October 22, 2019 • 27 mins
In Episode 2, host Allycia Wolff talks with attorney Jason Schellack. As Executive Director of the Autism Advocacy & Law Center, Jason shares his expertise on special needs estate planning. In this episode, Allycia and Jason dive into the various trusts and wills that financially and legally prepare you for the future.
About the Autism Advocacy & Law Center
Since 2009, the Autism Advocacy & Law Center has provided high-quality, cost-effective legal services to individuals with disabilities and their families. Serving the state of Minnesota, they help with guardianship, estate planning, trusts, family law, special education, criminal defense, medical assistance, and social security. Learn more at autismlawcenter.com.
Questions?
You can find more information about Focus on the Future at arcminnesota.org/podcast. If Episode 2 inspired a question for an Arc Advocate, call The Arc Minnesota at 833.450.1494.
About Focus on the Future
Focus on the Future is a podcast for caregivers and families supporting people with disabilities. In each episode, a conversation about the journey of discovering our best life and how to achieve it. While exploring legal, financial, and quality of life structures, Focus on the Future helps to get back to what matters most: living a fulfilling and meaningful life that is defined by each individual person.
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Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Music (00:04):
[ music playing]
Allycia Wolff (00:05):
Welcome to Focus on the Future, a future planning
podcasts for caregivers andfamilies supporting people with
disabilities.
Focus on the Future is a podcastof The Arc Minnesota, a
nonprofit advocacy organizationworking with folks with
intellectual and developmentaldisabilities.
My name is Allycia W olff.
I'm an advocate with The ArcMinnesota and your host for
Focused on the Future.
(00:25):
I n this week's episode I willbe chatting with Jason
Schellack, he's an attorney withthe autism advocacy law center
and we will be having an indepth conversation about estate
planning and trusts and all thelegal aspects that you should
consider when you're thinkingabout your future.
Thanks for joining us.
Music (00:49):
[ music playing]
Allycia Wolff (00:51):
In the last episode I spoke a little bit
about the three legged stool, sohow the core components of
future planning are broken intothree aspects; legal, financial,
and quality of life planning.
In the next few episodes I'mgoing to be focusing on one of
those areas and today's episodeis going to be about legal
(01:11):
planning, which we often callestate planning and when it
comes to families that arecaring for a loved one with a
disability, it's referred to asspecial needs estate planning.
It's this really niche area oflaw that some attorneys know
really, really well and can helpfamilies with and this is why
(01:33):
The Arc has an attorney list ofpeople that specialize in
special needs estate planningbecause it is such a niche area
of the law.
Overall estate planning is something that everybody and
anybody should do.
It's generally referred to asthe legal coordination of your
will and your trust; often timeshealthcare directives and powers
(01:54):
of attorney.
All of the like paperwork stuffso that once somebody passes
away, all of their estate isorganized in a way where
families won't have to fight incourt or go through a whole
legal arduous process, estateplanning helps protect all of
that.
Specifically when it comes tosupporting people with
(02:15):
disabilities that are ongovernment benefits, special
needs estate planning focuses onmaking sure that people can
continue to receive criticalbenefits even after their
parents pass away.
And this is often where trustscome into play, so families will
think to themselves, I have achild with a disability, I would
(02:36):
really like to give them someassets upon my passing to ensure
that all of their needs are metacross their lifetime.
But the concern comes in whenpeople are receiving benefits
like social security or medicalassistance, where there are
asset limits.
The asset limits on theseprograms are often like two or
$3,000, so people have moremoney than that then they're
(03:00):
disqualified from these benefitsthat they really need.
Trust enable families to leavemoney behind for a loved one and
know that the money in thattrust is going to be spent on
anything that is needed in thefuture, without disqualifying
them from benefits and there's afew different kinds of trusts
that people can consider, whichI'll explain now.
(03:25):
It's important to know that thisinformation also is specific to
Minnesota.
If you are looking upinformation about trusts in
California or Maine or Floridaor Ohio, you'll hear similar
language, but there will bedifferent specifics in it.
Know that this information isspecific to Minnesota and also
(03:47):
know that I'm not an attorney soI can't tell people exactly what
they should do as far as t helegal plan, but I can help
people understand just generallywhat the options are.
So in Minnesota we basicallyhave two different kinds of
trusts, a third partysupplemental needs trust, and a
(04:09):
first party special needs trust.
Now the third party supplementalneeds trust is what a lot of
people put together when theyare thinking about the future
and they are proactivelyplanning.
A supplemental needs trust isoften what families create when
they are doing their will and they're thinking overall about
estate planning.
(04:29):
So a third party supplementalneeds trust is that proactive
planning tool, it allows peopleto keep their benefits and
receive as much money fromanyone.
Third party means that i t'sanybody aside from the person
with the disability puttingmoney into that trust.
We call this the proactiveplanning tool is supplemental
needs trust.
(04:49):
Alternatively, there is thefirst party special needs trust.
Now, here at The Arc weaffectionately refer to the
special needs trust as t he"oopsy" trust.
And so this is when maybeproactive planning didn't happen
or couldn't happen, or it wasjust an accident and somebody
gave money outright to a personwith a disability and said,
(05:12):
oops, this can't happen, thisperson needs to still be
qualified for these benefits, sonow let's put it in a trust.
This could also happen with asocial security payback or with
like a settlement from anaccident.
A first party special needstrust as an"oopsy" trust.
Oops, this person has money intheir name, they shouldn't,
we're going to put it in atrust.
(05:35):
And so the special needs truststhe money that is the person's.
The special needs trust alsocomes back, comes with a payback
clause, so upon the p erson'spassing, any money left in that
trust has to go to pay the stateback for any services that they
have paid for and accrued overtheir lifetime.
Jason Shellack (05:54):
Whereas the supplemental needs trust doesn't
have a payback clause and youcan elect beneficiaries for any
money that is still in the trustupon the person's passing.
So basically in Minnesota, thoseare the two trust options; a
third party supplemental needstrust, the proactive planning
tool and the first party specialneeds trust, the"oopsy" trust,
(06:18):
the trust, that's money that hasbeen in the person's name at
some point.
Now with those two trusts,there's also two ways to set up
those trusts.
So you can set up those twotrusts with a private attorney
and then choose a trustee ofyour own choice to manage that,
so often it's families thatmanage that or have a cousin or
(06:41):
an aunt or something.
You can set it up privately withan attorney and choose your own
trustee or you can set up apooled trust.
And a pooled trust is managed bya nonprofit organization such as
The Arc Minnesota.
In Minnesota there are a fewdifferent options for
organizations that have and manage pool trusts.
(07:01):
We are just one of them, but itcan be a great option for a lot
of families.
Many people choose the pooledtrust option when they don't
have anybody that can step intothe role of a trustee or they
just want it to be managed bythe organization.
Allycia Wolff (07:19):
And that is an incredibly brief summary of
trust and special needs estateplanning in Minnesota, there's a
lot more pieces that could go tothat, so in future episodes of
the podcast we're going to talkabout healthcare directives and
powers of attorney and successorcare for things like
(07:41):
guardianship and trustees.
That's often something thatcomes in, but this episode
specifically is going to be onall the legal specific pieces.
The rest will come later.
So when you choose an attorneyand you are starting with this
process of doing your specialneeds, estate plan, you'll go in
(08:02):
and you'll say, I want toestablish a supplemental needs
trust and I need to do my will.
Your will is another reallycritical component to the
special needs estate planbecause it is t he document that
describes what you want tohappen with your estate and what
your intentions are.
And a will is an important legaldocument for anybody, but
(08:24):
especially in this processbecause your will has to state
that the supplemental needstrust exists and that you want
your estate to be allocated tothe supplemental needs trust and
not to your child with adisability.
Your will has to say thatexplicitly and it has to have
(08:44):
some language in there that isspecific to statute so that
everything works well.
And that's why it's so importantto work with an attorney that is
well knowledged in this area,and that's why we have our pool
of estate planning attorneys.
Please feel free to call forthat list at any time, ask any
(09:05):
additional questions that youmay have because we're always
here to help.
So enough of me, again talkingabout all of the intricacies of
estate planning, let's hear fromJason Shellack.
I've known Jason for much of mycareer at The Arc and he has
been an incredible advocate andlegal support for many of the
(09:26):
families that work with The Arc.
He's on our attorney list andjust a really great resource as
well as all of the otherattorneys that we work with.
I'll let Jason introduce himselfand now we'll jump into the
interview.
Thanks for being here today,really appreciate you coming in.
Maybe we can start by how youdefine special needs estate
(09:51):
planning and what your workmeans to you.
Jason Shellack (09:53):
Sure, so special needs estate planning means to
me means a family is looking tomake future plans that help fund
their disabled child's future.
And when we talk about, when Italk about special needs estate
planning with clients some ofthe, some of the pieces that we
do with that other law firms maynot do, would be the
(10:15):
supplemental needs trust and thespecial needs trust.
And those are sort of those, thesupplemental needs trust is what
I refer to as the back bone of aspecial needs estate plan and
then we sort of build fromthere.
Allycia Wolff (10:29):
Okay, great.
How did you get started in thiswork?
Jason Shellack (10:32):
So I have been working with families who have
kiddos with disabilities sincehigh school.
I started working for CampCourage North and I worked for
Camp Courage North for about sixsummers.
I PCA'd for one family, the samefamily for about seven years
throughout undergrad and thenpart of law school after I
graduated from law school, I dida stint in the public defender's
(10:55):
office up in Grand Rapids,Minnesota for about a year and a
half and then when I saw thatthe Autism Advocacy a nd Law
Center was hiring, I submittedmy resume right away.
I got an interview within abouta week and then within about 10
days, had an offer to startworking at the law center.
And I've been there since andthat was in 2013.
Allycia Wolff (11:16):
And you've since purchased the law firm?
Jason Shellack (11:19):
Correct, so the firm's founder is a individual
by the name of Amy Dawson, whois now Judge Dawson in Hennepin
County.
Amy was elected to the bench in2014 and then, in 2015 when she
was seated on the bench andsworn in, I accentually
inherited a law practice.
(11:39):
So there are three attorneysright now and one very, very
capable legal assistant.
We do all of our work is focusedon working with the special
needs community; parents a ndindividuals themselves and
family members and caregivers.
We do a lot of estate planning,special needs estate planning,
we do medical as sistance applications for clients, we do
(12:03):
social security applications forclients, g uardianship cases,
healthcare directives, powers ofattorney.
Then increasingly, I myself amdoing a lot of family law.
Allycia Wolff (12:17):
When a family has come to you and they have like
their first meeting with youabout future planning, what are
some questions that theytypically ask?
Why do they come to you or yourlaw firm?
(12:29):
Families are typically coming to us.
Either they've heard me speak ata conference, they have heard
about us through Facebook parentgroup they're involved with,
they've heard about us from TheArc, they've heard about us from
PACER.
They a re looking I think forsome guidance as to, I know in
general what es tate p lanningmeans, it means having something
(12:50):
like a will and maybe a trust,but how do we set this up a nd
make sure that it's correct?
I think a lot of people havefears around, you know, in the
old days going through theyellow pages, th e w hite pages
and these days just Googlingspecial needs estate planning
and making sure they find a goodfit for themselves and for their
family and making sure they findan attorney or firm that
(13:11):
actually does this workcorrectly.
Jason Shellack (13:13):
So I think a lot of people are coming to us
looking for some expertise inthis area.
I had four attorneys who handlethese matters and these wills
and trusts and especially intrusts, special needs trusts,
and on a regular basis so thatthey have the sort of the, the
confidence and comfort that weare with the product they're
(13:33):
getting that the estate plan andthe legal documents that are
being drafted for them andexecuted do in fact, meet their
goals.
Allycia Wolff (13:41):
And do what they're intended to do.
(13:42):
Correct.
Correct.
In order to correctly draft aspecial needs trust or a
supplemental needs trust, youhave to understand social
security and medical assistance.
If you don't understand thosetwo programs, you're not going
to be able to draft the trustproperly and you're not going to
be able to advise your clientsproperly on how to spend trust
assets.
Jason Shellack (14:02):
There are big law firms out there that do
estate planning really, reallywell for people who have a lot
of money.
For a lot of those families theyhaven't considered or have
decided to at that in time, notyet apply for any government
benefits.
And a lot of times thatattorneys who are really good at
(14:23):
helping large net worth familiesmanage their wealth, don't
understand social security,medical assistants, SSI rather
medical assistants.
Because those are generallythought of as programs to help
poor people and in thoseattorneys general practices when
they're meeting with, you know,millionaires, they don't need to
(14:45):
know about MA because theyessentially self fund their
futures and their, and theirkiddos futures, which is fine.
But if government benefits areavailable to help with your
child's future, why not takeadvantage of them?
Allycia Wolff (14:59):
And with that being said, so a lot of the
people that you support aremiddle income.
A lot of families think that my$3,000 to create an estate plan
is really, really expensive andreally costly.
Would you, what do you say inresponse to the cost of
establishing a full estate plan?
Jason Shellack (15:21):
So my response would be, you are incurring some
costs up front, but it would, itis much less expensive to do
proper estate planning on thefront end than to die without a
will, without any estateplanning documents, without a
supplemental needs trust.
Because if you die, what we callintestate.
So dying intestate means withouta will.
(15:43):
And then we look to Minnesotalaw to decide how that person's
estate gets divided up amongsttheir heirs and relatives.
And if one of those individualshappens to be an individual with
a disability who is receivinggovernment benefits, social
security and medical assistance,oftentimes we would have to open
a probate.
We would have to draft a specialneeds trust.
(16:04):
I think we would have to make amotion or file a motion or a
petition for a protective orderin order to transfer the
individual's assets out of theirname, out of their personal, um,
out of their personal estateinto a special needs trust.
That whole process will cost youwell over$3,000.
(16:26):
So at our firm in general forthe estate planning that we do
for a married couple, for twowills to health care directives
to powers of attorney and asupplemental needs trust, which
is what I would call kind of ourstandard special needs estate
planning package.
Our flat fee is generally rightat about$2,400.
(16:46):
So to do all of this work upfront and give clients the peace
of mind knowing that when thesecond parent passes away, or
even when the first parentpasses away, that legally they
are set up so that their childis protected and that their
government benefits won't beinterfered with.
I think that most folksunderstand that putting the,
(17:10):
doing the initial investmentupfront, setting their affairs
up correctly, legally is a lotmore cost effective.
Allycia Wolff (17:16):
And then how often would you say, once you've
established the trust and thewill and a healthcare directive,
how often would you say peopleshould reapproach that?
Jason Shellack (17:28):
So I recommend that folks, you know, some
people, a lot of attorneys willsay every year, I think it's
good.
I think it's good at least everyyear to review what is in your
estate plan.
Namely who are the people who Ihave appointed or nominated to
play these really key roles forme.
(17:49):
Who do I want it to be mypersonal representative?
Who do I want to be myhealthcare agent?
Who do I want to be my attorneyin fact, and who do I want it to
be the trustee of mysupplemental needs trust for my
child with a disability.
The people that we nominate nowin 2019 may not be around in
2030.
(18:10):
People move, people go people,people get jobs.
Allycia Wolff (18:13):
Relationships change.
(18:14):
Correct.
So all of a sudden there are allsorts of reasons that a client
may want to change who theirnominated personal
representative, healthcareagent, attorney in fact, and
trustee are.
Allycia Wolff (18:30):
That brings up the point of successor trustees
and who people name.
And that's a lot of the workthat we do here at The Arc in
our FutureLife Options programis helping people think about
who is in their life and who canstep in and act in those roles
when they're no longer here.
And that's a lifetimeconversation, right?
(18:50):
And it's a much biggerconversation than I'm sure you
have with a lot of people thatyou support.
And as that question comes up,do you have any tips that you
share with families?
Jason Shellack (19:01):
Yeah, the general advice I give to folks
is to the extent that we cannominate somebody who knows the
individual with the disabilitywell and knows their needs,
that's oftentimes a really goodoption.
So when we first establish asupplemental needs trust,
oftentimes it's the parents orthe parent who are the initial
trustees.
(19:22):
Um, but then I think the morepressing issue that you raised
is after the parents or parentsare no longer able to serve as
trustee, who do we nominate tobe successor trustee.
I think frequently a naturalselection may be another
sibling.
Um, if there are no othersiblings in the family, perhaps
not or an uncle, other familymembers, nieces and nephews,
(19:45):
cousins.
I, you know, philosophicallylike the thought of having, you
know, of supporting theindividual with their current
support network.
That being said, sometimes thereare, there are folks out there
who don't have an extensivesupport network.
And then we do have to look toindependent or professional
(20:11):
trustees to take over.
And we also draft all of oursupplemental and special needs
trust to allow the trustee tomerge that particular trust with
a pooled trust.
So the way I've always draftedour trust is if and when the
trustee wants to step down orstep aside and there isn't
(20:34):
another family member willing toserve, and if it may be too cost
prohibitive to appoint aprofessional trustee that the
trustee, the current trustee,can merge that trust with one of
the pooled trusts around like,like Arc's pooled trust.
Yup.
Allycia Wolff (20:52):
Did not know that.
That's great.
Cool.
So, yeah, I mean that brings upone of the questions that I was
gonna ask about.
You set up private trusts wherefamilies can elect their own
trustee.
Another option is to set up apooled trust where a charitable
organization acts as thetrustee.
(21:14):
Do you have any advice to thegeneral public or anything that
you'd like to say?
Jason Shellack (21:21):
Yeah, so I'm aware in Minnesota that there
are two organizations thatoperate pooled trusts.
Am I right?
You folks and Lutheran SocialService.
I think you might, you know, myopinion of Arc and of LSS is how
I have a lot of respect for thetwo organizations.
I think they do a great job atadministering their pooled
(21:44):
trust.
I think the value...
There are many different perks Ithink to using a pooled trust.
One of them is you get tomaximize the trust corpus, so
the assets in the trust,particularly for a trust that
doesn't have a whole lot ofmoney in it.
So, correct me if I'm wrong, butI what I see or what I've seen
(22:07):
in my experience is for a trustthat doesn't have a lot of, you
know, say it doesn't have morethan$50,000,$100,000 in it, to
merge that into a pooled trust,you get to invest that with
other people's, other folkstrust money and have a more
diverse investment scheme to geta greater return on the trust
(22:31):
income.
So one major advantage to me isgetting more investment income
on that trust and that you wouldget as part of a pooled trust,
part of a larger trust corpusthan just that small trust
corpus by itself.
I think another major advantageis it allows family members to
be family members.
And not have to be the person orthe bad guy, the bad person who
(22:55):
says, no, you can't have thatNintendo game cartridge.
No, I'm not going to let you-
Allycia Wolff (23:03):
Buy a car in Tennessee that you haven't seen.
(23:05):
Yes.
Purchase things on eBay.
I think it's a nice way forfamily members to say, we just
want to be family members.
And if there are any disputesregarding financial issues,
especially when an individualafter an individual turns 18, to
be able to, it's nice forparents and siblings to be able
(23:27):
to say sometimes go ask your trustee, your trustee's in charge
of your money.
Allycia Wolff (23:34):
Go ask your dad.
Go ask your mom.
[laughs]
Jason Shellack (23:34):
Yes.
They say no, then they say no.
But it does take the pressureoff the family members.
Allycia Wolff (23:43):
I think I just have one more question for you.
You said that when you do thespecial needs to stay planning
with families that comes withthe will, the trust, the
healthcare directive, the powerof attorney.
Now when we talk with familiesabout doing a healthcare
directive, we say that you don'tneed an attorney to help you do
just that piece of it.
Same with the power of attorneydepending on what you want it to
(24:05):
cover.
Would you agree with that, withbeing able to do, if you wanted
to do just a healthcaredirective on your own, would you
say that it's safe for people tofill that out and go to Honoring
Choices and do that?
Jason Shellack (24:16):
Yeah, I think if you live in the state of
Minnesota and you want to doyour healthcare directive on
your own and power of attorneyon your own, I would direct
people to the Minnesota AttorneyGeneral's website.
Because the Minnesota AttorneyGeneral's office is kind of a
consumer, it's pro-consumer.
Allycia Wolff (24:37):
Great plain language information.
Very straight forward.
Jason Shellack (24:40):
Correct.
And the forms, I've reviewedtheir forms and their forms in
my legal opinion are valid andcomply with Minnesota law.
So if someone is looking to dothat on their own, I'm very
comfortable referring folks tothe Minnesota Attorney General's
office.
To use their, you know, theirguidelines and their forms for
doing their healthcaredirectives and powers of
(25:01):
attorneys.
I'm not as familiar withHonoring Choices.
I know it's popular with a lotof people.
I just don't have the backgroundof knowing who creates their
templates.
Are these created by attorneys?
Are these templates created byLegal Zoom?
I just don't know.
I would never do Legal Zoom.
(25:21):
I would never do susieorman.com.
I have had people walk in withstuff that they've gotten
through Legal Zoom and it'sclearly defective.
So if you're going to do any ofyour own estate planning and
you're living in Minnesota, Iwould definitely use the
(25:42):
Attorney General's forms andguidance on that.
Allycia Wolff (25:45):
Great.
Wonderful.
Is there anything that we'vemissed in this conversation?
Jason Shellack (25:50):
I don't think so.
Folks are always welcome tofollow up us individually.
So if you go to the website,autismlawcenter.com, you can
submit an inquiry through thewebsite and it will get routed
to whichever attorney happens tobe working on that particular
question and we will get back topeople.
Allycia Wolff (26:10):
Thanks for coming in today.
Jason Shellack (26:12):
You're very welcome.
Allycia Wolff (26:12):
Much appreciated.
So there's that.
Just a little bit of informationabout legal planning, what it
is, where to start, and how todo it.
Remember that you can start thisprocess at any time.
It's never too late and it'salways worth it.
And this is just one of thepieces to consider.
(26:35):
So stay tuned for what we haveout next.
If this episode inspiredquestions for an advocate at The
Arc, please give us a call at(833) 450-1494.
Music (26:53):
[ music playing]
Allycia Wolff (26:54):
On the next episode of Focus on the future,
we will be talking about qualityof life.
One of the critical aspects tothe three legged stool.
And in this episode we'll betalking to people about what
makes a good life, how they haveensured that their child will
live a good life now and thefuture, and what you can do
along the way to make thatprocess easy for yourself and
(27:16):
for your loved ones.
I hope you'll join us.
Music (27:21):
[ music playing]
Allycia Wolff (27:21):
Focus on the Future is a podcast of The Arc
Minnesota.
Subscribe to the podcast on yourfavorite streaming service to
stay up to date with the newestepisodes.
If you're enjoying listening,please support the podcast and
our mission by donating atarcminnesota.
org/podcast.
Our podcast music is composedand recorded by Micah Kadwell.
(27:42):
Micah is a talented guitaristfrom New Brighton, Minnesota,who
also has autism.
Thank you, Micah!
[ music playing]
Allycia Wolff (00:05):
Welcome to Focus on the Future, a future planning
podcasts for caregivers andfamilies supporting people with
disabilities.
Focus on the Future is a podcastof The Arc Minnesota, a
nonprofit advocacy organizationworking with folks with
intellectual and developmentaldisabilities.
My name is Allycia W olff.
I'm an advocate with The ArcMinnesota and your host for
Focused on the Future.
(00:25):
I n this week's episode I willbe chatting with Jason
Schellack, he's an attorney withthe autism advocacy law center
and we will be having an indepth conversation about estate
planning and trusts and all thelegal aspects that you should
consider when you're thinkingabout your future.
Thanks for joining us.
Music (00:49):
[ music playing]
Allycia Wolff (00:51):
In the last episode I spoke a little bit
about the three legged stool, sohow the core components of
future planning are broken intothree aspects; legal, financial,
and quality of life planning.
In the next few episodes I'mgoing to be focusing on one of
those areas and today's episodeis going to be about legal
(01:11):
planning, which we often callestate planning and when it
comes to families that arecaring for a loved one with a
disability, it's referred to asspecial needs estate planning.
It's this really niche area oflaw that some attorneys know
really, really well and can helpfamilies with and this is why
(01:33):
The Arc has an attorney list ofpeople that specialize in
special needs estate planningbecause it is such a niche area
of the law.
Overall estate planning is something that everybody and
anybody should do.
It's generally referred to asthe legal coordination of your
will and your trust; often timeshealthcare directives and powers
(01:54):
of attorney.
All of the like paperwork stuffso that once somebody passes
away, all of their estate isorganized in a way where
families won't have to fight incourt or go through a whole
legal arduous process, estateplanning helps protect all of
that.
Specifically when it comes tosupporting people with
(02:15):
disabilities that are ongovernment benefits, special
needs estate planning focuses onmaking sure that people can
continue to receive criticalbenefits even after their
parents pass away.
And this is often where trustscome into play, so families will
think to themselves, I have achild with a disability, I would
(02:36):
really like to give them someassets upon my passing to ensure
that all of their needs are metacross their lifetime.
But the concern comes in whenpeople are receiving benefits
like social security or medicalassistance, where there are
asset limits.
The asset limits on theseprograms are often like two or
$3,000, so people have moremoney than that then they're
(03:00):
disqualified from these benefitsthat they really need.
Trust enable families to leavemoney behind for a loved one and
know that the money in thattrust is going to be spent on
anything that is needed in thefuture, without disqualifying
them from benefits and there's afew different kinds of trusts
that people can consider, whichI'll explain now.
(03:25):
It's important to know that thisinformation also is specific to
Minnesota.
If you are looking upinformation about trusts in
California or Maine or Floridaor Ohio, you'll hear similar
language, but there will bedifferent specifics in it.
Know that this information isspecific to Minnesota and also
(03:47):
know that I'm not an attorney soI can't tell people exactly what
they should do as far as t helegal plan, but I can help
people understand just generallywhat the options are.
So in Minnesota we basicallyhave two different kinds of
trusts, a third partysupplemental needs trust, and a
(04:09):
first party special needs trust.
Now the third party supplementalneeds trust is what a lot of
people put together when theyare thinking about the future
and they are proactivelyplanning.
A supplemental needs trust isoften what families create when
they are doing their will and they're thinking overall about
estate planning.
(04:29):
So a third party supplementalneeds trust is that proactive
planning tool, it allows peopleto keep their benefits and
receive as much money fromanyone.
Third party means that i t'sanybody aside from the person
with the disability puttingmoney into that trust.
We call this the proactiveplanning tool is supplemental
needs trust.
(04:49):
Alternatively, there is thefirst party special needs trust.
Now, here at The Arc weaffectionately refer to the
special needs trust as t he"oopsy" trust.
And so this is when maybeproactive planning didn't happen
or couldn't happen, or it wasjust an accident and somebody
gave money outright to a personwith a disability and said,
(05:12):
oops, this can't happen, thisperson needs to still be
qualified for these benefits, sonow let's put it in a trust.
This could also happen with asocial security payback or with
like a settlement from anaccident.
A first party special needstrust as an"oopsy" trust.
Oops, this person has money intheir name, they shouldn't,
we're going to put it in atrust.
(05:35):
And so the special needs truststhe money that is the person's.
The special needs trust alsocomes back, comes with a payback
clause, so upon the p erson'spassing, any money left in that
trust has to go to pay the stateback for any services that they
have paid for and accrued overtheir lifetime.
Jason Shellack (05:54):
Whereas the supplemental needs trust doesn't
have a payback clause and youcan elect beneficiaries for any
money that is still in the trustupon the person's passing.
So basically in Minnesota, thoseare the two trust options; a
third party supplemental needstrust, the proactive planning
tool and the first party specialneeds trust, the"oopsy" trust,
(06:18):
the trust, that's money that hasbeen in the person's name at
some point.
Now with those two trusts,there's also two ways to set up
those trusts.
So you can set up those twotrusts with a private attorney
and then choose a trustee ofyour own choice to manage that,
so often it's families thatmanage that or have a cousin or
(06:41):
an aunt or something.
You can set it up privately withan attorney and choose your own
trustee or you can set up apooled trust.
And a pooled trust is managed bya nonprofit organization such as
The Arc Minnesota.
In Minnesota there are a fewdifferent options for
organizations that have and manage pool trusts.
(07:01):
We are just one of them, but itcan be a great option for a lot
of families.
Many people choose the pooledtrust option when they don't
have anybody that can step intothe role of a trustee or they
just want it to be managed bythe organization.
Allycia Wolff (07:19):
And that is an incredibly brief summary of
trust and special needs estateplanning in Minnesota, there's a
lot more pieces that could go tothat, so in future episodes of
the podcast we're going to talkabout healthcare directives and
powers of attorney and successorcare for things like
(07:41):
guardianship and trustees.
That's often something thatcomes in, but this episode
specifically is going to be onall the legal specific pieces.
The rest will come later.
So when you choose an attorneyand you are starting with this
process of doing your specialneeds, estate plan, you'll go in
(08:02):
and you'll say, I want toestablish a supplemental needs
trust and I need to do my will.
Your will is another reallycritical component to the
special needs estate planbecause it is t he document that
describes what you want tohappen with your estate and what
your intentions are.
And a will is an important legaldocument for anybody, but
(08:24):
especially in this processbecause your will has to state
that the supplemental needstrust exists and that you want
your estate to be allocated tothe supplemental needs trust and
not to your child with adisability.
Your will has to say thatexplicitly and it has to have
(08:44):
some language in there that isspecific to statute so that
everything works well.
And that's why it's so importantto work with an attorney that is
well knowledged in this area,and that's why we have our pool
of estate planning attorneys.
Please feel free to call forthat list at any time, ask any
(09:05):
additional questions that youmay have because we're always
here to help.
So enough of me, again talkingabout all of the intricacies of
estate planning, let's hear fromJason Shellack.
I've known Jason for much of mycareer at The Arc and he has
been an incredible advocate andlegal support for many of the
(09:26):
families that work with The Arc.
He's on our attorney list andjust a really great resource as
well as all of the otherattorneys that we work with.
I'll let Jason introduce himselfand now we'll jump into the
interview.
Thanks for being here today,really appreciate you coming in.
Maybe we can start by how youdefine special needs estate
(09:51):
planning and what your workmeans to you.
Jason Shellack (09:53):
Sure, so special needs estate planning means to
me means a family is looking tomake future plans that help fund
their disabled child's future.
And when we talk about, when Italk about special needs estate
planning with clients some ofthe, some of the pieces that we
do with that other law firms maynot do, would be the
(10:15):
supplemental needs trust and thespecial needs trust.
And those are sort of those, thesupplemental needs trust is what
I refer to as the back bone of aspecial needs estate plan and
then we sort of build fromthere.
Allycia Wolff (10:29):
Okay, great.
How did you get started in thiswork?
Jason Shellack (10:32):
So I have been working with families who have
kiddos with disabilities sincehigh school.
I started working for CampCourage North and I worked for
Camp Courage North for about sixsummers.
I PCA'd for one family, the samefamily for about seven years
throughout undergrad and thenpart of law school after I
graduated from law school, I dida stint in the public defender's
(10:55):
office up in Grand Rapids,Minnesota for about a year and a
half and then when I saw thatthe Autism Advocacy a nd Law
Center was hiring, I submittedmy resume right away.
I got an interview within abouta week and then within about 10
days, had an offer to startworking at the law center.
And I've been there since andthat was in 2013.
Allycia Wolff (11:16):
And you've since purchased the law firm?
Jason Shellack (11:19):
Correct, so the firm's founder is a individual
by the name of Amy Dawson, whois now Judge Dawson in Hennepin
County.
Amy was elected to the bench in2014 and then, in 2015 when she
was seated on the bench andsworn in, I accentually
inherited a law practice.
(11:39):
So there are three attorneysright now and one very, very
capable legal assistant.
We do all of our work is focusedon working with the special
needs community; parents a ndindividuals themselves and
family members and caregivers.
We do a lot of estate planning,special needs estate planning,
we do medical as sistance applications for clients, we do
(12:03):
social security applications forclients, g uardianship cases,
healthcare directives, powers ofattorney.
Then increasingly, I myself amdoing a lot of family law.
Allycia Wolff (12:17):
When a family has come to you and they have like
their first meeting with youabout future planning, what are
some questions that theytypically ask?
Why do they come to you or yourlaw firm?
(12:29):
Families are typically coming to us.
Either they've heard me speak ata conference, they have heard
about us through Facebook parentgroup they're involved with,
they've heard about us from TheArc, they've heard about us from
PACER.
They a re looking I think forsome guidance as to, I know in
general what es tate p lanningmeans, it means having something
(12:50):
like a will and maybe a trust,but how do we set this up a nd
make sure that it's correct?
I think a lot of people havefears around, you know, in the
old days going through theyellow pages, th e w hite pages
and these days just Googlingspecial needs estate planning
and making sure they find a goodfit for themselves and for their
family and making sure they findan attorney or firm that
(13:11):
actually does this workcorrectly.
Jason Shellack (13:13):
So I think a lot of people are coming to us
looking for some expertise inthis area.
I had four attorneys who handlethese matters and these wills
and trusts and especially intrusts, special needs trusts,
and on a regular basis so thatthey have the sort of the, the
confidence and comfort that weare with the product they're
(13:33):
getting that the estate plan andthe legal documents that are
being drafted for them andexecuted do in fact, meet their
goals.
Allycia Wolff (13:41):
And do what they're intended to do.
(13:42):
Correct.
Correct.
In order to correctly draft aspecial needs trust or a
supplemental needs trust, youhave to understand social
security and medical assistance.
If you don't understand thosetwo programs, you're not going
to be able to draft the trustproperly and you're not going to
be able to advise your clientsproperly on how to spend trust
assets.
Jason Shellack (14:02):
There are big law firms out there that do
estate planning really, reallywell for people who have a lot
of money.
For a lot of those families theyhaven't considered or have
decided to at that in time, notyet apply for any government
benefits.
And a lot of times thatattorneys who are really good at
(14:23):
helping large net worth familiesmanage their wealth, don't
understand social security,medical assistants, SSI rather
medical assistants.
Because those are generallythought of as programs to help
poor people and in thoseattorneys general practices when
they're meeting with, you know,millionaires, they don't need to
(14:45):
know about MA because theyessentially self fund their
futures and their, and theirkiddos futures, which is fine.
But if government benefits areavailable to help with your
child's future, why not takeadvantage of them?
Allycia Wolff (14:59):
And with that being said, so a lot of the
people that you support aremiddle income.
A lot of families think that my$3,000 to create an estate plan
is really, really expensive andreally costly.
Would you, what do you say inresponse to the cost of
establishing a full estate plan?
Jason Shellack (15:21):
So my response would be, you are incurring some
costs up front, but it would, itis much less expensive to do
proper estate planning on thefront end than to die without a
will, without any estateplanning documents, without a
supplemental needs trust.
Because if you die, what we callintestate.
So dying intestate means withouta will.
(15:43):
And then we look to Minnesotalaw to decide how that person's
estate gets divided up amongsttheir heirs and relatives.
And if one of those individualshappens to be an individual with
a disability who is receivinggovernment benefits, social
security and medical assistance,oftentimes we would have to open
a probate.
We would have to draft a specialneeds trust.
(16:04):
I think we would have to make amotion or file a motion or a
petition for a protective orderin order to transfer the
individual's assets out of theirname, out of their personal, um,
out of their personal estateinto a special needs trust.
That whole process will cost youwell over$3,000.
(16:26):
So at our firm in general forthe estate planning that we do
for a married couple, for twowills to health care directives
to powers of attorney and asupplemental needs trust, which
is what I would call kind of ourstandard special needs estate
planning package.
Our flat fee is generally rightat about$2,400.
(16:46):
So to do all of this work upfront and give clients the peace
of mind knowing that when thesecond parent passes away, or
even when the first parentpasses away, that legally they
are set up so that their childis protected and that their
government benefits won't beinterfered with.
I think that most folksunderstand that putting the,
(17:10):
doing the initial investmentupfront, setting their affairs
up correctly, legally is a lotmore cost effective.
Allycia Wolff (17:16):
And then how often would you say, once you've
established the trust and thewill and a healthcare directive,
how often would you say peopleshould reapproach that?
Jason Shellack (17:28):
So I recommend that folks, you know, some
people, a lot of attorneys willsay every year, I think it's
good.
I think it's good at least everyyear to review what is in your
estate plan.
Namely who are the people who Ihave appointed or nominated to
play these really key roles forme.
(17:49):
Who do I want it to be mypersonal representative?
Who do I want to be myhealthcare agent?
Who do I want to be my attorneyin fact, and who do I want it to
be the trustee of mysupplemental needs trust for my
child with a disability.
The people that we nominate nowin 2019 may not be around in
2030.
(18:10):
People move, people go people,people get jobs.
Allycia Wolff (18:13):
Relationships change.
(18:14):
Correct.
So all of a sudden there are allsorts of reasons that a client
may want to change who theirnominated personal
representative, healthcareagent, attorney in fact, and
trustee are.
Allycia Wolff (18:30):
That brings up the point of successor trustees
and who people name.
And that's a lot of the workthat we do here at The Arc in
our FutureLife Options programis helping people think about
who is in their life and who canstep in and act in those roles
when they're no longer here.
And that's a lifetimeconversation, right?
(18:50):
And it's a much biggerconversation than I'm sure you
have with a lot of people thatyou support.
And as that question comes up,do you have any tips that you
share with families?
Jason Shellack (19:01):
Yeah, the general advice I give to folks
is to the extent that we cannominate somebody who knows the
individual with the disabilitywell and knows their needs,
that's oftentimes a really goodoption.
So when we first establish asupplemental needs trust,
oftentimes it's the parents orthe parent who are the initial
trustees.
(19:22):
Um, but then I think the morepressing issue that you raised
is after the parents or parentsare no longer able to serve as
trustee, who do we nominate tobe successor trustee.
I think frequently a naturalselection may be another
sibling.
Um, if there are no othersiblings in the family, perhaps
not or an uncle, other familymembers, nieces and nephews,
(19:45):
cousins.
I, you know, philosophicallylike the thought of having, you
know, of supporting theindividual with their current
support network.
That being said, sometimes thereare, there are folks out there
who don't have an extensivesupport network.
And then we do have to look toindependent or professional
(20:11):
trustees to take over.
And we also draft all of oursupplemental and special needs
trust to allow the trustee tomerge that particular trust with
a pooled trust.
So the way I've always draftedour trust is if and when the
trustee wants to step down orstep aside and there isn't
(20:34):
another family member willing toserve, and if it may be too cost
prohibitive to appoint aprofessional trustee that the
trustee, the current trustee,can merge that trust with one of
the pooled trusts around like,like Arc's pooled trust.
Yup.
Allycia Wolff (20:52):
Did not know that.
That's great.
Cool.
So, yeah, I mean that brings upone of the questions that I was
gonna ask about.
You set up private trusts wherefamilies can elect their own
trustee.
Another option is to set up apooled trust where a charitable
organization acts as thetrustee.
(21:14):
Do you have any advice to thegeneral public or anything that
you'd like to say?
Jason Shellack (21:21):
Yeah, so I'm aware in Minnesota that there
are two organizations thatoperate pooled trusts.
Am I right?
You folks and Lutheran SocialService.
I think you might, you know, myopinion of Arc and of LSS is how
I have a lot of respect for thetwo organizations.
I think they do a great job atadministering their pooled
(21:44):
trust.
I think the value...
There are many different perks Ithink to using a pooled trust.
One of them is you get tomaximize the trust corpus, so
the assets in the trust,particularly for a trust that
doesn't have a whole lot ofmoney in it.
So, correct me if I'm wrong, butI what I see or what I've seen
(22:07):
in my experience is for a trustthat doesn't have a lot of, you
know, say it doesn't have morethan$50,000,$100,000 in it, to
merge that into a pooled trust,you get to invest that with
other people's, other folkstrust money and have a more
diverse investment scheme to geta greater return on the trust
(22:31):
income.
So one major advantage to me isgetting more investment income
on that trust and that you wouldget as part of a pooled trust,
part of a larger trust corpusthan just that small trust
corpus by itself.
I think another major advantageis it allows family members to
be family members.
And not have to be the person orthe bad guy, the bad person who
(22:55):
says, no, you can't have thatNintendo game cartridge.
No, I'm not going to let you-
Allycia Wolff (23:03):
Buy a car in Tennessee that you haven't seen.
(23:05):
Yes.
Purchase things on eBay.
I think it's a nice way forfamily members to say, we just
want to be family members.
And if there are any disputesregarding financial issues,
especially when an individualafter an individual turns 18, to
be able to, it's nice forparents and siblings to be able
(23:27):
to say sometimes go ask your trustee, your trustee's in charge
of your money.
Allycia Wolff (23:34):
Go ask your dad.
Go ask your mom.
[laughs]
Jason Shellack (23:34):
Yes.
They say no, then they say no.
But it does take the pressureoff the family members.
Allycia Wolff (23:43):
I think I just have one more question for you.
You said that when you do thespecial needs to stay planning
with families that comes withthe will, the trust, the
healthcare directive, the powerof attorney.
Now when we talk with familiesabout doing a healthcare
directive, we say that you don'tneed an attorney to help you do
just that piece of it.
Same with the power of attorneydepending on what you want it to
(24:05):
cover.
Would you agree with that, withbeing able to do, if you wanted
to do just a healthcaredirective on your own, would you
say that it's safe for people tofill that out and go to Honoring
Choices and do that?
Jason Shellack (24:16):
Yeah, I think if you live in the state of
Minnesota and you want to doyour healthcare directive on
your own and power of attorneyon your own, I would direct
people to the Minnesota AttorneyGeneral's website.
Because the Minnesota AttorneyGeneral's office is kind of a
consumer, it's pro-consumer.
Allycia Wolff (24:37):
Great plain language information.
Very straight forward.
Jason Shellack (24:40):
Correct.
And the forms, I've reviewedtheir forms and their forms in
my legal opinion are valid andcomply with Minnesota law.
So if someone is looking to dothat on their own, I'm very
comfortable referring folks tothe Minnesota Attorney General's
office.
To use their, you know, theirguidelines and their forms for
doing their healthcaredirectives and powers of
(25:01):
attorneys.
I'm not as familiar withHonoring Choices.
I know it's popular with a lotof people.
I just don't have the backgroundof knowing who creates their
templates.
Are these created by attorneys?
Are these templates created byLegal Zoom?
I just don't know.
I would never do Legal Zoom.
(25:21):
I would never do susieorman.com.
I have had people walk in withstuff that they've gotten
through Legal Zoom and it'sclearly defective.
So if you're going to do any ofyour own estate planning and
you're living in Minnesota, Iwould definitely use the
(25:42):
Attorney General's forms andguidance on that.
Allycia Wolff (25:45):
Great.
Wonderful.
Is there anything that we'vemissed in this conversation?
Jason Shellack (25:50):
I don't think so.
Folks are always welcome tofollow up us individually.
So if you go to the website,autismlawcenter.com, you can
submit an inquiry through thewebsite and it will get routed
to whichever attorney happens tobe working on that particular
question and we will get back topeople.
Allycia Wolff (26:10):
Thanks for coming in today.
Jason Shellack (26:12):
You're very welcome.
Allycia Wolff (26:12):
Much appreciated.
So there's that.
Just a little bit of informationabout legal planning, what it
is, where to start, and how todo it.
Remember that you can start thisprocess at any time.
It's never too late and it'salways worth it.
And this is just one of thepieces to consider.
(26:35):
So stay tuned for what we haveout next.
If this episode inspiredquestions for an advocate at The
Arc, please give us a call at(833) 450-1494.
Music (26:53):
[ music playing]
Allycia Wolff (26:54):
On the next episode of Focus on the future,
we will be talking about qualityof life.
One of the critical aspects tothe three legged stool.
And in this episode we'll betalking to people about what
makes a good life, how they haveensured that their child will
live a good life now and thefuture, and what you can do
along the way to make thatprocess easy for yourself and
(27:16):
for your loved ones.
I hope you'll join us.
Music (27:21):
[ music playing]
Allycia Wolff (27:21):
Focus on the Future is a podcast of The Arc
Minnesota.
Subscribe to the podcast on yourfavorite streaming service to
stay up to date with the newestepisodes.
If you're enjoying listening,please support the podcast and
our mission by donating atarcminnesota.
org/podcast.
Our podcast music is composedand recorded by Micah Kadwell.
(27:42):
Micah is a talented guitaristfrom New Brighton, Minnesota,who
also has autism.
Thank you, Micah!
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