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	<title>Wiggen Law Group PLLC</title>
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	<description>Estate Planning, Elder Law and Special Needs Planning, Family Law</description>
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		<title>New Guide Helps People With Mental Health Conditions Who Want to Work</title>
		<link>http://wlgnc.com/new-guide-helps-people-with-mental-health-conditions-who-want-to-work?utm_source=rss&#038;utm_medium=rss&#038;utm_campaign=new-guide-helps-people-with-mental-health-conditions-who-want-to-work</link>
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		<pubDate>Wed, 10 Apr 2013 18:08:41 +0000</pubDate>
		<dc:creator>wlgnc</dc:creator>
				<category><![CDATA[Disability]]></category>
		<category><![CDATA[Estate Planning]]></category>
		<category><![CDATA[Medicaid]]></category>
		<category><![CDATA[Special Needs Planning]]></category>

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Although a staggering number of individuals with mental health conditions do not work, competitive employment remains a goal for most, and most people with mental health conditions are able to work successfully if they receive the support they need. The &#8230; <a href="http://wlgnc.com/new-guide-helps-people-with-mental-health-conditions-who-want-to-work">Continue reading <span class="meta-nav">&#8594;</span></a>]]></description>
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			<content:encoded><![CDATA[<p><span style="font-family: Arial; font-size: small;">Although a staggering number of individuals with mental health conditions do not work, competitive employment remains a goal for most, and most people with mental health conditions are able to work successfully if they receive the support they need. The Temple University Collaborative has written &#8220;A Practical Guide for People With Mental Health Conditions Who Want to Work&#8221; to help provide that support to people with mental health diagnoses who wish to return to successful careers.</span></p>
<p><span style="font-family: Arial; font-size: small;">The Guide offers encouragement and vital information on the importance of work, the availability of rehabilitation programs, the ins and outs of the Social Security Administration&#8217;s work incentives, the challenges of starting a new job and grappling with disclosure, and strategies for long-term success in the workplace. Designed for those with mental health conditions to use on their own or as part of a return-to-work group in community mental health centers, psychiatric rehabilitation programs, or peer-run agencies, the Guide aims to help people achieve economic self-sufficiency.</span></p>
<p><span style="font-family: Arial; font-size: small;">In addition, the Guide spends considerable time walking readers through all stages of the hiring process. The authors are quick to point out that many typical interview questions are potentially illegal, such as asking about an applicant&#8217;s psychiatric history or use of prescription drugs. The Guide offers down-to-earth ways to answer these questions, along with lessons on writing resumes and cover letters.</span></p>
<p><span style="font-family: Arial; font-size: small;">To download the Guide from the Temple Collaborative on Community Inclusion for Individuals with Psychiatric Disabilities&#8217; Web site, click <a href="http://tucollaborative.org/pdfs/Toolkits_Monographs_Guidebooks/employment_circles_of_support/A_Practical_Guide_for_People_With_Mental_Health_Conditions_Who_Want_to_Work.pdf" target="_blank">here</a>.</span></p>
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		<title>Proposed Change to North Carolina Divorce</title>
		<link>http://wlgnc.com/proposed-change-to-north-carolina-divorce?utm_source=rss&#038;utm_medium=rss&#038;utm_campaign=proposed-change-to-north-carolina-divorce</link>
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		<pubDate>Wed, 03 Apr 2013 12:30:21 +0000</pubDate>
		<dc:creator>wlgnc</dc:creator>
				<category><![CDATA[Changes in Law]]></category>
		<category><![CDATA[Child Custody]]></category>
		<category><![CDATA[Child Support]]></category>
		<category><![CDATA[Divorce]]></category>
		<category><![CDATA[Domestic Law]]></category>
		<category><![CDATA[Family Law]]></category>

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On March 28, the North Carolina legislature proposed the &#8220;Healthy Marriage Act,&#8221; a change to the statue governing divorce. Currently, North Carolina couples seeking divorce must show a one year physical separation.  This amendment would change that statute to require &#8230; <a href="http://wlgnc.com/proposed-change-to-north-carolina-divorce">Continue reading <span class="meta-nav">&#8594;</span></a>]]></description>
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			<content:encoded><![CDATA[<p>On March 28, the North Carolina legislature proposed the <a href="http://www.ncga.state.nc.us/Applications/BillLookUp/LoadBillDocument.aspx?SessionCode=2013&amp;DocNum=2325&amp;SeqNum=0">&#8220;Healthy Marriage Act,&#8221;</a> a change to the statue governing divorce. Currently, North Carolina couples seeking divorce must show a one year physical separation.  This amendment would change that statute to require a two year separation.  The separation does not need to be a physical separation.  Couples seeking a divorce would be permitted to live together.  Instead of separation, the two year period begins after one spouse delivers a written notice of intent to divorce to the other spouse.  Additionally, both spouses must attend courses on communication and conflict resolution.  If they have children, they must attend additional classes on the impact of divorce on children.</p>
<p>These changes, supposedly promoting &#8220;healthy marriages,&#8221; will likely have the opposite effect.  Delivery of a notice of intent to divorce may become a common event in a happy marriage.  Having this notice delivered would allow the clock to start ticking on the two year waiting period.  There is an indication that any sexual intimacy during the waiting period may trigger an revocation of that notice.  But the couple may just swear that nothing happened during the two years and get the divorce.</p>
<p>Additionally, I would be concerned about one party blocking a divorce by refusing to take the required classes.</p>
<p>The current one year separation is already a significant detriment and barrier to divorce.  Many couples remain unhappily married for many years because of this requirement.  Most attorneys who work in this field would advocate for a shorter period of separation.  Neither lengthening the time period prior to divorce or complicating the divorce statute are the solutions to advocate for &#8220;healthy marriage.&#8221;</p>
<p><em>Jack Wiggen is a Partner and Co-Founder of Wiggen Law Group PLLC.  His practice focuses on helping families resolve issues related to divorce, child custody, child support and adoption.  </em></p>
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		<title>Choosing an Investment Advisor for a Special Needs Trust</title>
		<link>http://wlgnc.com/choosing-an-investment-advisor-for-a-special-needs-trust?utm_source=rss&#038;utm_medium=rss&#038;utm_campaign=choosing-an-investment-advisor-for-a-special-needs-trust</link>
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		<pubDate>Mon, 18 Feb 2013 18:14:59 +0000</pubDate>
		<dc:creator>wlgnc</dc:creator>
				<category><![CDATA[Uncategorized]]></category>

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Trustees of special needs trusts have a duty to properly manage the funds in their care. However, most trustees, especially non-professional ones, are not sophisticated investors and they should not be directly managing the investment of large sums of money. &#8230; <a href="http://wlgnc.com/choosing-an-investment-advisor-for-a-special-needs-trust">Continue reading <span class="meta-nav">&#8594;</span></a>]]></description>
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			<content:encoded><![CDATA[<p>Trustees of special needs trusts have a duty to properly manage the funds in their care. However, most trustees, especially non-professional ones, are not sophisticated investors and they should not be directly managing the investment of large sums of money. This does not mean that the trustee of a special needs trust should simply toss the trust funds into a savings account and be done with it. On the contrary, a trustee needs to grow the trust principal as best he can, keeping in mind the current and future needs of the trust&#8217;s beneficiary. In many cases, this means that the trustee should hire a professional investment adviser.<br />
There are countless investment professionals out there to choose from &#8212; so many, in fact, that the choice of an investment adviser can quickly become overwhelming. The Web site of the Securities and Exchange Commission (SEC) offers several tips for beginning investors who are seeking to hire an investment professional. According to the SEC, investors should know exactly what services they are looking for prior to interviewing advisers, and they should find out what services their potential investment adviser provides, how much those services cost, and how and when the adviser gets paid.<br />
These threshold questions are important, but the SEC also recommends asking each potential adviser a battery of specific questions, including questions about their experience, education and employment history, whether the adviser is limited to recommending a certain set of products and whether the adviser is registered with the SEC or with a state licensing agency. Trustees should also understand the various types of fee structures utilized by investment advisers, including a percentage fee based on the total assets under management, an hourly system, a fixed fee or a commission based on the products sold.<br />
Trustees of special needs trusts have slightly different needs than typical investors, and, if possible, they should work with advisers who are flexible and who already have experience investing the funds of special needs trusts. Trustees should also be aware that hiring a poor financial adviser could lead to a breach-of-fiduciary duty claim against the trustee, so more detailed background checks and due diligence are required than if the trustee were an individual investor.<br />
Asking friends, relatives and other professionals &#8212; including especially estate planning attorneys &#8212; to recommend an adviser is always a good idea.</p>
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		<title>Sweetheart Scams Target Seniors</title>
		<link>http://wlgnc.com/sweetheart-scams-target-seniors?utm_source=rss&#038;utm_medium=rss&#038;utm_campaign=sweetheart-scams-target-seniors</link>
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		<pubDate>Sat, 16 Feb 2013 16:41:17 +0000</pubDate>
		<dc:creator>wlgnc</dc:creator>
				<category><![CDATA[Criminal]]></category>
		<category><![CDATA[Elder Law]]></category>

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Sweetheart scams are on the rise in North Carolina.  In a sweetheart scam,  scammers use social media and dating websites such as Facebook, ChristianMingle.com, SeniorPeopleMeet.com and Match.com to send messages to a potential victim expressing interest in getting to know &#8230; <a href="http://wlgnc.com/sweetheart-scams-target-seniors">Continue reading <span class="meta-nav">&#8594;</span></a>]]></description>
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			<content:encoded><![CDATA[<p><a href="http://wlgnc.com/wp-content/uploads/2013/02/candy-hearts.jpg"><img class="alignleft size-full wp-image-2345" alt="candy-hearts" src="http://wlgnc.com/wp-content/uploads/2013/02/candy-hearts.jpg" width="300" height="231" /></a>Sweetheart scams are on the rise in North Carolina.  In a sweetheart scam,  scammers use social media and dating websites such as Facebook, ChristianMingle.com, SeniorPeopleMeet.com and Match.com to send messages to a potential victim expressing interest in getting to know him or her. The scammers then develop an online romance with their potential victims through a series of emails and online communications.  Inevitably the scammers claim that an emergency has come up and they convince their victims to send money to help get them through the emergency.</p>
<p>The North Carolina Attorney General&#8217;s Office Consumer Protection Division heard from 25 victims of sweetheart scams in 2012 who lost more than $2 million in total.</p>
<p>Sweetheart scams can target men or women of any age but seniors can be special targets. Ten of the 25 consumers who complained of sweetheart scams in 2012 were seniors. One Lexington senior lost more than $1 million to a man who conned her into repeatedly sending him money overseas.</p>
<p>If suspect that someone you know has been the victim of a sweetheart scam, contact the Attorney General&#8217;s Office at 919-716-6400.</p>
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		<title>Understanding The Fiscal Cliff Legislation</title>
		<link>http://wlgnc.com/understanding-the-fiscal-cliff-legislation?utm_source=rss&#038;utm_medium=rss&#038;utm_campaign=understanding-the-fiscal-cliff-legislation</link>
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		<pubDate>Fri, 15 Feb 2013 18:09:49 +0000</pubDate>
		<dc:creator>wlgnc</dc:creator>
				<category><![CDATA[Changes in Law]]></category>
		<category><![CDATA[Elder Law]]></category>
		<category><![CDATA[Estate Planning]]></category>
		<category><![CDATA[Medicaid]]></category>
		<category><![CDATA[Social Security]]></category>
		<category><![CDATA[Wills]]></category>

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Legislators were very busy New Year&#8217;s Eve and into the early morning hours of New Year&#8217;s Day to draft and ultimately pass legislation to avoid what was commonly referred to as &#8220;The Fiscal Cliff.&#8221; But what really happened? In summary, &#8230; <a href="http://wlgnc.com/understanding-the-fiscal-cliff-legislation">Continue reading <span class="meta-nav">&#8594;</span></a>]]></description>
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			<content:encoded><![CDATA[<p><a href="http://wlgnc.com/wp-content/uploads/2013/02/man-cliff-illustration.jpg"><img class="alignleft size-medium wp-image-2338" alt="man-cliff-illustration" src="http://wlgnc.com/wp-content/uploads/2013/02/man-cliff-illustration-230x300.jpg" width="230" height="300" /></a>Legislators were very busy New Year&#8217;s Eve and into the early morning hours of New Year&#8217;s Day to draft and ultimately pass legislation to avoid what was commonly referred to as &#8220;The Fiscal Cliff.&#8221; But what really happened? In summary, not much new was passed, but rather the legislation in large part made permanent the system of estate and income tax that has been in effect for the past two years. The new law did put off for two months some important spending cuts that must take place due to a process called &#8220;sequestration.&#8221; It is these additional cuts that could have a significant impact on our senior population and their loved ones.</p>
<p><strong>The Bottom Line on What Was Passed</strong><br />
This newsletter provides a summary of the legislation that was passed and what remains to be decided. If you have questions or need additional information, please contact us directly.</p>
<p><strong>Estate taxes.</strong> An estate tax is a federal tax (and in some states also includes a state tax) on the transfer of a deceased person&#8217;s assets to his heirs and beneficiaries, and can include prior transfers made to those heirs and beneficiaries. However, under federal law, there is a certain amount that can be transferred without incurring any tax liability. In 2010, every individual could transfer (gift) up to $5 million tax-free during life or at death to avoid paying estate taxes on that amount. This amount is called the &#8220;basic exclusion amount&#8221; and is adjusted for inflation (usually on an annual basis). In 2012 it was raised to $5.12 million per person.</p>
<p>This year&#8217;s new &#8220;fiscal cliff legislation&#8221; did not change how much an individual could transfer during life or at death to avoid paying federal estate taxes on that amount. And, on January 11, 2013, the IRS announced that the estate tax exclusion amount for individuals who die in 2013 is now $5.25 million, as the prior figure has now been adjusted for inflation.</p>
<p><strong>What if no action had been taken with regard to estate taxes?</strong><br />
Without the new legislation, the $5.12 figure would have automatically reverted to $1 million per person, and the rate for most estates would have gone up to 55%. Instead, the only thing the new legislation changed was the gift and estate tax rate, which has gone up to a top rate of 40%, from a maximum of 35% in 2012.</p>
<p><strong>Married couples.</strong>The new legislation did not change prior law that stated that spouses do not have to pay estate tax when they inherit from the other spouse. Rather, when the first spouse dies, the other spouse can inherit the entire estate and any estate tax due would be postponed until the second spouse dies. This is called the &#8220;marital deduction.&#8221; If the surviving spouse is not a U.S. citizen, then there are restrictions on how much can be passed to the surviving spouse tax-free. It is also important to remember that this type of tax benefit between spouses is not always automatic &#8211; any married couple who may be subject to estate tax should seek the advice of an attorney to make sure their estate plan is properly set up to take advantage of this particular tax incentive.</p>
<p><strong>What about lifetime gifts?</strong> The current basic exclusion amount of $5.25 million per individual is an exclusion for both lifetime gifts and gifts at death. This is often referred to as the &#8220;unified credit&#8221; amount. For example, an individual could transfer assets of $2 million during their lifetime and an additional $3.25 million at death, and the total, $5.25 million, would not be subject to either gift or estate tax. However, if an individual transferred more than the $5.25 limit, that individual (or the heirs) will owe a tax of up to 40%.</p>
<p>The donor should report any gifts made during their lifetime to the IRS so a proper calculation can be made at the donor&#8217;s death. Using the above example, the $2 million lifetime gift would have been reported to the IRS even though no gift tax would be due. And, the IRS would then know that individual had $2.25 remaining to pass at death free of estate taxes.</p>
<p>There are additional gifting advantages available to married couples during their lifetime, and advice should be sought from an attorney versed in this area to determine what, if any, gifting incentives may be available.</p>
<p>Lifetime gifts that do not count toward the $5.25 million exclusion amount. There is an amount each year that can be transferred without counting toward the $5.25 exclusion amount. In 2013, that amount is $14,000 per year, per person (called an &#8220;annual exclusion amount&#8221;). For example, an individual can give three different people $14,000 in 2013, and it will not count toward the $5.25 lifetime exemption amount. Couples can double this amount and give $28,000 per person per year.</p>
<p><strong>Planning Note:</strong> It is important to remember that any gift (unless designated as an exempt transfer under the federal and state Medicaid rules) will cause a penalty for Medicaid purposes. Individuals often believe that because they can transfer $14,000 per year per person under the tax rules, the same applies to Medicaid. The rules are very different for Medicaid, and a penalty will apply if that type of gift is made.</p>
<p><strong>Changes to the income tax rules.</strong> This newsletter highlights the main points of the income tax rules that could directly affect seniors and their loved ones. For additional information on the alternative minimum tax or charitable gifting, please contact us directly.</p>
<p>In prior years, everyone enjoyed a 2% Social Security tax reduction as a stimulus measure. Under the 2013 legislation, this &#8220;tax holiday&#8221; was not extended; therefore, everyone will see a decrease in their net pay.</p>
<p>Ordinary income tax rates increase from 35% to 39.6% for singles earning more than $400,000 a year ($450,000 a year for married couples). All other ordinary income tax rates effective in 2012 were made permanent.</p>
<p>For those individuals earning over $200,000, and for married couples who earn over $250,000, there is a new Medicare 0.9% surtax on ordinary income and a new 3.8% surtax on investment income. These additional taxes were part of the 2010 health care legislation, much of which begins implementation in 2013.</p>
<p>The top capital gains and dividend rate increased to 20% for those earning more than $400,000 a year ($450,000 for married couples).</p>
<p><strong>Additional Cuts Are on the Way</strong><br />
The current fiscal cliff legislation did not address the automatic spending cuts that were to take place on January 1, 2013. Instead, the automatic cuts, known as sequestration, were pushed back two months to March 1, 2013. Sequestration was one portion of the spending cuts included in the Budget Control Act, passed and signed in August 2011.</p>
<p>The Budget Control Act of 2011 allowed the president to raise the debt ceiling by $2.1 trillion, and it instituted two rounds of significant spending cuts. One round of cuts involved government programs like defense spending, education funding, the FBI and other government agencies that would receive automatic budget cuts relative to their scheduled growth over the next 10 years.</p>
<p>The second half of the spending cuts was supposed to be decided on by Congress through a Joint Select Committee on Deficit Reduction. This Committee (referred to as the &#8220;supercommittee&#8221;) was to come up with a list of cuts that would then be put to Congress for a full vote. If the committee couldn&#8217;t agree on the cuts, $1.2 trillion in further spending reductions over 10 years would be implemented starting Jan. 1, called the &#8220;sequester.&#8221; No cuts have yet been agreed upon, and the automatic spending reductions have been moved back to March 1, 2013, to allow Congress time to come to an agreement.</p>
<p>Programs like Medicare, Medicaid and Social Security have been the topic of discussion for the second portion of the spending cuts. We will continue to monitor and report on the progress of Congress as it pertains to these spending cuts and how they will impact our senior population and their families.</p>
<p><strong>Conclusion</strong><br />
The fiscal cliff legislation is in place; however, there is more legislation to occur that could have a significant impact on those affected by programs like Medicare, Medicaid and Social Security. While many families may not be affected by the current estate and income tax rules, there are many who could have their life savings consumed by long term care costs. We help seniors and their families plan ahead to avoid a financial crisis, even if a health care crisis occurs. If you would like to learn more or if we can help someone you know, please give us a call.</p>
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		<title>The Benefits of Using Irrevocable Trusts in Long-Term Care Planning</title>
		<link>http://wlgnc.com/the-benefits-of-using-irrevocable-trusts-in-long-term-care-planning?utm_source=rss&#038;utm_medium=rss&#038;utm_campaign=the-benefits-of-using-irrevocable-trusts-in-long-term-care-planning</link>
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		<pubDate>Wed, 15 Aug 2012 13:11:53 +0000</pubDate>
		<dc:creator>wlgnc</dc:creator>
				<category><![CDATA[Disability]]></category>
		<category><![CDATA[Elder Law]]></category>
		<category><![CDATA[Estate Planning]]></category>
		<category><![CDATA[Medicaid]]></category>
		<category><![CDATA[SSI]]></category>
		<category><![CDATA[Trusts]]></category>
		<category><![CDATA[elder law]]></category>
		<category><![CDATA[elderly]]></category>
		<category><![CDATA[irrevocable trust]]></category>
		<category><![CDATA[long-term care planning]]></category>
		<category><![CDATA[medicaid]]></category>
		<category><![CDATA[medicaid planning]]></category>
		<category><![CDATA[North Carolina]]></category>
		<category><![CDATA[senior]]></category>
		<category><![CDATA[special needs trust]]></category>
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People often wonder about the value of using irrevocable trusts in long-term care planning. Certainly gifting of assets can be done outright, not involving an irrevocable trust. Outright gifts have the advantages of being simple to do with minimal costs &#8230; <a href="http://wlgnc.com/the-benefits-of-using-irrevocable-trusts-in-long-term-care-planning">Continue reading <span class="meta-nav">&#8594;</span></a>]]></description>
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			<content:encoded><![CDATA[<p>People often wonder about the value of using irrevocable trusts in long-term care planning. Certainly gifting of assets can be done outright, not involving an irrevocable trust. Outright gifts have the advantages of being simple to do with minimal costs involved, including the cost of preparing and recording deeds and the cost of preparing and filing a gift tax return. Many financial institutions have their own documents they use for changing ownership of assets so there are typically no out-of-pocket costs for the transferor.</p>
<p>So, why complicate things with a trust? Why not just keep the planning as simple and inexpensive as possible? The short answer is that gift transaction costs are only part of what needs to be considered. Many important benefits that can result from gifting in trust are forfeited by outright gifting. These benefits are what give value to using irrevocable trusts in long-term care planning.</p>
<p>Prior to state implementation of the federal Deficit Reduction Act of 2005 (DRA) in recent years (with the exception of California), federal Medicaid law contained a bias against trusts: Most transfers of assets to trusts had a 5-year lookback period, whereas there was a 3-year lookback period for non-trust transfers. This different standard induced many clients to elect outright gifting in preference to gifting in trust. The DRA leveled the playing field by imposing a 5-year lookback period for ALL transfers. Removal of the bias against trusts shifted the discussion of elder law attorneys with clients to the real benefits of gifting in trust versus gifting outright.</p>
<p>Key benefits of gifting in trust are:</p>
<ul>
<li>Asset protection from future creditors of beneficiaries</li>
<li>Preservation of the Section 121 exclusion of capital gain upon sale of the settlors’ principal residence (the settlor is the trustmaker)</li>
<li>Preservation of step-up of basis upon death of the settlors</li>
<li>Ability to select whether the settlors or the beneficiaries of the trust will be taxable as to trust income</li>
<li>Ability to design who will receive the net distributable income generated in the trust</li>
<li>Ability to make assets in the trust noncountable in regard to the beneficiaries’ eligibility for means-based governmental benefits, such as Medicaid and Supplemental Security Income (SSI)</li>
<li>Ability to specify certain terms and incentives for beneficiaries’ use of trust assets</li>
<li>Ability to decide (through the settlors’ other estate planning documents) which beneficiaries will receive what share, if any, of remaining trust assets after the settlors die</li>
<li>Ability to determine who will receive any trust assets after the deaths of the initial beneficiaries</li>
<li><em>Possible</em> avoidance of need to file a federal gift tax return due to asset transfer to the trust</li>
</ul>
<p>We will briefly discuss each of these potential benefits in sequence. Each of these potential benefits depends on the specific language selected in the design and drafting the trust. None of them is automatic or inherent in every trust. Thoughtful planning and careful drafting is necessary to take advantage of the benefits available, thus it is important to understand how and why each benefit comes about. This article is just an introduction to these topics, not a specific drafting guide. We are available to discuss any of these issues in more detail.</p>
<p><strong>Asset Protection from Future Creditors of Beneficiaries</strong></p>
<p>A central benefit of gifting in trust is to protect the gifted assets from the creditors and predators of the beneficiaries. This is accomplished by means of a spendthrift provision – special provisions in the trust that make trust assets not subject to attachment, foreclosure, garnishment, or a laundry list of undesirable actions by the creditors of the beneficiaries.</p>
<p><strong>Preservation of Section 121 Exclusion of Capital Gain on Sale of Principal Residence</strong></p>
<p>Section 121 of the Internal Revenue Code (Tax Code) creates an exclusion from capital gains tax of up to $250,000 of capital gain in the taxpayer’s principal residence when it is sold if the taxpayer owned and lived in it at least two of the past five years before the sale (only one of the past five years if the homeowner had to move to a nursing home). If there are two qualifying co-owners, they can each exclude $250,000 of gain upon sale in such circumstances. This is a very valuable benefit that has been in the Tax Code since 1997. A trust can preserve this benefit if it is a “complete grantor trust” – a grantor trust as to both income and principal. On the other hand, a residence gifted outright to someone and then sold by the successor would need to qualify for the Section 121 exclusion based on the ownership of the donee to avoid capital gain in excess of the adjusted cost basis of the donor. Our senior population often has owned their home since the late 1940s, 1950s or 1960s, so a huge amount of appreciation in value has occurred since then.</p>
<p><strong>Preservation of Step-Up of Basis</strong></p>
<p>When an appreciated asset is included in a decedent’s taxable estate for federal estate tax purposes, it receives step-up (or down) of basis to the date of death value under Section 1014 of the Tax Code. Normally gifted assets pass to gift donees with “pass through basis”; that is, the donees receive the assets with the donor’s adjusted cost basis, rather than the date of gift value of the assets. If, however, something pulls the assets back into the taxable estate of the donor upon the donor’s death, the donee will own the asset at that point with the donor’s date of death value as his or her basis, rather than the donor’s original adjusted cost basis. For highly appreciated assets, such as the donor’s home or stocks that he or she owned for a long time, obtaining step-up of basis can be a huge benefit for minimizing or eliminating capital gains tax when the donee later sells the assets. This benefit of step-up in basis can easily be forfeited by outright gifting. However, a provision in an irrevocable trust that pulls the property back into the taxable estate of the settlor upon the death of the settlor can preserve step-up of basis for benefit of the donee. With the amount of assets that can pass free of federal estate tax being well beyond the value of most long-term care planning clients’ estates, estate inclusion and step-up of basis is generally a great benefit to design into the trust, without any actual tax liability. A Limited Power of Appointment retained by the settlor can accomplish this. Other provisions can also cause taxable estate inclusion.</p>
<p><strong>Ability to Select Whether Trust Income is Taxable to Settlors or Beneficiaries</strong></p>
<p>This brings us to the topic of “grantor trusts.” Grantor trusts are treated by the Tax Code as “owned” by the settlor (also called the grantor) for income tax purposes. As mentioned above, preservation of the Section 121 exclusion of capital gain upon the trustee’s sale of the settlor’s primary residence that was earlier funded into the trust requires that the trust be a “grantor trust” as to both income and principal. The creation and significance of grantor versus nongrantor trust status takes an entire seminar or article unto itself, so can only be touched upon lightly here. But the choice of whether a trust will be a grantor or nongrantor trust and how that will be accomplished are key design decisions. For example, it may be important that income generated in the trust <span style="text-decoration: underline;">not</span> be taxed to the settlor. This requires nongrantor trust status, which necessitates that every trust provision that would cause grantor trust status be avoided in the drafting of the trust. In other examples, however, grantor trust status is important as a goal for tax reasons, or if the settlors are to receive income from the trust.</p>
<p><strong>Ability to Design Who Will Receive Trust Income</strong></p>
<p>Unlike an outright gift, by which the donor gives up the right to receive income generated by the transferred assets, an irrevocable trust can be designed so funding constitutes a completed gift for Medicaid purposes although the settlor reserves the right to receive income from the trust. This is an attractive option for some seniors, although it does result in an inherent downside for Medicaid planning purposes: Any income that the trustee has the power to distribute to the settlor will be counted for Medicaid eligibility purposes, even if the trustee decides not to actually distribute the income to settlor. Some seniors avoid trustee discretion by making distribution of all trust net income to them mandatory, rather than discretionary. In this case, the income would also be counted for Medicaid eligibility purposes as well. Others go the entirely opposite direction by prohibiting the trustee from distributing any income to the settlor, thereby ensuring that trust income will not be part of the settlor’s cost of care budget when the settlor is on Medicaid. There are several factors to weigh in such decision-making, but the key point for this discussion is that use of an irrevocable trust in Medicaid planning gives the client these design choices, whereas an outright gift does not.</p>
<p><strong>Ability to Make Trust Assets Noncountable for Beneficiaries’ Medicaid or SSI</strong></p>
<p>It is a sad fact that an outright gift or bequest from a donor, such as a parent, to a disabled donee can result in the donee becoming ineligible for means-based governmental benefits that he or she was eligible for before the gift or bequest, or soon would have become eligible for. In such situations, unless irrevocable trust planning is then done to establish a “self-settled special needs trust,” the gifted or bequeathed assets typically get consumed for the donee’s care and once they are gone, the donee goes onto the governmental benefits from which the gift or bequest disqualified him or her until consumed. One way of looking at this outcome is that the indirect recipient of the gift or bequest was the governmental benefit program from which the gift disqualified the disabled person for a period of time. This is generally considered poor planning.</p>
<p>Better planning is for the gift or bequest to be made in an irrevocable special needs trust for benefit of the disabled beneficiary, so the gift or bequest will be managed to enhance the living conditions of the disabled beneficiary by paying for things that the governmental benefits do not pay for. If a disabled person becomes entitled to an outright gift or bequest, or an outright gift or bequest recipient later becomes disabled, depending on the age of the disabled person, it may be possible to establish a “self-settled special needs trust” for the disabled beneficiary. Such trusts (funded with assets of the disabled person) must contain a provision stating that upon the death of the disabled beneficiary any remaining trust assets must pay back the state up to the full amount of Medicaid benefits received by the beneficiary, and only after the state is reimbursed may any excess pass to other beneficiaries such as other relatives. The payback provision requirement is Congress’s “quid pro quo” – the balancing deal that makes it fair for the disabled person’s otherwise disqualifying assets to be set aside in a Medicaid- and Supplemental Security Income-noncountable trust that is nonetheless able to be consumed by the trustee for benefit of the disabled person to supplement but not replace the governmental benefits.</p>
<p><strong>Ability to Specify Terms and Incentives for Beneficiaries’ Use of Trust Assets</strong></p>
<p>Many parents or grandparents desire to infuse their planning for their children or grandchildren with positive aspirations. Such goals may be as simple as that the gifts or bequests may only be used for the recipients’ education, to finance a career change or buy a home. Or the goals may be more serious, for example, establishing that the intended recipient will only become eligible to receive the gift or bequest if he or she participates in a drug or alcohol rehabilitation program or gives up some other behavior that the donor wants to create an incentive for the donee to abandon. Such planning goals of a client almost always indicate an irrevocable trust with beneficiary incentive provisions as the vehicle to implement the plan. This is completely compatible with asset protection planning for seniors at the same time.</p>
<p><strong>Ability to Decide Which Beneficiaries Will Inherit Upon Settlor’s Death</strong></p>
<p>The retained Limited Power of Appointment referred to above (sometimes called a Special Power of Appointment) preserves for the settlor the power to decide who within a designated class of recipients will receive the benefits of the trust, how much they will receive, and in what way they will receive it. The class of potential recipients can be as broad as everyone in the world except the settlor and his or her creditors, and the settlor’s estate and its creditors. Most often, however, the class of potential appointees consists of the settlor’s descendants, certain other relatives or in-laws, and/or certain charities. Such a Limited Power of Appointment (LPOA) can determine whether the trust is a grantor or nongrantor trust, as well, so the specific language of the LPOA must be crafted carefully with regard to the grantor trust rules of the Tax Code. As an aside, a power of appointment is sometimes referred to jokingly as a “power of disappointment” because it truly retains for the settlor or other power holder the power to disinherit someone who acts badly.</p>
<p><strong> </strong><strong>Ability to Determine Successor Beneficiaries</strong></p>
<p>A major concern in asset protection planning and estate planning in general is who will be the successor beneficiaries of anything a client leaves to someone. If the gift or bequest passes outright, the recipient has control through lifetime consumption of assets and income or through his or her estate plan, to determine who will receive anything that the initial recipient doesn’t use up. Of course, the recipient’s creditors or predators also may gain control over the assets and income gifted outright to the initial recipient. If the client would prefer to designate that only blood descendants, or descendants and their spouses, and/or certain charities will receive what is not consumed by the initial recipient, an irrevocable trust is a key instrument to create such a plan. This is true almost regardless of the initial size of the gift or bequest – if a modest amount of funds are left in trust, there may nevertheless be a remainder to pass to a successor beneficiary or even another successor beneficiary. This sounds like a “dynasty trust” and it actually is, even though it is of modest size. The point is that by use of an irrevocable trust, the client has the option to decide who the possible recipients will be, and even to grant limited powers of appointment to the named recipients in order to give them some control as well.</p>
<p><strong>Analysis of Need to File a Federal Gift Tax Return for Year of Funding</strong></p>
<p>A goal of many planners in design of irrevocable trusts is to make the initial trust-funding gift(s) “incomplete” for tax purposes. The purpose is generally to prevent the settlor from having to file a federal gift tax return for the year(s) of the funding transaction(s), assuming that the taxpayer makes no other “taxable gifts” in any such year.</p>
<p>There is a split of authority with the Internal Revenue Service concerning when transfers to an irrevocable trust are considered “complete,” thus requiring the filing of an income tax return. Normally there will not be any gift tax due (the current laws allow an individual to give away $5 million in assets during her lifetime without paying any tax on the gift) but it is important to follow the rules that do require filing a gift tax return, even if no tax is due. We are happy to assist with this analysis.</p>
<p><strong>Conclusion</strong></p>
<p>The above discussions demonstrate that use of irrevocable trusts in long-term care planning, as in other fields of estate planning, provides many opportunities to create great benefits beyond simply transferring assets. Some or most of these benefits may be achieved through the use of an irrevocable trust. If care is taken to include the desired provisions, an irrevocable trust can greatly enhance the value of the clients’ long-term care planning beyond what can be accomplished through outright gifting.</p>
<p>We are happy to assist seniors and their loved ones with considering whether an irrevocable trust may be appropriate for them. Please contact our office to schedule a time to discuss these issues further.</p>
<p><em>To comply with the U.S. Treasury regulations, we must inform you that (i) any U.S. federal tax advice contained in this newsletter was not intended or written to be used, and cannot be used, by any person for the purpose of avoiding U.S. federal tax penalties that may be imposed on such person and (ii) each taxpayer should seek advice from their tax advisor based on the taxpayer&#8217;s particular circumstances.</em></p>
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		<title>Child Support and Supplemental Security Income: A Primer</title>
		<link>http://wlgnc.com/child-support-and-supplemental-security-income-a-primer?utm_source=rss&#038;utm_medium=rss&#038;utm_campaign=child-support-and-supplemental-security-income-a-primer</link>
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		<pubDate>Sun, 12 Aug 2012 13:00:21 +0000</pubDate>
		<dc:creator>wlgnc</dc:creator>
				<category><![CDATA[Child Custody]]></category>
		<category><![CDATA[Child Support]]></category>
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Supplemental Security Income (SSI) is a federal program that provides cash assistance to people with disabilities who have very limited incomes and resources. In most cases, SSI recipients may also obtain a much more important benefit &#8212; automatic Medicaid eligibility. &#8230; <a href="http://wlgnc.com/child-support-and-supplemental-security-income-a-primer">Continue reading <span class="meta-nav">&#8594;</span></a>]]></description>
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			<content:encoded><![CDATA[<p>Supplemental Security Income (SSI) is a federal program that provides cash assistance to people with disabilities who have very limited incomes and resources. In most cases, SSI recipients may also obtain a much more important benefit &#8212; automatic Medicaid eligibility. Because access to SSI depends on a beneficiary&#8217;s income and resources, even small increases in income can cause a reduction or loss of SSI benefits. Unfortunately, when an SSI beneficiary&#8217;s parent is ordered to pay child support, those payments can end up ruining the beneficiary&#8217;s access to government benefits.</p>
<p>Child support payments are a problem for SSI recipients because the Social Security Administration (SSA) treats a substantial portion of a child support payment as unearned income for purposes of calculating SSI benefits. Receipt of unearned income results in a dollar-for-dollar reduction in an SSI benefit, so, for instance, an SSI beneficiary who receives $200 in unearned income has her SSI benefit reduced by $200 in the month that the income is received. If the amount of unearned income is greater than the entire SSI benefit (for example, when someone has a $500 monthly SSI benefit and she receives $600 in unearned income), the beneficiary loses SSI, and, potentially, Medicaid.</p>
<p>Fortunately, the SSA does not always count an entire child support payment as unearned income. If a child support recipient is younger than 18 (or 22, if she is still in school), and if the recipient receives the payment from an absent parent (defined as a parent who does not live in the same household as the child), then the SSA considers only two-thirds of the payment as unearned income. However, this is small consolation for an SSI beneficiary who has her assistance reduced or terminated despite the one-third break.</p>
<p>There are several ways to handle child support for a child with special needs. If the amount of the child&#8217;s SSI benefit is clear at the time of the divorce, it may be possible to agree upon a child support settlement that reduces, but does not eliminate, SSI. (Of course, the benefit of receiving SSI and Medicaid has to be weighed against the advantages of a larger child support payment. In some cases, it may be better to forgo SSI and receive a larger child support award instead.)</p>
<p>In other cases, it may make sense to create a special needs trust for the child&#8217;s benefit. The court can then order the non-custodial parent to make support payments directly into the special needs trust. The trust will shelter the income and allow the child to retain SSI benefits, and, in many cases, the support payments can be retained in the trust if not immediately used. Unfortunately, these particular special needs trusts are not perfect because they must contain a &#8220;payback provision&#8221; that allows the government to recover its Medicaid expenses from the unused assets in a deceased SSI beneficiary&#8217;s trust. However, if properly managed, there may not be a large sum remaining in the special needs trust when the beneficiary passes away.</p>
<p>If you are in the middle of a divorce, or if previously agreed-upon child support payments are wreaking havoc with your child&#8217;s SSI benefits, talk to your special needs planner about your options immediately.</p>
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		<title>Beware the Remote or Contingent Beneficiary with Special Needs</title>
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		<pubDate>Tue, 24 Jul 2012 12:40:33 +0000</pubDate>
		<dc:creator>wlgnc</dc:creator>
				<category><![CDATA[Disability]]></category>
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		<category><![CDATA[Special Assistance]]></category>
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You may not want to leave any of the money in your estate directly to a relative with special needs, but the fine print in your estate planning documents might cause a catastrophic distribution anyway. You should be cautious about &#8230; <a href="http://wlgnc.com/beware-the-remote-or-contingent-beneficiary-with-special-needs">Continue reading <span class="meta-nav">&#8594;</span></a>]]></description>
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			<content:encoded><![CDATA[<p>You may not want to leave any of the money in your estate directly to a relative with special needs, but the fine print in your estate planning documents might cause a catastrophic distribution anyway.</p>
<p>You should be cautious about leaving an outright bequest of money or property to a person with special needs because the receipt of assets could compromise the individuals government benefits. If you want to leave funds in your estate for the benefit of a person with special needs, an attorney who focuses on special needs planning will help you to establish and fund a special needs trust that will hold your loved one&#8217;s inheritance for her benefit, while insuring that her government benefits stay intact. However, in many cases you may not want to leave any money for a relative with special needs, but your previous estate plan (possibly drawn up by a lawyer who doesn&#8217;t specialize in special needs planning) may have other ideas. Let&#8217;s take a look at how this might work.</p>
<p>Joanne has three adult children, Sarah, Emily and Doug. Sarah has two children, Emily has three children, and Doug has one child, a son with special needs who lives on his own and receives Supplemental Security Income and Medicaid. Joanne loves her grandchildren dearly but would like to leave her entire estate to her three children, with funds passing to a grandchild only if one of her children dies. Joanne visits a non-special needs planner who draws up a will stating that all of Joanne&#8217;s property shall pass &#8220;in equal shares to my children or, if a child is not living, then to his or her issue.&#8221; This will seems to fulfill Joanne&#8217;s wish and, at first glance, it doesn&#8217;t appear to cause any problems for her grandchild with special needs because Doug is going to receive the inheritance, not his son.</p>
<p>But first glances can be deceiving. If Doug dies before Joanne and she doesn&#8217;t change her will before her death, Doug&#8217;s son with special needs will inherit his father&#8217;s share of Joanne&#8217;s estate, and that inheritance will wreak havoc on his Supplemental Security Income and Medicaid benefits. A properly drafted estate plan will not rely on generic language and will address Doug&#8217;s son&#8217;s special needs by either creating a special needs trust to hold his potential share of the estate (even though it&#8217;s only a remote share) or by skipping Doug&#8217;s son altogether, if Joanne believes that this is appropriate. Doug may have already created a special needs trust for his son, in which case it is likely that Joanne could direct Doug&#8217;s share of her estate right into the trust in case he passes away before her.</p>
<p>The one thing that you should never do is pretend that this isn&#8217;t going to happen to you. A good estate plan takes into account all possibilities, even those that seem remote. Keeping your fingers crossed and relying on a child to survive you and inherit your estate is not an effective estate planning strategy, despite the fact that the odds are in your favor. If you&#8217;ve prepared your estate plan with a non-special needs planner, there is a good chance that he or she might not have taken your relative with special needs into account when drafting the &#8220;remote or contingent beneficiary&#8221; provisions of your documents.</p>
<p>At Wiggen Law Group we can review your estate plan to make sure that your remote or contingent beneficiaries will not lose out in the future because of poor drafting in the past.  Call today to schedule an appointment.</p>
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		<title>Oprah Invites Caregivers to Her Show</title>
		<link>http://wlgnc.com/oprah-invites-caregivers-to-her-show?utm_source=rss&#038;utm_medium=rss&#038;utm_campaign=oprah-invites-caregivers-to-her-show</link>
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		<pubDate>Mon, 25 Jun 2012 12:36:40 +0000</pubDate>
		<dc:creator>wlgnc</dc:creator>
				<category><![CDATA[Elder Law]]></category>
		<category><![CDATA[Health Care Power of Attorney]]></category>
		<category><![CDATA[Living Will]]></category>
		<category><![CDATA[Power of Attorney]]></category>
		<category><![CDATA[Social Security]]></category>
		<category><![CDATA[Special Assistance]]></category>
		<category><![CDATA[Veterans Benefits]]></category>
		<category><![CDATA[caregiver]]></category>
		<category><![CDATA[elder law]]></category>
		<category><![CDATA[elderly]]></category>
		<category><![CDATA[senior]]></category>

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Oprah is doing a &#8220;day in the life&#8221; show featuring individuals who act as the primary caregiver for their elderly parents.  If you&#8217;re the primary caregiver for your parent and are interested in appearing on Oprah, click here for more &#8230; <a href="http://wlgnc.com/oprah-invites-caregivers-to-her-show">Continue reading <span class="meta-nav">&#8594;</span></a>]]></description>
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			<content:encoded><![CDATA[<p><a href="http://wlgnc.com/wp-content/uploads/2012/06/oprah1.png"><img class="alignleft size-full wp-image-2209" title="oprah" src="http://wlgnc.com/wp-content/uploads/2012/06/oprah1.png" alt="" width="246" height="100" /></a>Oprah is doing a &#8220;day in the life&#8221; show featuring individuals who act as the primary caregiver for their elderly parents.  If you&#8217;re the primary caregiver for your parent and are interested in appearing on Oprah, click <a href="https://www.oprah.com/ownshow/plug_form.html?plug_id=9011902">here</a> for more information.</p>
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		<title>Nurse in Orange County Pleads Guilty to Involuntary Manslaughter</title>
		<link>http://wlgnc.com/nurse-in-orange-county-pleads-guilty-to-involuntary-manslaughter?utm_source=rss&#038;utm_medium=rss&#038;utm_campaign=nurse-in-orange-county-pleads-guilty-to-involuntary-manslaughter</link>
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		<pubDate>Tue, 05 Jun 2012 12:07:08 +0000</pubDate>
		<dc:creator>wlgnc</dc:creator>
				<category><![CDATA[Uncategorized]]></category>

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A nurse at Britthaven of Chapel Hill plead guilty to drugging Alzheimer&#8217;s patients to keep them quiet during her shift.  Several patients had respiratory problems and one patient died as a result of the morphine.  What a truly sad story &#8230; <a href="http://wlgnc.com/nurse-in-orange-county-pleads-guilty-to-involuntary-manslaughter">Continue reading <span class="meta-nav">&#8594;</span></a>]]></description>
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			<content:encoded><![CDATA[<p>A nurse at Britthaven of Chapel Hill plead guilty to drugging Alzheimer&#8217;s patients to keep them quiet during her shift.  Several patients had respiratory problems and one patient died as a result of the morphine.  What a truly sad story and hard to believe it happened so close to home.  Click <a href="http://www.heraldsun.com/view/full_story/18853511/article-Nurse-pleads-guilty-to-involuntary-manslaughter--patient-abuse">here</a> to see the full story.</p>
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