Fleming & Curti, P.L.C. - Florida Special Needs Program Draws Leading Practitioners

OCTOBER 22, 2007 VOLUME 15, NUMBER 17

Florida Special Needs Program Draws Leading Practitioners

“Special needs” attorneys from all over the country gathered this past weekend in Clearwater Beach, Florida, to teach, learn and talk about special needs trusts and planning issues. Very nearly every major law firm focusing in this area of the law (including Fleming & Curti, PLC) was represented at Stetson University College of Law’s Ninth Annual Special Needs Trust program.

A few highlights from the program:

Special needs trusts in divorce court. Massachusetts lawyers Neal Winston and Mark Worthington explained the increasingly common interface between two areas of practice that have traditionally had little in common. Does it make sense to establish a special needs trust for the adult child of a divorcing couple if the child has a disability? In fact, it might not just make sense—it might make the adult child eligible to receive public benefits while still receiving the benefits of parental support. This is an issue we are seeing with increasing frequency in our practice.

Children with serious disabilities, as most activists in the field realize, are living longer into adulthood, and of course the stress of caring for such a child can affect the stability of a marriage. Support payments to (or for the benefit of) an adult disabled child are much more common than they were a few years ago.

Adaptive devices in the residence. In a wonderful presentation by Florida architect Larry M. Schneider and attorney Mark Shalloway, participants learned a host of techniques for adapting a home for easier access. Suggestions ranged from the simple (plastic thresholds to make wheelchair access easier) to the ingenious (rubber strips that hold water inside roll-in showers, while allowing a wheelchair user access) to the obvious (lever-style door handles help those with limited use of their hands—including those temporarily disabled by arms full of groceries, luggage or shopping bags). Schneider is a leading authority on accessibility issues, and Shalloway is this year's President of the National Academy of Elder Law Attorneys.

Case law update. Robert Fleming, partner at Fleming & Curti, PLC, provided an update on recent cases involving special needs trusts and planning from across the country. This year’s cases dealt with a wide variety of issues, including:

— Two cases (from Pennsylvania and Ohio) which used the income from a special needs trust in calculating the beneficiary’s child support obligation.

— A federal appellate case allowing an employer’s medical insurance plan to claim the entire net proceeds—over $400,000—from a personal injury lawsuit before a single penny could be paid to the injured employee.

— A surprising Indiana case allowing payment of family caregivers after the death of a self-settled special needs trust—before repayment of the State’s claim for Medicaid reimbursement.

— A Washington State case permitting amendment of a trust, established years before a special needs woman's diagnosis was even contemplated, so that the later diagnosis could be properly dealt with. This case highlights excellent opportunities for after-the-fact planning when unanticipated disabilities arise.

— A New Hampshire case that illustrates how state Medicaid agencies try to exceed their authority to micromanage special needs trust drafting. This growing problem, long experienced in Arizona, may be easier to address after the New Hampshire Supreme Court's clear explanation of the limits of state authority.

Next year's Stetson program is already set, for October 9 and 10 in St. Petersburg, Florida. Tapes, materials and videotapes of this year's program are available from Stetson's Office of Continuing Legal Education.