Special Needs Spotlight Webinar Series: Administering Special Needs Trusts

The law firm Norris McLaughlin, P.A., is pleased to present the Special Needs Spotlight Webinar Series. In this session, “Administering Special Needs Trusts,” Shana Siegel, a Member of the firm and Chair of its Elder Care & Special Needs Law Practice Group, addressed special needs trusts.

Watch the recording here or read the transcript below:

All right. So, today we're going to be talking about administering special needs trusts. And again, for anyone who missed it, I would just urge you, this is one in a series of webinars, we do have a number of other webinars that deal with some of the introductory issues, understanding the differences between special needs trusts, as well as many other issues. So, please reach out and we can share those with you. When we're dealing with administering special needs trusts, one of the basic distinctions that you need to know is, first of all, what public benefits your loved one who's a beneficiary is, is receiving. So, for instance, if your loved one is on Medicare, or social security disability, or even Social Security via the children's adult, disabled adult child benefit, none of those have financial limitations in terms of how the trust is used. However, Medicaid and SSI do, and you need to be very careful if your beneficiary is on Medicaid or SSI, as to how you administer the trust. So, we will discuss that in detail towards the end, but I just wanted to raise that as a threshold issue to make sure you know what benefits the beneficiary is on.

Understanding Special Needs Trusts

Now, in one of the prior webinars, we talked about the different types of special needs trusts. So, this is just a little bit of a refresher in case you were not a part of that and just to make sure we're all starting on the same page. We're going to go through—we're going to focus today on third-party trusts and first-party trusts, not the pooled trust. Because obviously, as a pooled trust, you would not be the trustee and you would be looking to the nonprofit to handle the administration. So, third-party trust is a trust the beneficiary did not create and the trust does not hold the beneficiary’s assets. The beneficiary is not the trustee of this trust, and the trustee has sufficient discretion to withhold distributions. A third-party special needs trust also has some other requirements for public benefits exemption. So, in order to have the funds in a third-party trust not be counted for Medicaid and SSI purposes, it requires that the beneficiary cannot have the authority to revoke the trust and that the beneficiary cannot direct the use of the trust assets, specifically for specific things such as their support, education, maintenance, and help.

Third-party trusts don't have a payback requirement. And as we've talked about before, that's very important. The grantor can leave any remaining funds to whomever he or she wants. And we've talked about the importance of titling assets so that we end up with assets going into a third-party trust and not having the beneficiary inadvertently inherit and then requiring a first-party trust.

Third-party trusts can be testamentary or standalone, inter Vivos, which is during your lifetime trust. And of course, that makes a big difference in terms of when we're talking about administering special needs trusts. So, a testamentary trust, really there is nothing to administer until after you pass away. So, if you are creating a testamentary trust within your will for the benefit of your beneficiary, it's certainly simpler, generally, but there's no funding until the death. So, that can be advantageous because you don't have to worry about administering the special needs trusts and setting them up during a lifetime, but it also limits the ability of others to contribute, and it doesn't allow that to kind of start into action. Whereas with a standalone trust, you can actually administer that trust, you're going to set it up, you're going to create accounts and then you would have a successor trustee, the parent or creator being the first trustee, and then that successor trustee would be able to just step in at any point that it's appropriate, which could be before your death. That's really where you would be administering during your lifetime, third-party trust special needs trusts.

Firs-party trust, just again, as a little refresher, that is the disabled individual's own funds. So, that is a situation where they have funds that need to be protected, generally for public benefit purposes. And we're going to focus really on the (d)(4)(A), which is the payback trust when we talk about administering these special needs trusts. So, you may be working with a first-party trust if there was a personal injury or other awards, a malpractice award. For instance, if the individual received an inheritance or a gift if there was a young adult who was applying for SSI or Medicaid or somebody who became disabled in adulthood. In administering (d)(4)(A) special needs trusts, first of all, it's going to be established by any number of individuals. You can see here, the individual needs to establish the trust or have it established for them before the age of 65. And on the death of the beneficiary, the trustee must make sure that Medicaid or any other state services are repaid. And we'll talk about that. In administering (d)(4)(A) special needs trusts, one of the particular issues that you come across is the statute requires that expenditures of $5,000 or more, you must notify the state. And in the state of New Jersey, this is not simply a notification, but the Medicaid agency does do a thorough review of any proposed expenditures and does question them. So, this is really important, if you are going to need to be making an expenditure, that you give time to have that Medicaid notice—reach out to Medicaid, have that discussion with them, and seek approval of the expenditure so that you are staying within the rules. (d)(4)(A) trusts also have a sole benefit requirement which we're going to talk about in detail a little bit later.

Considering Fiduciary Roles

Okay, so whether we're talking about a third-party trust or a first-party trust, we have the trust established now, and what are the issues that we have to deal with? So, these are the issues we're going to talk about today. We're going to talk about various fiduciary roles. We're going to talk about the funding of the trust, distributions, many issues related to distributions, as well as administration and record keeping.

In terms of fiduciary roles, of course, we know that there is the trustee, and you have the choice as to whether you're naming an individual, you're working with a corporate trustee, or sometimes people have both, but there are other roles that can be explored and which can be really helpful when you're dealing with the administration of a trust. And the purpose of this is really to kind of provide balance and powers and skills and really have everybody focusing on the benefit of the beneficiary, but from their own strengths in roles. So, for instance, you might have a trust protector. The role of a trust protector is really an individual who's going to be able to make sure that the trust is being administered appropriately. If there any issues with the trustee, they can step in and address those issues. They also would have the power to amend the trust for a change in the law. Often the Medicaid regulations change, there are things that they will require that may not be in a trust that is older, and so it would be important to give the trust protector, or sometimes the trustee if you do not have a trust protector, the power to make amendments for those purposes.

The trust protector can also provide a really important oversight role. And in that regard, they will often be involved in receiving statements, whether that's on a monthly basis or just less frequently, to make sure that the beneficiary is receiving distributions as they should and that the trustee is acting appropriately and with the proper prudent investment.

Trust advisors are a more limited role. So, a trust advisor does not have the power to remove a trustee or take other specific actions but is there really to provide advice to the trustee. You will often find a trust advisor might be a family member if you're using corporate trustee, or it might be a professional, such as an attorney if you have a family member as the trustee. So, it's really in order to provide the information that the trustee may not have in order to be able to best protect the beneficiary.

Something that I found is really important in working with administering special needs trusts and really all trusts are making sure that your fiduciaries have the information that you want them to have in order to be able to follow your instructions. So, we've talked about letters of intent in prior webinars. I think that would be a very important thing to share with your trustees and your other fiduciaries in order to have them understand what your wishes are, and what you envision the life of the beneficiary to be. And that's going to be very instructive when they're considering various distributions and whether they will be appropriate.

Sometimes there are things that family members or creators of trusts do not want to put in the trust document, but they want to expand on what's in the trust document, and that would be a good place for a letter of instruction. So, for instance, I've had clients draft a letter of instruction that addresses things such as their wishes regarding investment, their wishes with regard to the prioritization of the primary beneficiary over any secondary beneficiaries, the inclusion of other advisors getting consultation from other family members. So, these are all things that we can put in our letters of instruction to give the direction that we want to make sure that our wishes are honored.

As I've mentioned before, it's really important that all of our fiduciaries understand the public benefits that the beneficiary is on, as well as what they may be on So, for instance, if we know that at a point when we retire, that our loved one will receive certain benefits, or that there may be benefits that they receive now, that will not be for their lifetime. So, for instance, there might be some income sources that they have now that they might not have in the future. These are all important things for them to be aware of. All financials. You really cannot manage a trust if you don't have all of the financial information. Understanding what assets and income are available to the beneficiary, both within the trust and outside of the trust. So, it's key if you're going to nominate a successor trustee that you give them up-to-date financial information, so at the time that they are going to be asked to step in, that they have all of the financial information that they need in order to be able to do so. If again, if you have successor fiduciaries, it would be really important to empower them to communicate with your legal and financial advisors. You want them to know who they are, and to give the advisors the authority to speak with the fiduciaries in the future.

Now, when we're dealing with funding of the trust, a couple of important factors. First of all, you want to make sure that when you're doing your estate planning, that you have named the trust as a beneficiary, or retitled the assets into the name of the trust—all of the assets that you want to ultimately make sure do go into the trust. So, you just want to check all of those accounts, all of the assets to make sure that everything is taken care of, so there are no issues in the future. When you're opening up bank accounts or investment accounts, you're going to want to make sure that you give a copy of the trust to the bank or to the financial institution. And you're going to be asked the question of whether or not you have a tax ID for the trust or whether you're going to be using the social security number of the beneficiary if it is a first-party trust. We'll talk about this more in the future. But basically, when you have the first-party trust, you do you have a choice of whether you're going to use the social security number or you're going to use the tax ID number. And that does make a slight difference in terms of the taxation process, but it doesn't change the fact that the trust is still going to be taxable to the beneficiary in either case. I do generally use the social security number, although I have created a tax ID number when I am concerned about Medicaid and Medicaid, understanding the distinction of having a separate trust. So, in that situation, sometimes I will use a tax ID, even though it makes it just a touch more complicated.

Okay, so now we're getting to the point of where you're considering making distributions from the trust. So, what are the steps that you need to consider in making these distributions? Well, the first thing, and I know this seems very obvious, is read the trust document. I cannot tell you the number of times that I've had clients who have not followed the basic plain language in the trust document. For instance, not realizing that they need to seek approval for the first-party trust for anything over $5,000. If you simply read the document, you would see that that was in the document language. So, again, I understand all of the difficulties that it is in terms of dealing with these issues and all the things that are on your plate but do take that time to read the trust document. And hopefully, it's going to give you some guidance on making distributions. If there is a separate letter of instruction, then you're going to use that. Read through that and see if there's anything that's relevant to this particular distribution that you're considering. Particularly when we're dealing with non an immediate family member as a trustee, it's important to have a process for addressing requests. So, for instance, if you have a beneficiary, who is able to make requests directly to the trustee, you want to outline what that process is so that you know that they are going to be able to feel empowered to make that request, whether they're picking up the phone or sending an email or doing that in writing. Many trustees will require a request in writing for any distribution outside of kind of the normal distributions that they may be made on a monthly basis. Whatever that process is, you want to make sure that you have a formal process and that both the beneficiary and the trustee are on the same page about it.

Of course, we're going to look at public benefits considerations, and we're going to talk about that in detail in just a minute. But you obviously have to consider if your individual is on public benefits, that you're not doing anything, making any distribution that could disrupt those benefits. If there are qualified retirement assets that are part of the trust, you want to be very cautious to make sure that you are taking the minimum distributions when you need to, and following the rules with regard to those. Generally, we draft our special needs trust so that the minimum distributions can be made just into the trust, they don't have to be made out to the beneficiary, but you want to make sure to check on that and check on the trust language to make sure that you're following what needs to happen.

And then, of course, there are other considerations, primarily maybe financial in terms of the size of the trust. If you're considering a large distribution, or you would have to sell off some investments in order to make a distribution, you really want to have those conversations with a financial advisor that you're working with in order to make sure that you're making a prudent distribution.

Okay, so the sole benefit rules are generally only relevant when we're talking about first-party trusts. There are a couple of exceptions. So, the Secure Act, which now made some changes with regard to qualified assets—qualified retirement assets, does have some language about sole benefit. And there is a particular kind of trust and Medicaid sole benefit trust, where there is a requirement for sole benefit as well. So, if you fall into one of those categories, you need to be very aware of these rules. I most often find it with regard to first-party trusts.

So, when is a distribution for the sole benefit of the beneficiary? Well, this has been something that has changed a number of times over the last several years in terms of the Social Security Administration and Medicaid's consideration of this issue. And so, we would really want to make sure that we're aware of what the current regulations are. So, for instance, there was a change in 2018 to these, which was actually for the benefit of beneficiaries and families. So, instead of it stating that the distribution must only benefit the individual, it does meet the sole benefit criteria, if the primary benefit is for the beneficiary, and there is a simply an incidental benefit to a third-party. So, we might find this for instance, where you are purchasing a computer for the beneficiary. And, you know, it's possible that another family member might use that computer on occasion. That's okay. It could still be for the sole benefit. Now let's compare that with something like you're going to make a change to the home of an individual, and that is going to be an improvement that is going to be for instance, for the kitchen. Well, in that situation, it's more than an incidental benefit to everyone else who lives in that household. And so that would be a situation where you would want to see a pro-rata contribution from other family members in order to make that change, or you would want to look to another source to do that. That could be a problem with the sole benefit rule.

The POMS, which is the Social Security manual, which I'll give you the site for in a second, also made a couple of other changes in 2018. They stated that paying caregivers is okay even if the caregivers are family members. So, even though obviously that is a benefit to whoever is receiving payment, that as long as it is a reasonable reimbursement that it does not violate the sole benefit rules. So, that obviously is a very important clarification. Similarly, administrative expenses. So, if we are paying an attorney or bookkeeper and an accountant, yes, that is a benefit to them, but it still meets the sole benefit rules because it is a primary benefit for the beneficiary, and obviously, important for the administration of the trust.

Travel expenses: This is something that has been—really, I get so many questions about and it's been something that I know it really plagues families. There was a lot of confusion and really some unfortunate examples that were put into the POMS previously, which have now been clarified, that state that travel expenses for another individual, a third-party, can be paid and still without violating the social benefit rule if that individual is required to travel with them to assist the beneficiary. So, for instance, you have a family member that cannot go on vacation themselves, they typically vacation with a parent, then that individual, that one parent, can have their travel expenses paid for out of the first party trust without a violation of the sole benefit rule. And in fact, the example does refer to there might be a situation where more than one person would be required. So, depending on the needs of the individual, it might be necessary that they couldn't really travel with just one individual, they need two, then it could be possible that the travel expenses of two parents or two caregivers would be included.

The role is very clear, however, that minor children, you know, the siblings of the beneficiary, that they would not be covered—their travel expenses could not be covered. Because again, that's not direct assistance to the beneficiary. So, we're really focusing on what is the benefit for that beneficiary and is it required. You can also pay for travel for visiting the beneficiary or for a trustee who needs to travel in order to undertake trustee duties. So, I would really urge you to take a look at the POMS. Here, I'm giving you the citation for the particular section that deals with the sole benefit. And on the next slide, I’ll give you the website here. So, the POMS really, they addressed many, many trust issues. So, there is a whole list of examples under the sole benefit rules but they do address many other issues, such as dealing with debit cards and gift cards, which we're going to talk about in a minute. They really have very good examples to address all of those things. They can be a little bit difficult to find, but you know, I did give you that section on sole benefit, and certainly, if you have questions, you can reach out to me—I can help you with that.

So, another thing that individuals often ask about and have issues with when they're dealing with trust is how do we distribute cash? Can I distribute cash? How do I deal with beneficiaries who are able to handle finances, and I want them to be able to do things on their own. And that can be very challenging for administering special needs trusts. So, the first thing to understand is that distributing cash to a beneficiary is problematic if the individual is on any means-tested benefits. So, if they are on SSI or Medicaid, HUD, any of those types of benefits, DDD, any of those things, if you're distributing cash to them, that can be problematic and it's going to reduce their SSI. So, we want to be very cautious about that. So, many people will look to gift cards as a way to achieve that the beneficiary wants to go out, purchase something, you want it to be paid for from the trust. Can you do that? Well, you can in limited situations, but you need to be cautious that the gift cards cannot be used for food and shelter. And we're going to talk about the SSI, the in-kind support and maintenance rules in a second, as to why that is. And we have we also need to be clear that the gift card cannot be resold. Because obviously in that situation, it is very much like cash. So, debit cards are something that can be very useful. If the debit card is used by the trust—it's owned by the trust, I'm sorry—is in the name of the trust, and if the trustee can maintain restrictions on how it's used. So, for instance, it's clear that it cannot be used for food, shelter, just getting cash, then you can give that card to the beneficiary and allow them to use it without jeopardizing public benefits. A common card that many trustees will use as a true link card. And you will see in the POMS, an extended discussion about the use of these types of cards and how you can do so without jeopardizing benefits.

So, again, just to refresh, the reason that we have these limitations is the in-kind support and maintenance rules. And essentially what this is, is if the trust is paying for anything that is food or shelter, in that situation, then the SSI will be reduced based on that. Because the SSI benefit is meant to cover food and shelter costs. So, if the trust is going to pay for that, then that's going to result in a reduction in benefits. We’ve talked about in prior situations where we can address that through the use of an ABLE account. And certainly, when we have, you know, there are other sources for paying these things, that can be very helpful. But, if we do have to pay food and shelter costs, or we want to pay food and shelter costs out of the trust, we can still do that with the realization that it is going to reduce the SSI benefit up to a maximum of $281. So, it's not eliminating the benefits, it does not mean that you're not going to be Medicaid eligible. But you are going to see that reduction in your SSI, and you are going to see that amount counted as income. So, if you have other income for Medicaid purposes then, you know, you just want to be cautious about that and look at those numbers together. The categories of things that are considered as ISM are listed here. So, if you're paying for any of these things, then you're going to see that consequent result and reduction in the benefits.

Administering Special Needs Trusts

Okay, so I want to just address some basic administrative issues in terms of just kind of administering and accounting in the special needs trusts. So, first of all, you want to be very sure that you are keeping all of the trust assets and accounts separate. So, you want to make sure that the trust accounts are correctly titled in the name of the trust, not in the name of the individual, not in the name of the trustee, and that they are kept separate. Funds that go into the trust are going into those accounts and that you're not having any mistakes in terms of accounts that your name is on. You know, I often find this can be very confusing. You know, when you're a parent, you're trying to care for your special needs child and you're being told that you have to have, you know, three or four different accounts because you have a rep payee account, maybe you have a guardianship account. Now you've got to trust, perhaps two trust accounts, maybe an ABLE account as well. You know, these things seem like it should be very straightforward, but it can be very, very confusing and overwhelming. So, you just want to make sure that you keep those accounts straight, and that the trust assets are going into the trust account.

When you do have sole benefit issues or you have others, even if not in a sole benefits situation, but you just want to make sure that you have an expense that you only want to charge the trust a portion of it because there is a benefit to other people. You may be traveling as a family; you want the trust to pay for certain expenses and not others. You just want to be cautious about prorating that expense and documenting that. So, you know having a simple spreadsheet where you outline the expenses from the trip. Perhaps you've paid for everything on your own credit card and create a spreadsheet to show all of the expenses that you've paid, and then prorate those to list what expenses then the trust is going to pay. And then you can reimburse yourself that way. Just having good bookkeeping habits and good bookkeeping skills. This is something that comes naturally to some and not so naturally to others like myself. So, it really is a matter of discipline, making sure that you keep those schedules, you keep those spreadsheets, and making sure that you have all the records because, you know, very often Medicaid will come back years later, or Social Security Administration will come back years later and ask for records. So, if you keep those schedules, then you'll be able to provide them. I always recommend that even if there is no requirement of doing so, that you go through the exercise of preparing an annual accounting because the last thing you want to do is to have to prepare an accounting for you know, 15, 20 years at the end of trust termination, and be able to try and backtrack and create all of the records from over that time period. You may not be able to get financial records at that point or may it be quite difficult. So, I always say it's a good skill to do that on an annual basis. Make sure that you have all of your banking records and update your spreadsheets if you have maybe fallen behind a few months, and do that annually.

Keeping receipts: Again, you know, you don't necessarily have to have every single time you run to CVS you have to have the receipt, but you should have documents, some kind of record as to when you are using trust assets. So, you know, I will tell you that I have had a client that we had to prove that she had paid certain expenses personally and certain expenses came out of the trust. And we were able to prevail in a social security hearing because we had literally receipts from every shopping trip, every, you know, time she went to the store. I mean, just amazing records that this individual kept, and it really was the difference between us prevailing, because we were able to show things that she paid versus things that the trust paid and having that documentation records.

So, you know, keep a receipt envelope. Again, you don't have to have every single receipt from CVS, but you should have some kind of record in your spreadsheets if you are using the trust. And you want to have actual store receipts or actual receipts from expenditures that are, you know, anything over certainly over $100. I would suggest that you keep those actual receipts.

Insurance: If there are assets that are held by the trust, you want to make sure that they're properly insured, that the insurance is also held in the name of the trust, is paid through the trust. You know, I think it's easy, again, to sometimes kind of lose sight of when you do transfer title of something into the trust that you also make sure that you transfer that insurance at the same time, or something that maybe hadn't been previously insured, that you do that when it's in the trust. You have to remember that with regard to your role as a trustee, I know you may be a parent, you may be a sibling, but you are held to the standard of a fiduciary. And so you are held to be responsible for making sure that you have kept adequate records and that you are acting prudently and in the best interest of the beneficiary. So, those records are really key.

Similarly, when we get down to investments, it's important that you are appropriately investing the trust assets. There is a rule that says that you must invest as a prudent investor would. So, that may mean that you cannot keep large amounts of money in cash. I have had clients who do that. It also means that you shouldn't be involving trust assets in any kind of very risky investments. So, you want to keep these portfolios balanced, you want to have some in stock, some in other assets. So, you're going to want to make sure that you have some cash. So, you want to make sure that you really, whether you're working with a financial advisor, which I would always recommend, or certainly if you're doing things on your own, that you are looking at this on a regular basis. I know, for instance, there were situations where trustees got into trouble when there was the recession, that they did not rebalance portfolios and people lost money and that, you know, the trustees were held responsible for that. So, it's important to make sure that you're monitoring the investments, and that you're getting professional advice in doing so.

So, lastly, I want to address tax issues. This is I think one of the most difficult things for many trustees who are not professional trustees and a place where it's really important to work with good professionals. If you are acting as a trustee, you want to work with an accountant who works with a number of trusts, who is comfortable with different types of trusts and can guide you in these tax issues.

So, first of all, to circle back to what we talked about before, the first-party trust, and that means the funds belong to the individual beneficiary. As a result, this is what we call a grantor trust, that the income is taxable to the beneficiary. So, regardless of whether the income is paid out to the beneficiary or not, it is taxable to the beneficiary. When you're filing income tax returns for the first-party trust, you may, if you have used a tax identification number, an EIN, then you will need to complete a 1041, which is a trust income tax document. However, you are going to do essentially a blank 1041 with an instruction that says that this is a grantor trust. There is a choice that you mark off saying that this is a grantor trust and that therefore, the income will be shown on the return of the individual, of the beneficiary. So, you're essentially just putting all of the income on to the individual's tax returns. If there is no tax ID, and you just have the trust registered under the social security number of the beneficiary, then you're going to get your 1099s in the name of the beneficiary under their social security number. And so, you're obviously just doing the one tax return for them.

When you have a third-party trust, depending on what type of trust it is, it may have a separate return or not. Generally, it is going to have a separate return. If the trust is taxed to the grantor, to the person who created it, then you would have that same situation where you would do a blank 1041. You would note that it is a grantor trust, and you would then have all of the income reflected on the grantor’s return. And sometimes people like to do it that way because they want to allow the trust to grow without having to pay tax out of the trust. However, sometimes that is not the case. Sometimes we draft trusts so that they non-grantor trusts, and certainly, that would be the case after the grantor passes away. Once the trust becomes irrevocable, you're going to have, the trust is going to be paying the tax, and then you're going to be doing a separate return, a 1041, for the trust.

Now, if there is income that is distributed out to the beneficiary, the beneficiary is going to get a tax form called a K-1, and they are going to pay tax on that income that is distributed to them. And that can be advantageous because the beneficiary generally has a much lower tax rate than the trust. The trust has what we call a compressed tax rate, which means that they get to the highest tax rate much sooner than an individual at a much lower income threshold, and so it can be advantageous to make certain distributions to the beneficiary so that income is then taxed at the beneficiary rate. So, this may be something to discuss with your financial advisor. When you're looking at income, if you're paying very high tax, you may want to look at how you could potentially change some of the distributions, some of the income, and address this.

One other way that you may be able to do this is to speak with your accountant or your attorney to determine whether or not the trust could qualify as a qualified disability trust. If it does meet the criteria of a qualified disability trust, then your accountant should know that, so they can make sure that they're taking advantage of the tax-favored status that a qualified disability trust has. So, a qualified disability trust, it does have an exemption amount up to what the personal exemption would have been—personal exemption amount would have been. So, that's going to allow you to avoid that compressed tax rate and having to pay at the highest tax rate, you know, from a very low amount of income. So, those are issues that again, you really should be speaking with your accountant, your financial advisor, your attorney to get some good advice on dealing with these issues.

I'm going to open it up for questions now. If anybody has questions, certainly you can ask them of me now. You can do so in the chatbox. If not, I appreciate you taking the time to be with me. And certainly, here's my information, you can reach out to me at any time, and I can address any questions that you might have.

All right. Thank you. I appreciate it, everybody. Bye-Bye.

If you have any questions about this post or any other related matters, feel free to email Shana at ssiegel@norris-law.com.