NAELA_2022_Annual_Conference_Session_Reviews
I think all who attended NAELA’s 2022 Annual Conference in Scottsdale, Arizona, would agree that the event was by all accounts a huge success. Sticking with NAELA’s core tenets of community, education, and advocacy, the conference provided a welcome in-person reunion of NAELA members and kindred spirits, excellent education, and opportunities for members to hone their craft of advocating for their clients. Although there were many excellent general and breakout sessions with a wide array of topics related to elder law and special needs planning, here is a brief synopsis of some sessions I was able to attend.
Trust Protectors: How to Provide Flexibility in Irrevocable Trusts
Louis W. Pierro, Esq., of Pierro, Connor & Strauss, LLC, led a very informative breakout session to a standing-room crowd of attendees on the topic of trust protectors. Pierro explained the concept of trust advisors and protectors and how incorporating them into your irrevocable trusts could benefit your clients and your practice. Pierro explained that properly incorporating a trust advisor and protector can actually help your clients carry out the true intent of the grantor, save money on potential legal costs if court involvement for amendments becomes necessary, help to protect benefits for beneficiaries, and possibly even mitigate or avoid litigation.
In addition, Pierro informed the attendees of the growing popularity of trust protectors and highlighted the growing body of statutory recognition of the concept, but also warned about the scant case law concerning the use of trust advisors and protectors. He explained that the concept of trust advisors and protectors are commonly used in Medicaid Asset Protection Trusts, Veterans Benefit Trusts, Special Needs Trusts, and Descendants’ Trusts and noted that there is very limited to no benefit or purpose in incorporating the concept into revocable trusts.
Acknowledging the limited case law about whether a trust advisor and/or protector is held to a fiduciary standard, Pierro suggested that attorneys, to be safe, should treat the trust advisor/protector role in accordance with fiduciary standards. Pierro provided guidance about the qualifications of a trust advisor/protector and how and when one could be appointed and removed. He also explained the authority and various powers a trust advisor/protector holds, and the duties and liabilities to which the trust advisor/protector may be subject.
Pierro concluded the session by discussing whether the attorney should serve as a trust protector, noting the potential pitfalls that may arise. He also provided suggestions about how the attorney could avoid unwanted liability while maintaining an ongoing advisory relationship with the client, such as having the attorney be appointed as a nominator who would then appoint a trust advisor/protector if needed, or having the attorney establish a separate entity that would serve as the trust advisor/protector in order to limit the liability.
Special Needs Planning: Updates and Practice Tips
The session was presented by the dynamic duo of NAELA President Letha Sgritta McDowell, CELA, CAP, and past NAELA President Jennifer L. VanderVeen, CELA, CAP, Fellow, who provided important updates and practice tips as well as some much-enjoyed levity.
McDowell and VanderVeen began their session with updates and the current status of the public health emergency (PHE). The presenters noted that the federal government’s extension of the PHE is issued at 90-day intervals and the Health and Human Services promise to the states of a 60-day notice prior to ending the PHE, and discussed the benefits and challenges our clients and practices have faced regarding PHE enrollment in Medicaid as a result of the uncertainty of the extensions.
The presenters then went on to review and discuss updates (and lack of updates) on the Social Security Administration Program Operations Manual System (POMS). McDowell and VanderVeen highlighted the POMS Transmittal No. 65 clarification on the disability onset date to use when evaluating a trust, and how resource transfer provisions apply to trusts.
The presenters then discussed updates related to the SECURE Act and the IRS proposed guidance on the Act. They explained that the proposed guidance clarifies the life expectancy stretch for individuals with disabilities and chronic illnesses. The guidance confirms that a disability means that an individual is incapable of substantial gainful activity existing at the time of the retirement account holder’s death. In addition, if the disabled beneficiary is under 18 years old, the impairment must be likely to result in death or be of a “long continued and indefinite duration.” The guidance also confirmed that chronic illness means that an individual needs assistance with two activities of daily living. Documentation of the illness must be provided to the plan administrator by October 31 of the calendar year following the retirement account owner’s death, must be certified by a licensed health care practitioner, and must state that the chronic illness will continue for an indefinite period.
McDowell and VanderVeen also provided a very colorful and fun overview of cases of interest that highlighted several instances of judicial hijinks related to special needs trusts, conservator’s duty to investigate home care and Medicaid planning, attorneys filing fraudulent accountings and reports, and trustees who overstepped their authority. The presenters stressed the need for attorneys to limit the authorities of trustees to delegate authority, to educate trustees on their authority, and to provide them with the tools available to help them make good decisions, such as letters of intent.
McDowell and VanderVeeen concluded their lively session with a discussion of several ways to protect your client’s beneficiary, such as appointing corporate trustees, pooled trust, and the importance of ensuring that oversight options, such as court oversight or trust advisor/protector, are available.
Innovating with Capacity — Alternative Arrangements for Guardianships and Conservatorships
Past NAELA President Wendy Cappelletto, CAP, Fellow, led an enlightening discussion of the recent innovations to the practice of guardianship and incapacity including Supported Decision-Making Agreements and Elder Care Coordination.
Cappelletto began the session by explaining the present state of guardianships / conservatorships in the United States. She specifically discussed the global and national dialogue on less restrictive alternatives to guardianships and conservatorships, the increased media attention regarding guardianship abuse, and the increased media coverage of celebrities under guardianship and its impact on public perception of guardianships. Notably she referenced the Britney Spears case, which she explained reached an unprecedented amount of national and international attention of the public and legislators.
Cappelletto explained the different alternatives to the more traditional option of guardianship / conservatorship proceedings, such as limited guardianships, protective arrangements in the Uniform Guardianship and Other Protective Proceedings Act, Supported Decision Making Agreements, Advance planning, and the use of care managers.
She explained that limited guardianships can be used to articulate what rights an individual under guardianship / conservatorship will retain and what rights may be lost, and that they should be the starting point in a guardianship / conservatorship proceeding. Cappelletto also explained that limited orders should be personalized based upon the individual’s present abilities and disabilities and not upon what may happen in the future.
Cappelletto further explained how supported decision making is a broader concept than limited guardianship that rejects third party decision making. She noted how it has been applied in a number of contexts including institutionalization, and in guardianships in order to limit the state’s deprivation of an individual’s rights and liberties. She then explained that the basic elements of supported decision making require the recognition and understanding of the following: a) the person’s autonomy, presumption of capacity and right to make decisions must be on an equal basis with others; b) the person must be involved in a decision making process that does not remove his or her decision making skills; c) there must be a recognition that people will often need assistance in decision making through such means as interpreter assistance.
In addition to highlighting the international efforts to incorporate supported decision-making, such as the United Nations Convention on the Rights of Persons with Disabilities (CRPD), Cappelletto reviewed the U.S. Federal Policy related to supported decision making and various laws related to the topic. She also discussed state laws regarding supportive decision making and noted 13 states that have related statutes as well as pending legislation in other states. She explained that there are several common themes in supportive decision-making statutes throughout the states, namely the model agreements, parameters of the agreements, and limitations on what decisions require assistance. She also stated that, typically, the agreements cannot be used as evidence of disability in a guardianship proceeding and can also be fairly easy to terminate.
Cappelletto concluded her session by discussing the American Bar Association’s PRACTICAL tool that was designed to help attorneys with identifying alternatives to guardianship through a nine-step process, and by highlighting various pending federal legislative action related to guardianship / conservatorship reform.
Kruse Ethics Lecture
Question: What do you need to keep lawyers engaged during an ethics lecture on the last day of a conference?
Answer: NAELA President Roberta K. Flowers, Fellow, and William Shakespeare.
Conference attendees were treated to a fun and entertaining ethics lecture hosted by a panel of experts consisting of NAELA President Roberta Flowers, Gregory R. Hanthorn, Esq., and Commissioner Amy Kalman. The lecture was entitled “A Dramatic Guided Tour to the Perceptions of Law as a Profession as Shown in the Plays of William Shakespeare (and How Ethical and Professional Conduct Will Improve Those Perceptions)” and incorporated scenes from various works of Shakespeare acted out by two professional actors from the Scottsdale, Arizona area and several NAELA Members, including Edwin Boyer, CAP, Fellow, Craig Reaves, CELA, CAP, Fellow, Gregory French, CELA, CAP, Fellow, Jennifer VanderVeen, CELA, CAP, Fellow, Joycelyn Urech, Esq., and Daniel Mazza, Esq.
Each scene was designed to illustrate ethical dilemmas faced by the legal profession, the role that the legal profession plays in society, and how lawyers and the legal profession in general are viewed today. The scenes were followed up with a discussion by experts on the panel.
Not only did this session provide attendees with some great advice from the panel and a good show from the actors, but also a great example of how NAELA comes together as a community to educate each other in a fun and light-hearted way.