• Medical Malpractice
• Wrongful Death
• Personal Injury
• Mesothelioma
• Elder Law
• Medicaid
• Estate & Trust Administration
• General Estate Planning
• Special Needs Planning

Medical Malpractice:

What is Medical Malpractice?
Medical malpractice is negligence committed by a professional health care provider, such as a doctor, nurse, dentist, technician, hospital or hospital worker. When providing medical treatment, the healthcare professional may have disregarded the rules and standards followed by other health care professionals with similar training and experience. The healthcare professional’s negligent act or failure to act caused harm and injury to a patient or patients.

Does someone who is not satisfied with the results of his or her treatment or surgery have a malpractice case?
In general, there are no guarantees of medical results, and unexpected or unsuccessful results do not necessarily mean negligence occurred. To succeed in a medical malpractice case, a plaintiff has to show an injury or damages that resulted from the doctor's negligent act or failure to follow established rules and/ or guidelines.

What type of injuries are compensable?
Typically, the more serious the injury the more likely the injury will be considered compensable. For example, loss of the use of an arm or a leg or amputation; loss of your ability to perform routine daily activities due to the injury; prolonged or unnecessary treatment due to a delay in diagnosing a disease or injury; reduction in life expectancy due to negligent treatment or delay in treatment; and other significant injuries. Since there are a variety of injury types that may be compensable, you should consult with one of our attorneys before deciding on your own whether your injuries are significant or not.

What should I do if a think I have a medical malpractice claim?
You should call us as soon as possible. Be ready to share with us exactly what happened, from your first visit to the doctor or other health care provider, through your last contact with him or her. If possible, obtain your medical records and bring them to your first meeting with us. There are time limits that cover how long someone may bring a medical malpractice claim, so time is of the essence.

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Wrongful Death:

What is wrongful death?
A wrongful death claim arises when a person dies as a result of someone else’s negligence. It could be negligence in operating a motor vehicle, using a product, in a hospital or nursing home setting; or a variety of other causes as well. The deceased's surviving relatives, dependents, or beneficiaries may bring suit against those claimed to have been responsible, and they may seek monetary damages to compensate for the losses. Each state has its own statute covering the viability of claims for wrongful death, and not every state follows the same guidelines, principles, or rules. An attorney who is experienced in investigating and handling wrongful death cases can advise you on whether you have a valid wrongful death claim and can help you pursue that claim to the best possible outcome.

How does an attorney assess or evaluate these losses?
An attorney considers how long a person would have lived had he/she not died due to a wrongful cause; years he/she could have worked and contributed to their family; did he/she leave behind a spouse, children, a business? A court may also consider the value of past contributions made by the decedent, personal habits, and spending behaviors.

Who is entitled to bring a wrongful death claim?
It depends on the jurisdiction in question. Generally, the primary beneficiaries of the individual-often the spouse and children-are able to bring a claim, and in some states the parents of the deceased may be also designated as beneficiaries. In most jurisdictions, in order to be legally responsible for the death of another person, the law does not require that the defendant's conduct be the sole or any cause of the death. Even when the defendant's negligence contributes in part, or in conjunction with other circumstances, to the decedent's death, liability may still attach. Generally, a wrongful death cause of action can arise out of any act of negligence, including an intentional act, or a reckless act, or strict liability. When a defendant is found legally liable for the death of another, the types of losses that may be recovered can also vary greatly. For example, the plaintiffs may be able to recover the costs of medical care and treatment related to the negligent conduct, the funeral expenses, the decedent’s loss of future earnings; the decedent’s loss of benefits (such as pension benefits) and other general losses.

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Personal Injury:

What is a "personal injury?"
Personal injury is a term describing injuries to a person’s body - but it is not limited as to how the injury was incurred. For example, it is not limited to motor vehicle accident, or slipping and falling on a sidewalk.
Injuries to a person can occur in a wide variety of circumstances and in a wide variety of locations, such as businesses, hospitals and homes. The one common thread or string that connects them all is that the injury occurred because of someone’s negligent actions.

How do I know if I have a personal injury case?
First, you must have suffered an injury to your person or property. For example, have you suffered a broken bone, a torn or sprained muscle, a torn ligament, nerve damage or impingement, or bulging disc in your spine? Have you received medical, chiropractic or physical therapy services because of your injury? Second, was your injury the result of someone else's fault?

I've been hurt in an accident. What's the first thing I should do if I want to file a claim?
There are a number of things you can do in the first few days and weeks after an accident to protect yourself, your rights and your potential for recovery, such as: 1) write down as much as you can about the accident itself, your injuries and any other losses (such as wages) you've suffered as a result of the accident; 2) make notes of conversations that you have with people involved in the accident or the injury claim; 3) preserve evidence of who caused the accident and what damage was done by collecting physical evidence and taking photographs; 4) locate people who witnessed the accident; 5) notify anyone you think might be responsible for the accident of your intention to file a claim for your injuries, especially if a government agency or employee may be involved, or a business; and 6) contact us to evaluate your circumstances.

How soon after I am injured do I have to file a lawsuit?
Every state has certain time limits, called "statutes of limitations," which govern the amount of time you have to file a personal injury lawsuit. In some states, you may have as little as one year to file a lawsuit arising out of an automobile accident. If you miss the deadline for filing your case, your claims can be dismissed. Consequently, it is important to talk with us as soon as you receive or discover an injury.

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Mesothelioma:

What is mesothelioma?
Mesothelioma (cancer of the mesothelium) is a disease in which cells of the mesothelium (a membrane that covers the internal organs) become abnormal and divide without control or order. They can invade and damage nearby tissues and organs. Cancer cells can also metastasize (spread) from their original site to other parts of the body. Most cases of mesothelioma begin in the pleura or peritoneum.

How common is mesothelioma?
Although reported incidence rates have increased in the past 20 years, mesothelioma is still a relatively rare cancer. About 2,000 new cases of mesothelioma are diagnosed in the United States each year. Mesothelioma occurs more often in men than in women and risk increases with age, but this disease can appear in either men or women at any age.

What are the risk factors for mesothelioma?
Working with asbestos is the major risk factor for mesothelioma. A history of asbestos exposure at work is reported in about 70 percent to 80 percent of all cases. However, mesothelioma has been reported in some individuals without any known exposure to asbestos.

Who is at increased risk for developing mesothelioma?
Asbestos has been mined and used commercially since the late 1800s. Its use greatly increased during World War II. Since the early 1940s, millions of American workers have been exposed to asbestos dust. Initially, the risks associated with asbestos exposure were not known. However, an increased risk of developing mesothelioma was later found among people who worked in certain industries where asbestos-containing products were used, such as:

• The steel industry
• Chemical plants
• Nuclear power plants
• Construction industry including the remodeling industry.

Some of the types of jobs that would have been exposed to asbestos include:

• Insulators
• Mechanics
• Welders
• Electricians
• Auto mechanics (brake linings).
• Managers who oversaw and supervised workers in these areas

There is some evidence that family members and others living with asbestos workers have an increased risk of developing mesothelioma, and possibly other asbestos-related diseases. This risk may be the result of exposure to asbestos dust brought home on the clothing and hair of asbestos workers.

What are the symptoms of mesothelioma?
Symptoms of mesothelioma may not appear until 30 to 50 years after exposure to asbestos. Shortness of breath and pain in the chest due to an accumulation of fluid in the pleura are often symptoms of pleural mesothelioma. Symptoms of peritoneal mesothelioma include weight loss and abdominal pain and swelling due to a buildup of fluid in the abdomen. Other symptoms of peritoneal mesothelioma may include bowel obstruction, blood clotting abnormalities, anemia, and fever. If the cancer has spread beyond the mesothelium to other parts of the body, symptoms may include pain, trouble swallowing, or swelling of the neck or face.

These symptoms may be caused by mesothelioma or by other, less serious conditions. It is important to see a doctor about any of these symptoms. Only a doctor can make a diagnosis.

How is mesothelioma diagnosed?
Diagnosing mesothelioma is often difficult, because the symptoms are similar to those of a number of other conditions. Diagnosis begins with a review of the patient's medical history, including any history of asbestos exposure. A complete physical examination may be performed, including x-rays of the chest or abdomen and lung function tests. A CT (or CAT) scan or an MRI may also be useful. A CT scan is a series of detailed pictures of areas inside the body created by a computer linked to an x-ray machine. In an MRI, a powerful magnet linked to a computer is used to make detailed pictures of areas inside the body. These pictures are viewed on a monitor and can also be printed.

A biopsy is needed to confirm a diagnosis of mesothelioma. In a biopsy, a surgeon or a medical oncologist (a doctor who specializes in diagnosing and treating cancer) removes a sample of tissue for examination under a microscope by a pathologist. A biopsy may be done in different ways, depending on where the abnormal area is located. If the cancer is in the chest, the doctor may perform a thoracoscopy. In this procedure, the doctor makes a small cut through the chest wall and puts a thin, lighted tube called a thoracoscope into the chest between two ribs. Thoracoscopy allows the doctor to look inside the chest and obtain tissue samples. If the cancer is in the abdomen, the doctor may perform a peritoneoscopy. To obtain tissue for examination, the doctor makes a small opening in the abdomen and inserts a special instrument called a peritoneoscope into the abdominal cavity. If these procedures do not yield enough tissue, more extensive diagnostic surgery may be necessary.

If the diagnosis is mesothelioma, the doctor will want to learn the stage (or extent) of the disease. Staging involves more tests in a careful attempt to find out whether the cancer has spread and, if so, to which parts of the body. Knowing the stage of the disease helps the doctor plan treatment.

How is mesothelioma treated?
Treatment for mesothelioma depends on the location of the cancer, the stage of the disease, and the patient's age and general health. Standard treatment options include surgery, radiation therapy, and chemotherapy. Sometimes, these treatments are combined.

Surgery is a common treatment for mesothelioma. The doctor may remove part of the lining of the chest or abdomen and some of the tissue around it. For cancer of the pleura (pleural mesothelioma), a lung may be removed in an operation called a pneumonectomy. Sometimes part of the diaphragm, the muscle below the lungs that helps with breathing, is also removed.

Radiation therapy, also called radiotherapy, involves the use of high-energy rays to kill cancer cells and shrink tumors. Radiation therapy affects the cancer cells only in the treated area. The radiation may come from a machine (external radiation) or from putting materials that produce radiation through thin plastic tubes into the area where the cancer cells are found (internal radiation therapy).

Chemotherapy is the use of anticancer drugs to kill cancer cells throughout the body. Most drugs used to treat mesothelioma are given by injection into a vein (intravenous, or IV). Doctors are also studying the effectiveness of putting chemotherapy directly into the chest or abdomen (intracavitary chemotherapy).

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Elder Law:

What is Elder Law?
Elder Law is a specialty law that addresses the needs of older clients and those with disabilities.

What areas are involved in Elder Law?
Areas addressed in Elder Law include asset protection planning, Medicaid and Medicare, Social Security, retirement and disability planning, long-term care and nursing home care, age discrimination, and often other areas.

Why Is Elder Law Important?
Elder Law is one of the fastest growing areas of law. Many of the entitlements for which our elderly and disabled persons are eligible, such as Medicaid, Medicare, Social Security, and "health care reform," are being decided at the federal level. An attorney must be well-versed in the current changes in legislation to practice in this area of law.

What do Elder Law attorneys do?
Elder law attorneys help their clients and their families deal with issues that affect older citizens. Many Americans are living longer; sometimes in good health, but oftentimes in poor health. Individuals also have more assets that they may wish to protect and pass along to their children and grandchildren. As a result, this raises new and unique issues which require the assistance of attorneys to help resolve existing problems or plan for the future.

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Medicaid:

What is Medicaid?
Medicaid is a form of financial assistance for individuals who cannot afford to pay for their own health care. Medicaid is funded by both the federal and state governments. Medicaid is strictly for medical services; it does not provide food stamps or other similar financial assistance.

How does one become eligible for Medicaid payment of Nursing Home services?
In Ohio, Medicaid is administered by the Department of Job and Family Services (the DJFS). However, the state program must comply with applicable federal statutes and regulations. So the following explanation includes both Ohio and federal law. The basic rule of nursing home Medicaid eligibility is that an unmarried applicant may have a very limited amount of “countable” assets in his or her name. “Countable” assets generally include all belongings. However, there are some exceptions, including one’s personal residence with certain limitations. Prior to applying for Medicaid, an applicant can spend down “countable” assets by purchasing approved items for his or her benefit. However, there are limitations and prior to embarking on any attempt to “spend down” your assets; you should consult with one of our attorneys to assist you in appropriately evaluating your situation.
The law governing this area is constantly changing and therefore, you need the assistance of a knowledgeable attorney to help you. Even if you or a loved one is currently in a nursing home, you may still be able to take measures to qualify for Medicaid assistance.

Are there any penalties for transferring assets?
Yes, if you inappropriately transfer assets there is a penalty. However, if your transfer is within the acceptable period of time and for acceptable purposes to appropriate persons, there will not be a penalty. There is a five-year “look-back” period from the time a Medicaid application is filed. The look-back period applies to any asset of value, including irrevocable trusts. If an applicant transfers assets during the look-back period, he or she will not be eligible for Medicaid for a period of time. The manner in which ineligibility is determined is based upon the value of the assets transferred and the monthly cost of a nursing home stay. By consulting with one of our attorneys, we can help you determine whether you may be subject to a period of ineligibility.

Are there any exceptions to the Transfer Penalty?
Transferring assets to certain recipients will not trigger a period of Medicaid ineligibility. Special rules apply with respect to the transfer of a home.

Recently enacted legislation has changed elements of the transfer penalty which makes it more imperative to consult with one of our attorneys when a family crisis has occurred and you are considering applying for Medicaid assistance for a nursing home.

Is there an Application process?
Applying for Medicaid is cumbersome and tedious. Every fact asserted in the application must be verified by documentation. The application process can drag on for several months as the DJFS demands more and more verifications regarding issues such as the amount of assets and dates of transfers. If the applicant does not comply with these requests and deadlines on a timely basis, DJFS will deny the application. In addition, after Medicaid eligibility is granted, it must be re-evaluated every year. It is critical that the Medicaid applicant's total countable resources fall under the designated limit to maintain Medicaid eligibility.

Do I have to pay Medicaid back?
The state has the right to recover whatever benefits it paid for the care of the Medicaid recipient from his or her probate estate. Usually, the only property of substantial value that a Medicaid recipient is likely to own at death is his or her home. Congress has given the states the right to seek reimbursement or “estate recovery.” This means that the State of Ohio can seek reimbursement and will use a variety of means to obtain payment. As a result, a person’s home may be subject to recovery by the State of Ohio.

In addition, long term care insurance, under certain circumstances may provide relief from the State’s attempt to recover reimbursement. Finally, the law also provides exceptions to estate recovery when hardship can be proven and will delay estate recovery if a surviving spouse or other dependent relative is living in the house.

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Estate & Trust Administration:

What is the difference between a Probate Estate and a Trust Estate?
As mentioned above, your estate is simply everything you own -- your home, other real estate, bank accounts, investments, retirement benefits from your employer, IRAs, your insurance policies, collectibles, and personal belongings. A trust estate are those items you own which have been titled in the name of the trust usually during your lifetime, and which you may still retain some control or benefit over. On the other hand, a probate estate comes into existence only after a person dies. Therefore, the benefit and the control of the property are placed with someone else.

Should I have a Will if I have a Trust?
Since a Will takes effect only at death, a Will is necessary to make certain any property you own is properly distributed. Even though you may have an existing trust, there may be occasions when you acquire property after the creation of the trust and have not had the opportunity to place it into the trust. By executing a Will, you are guaranteeing that all of your property is protected at the time of your death.

The same reasons for executing a Will are applicable though you also have a trust. See the section above titled: Why should I have a Will?

What does an executor/administrator of an estate do?

• Determine the names, ages, and relationship of heirs;
• Take possession of, and conserve all of the real and personal property of the decedent;
• File with the Probate Court an inventory of all the assets held in the name of the decedent;
• Receive and determine the validity of all claims against the decedent's estate;
• File tax returns and to pay income and estate taxes;
• Make distribution of the estate's assets to the proper persons;
• File an account of all receipts and disbursements made by the executor or administrator with the Probate Court.

Is there a certain amount of time involved in probating an estate?

• An Inventory must be filed within three months after the Letters of Authority are issued.
• File Certificate of Notice of Probate of Will - This triggers the beginning of the three (3) month period in which the Will may be contested
• Ohio and Federal Estate Tax Returns are due nine (9) months after the date of death.
• Probate Court account due six (6) months after Letters of Authority issued.

What costs are involved in probating an estate?

• Court Costs are based on a schedule of charges established by the state legislature for each type of document filed in the Probate Court.
• Executor or administrator fees are established by the state legislature and are based on a percentage of the estate. The percentages are from 1% to 4%, depending upon the nature and value of the assets.
• Attorney fees are based on various Rules implemented by each county.
• Taxes that must be paid are: real estate taxes, personal property taxes, local, state, and federal income taxes, and Ohio and federal estate taxes.

What is Ohio Estate Tax?
An Ohio estate tax is levied by the State of Ohio on the estate (including both probate and non-probate property) of a decedent who was a resident of Ohio at time of death. An Ohio estate tax return must be filed when the value of the gross estate exceeds $200,000 for deaths in 2001 and $338,000 for deaths on and after January 1, 2002.

What is a Trust?
A trust is a useful device to manage property. This could be land, stocks, bonds, cash, etc. Of all the tools of estate planning, it is probably the least understood and appreciated. You may do an excellent job of managing your assets when you are active and alert. When your health fails you may need assistance. A trust can provide for others to step in and assist with, or fully assume, the management of your assets should you become incapable of handling your affairs. It is a flexible and practical tool that can be used to carry out your objectives. A trust is an instrument through which the owner (the settlor or grantor) transfers property to a custodian, called the trustee. The trustee manages the property for someone named in the instrument as the beneficiary. The trustee may be an individual, or an institution, such as the trust department of a bank. The beneficiary may receive current income or future income or principal. The same or a different beneficiary may receive the remainder of the trust at some future date. When an inter vivos or “living” trust is established, initially the settlor, the trustee and beneficiary may be the same person.

What are the advantages of a trust?

• Avoids all probate and related costs--both financial and emotional
• Can reduce or eliminate estate taxes
• Allows quick distribution of assets to beneficiaries. Preserves privacy--completely confidential
• Professional asset management with corporate trustee
• Very hard to contest
• Lets you keep control, even at disability and after your death
• Prevents a conservatorship/guardianship at disability or incompetency
• Minimizes emotional stress on your family
• Prevents unintentional disinheriting
• Avoids problems of joint ownership
• Inexpensive, easy to set up and maintain
• Completely flexible, a revocable trust can be changed or canceled at any time
• Protects minor children from court-imposed financial guardianships
• Can protect dependents with special needs
• Can incorporate terms of a pre-nuptial agreement
• Can provide investment management, tax, accounting, and other services for your family
• Can protect other beneficiaries against claims of creditors
• Can preserve capital for children and grandchildren
• Can provide professional management of property during your lifetime
• Avoids probate administration to distribute property at death
• Can protect against problems associated with incapacity
• Can reduce or eliminate the rights of a surviving spouse
• Can provide for people unable to own or control assets (i.e., minors or disabled family members)
• Can protect estates from divorce, lawsuits and judgments

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General Estate Planning:

What is an estate?
Your estate is simply everything you own -- your home, other real estate, bank accounts, investments, retirement benefits from your employer, IRAs, your insurance policies, collectibles, and personal belongings.

When you start adding it up -- especially when you add in the death benefits from your insurance policies -- you may find, like most people do, that you actually own a lot more than you think.

As you will see, the term "estate" has different meanings in different contexts.

What are the main reasons for estate planning?

• To control who will receive your assets after your death.
• To minimize legal fees and taxes.
• To avoid probate court filings and public disclosure of your personal finances.
• To avoid payment of inheritance taxes.
• To protect yourself in the event you become incapacitated so that you, through the individuals you have chosen, not the courts, keep control of your assets and make decisions about your medical care when you can no longer handle your own affairs.
• To provide for smooth transition of ownership of your assets
• To protect assets from future disability, illness or death

What types of documents can make up an estate plan?

• Last Will and Testament
• Durable General Power of Attorney
• Health Care Power of Attorney
• Living Will Declaration
• Trust
• Deed

What is a Will?
A will is a document that provides for the way in which a person’s probate property will be distributed upon death. Probate property is property that is only in one individual’s name and will not pass by title or contract to others.

Why should I have a Will?
There are a number of important reasons for preparing a Will:

• Appoint an executor and successor executor.
• Appoint guardians for minor children and adult children who are legally incompetent and successor guardians.
• Appoint guardians for property management (need not be same individuals as guardians of persons).
• Provide for property distribution.
• Provide for a trust or life estate.
• Plan for payment of debts.
• Provide a waiver of the Executor posting bond.
• Designate order of death for the purpose of distribution of property in the event of simultaneous death of parties.
• Provide for distribution of property in case of potential disclaimer by a beneficiary under the Will.
• Designate the powers granted to the Executor.
• Provide for allocation of estate taxes.
• Provide clauses to reduce risk of Will contests.

When a person dies without a will, or dies “intestate” as the law calls it, the “probate” property of the deceased is distributed according to a formula fixed by law. In other words, if you don’t make a will, you don’t have any say about how your property will be distributed. If you do not make a will, then the Probate Court will appoint someone (the administrator), whom you may or may not know, to handle your estate.

What is a Durable General Power of Attorney?
Simply stated, a power of attorney is a document in which you grant someone you select the ability to take certain actions in your name, just as you could act. The grant does not deprive you of the right to take those actions and it can generally be revoked at any time. The power of attorney avoids the need for guardianship over you in most instances.

What is a Health Care Power of Attorney?
A Power of Attorney for Health Care is a legal document which authorizes another person to make health care decisions for you if you lose the capacity to make informed health care decisions for yourself. The Power of Attorney for Health Care:

• Names an individual you trust to make a wide variety of health care decisions for you at any time you cannot do so for yourself, whether or not your condition is terminal;
• Becomes effective only when you are temporarily or permanently unable to make your own decisions regarding treatment;
• Requires the person you appoint to make decisions that are consistent with your wishes; and
• Will not overrule a living will in the event you have both documents.

What is a Living Will Declaration?
A living will is a binding legal document you can complete now which declares what your wishes are regarding the use of life-sustaining treatment, if you should become terminally ill or permanently unconscious. A living will:

• Becomes effective only when a patient is permanently unconscious or terminally ill and unable to communicate;
• Spells out whether or not you want life support technology used to prolong your life;
• Gives doctors the authority to follow your instructions regarding the medical treatment you want under these conditions;
• Can’t be revoked by anyone but you, and you can change it at any time;
• Will be followed for a pregnant woman only if certain conditions apply; and
• Specifies under what conditions you would want tube feeding and intravenous fluids to be withheld.

What is a Trust?
A trust is a useful device to manage property. This could be land, stocks, bonds, cash, etc. Of all the tools of estate planning, it is probably the least understood and appreciated. You may do an excellent job of managing your assets when you are active and alert. When your health fails you may need assistance. A trust can provide for others to step in and assist with, or fully assume, the management of your assets should you become incapable of handling your affairs. It is a flexible and practical tool that can be used to carry out your objectives. A trust is an instrument through which the owner (the settlor or grantor) transfers property to a custodian, called the trustee. The trustee manages the property for someone named in the instrument as the beneficiary. The trustee may be an individual, or an institution, such as the trust department of a bank. The beneficiary may receive current income or future income or principal. The same or a different beneficiary may receive the remainder of the trust at some future date. When an inter vivos or “living” trust is established, initially the settlor, the trustee and beneficiary may be the same person.

What are the advantages of a trust?

• Avoids all probate and related costs--both financial and emotional
• Can reduce or eliminate estate taxes
• Allows quick distribution of assets to beneficiaries. Preserves privacy--completely confidential
• Professional asset management with corporate trustee
• Very hard to contest
• Lets you keep control, even at disability and after your death
• Prevents a conservatorship/guardianship at disability or incompetency
• Minimizes emotional stress on your family
• Prevents unintentional disinheriting
• Avoids problems of joint ownership
• Inexpensive, easy to set up and maintain
• Completely flexible, a revocable trust can be changed or canceled at any time
• Protects minor children from court-imposed financial guardianships
• Can protect dependents with special needs
• Can incorporate terms of a pre-nuptial agreement
• Can provide investment management, tax, accounting, and other services for your family
• Can protect other beneficiaries against claims of creditors
• Can preserve capital for children and grandchildren
• Can provide professional management of property during your lifetime
• Avoids probate administration to distribute property at death
• Can protect against problems associated with incapacity
• Can reduce or eliminate the rights of a surviving spouse
• Can provide for people unable to own or control assets (i.e., minors or disabled family members)
• Can protect estates from divorce, lawsuits and judgments

What are the responsibilities of a Trustee?
Being appointed and serving as the Trustee is a very serious undertaking. Every Trustee is held to a high standard of accountability, considerably higher than is required for one's own affairs. One who holds property for another is considered a fiduciary. Every Trustee is a fiduciary and every Trustee has certain duties which must be strictly respected. Those duties include:

1. Duty to carry out the terms of the trust agreement.
2. Duty of loyalty to the Beneficiary.
3. Duty to act and invest prudently.
4. Duty to not delegate Trustee responsibility, although the Trustee may seek professional advice and guidance.
5. Duty to maintain records and keep the Beneficiary reasonably informed of the trust administration.

Perhaps the most significant duty of the Trustee is that of undivided loyalty to the Beneficiary. As the Trustee, you must administer the trust solely in the best interests of the Beneficiary and exclude your own benefit or the benefit of anyone other than the Beneficiary. Because the Trustee has control over the Beneficiary's property, the Trustee is held to a higher standard than would prevail in an ordinary business transaction.

It is important to realize that if you do not carry out these Trustee duties with diligence, you may be held personally responsible to the Beneficiary and may be required to repay any losses which result from your actions.

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Special Needs Planning:

What is a Special Needs Trust?
A Special Needs Trust is a trust arrangement which allows an individual with disabilities to have funds available for his or her needs without the funds counting as a financial asset for benefit eligibility purposes. Many government programs that provide income or payment for medical services and assistance to individuals with disabling conditions have strict financial eligibility limits. Without careful planning, assets received by a child or adult who is enrolled in or may be eligible for these benefit programs (such as Supplemental Security Income or state medical assistance) can jeopardize eligibility for those programs.

What is a Discretionary Trust?
A discretionary trust must also be funded with the resources of another individual, either during his or her lifetime, or through the provisions of his or her will at their death. Such a trust arrangement is appropriate when an individual establishing the trust wants to it to be available for the benefit of a group of beneficiaries which includes the recipient or prospective recipient of means-tested programs. The terms of the trust do not mandate that any beneficiary receive any particular amount of the trust funds, nor can any beneficiary demand that trust funds be distributed for his or her benefit. Therefore, the trust funds are not considered to be assets of any one beneficiary, and there is not a payback provision. A discretionary trust can also be established for a single disabled beneficiary, but it may be subject to more scrutiny as an available resource for benefit eligibility purposes.

What types of supplemental services can be paid for from a Special Needs or Medicaid Payback Trust?
Supplemental services may include, but are not limited to, the following:

• Reimbursement for attendance at or participation in recreational or cultural events;
• Travel and vacations;
• Participation in hobbies, sports or other activities;
• Cosmetic, extraordinary, experimental or elective medical or dental care, if not available through other third-party sources;
• Exercise equipment, or special medical equipment if not available through other third-party sources;
• The cost differential between a shared room and a private room;
• Equipment such as telephones, cable television, televisions, radios and other sound equipment, and cameras for private use by the individual;
• Subscriptions to magazines and newspapers;
• Personal advocacy;
• Services of a representative payee or conservator;
• Guardianship or other protective service;
• Counseling and guidance;
• Someone to visit the individual periodically and monitor the services he/she receives;
• Intervention or respite when the person is in crisis;
• Vocational rehabilitation or habilitation, if not available through other third-party sources;
• Reimbursement for the time and expense for a companion or attendant necessary to enable the individual to access or receive supplemental services including, but not limited to, travel and vacations and attendance at meetings, conferences, seminars, or training sessions;
• Items which Medicaid and other governmental programs do not cover or have denied payment or reimbursement;
• Other expenditures used to provide dignity, purpose, optimism and joy to the Beneficiary of a supplemental services trust.

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