Ashley Day Law

What Are Elder Law and Special Needs Planning?Elder law and special needs planning involve preparing for expected and unexpected life circumstances, including the possibility of becoming incapacitated as well as protecting and providing for future needs of loved ones with disabilities.At its core, Elder Law focuses on the unique needs of older persons and practice areas that address issues of concern for aging adults, adults with disabilities/incapacity, their families and caregivers.  Unlike traditional estate planning, Elder Law begins by assisting you with issues associated with a long and healthy life, rather than simply planning for death.  It mixes legal and practical issues such as being able to continue residing in your home if you had a chronic condition, having someone help in managing your finances, and not becoming a victim of financial abuse in the process.  Elder law endeavors to help you solve the problem of not knowing what you dont know.Special Needs Law focuses on solving legal problems for individuals with special needs and their caregivers.  Although there is no uniform definition of special needs, the phrase describes individuals with a wide variety of physical or mental conditions who require assistance with personal care needs, activities of daily living, paying bills, managing finances, etc., who may be vulnerable to and need protection from exploitation or abuse, and who may need access to public benefits or any number of other types of assistance. If you currently provide care for a child or loved one with special needs (such as mental or physical disabilities), you must have contemplated what may happen to him or her when you are no longer able to serve as the caregiver.  Frequently, parents and grandparents are concerned about how their children and grandchildren will be cared for after the parents or grandparents deaths and want to plan in advance to protect their special needs loved one.  Elder Law and Special Needs Planning encompass many different fields of law, including, for example:         Disability planning, durable powers of attorney, living trusts, advance directives, other tools to      delegate management and decision-making to another in case of incompetency or incapacity         Estate planning, including the management of finances and assets during life and disposition on     death using trusts, wills, and other instruments         Special/Supplemental Needs Trusts         Conservatorships and guardianships         Long-term care planning and placements          Trust and probate/estate administration         Elder abuse and financial exploitation         Medicaid planning         Retirement and Social Security planningWhen each day seems to present a new challenge, thinking about the future can be overwhelming.  A plan can help break things down into achievable pieces. No matter what age or stage, it is getting started that counts.This article is for informational purposes only and is not intended to be legal advice.This article was submitted by Ashley Day, Esq., A Day Law, LLC.  Reach her at 251-277-3377.  

Choosing a Trustee for a Special Needs TrustWhen handled appropriately, special needs trusts can protect your loved ones assets and provide for their needs over time while allowing them to receive government benefits. As the trustee plays an invaluable role in managing the beneficiarys finances, protecting your loved ones interests, and maintaining your loved ones eligibility for benefits programs, selecting the correct trustee is crucial.When establishing a special needs trust, consider the following:Dependable family members or other trusted individuals can serve as trustees, as they know the beneficiary and can protect the beneficiarys interests.An independent trustee, such as a bank or trust company, can also manage the trust, lending specific financial knowledge.Special needs trusts can have co-trustees. Two family members can be co-trustees. A family member and an independent trustee can also collaborate, balancing personal connections and expertise.When a financial institution serves as a trustee, a family member can be a protector or advisor. Although this individual has no legal authority over the trust, the protector can advise the trustee about the beneficiarys needs.Choosing the Best CandidateGiven the power they will have to control your loved ones funds and look after their well-being, the trustee you select must be honest and reliable. Although the law imposes a fiduciary duty on trustees to act ethically, there is little court oversight, leaving beneficiaries vulnerable to dishonest actors. To ensure unselfish decisions, the person should have no conflicts of interest and should not receive personal funds from the trust.Understanding public benefits programs, such as Medicaid and Social Security, can help the trustee provide for the beneficiarys needs while preserving eligibility for these programs. Few family members will come into the role completely understanding public benefits regulations. Those without experience with Medicaid or Social Security should be willing to learn how these rules will affect the beneficiary and how to manage the trust to ensure the beneficiary maintains eligibility. A special needs planning lawyer can explain the law and provide guidance.In addition to solid ethics and a willingness to learn about public benefits programs, the trustee should be responsible, organized, and financially savvy. Handling investments, reports, records, and tax returns are part of the trustees role.The right trustee will also understand and respect the beneficiarys needs. The trustee should recognize the beneficiarys autonomy and strive to allocate funds to support independence while protecting your loved ones interests.Before you or your loved one appoints a trustee, talk to the person you have in mind and ensure that the proposed trustee wants to and can take on the role. Consider the persons health and life expectancy. The ideal trustee should be able to take on the rule for the duration of the beneficiarys life.Including another trusted individual as a successor trustee can protect the beneficiary if the first trustee passes away or can no longer manage the trust.Ashley Day is an Elder Law, Special Needs, Trust and Estate attorney.  Contact Ashley Day to learn more about selecting the best trustee for a special needs trust.  Call 251-277-3377 for more information.

Estate Plan Check-UpsEffective estate planning is personal, and its more than just deciding who to leave your assets to once you die.  Effective estate planning  is a comprehensive process that encompasses pre-need planning: health care decisions, financial management, and maintaining a delicate balance between independence and security.  Like your preventive doctor visits, you should regularly check in on your estate plan to ensure it fits your current needs, considers and plans for potential future care needs, and will give effect to your wishes now and in the future. Generally, estate planning involves creating a last will and testament, possibly a revocable trust, possibly an asset protection trust or a supplemental needs trust for a loved one who is unable to manage finances or may be vulnerable to abuse or exploitation.  Estate planning also involves important advanced directives, such as a durable financial power of attorney, a health care power of attorney, and a living will.   Creating an estate plan, or getting my affairs in order, tends to be an item on our to-do lists, for us to get done and move on to the next thing. However, while it may not be something you have to look at every month, or even every year, once your initial estate plan is completed, it is something that needs to be reviewed with some regularity.Most people get an annual physical when they are healthy, not when they are sick. They do this because they want to proactively spot any issues that could cause them to become ill in the future. The same concept can and should be applied when it comes to reviewing and updating your estate plan. Your estate plan may be healthy now, but you want to make sure that it stays that way by checking it regularly, to ensure it fits your needs and family circumstances, protects and provides for you now, and  accomplishes your goals and wishes in the future. Editors Note: This article is for informational purposes only and is not intended to be legal advice.  This article was submitted by Ashley Day, Esq.  Ashley Day Law, LLC.  Reach her at 251-277-3377. 

New Rental Assistance Rule May Open Benefits to More SeniorsThe Social Security Administration (SSA) has published a final rule simplifying and expanding its rental subsidy program for Supplemental Security Income (SSI).Effective September 30, 2024, the new rule is likely to allow more people to qualify for SSI. In addition, some current SSI recipients may see an increase in their monthly benefit amount as a result. The rule change is part of a broader agency effort to streamline certain aspects of the SSI program.SSI applicants and recipients may want to talk to an elder law lawyer about the new rule if they have questions about how it affects them.How Do You Qualify for SSI?SSI is a federal public benefits program that provides a modest monthly benefit to qualifying recipients. It serves older adults across the United States who meet strict income and resource limits. People with disabilities who have limited income and resources also may qualify. In most states, to be eligible for SSI, an individual must have less than $2,000 to their name.SSI Rental Assistance ExplainedIncome affects more than whether an individual is eligible for SSI benefits. It also has an impact on the SSI recipients benefit amount.The SSAs definition of income includes not only earned income from a job and unearned income such as gifted cash, but also what SSA calls items received in-kind, including shelter given to an individual or that someone else pays for.A rental subsidy can result in a lower SSI payment for current recipients. It may also disqualify someone from receiving SSI because their income is too high.However, SSI is now changing how it calculates the rental subsidy amount. The new rule will expand an exception that previously only applied in seven states but starting in September 2024 will apply nationwide.How Rental Subsidy Is Calculated The Current RuleIf an individual pays a monthly required rent charge that equals or exceeds the current market rental value (CMRV) in their area, a business arrangement exists under SSA rules. This means that the SSA does not see the SSI applicant or recipient as receiving rental assistance.SSA regulations consider a person to be receiving a rental subsidy a type of unearned income if they are paying a monthly rent amount for a property that is less than the CMRV where they live. This commonly occurs when somebody is living with a family member who charges them less for rent than what they would pay on the open market.For example, consider an SSI recipient who lives with their sibling, paying a monthly rental rate of $400. If the CMRV in their area is $800, the amount of rental assistance would be $400.However, the SSA imposes a regulatory cap, called a Presumed Maximum Value (PMV), on the rental subsidy amount that can be assessed; that amount is $334.33 for 2024. The SSA also has an unearned income exclusion of $20 per month.Using the example above, imagine a landlord accepting $400 per month instead of the CMRV of $800. The amount that the SSA would count as rental assistance would be $314.33 ($334.33 PMV minus the $20 general income exclusion amount.Assuming a maximum monthly SSI payment of $943 in 2024, and assuming there is no other countable income, the recipients benefit amount would be reduced to $628.67 ($943 minus $314.44).ExceptionFollowing court cases that challenged the SSAs rental subsidy rule, exceptions were provided in seven states Texas, Connecticut, New York, Vermont, Illinois, Indiana, and Wisconsin.In these states, a business arrangement still exists. However, the rental subsidy does not count as income if the monthly rental rate equals or exceeds the PMV, instead of the CMRV.Apply this exception to the example above: An SSI recipient in Connecticut pays $400 per month instead of the CMRV of $800 per month. They would not have their rental subsidy count as income because the $400 payment is more than the $334.44 PMV for 2024.The SSA notes that in the seven excepted states, application of the rental subsidy exception generally results in a higher SSI payment amount.New Rule Applies SSI Rental Subsidy Exception NationwideThe SSA announced in April 2024 that the new rule would make the state-specific rental subsidy exception national policy for SSI applicants and recipients.According to the SSA, the policy change will increase the benefit amount for some recipients and allow more people to qualify for SSI payments. However, it will not affect how much SSA pays per month (a maximum of $943 in 2024).Even with this exception, though, some applicants could see their monthly benefit amount reduced; others may not qualify. The actual formula that the SSA uses is complicated and includes the number of household members, as well as other sources of income.The rental subsidy rule change is the latest SSA effort to remove barriers to accessing SSI payments. Also in the fall of 2024, the agency will no longer use food an applicant or recipient receives from friends, family, and community support networks as part of its in-kind support and maintenance calculations. And in April, SSA published a rule changing how it factors support from other public assistance programs, such as SNAP, when determining beneficiary payments.More than 7 million individuals received federal SSI benefits in January 2023, with payments averaging $654 per month. During calendar year 2022, 172,000 individuals applied for SSI benefits based on age, while 1.23 million applied based on blindness or disability. Approximately 522,000 applicants received SSI benefits in 2022, a decrease of 1 percent compared to 2021.Understanding Social Security Benefits Can Be Difficult. Ashley Day Law Can Help.While the new SSI rule may be advantageous for many low-income, older Americans, terms like PMV, CMRV, and in-kind support are not necessarily intuitive. They may add to the confusion around an already long and challenging SSI benefits process. To make sure the value of your rental subsidy is accurately determined, and that you receive the SSI benefits youre entitled to, get in touch with Ashley Day at 251-277-3377.

Will My Disability Benefits Change When I Turn 65?Turning 65 years old has traditionally been associated with retirement and enrollment in federal benefit programs. However, people with disabilities may already be receiving federal benefits through Social Security, Medicaid, and Medicare before they turn 65.Disabled individuals who qualify for Social Security Disability Insurance (SSDI) and/or Supplemental Security Income (SSI) may wonder what happens to their disability benefits when they reach retirement age.The short answer is that their benefits dont end, and the amount they received prior to turning 65 remains the same. But given the complexity of the federal benefits system, there may be exceptions to these general rules on a case-by-case basis that need to be discussed with a disability attorney.Age 65 and Full Retirement AgeFor most of Social Securitys history, full retirement age, or the age at which someone could receive the maximum amount of Social Security retirement benefits based on their work history, was 65 years old.Reforms to Social Security in the 1980s raised the full-benefit retirement age to between 66 and 67 years old, depending on when somebody was born. For anybody born in 1960 and later, full retirement age is now 67.When Does Social Security Disability Convert to Regular Social Security?The Social Security Administration (SSA) does not permit a person to receive both disability and retirement benefits on one earnings record at the same time.For anyone receiving SSDI payments, their monthly disability benefit automatically switches to Social Security retirement upon reaching full retirement age. Again, this is age 66 or 67 for most people.When this switch takes place, the monthly payment amount stays the same.How Long Do Social Security Disability Benefits Last?SSDI lasts for as long as the recipient has a disabling condition and is unable to work, or until they reach retirement age, at which time the disability benefit converts to a retirement benefit.Social Security performs a continuing disability review (CDR) of SSDI recipients every three to seven years.Turning 65 or reaching full retirement age does not trigger this review. And once SSDI benefits change over to retirement benefits, there is no need for a medical review, since a recipient doesnt have to be disabled to receive Social Security old age benefits.SSI and Retirement AgeA person may qualify for SSI with a disability if they have little or no income and resources and are age 64 and younger, or they have little or no income or resources and are age 65 and older.Qualifying for SSI does not require a work history the way that SSDI does. So, someone can qualify for SSI without ever having worked. But because the SSI benefit payment is not tied to a work history, SSI benefits do not convert to retirement benefits upon reaching full retirement age.If someones receiving SSI for a disability, their benefits can continue after they reach retirement age as long as they still meet the programs financial requirements.Disabled SSI recipients are subject to a CDR at least once every three years, or every five to seven years. During the CDR, the SSA also reviews a recipients income and resources to ensure they are still eligible for and receiving the correct SSI benefit amount.Disability, Medicare, and Turning 65Medicare eligibility ordinarily begins at age 65. But people under age 65 whove gotten SSDI benefits for at least 24 months can start receiving Medicare.SSDI recipients automatically get Medicaid Part A and Part B, collectively known as Original Medicare, after receiving their 25th month of benefits. They can choose at that time to decline or keep Part B, which covers services from doctors and other health care providers. They must typically keep Part A, the portion covering inpatient hospital care.When individuals with qualifying disabilities turn 65 and gain age-based Medicare eligibility, they dont have to re-enroll or complete additional paperwork to continue receiving health care benefits.Turning 65, though, amounts to a secondary initial enrollment period. This could be a good time to re-evaluate current Medicare coverages and make changes.For example, a disabled Medicare recipient may have declined Part B coverage when they first enrolled but decide to keep this coverage when they enroll again at age 65. They can also choose to enroll in another Medicare program, such as Part C or D.Disability, Medicaid, and Turning 65Medicaid is government health care for people with limited income, including those with disabilities.In many states, SSI recipients automatically qualify for Medicaid. Medicaid eligibility thats based on receiving SSI should not be impacted by turning 65, but there could be considerations related to special needs trust funding at age 65.Medicaid covers some costs that Medicare does not, such as long-term care. Special needs trusts can help to preserve a beneficiarys access to benefits like SSI and Medicaid. But the window of time to fund a first-party special needs trust closes at age 65.Some people are also eligible for both Medicaid and Medicare. They may be able to enroll in a Dual Eligible Special Needs Plan, a type of managed care plan that helps to coordinate coverage for those with complex medical needs.Work With a ProfessionalSSDI, SSI, Medicare, and Medicaid all have complex rules that may vary by state. Whether youre turning 65 or reaching retirement age, contact Ashley Day at 251-277-3377. She can provide answers and assist with any necessary paperwork.  

For nearly a decade, people with disabilities have had the option to accumulate savings in a special tax-free account without risking their means-tested public benefits. In 2024, the annual limit on how much money one can deposit into these savings vehicles, known as ABLE accounts, will rise, allowing individuals to add up to $18,000 per year.What Is an ABLE Account?Many people across the disability community rely on such government assistance as Medicaid, Supplemental Nutrition Assistance Program (SNAP) benefits, or Supplemental Security Income (SSI). Yet having too many assets to their name can disqualify them from receiving these often critical benefits. For example, in most states, the resource limit to qualify for Medicaid is just $2,000. In 2014, Congress signed the Achieving a Better Life Experience (ABLE) Act into law to help address this issue.Individuals with an ABLE account can save up to a total of $100,000, tax-free, while remaining eligible for public assistance programs. Family members, friends, and others can make contributions to the account, too. The disabled person can then use these funds to help maintain their independence by spending them on disability-related expenses, including assistive technologies, education, transportation needs, vacations, legal fees, and health care.Unlike a special needs trust (SNT), an ABLE account can be opened by the individual with the disability. This offers them considerably more control over the account funds compared with an SNT. Starting in 2024, the annual limit on contributions to ABLE accounts will be $18,000, up from $17,000 in 2023. Through the end of 2025, ABLE account owners who work can contribute their employment income to these savings vehicles even beyond the per-year deposit limit. (Learn more about these rules under the ABLE to Work Act.)The idea for these accounts derived from the concept of a 529 college savings plan. Similar to a 529 plan, funds in an ABLE account grow tax-deferred over time. In addition, each state administers its own ABLE account program.To qualify, you must meet the Social Security Administrations strict definition of disabled. You also must have incurred your disability before age 26. (Note that the age cutoff will shift to age 46 come 2026. According to estimates, this age adjustment will result in roughly 6 million more individuals becoming eligible to open these types of savings accounts.)Why Open an ABLE Account?People with disabilities are among those most at risk for financial disaster. According to research, just 10 percent of people of working age who are living with a disability are financially healthy.ABLE Accounts, or 529A accounts, can serve as a form of future financial support for these individuals. Yet the vast majority of those who could benefit from these accounts remain unaware of them. As of 2022, 8 million people were eligible for this type of account, yet a mere 120,000 had one in place.Get Support With ABLE Accounts To learn more about setting up this type of savings account, consult with Ashley Day Special Needs & Elderly Law at 251-277-3377.