Unless you have been hiding under a rock for the last week, you undoubtedly know that America is still reeling from the election. Regardless of your political view, the fact that a reality television star is going to be the next POTUS is surreal.
During the first few weeks following the Presidential election, blogs and list serves were full of predictions for an immediate permanent repeal of the Federal estate and generation-skipping tax system, with retention of the gift tax system to protect against indiscriminate income tax shifting.
I would like to start this post with a potentially controversial statement: When planning for qualified retirement plans and IRAs (which I will sometimes refer to as "retirement benefits"), achieving the longest "stretch-out" period for distributions is not always the most important goal. I know this may be met with a certain amount of deserved skepticism, but I hope you will bear with me, and allow me to state my case.
At 2:30 p.m. Eastern Time today, President Obama signed the 21st Century Cures Act, which contains the Special Needs Trust Fairness Act that was passed by the Senate last week. While it seems to be a minimal change – literally inserting the term “the individual” into 42 U.S.C §1396p(d)(4)(A) – the Special Needs Trust Fairness Act has big implications. Until now, a first-party special needs trust could only be established by a parent, grandparent, guardian, or court, on behalf of a person with a disability. This presumed that all people with disabilities lacked the capacity to establish their own trusts. After today, people with disabilities may establish their own trusts, allowing them to contribute to their independence and quality of life.
If you are just venturing into an elder law and special needs planning practice, you have already discovered that the area of practice is defined by the clients you serve. Elder law is much more than just “Medicaid Planning” or “Medicaid Asset Protection Planning.” Elder Law and special needs planning attorneys must be familiar with a wide variety of topics, ranging from Medicare, Medicaid and Social Security, to the Americans with Disability Act.