use the resources available, you can ensure that you do not make the mistake of giving the wrong information.

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By Sabrina A. Scott, Paralegal, The Elder & Disability Law Firm of Victoria L. Collier, PC and Director of VA Services for Lawyers With Purpose.

Victoria L. Collier, Veteran of the United States Air Force, 1989-1995 and United States Army Reserves, 2001-2004. Victoria is a Certified Elder Law Attorney through the National Elder Law Foundation; Author of “47 Secret Veterans Benefits for Seniors”; Author of “Paying for Long Term Care: Financial Help for Wartime Veterans: The VA Aid & Attendance Benefit”; Founder of The Elder & Disability Law Firm of Victoria L. Collier, PC; Co-Founder of Lawyers with Purpose; and Co-Founder of Veterans Advocate Group of America.