Episode 18 – Should You Leave a Special Needs Trust? Real Lawyers, Real Answers

[Music] Okay it's time for another live before we get started wait for a few people to be able to log in and catch up and tune in on all right sounds good my name is Stuart Albertson I'm Keith Davidson how you doing sir I'm doing doing well it's almost fourth of July you got any plans yeah going to a pool party with the in-laws actually gonna take your shirt off maybe get sunburned I don't think so how are you I will be taking my shirt off nobody wants oh oh we've got a pool party and apparently I'm supposed to show up so okay yeah well being that's your house yes just kind of stumble outside yeah all right why don't we get started welcome to the Stan fight win live stream real lawyers real answers I want to thank you for joining us again today and my name once again is Keith Davidson I am Stewart Albertson and we are here to talk about special needs trusts and this is kind of a less lesser-known topic I guess I wasn't gonna say esoteric but I don't think it's esoteric necessarily but it's definitely lesser-known and lesser understood so I think it's an opportunity for us to talk about a topic that doesn't get a whole lot of attention except for when people need it or when people are dealing with it and special needs trust so I thought we'd start today off with our breaking news segment and go over a case that primarily we're gonna talk about because it has a very nice definition of special needs trust and the case itself isn't so important for our discussion today but this is Sheree versus Arnold that's sh e w ry qu e versus Arnold and the site is one to five Cal app for one eighty six that's one to five calop fourth one eighty six this case this is from 2004 and it's not we don't really need to talk about the facts the case so much has to do with a special needs trust that was created and then it passed to the child of the person who had the trust and the child was also disabled but it has a really nice definition of what a special needs trust is and it says the special needs trust is a trust that is intended to allow the beneficiary to continue to maintain eligibility for certain needs based government benefits such as supplemental Social Security income or medical and so under California law when a court approves a settlement and this is where somebody's approving a settlement for like a disabled person or a minor why the options the court has is to create a special needs trust so really what we're talking about is a trust that is going to be set up to supply funds to somebody but is not going to make them ineligible for governmental benefits and that's that's the whole point of what we're doing and there's really two ways to set up these trusts you can set them up a parent can set one up for a child so that be a third party special needs trust where somebody's setting it up for somebody else or you can do a first party special needs trust where you essentially set one up for yourself but that in that case you have to get court approval and it's only for either minors or disabled persons and so we've dealt with this before I'm minors compromise where you'll get a minor's compromise at the end of a litigation and you can put it in a blocked account you can give it to a conservator or a guardian or you can put it into a special needs trust now most people use blocked accounts because they're easy on litigation - compromises but you can also use the special needs trust and that would that would be created by the court and what the court would have to do is they look at the circumstances and the court can create one if the person has a disability is either a minor or has a disk ability that substantially impairs their ability to care for themselves the person is likely to have the special needs for some time and the money that's being put into the trust can exceed the amount that appears reasonably necessary to meet the special needs of the incompetent person so there's a few things that the court has to look at and if you want more information on that you can go to probate Code section 3604 that's 3 604 the probate code and it has all the stuff you can sit there and read read through all that fun stuff so basically what we're talking about though is something that is going to go above and beyond the basic living needs of an individual so and we're not medical planning attorneys you know you have these attorneys who do medical planning and they get really into the use of these special needs trusts and the ins and outs we don't do that a whole lot but where we come in on special needs trusts seems to be on the litigated cases and so every now and again you'll have one of these special needs trusts come up in one of our cases or somebody's a beneficiary of one and what's what are some of your thoughts Stewart if somebody were to come to us and say hey I got this trust and it apparently it's a special needs trust and I want to get money out of it what are some of the things that come to your mind the weapons well I think the first thing I want to say from a 30,000 foot view point is you know you you've described the special needs trust very well but what really are we talking about here we're talking about the idea that there's a whole lot of money what's called a couple million dollars that's in a trust that that belongs to a beneficiary but for the special needs trust that beneficiary would lose their government assistance because they would no longer qualify for that government assistance because they have too much money now and so we don't want them to lose that government assistance and so whether it's a first party or third party special needs trust we want to put the assets in that trust and limit the ability of that beneficiary to get to those assets it's really about control right we don't want that person to control those assets and if they don't control them then we're not going to impute that income or the principle of that trust to that person which then disqualifies them or help from the state for whatever reason they may make out going forward and the funny thing about that control since you put it so nicely and saying that the control means that you also the trust mandates that you cannot use the money for four necessities of life so you can't use it for basic living needs because that's what the government will benefit is for right which is odd if you think about it because if if I were to just set up a trust for my child that's not a special needs trust I might say well you can use this money for your rent for medical expenses for education whatever you need to buy some groceries you can use money for that special needs trust you can't use it for any of those purposes mandated it's mandated that you cannot because otherwise it would so let's give the audience just a few examples of what what can you as the trustee of a special needs trust what can't you do for the beneficiary you can pay for anything that's not necessary so you can't pay the basic rent if a governmental organization is providing for that but anything that a government organization won't pay for or can't pay for then the trust can pay for above beyond above and beyond so let's say that you need a new television because you know your TV broke and of course there's no government money to pay for a new television the trust can pay for that let's say you know the government pays for a wheelchair but you want something that the government won't pay for a special wheelchair that does a certain thing or a medication that the government won't pay for but now you can go and pay for it out of pocket and get medication you're looking for so I can see how you can use this I I found it interesting and I often forget this point cuz we don't deal with a whole lot of special needs trust but what are the games that the government's trying to keep people from playing by putting too much money in a special needs trust so when they take the position that look you can only put into a special needs trust what's reasonably necessary for the beneficiary going forward and and for somebody that's young and has a lot of problems that could be a significant amount of money right so what is the go I've never understood what the government's getting out there well imagine if somebody like Bill Gates creates a special needs trust using like a hundred billion dollars and you're the beneficiary right you don't need governmental assistance you could live for the rest of your life a very lavish lifestyle and you really don't need a dime of government assistance right with that kind of money and so what I think they're trying to get at is look if you've got enough money where you can live and you don't need government assistance why should the government be paying out money for you now if you're getting an inheritance that say you know let's say it's a million dollars but you have a young person somebody in their 20s well you're not gonna have somebody in their 20s especially somebody who has special needs that has medical and in all sorts of needs because of disabilities they're not going to be able to live on a million dollars over their lifetime right they're gonna exhaust it and it'll be gone right and so the idea is well rather than forcing you to have to spend your million dollars before you get governmental benefits well let you get governmental benefits and use the million dollars to supplement that along the way and and that's acceptable so at some point the money becomes too much and I don't know what that point would be it depends on the case and the needs I suppose but I would imagine that like 20 million would be too much and most people could probably live on 20 million even with disabilities right unless they're particularly simple I would even think 5 million if if 5 millions invested properly a 5% return that's what you know 30,000 a month or so and income right hard to say that you should still be on the government rolls but but maybe again we don't plan in this area we just see these things from time to time and we wanted to make sure we were covering all the aspects of trust today we happen to be covering the riveting subject matter of special needs trust it's not it's not the most interesting thing but it is when it affects you so and there's two different ways to look at this - so when we're talking about the special needs trust has to have a reasonable amount in it that's if it's a first party special needs trust one that where you're using your money to create a special needs trust for yourself but if you had a third party special needs trust if I were to create a trust for you and it's my money and I'm putting it in trust I can put it unlimited in there and I can call the special needs trust if I want to and there's nothing the government can do about that the problem with it is then it becomes really restrictive on you so if I give you a hundred million dollars and I say others the trust terms that you're allowed to use a thousand dollars a year well that trust obviously is not going to be exhausted in your lifetime and you're not really getting much of a benefit from that trust so how much of a gift is it so what I would do in that case and I think you this was the question you had and that is you've got somebody that's a beneficiary of a special needs trust and let's say that there's five million dollars sitting there maybe they're willing to give up the government assistance to give to that five million dollars is there a way that we can bust that trust open and get it to that individual possibly and this gonna take some court supervision no doubt yes it's gonna take some circumstances that maybe when you if you truly were giving me this money in a special needs trust maybe you didn't know that there was some medication I could take that would help me so that I don't have the disability to the effect that I did when you created a special needs trust right yeah so there's all sorts of sections in the probate code that talk about when you can terminate an irrevocable trust and that's what these are these are just irrevocable trusts like any other irrevocable trust example to be really restrict I'm interrupting you but I like what you said one time there's a queue Peart which we don't need to go to kuipers today to kuipers QPR TS they're a type of irrevocable trust that a house goes into and i remember that you were given the exciting task one time of what you called telling a queue Peart which i thought that rang out really well but but the idea is you have any rep irrevocable trust it's a special needs trust it's irrevocable air broke irrevocable for the non lawyers out there and the normal people out there because we we can't help it it's irrevocable right we need to kill that irrevocable trust well it's a revocable trust so I mean is it easy to kill one those trusts I mean what do we do depends on the circumstances so that's what I used you know people have asked can you terminate an irrevocable trust and it's like well sure we're lawyers we do whatever one but technically no never Trust can't be amended can't be terminated that that's the beginning point but there are code sections that you can go under where one of the ones that we look at a lot is change circumstances and that's what you're getting at is somebody all of a sudden doesn't have these special needs they took a medicine you know maybe they're better now who knows what you can go in and ask the court to terminate that trust because of the change circumstances that weren't anticipated when the trust was created so that's one way to terminate an irrevocable trust there's several others as well but they can be terminated you do need a court order to do it most the time but you know chances are if unless somebody's really going to object to it yeah you probably can get that done if you go to court I mean again judges we've talked about this many times judges are all over the board all you know 99% of judge is good they want to do the right job out there but because of their own experiences that they've brought to the bench one court might feel comfortable with terminating an irrevocable trust and another court under the same set of facts may not but I think the thing here that comes up time again and I think Mac Fisher he was a judge may still be objective Riverside and I respected him so much and that was he said to me one time in chambers there's only two things you need to tell me when you come into my courtroom the first is what do you want he says for some reason lawyers can't tell me what they want the second is you need to give me the authority I have to do what you're asking me and so if you want to to stack your chances of getting the special needs trust to be modified by the court you're gonna have to clearly say what you want which is fairly simple we want to modify the special needs trust and then you can have to give some pretty good authority some some good precedent maybe even define the terms that bend them towards your way of looking at the case and then tell the court that they can do this and you'll get a better chance of getting a judge to go along with that you also have to trust each owns in this which they're going to have to if you have other family members or friends that can come forward and give declarations or maybe even show up at the hearing those are all things that can stack the deck in your favor and special needs trust modified and there's a lot of confusion too so a lot of times people will come in and it turns out that they're they have a special needs trust but they're not on government benefits they never will be on government benefits and it was all just a misunderstanding so some way somehow a parent created a special needs trust for this person who doesn't have special needs and I think the terms are confusing because it could be that I just want to create a trust for my child because they're they don't have special needs in the technical sense but they're not particularly good at investing right so I want to leave it in a trust so it's properly invested right that's not a special need you might in your brain you might think well they have their special need is they can't invest but it's not technically a special need special needs trust is a term of art and so sometimes people misuse that and they're confused by it and so they end up setting up these special needs trusts that just are needed thank God for LegalZoom you know I get people setting up all kinds of crazy trusts yeah so anyway that I think we went a little far afield about what a special needs trust is and but that is at least as it sets the groundwork hopefully for rot so why don't we get into our ask and answer and see what questions we have on this subject so we do get a lot of questions about special needs trust and miss Kayla there she is our first question is how is a special needs trust different from a regular trust well for starters it's not so a special needs trust in a regular trust I mean trusts are trust right it's an irrevocable trust like any other irrevocable trust so it works the same the only difference is the distribution provisions are very restrictive so a special needs trust will say you can only get money out of this trust for something that's not covered by the governmental benefits or anything extra versus another trust typically if you set up a trust for child the distribution provisions are going to be more expansive or more liberal than what a special needs trust would be yeah the only thing I agree with that Keith the only thing I would add is is that it's special needs trust the purpose carve-out assets and keep them from being on the books essentially you have the beneficiary so that they can continue to receive their government services right all right Kayla yeah next I mean this is a question from the audience it's kind of a long one my brother and I went to court to find out about this trust amendment that awarded us $50,000 each on my behalf the money would go into a special nice trust and a new fiduciary would be in charge then later on my brother the successor trustee says he has to spend the money on necessary expenses so nothing had taken place except he scamming my other brother a small amount of money what is he really required to do so from from what I gather you know you have money going into a special needs trust but you're not getting any distributions because then the trustee says well there's all sorts of expenses we have to pay for out of the trust expand there are certain expenses that every trust is going to incur they're going to incur trustees fees they're going to incur a tax return if they generate income they might incur some bank charges if the bank is charging him fees and those are proper trust expenses but aside from that there really shouldn't be a whole lot more and so at some point some distributions should be made I would think I agree and I think if you're if you want to do one thing to get on the wrong side of a judge that I've seen in dealing with trusts and probate mistakes is overcharged with special needs trusts for yeah your trustees fees or your attorneys fees or whatever it is because the judges understand what the purpose of this Trust is or they understand is use the sympathetic beneficiary that's on the end of the distributions and I think we had a case several of these segments back it's when we first started doing these lives and these live Facebook videos I forget what the case name was but somebody out of Riverside had charged a special needs trust just an astronomic yes money and happened and judge kiraman took them to task and surcharges and surcharge that made a lot of money okay so if you want to get the hackls of a judge up quickly have a bunch of expenses pertaining to a special needs trust yeah yeah I think you're right I think judges are particularly attentive to special nature's because they view on the same as conservatorships in Guardian ships so when you're going to court you're asking for attorneys fees on a guardianship or even fiduciary fees on a conservatorship or guardianship you're gonna get your fees cut probably most of the time and they're going to be very finicky about it because they know that it's for people who have disabilities or minors so I would agree with you there the other thing is is that once the money is in the special needs trust it's the trustees job in duty to reach out to the beneficiary and say hey what do you need what's going on with you you know do you are you getting everything you need you know do you have the right wheelchair if you're in a wheelchair do you have the right medications whatever and so a lot of times what you see is that money goes into the trust and the trustee just ignores the beneficiary and that's another big problem because trustees do have an obligation to at least find out and form themselves how do I replace the special-needs trustee who said using the special needs trust this goes back to what we were just talking about before and it's gonna be the same idea of removing a trustee for breach of fiduciary duty that you're gonna have with any other trust again though I think you're going to get a core that's gonna look at this very closely because of the sensitive nature of the beneficiaries and so if you have a trustee that's not doing their job chances are the courts gonna remove them or suspend them and put somebody in that knows what they're doing to get the job done yeah and in this sense removal is the same as any other trust so breach of trust is gonna be the same grounds of removal as you would although like you said the trust the judge is going to be more probably attentive to a removal here than another trust perhaps that's right I agree with that can a special needs trust you've changed or terminated hmm so the answer is a definite maybe right that's a typical lawyer answer but possibly so there are grounds that you can go in and we talked about this earlier but there's grounds where you can go into court and ask the judge to terminate or change a special needs trust whether or not you're gonna be successful on those grounds depends on a lot of criteria oh you know there are some trusts though some special needs trust where there is a special trustee appointed who has the right to make certain changes or even distributions out of a special needs trust I have seen that and that would be somebody who's maybe not the main trustee but a separate person who they call a special trustee who can exercise certain powers but aside from that you're pretty much going to court young agree yeah everything you're doing you're going to court if you're the trustee and let's say you even have some discretion to make distributions out of this trust I still think I'd do it with a petition for instructions just to make sure I get a court stamp of approval on especially what the special needs trust yeah because otherwise what are you gonna do you can make the distribution then somebody's gonna complain you shouldn't have done that that's right so yeah court order across the board what happens to a special needs trust after the beneficiary passes away well you look to the trust terms now that was something I was gonna ask you earlier because I don't know the answer to it and that is can the beneficiary I'm special needs trust why they are living can they have a general power of appointment or a special power of appointment in the special needs trust I think they can have a special powers appointment but not a general power but general they could have pointed to themselves right so a special power of appointment would allow them to appoint it to a very narrow class of people somebody not themselves if it's a first party special needs trust so if you set up a special needs trust for yourself using settlement monies like we're talking about before then the proceeds have to be used to reimburse some of the public services you receive medical and such things like that if it's a third party special needs trust meaning your parents set it up for you and you used it and now you pass away then it's just going to go do whatever the successor beneficiaries are under the trust terms but I think the beneficiary can have a special power of appointment not a general one okay what happens if the trustee of a special needs trust passes away and there's no successor trustee so the you said the beneficiary passes away the trustee passes away okay and there's no successor trustee it's just gonna be the same I mean this is a unicorn yeah go to court I mean this is the question is relating to a special needs trust but it could relate to any trust and that is true where you don't have a trustee and there's nobody listed in the trust document as the successor then you're gonna go to court hopefully a beneficiary or beneficiaries can all come together and nominate somebody that they can agree with and if there's nobody objecting to that chances are the court will rubber-stamp that and and you'll have a new trustee in and move forward every now and again you'll see these trust provisions where there's a procedure to appoint a new trustee outside a court either by a special trustee or the consent of the beneficiaries or something like that but it's very rare usually you're going to court to do it and if I was advising the presumptive successor trustee I would say get a court order well yeah not only that but the banks might make you get a court order before they even hand over the funds they're so easy to work with yeah yeah banks are great to work with these days so user friendly can you create your own special needs trust and if so under what circumstances so you can that's Probate Code section 3600 3604 that we talked about before you have to be either a minor or a disabled person and it's usually done in the context of receiving a settlement off of the litigation I don't think you can just say I've got a bunch of money can I have a special needs trust but if you're receiving money you can set something up like that you have to give notice to all the governmental agencies so they can come in jekt if they want to you have to put a provision in there that they have a lien against the property the property's gonna have to go to reimburse some of the governmental assistance at the end of your lifetime there's all sorts of rules so you'd have to look up the Probate Code section 3604 and the sections around there and they'll give you kind of a full overview of it I agreed that the one curve ball throw at you is that while they're not special needs trust they could be confused specialties trusts and that is the self settled spendthrift trust and we're seeing those being created in certain certain jurisdictions outside of California for example Alaska or Delaware and the idea there is you take your money that you control currently a big chunk say several million dollars and you put it in a spendthrift trust you've created the trust yourself and now you're saying oh I can't get it can't use it and believe it or not the jury is out or the court system is out on how much California can come after those assets in the future that's high level estate planning much beyond the scope of the conversation today but we are seeing that those are cropping up from time to time yeah and it's really important that you don't confuse that with special needs try special needs trusts are confusing in their own right so settled trusts are confusing there I'm right and I think people start confusing these concepts and then that's when things really get messed up yeah the self settled trusts are a whole nother ballgame our last question is can a special needs trust protect the beneficiary from IRS tax liens so in my opinion yes I mean it certainly is gonna lock away the assets although that even in child's trust would do that so if I create a trust for my child and it has a spendthrift provision I can protect them from an IRS tax lien course they can't get any the money because if you make a distribution that's subject to the lien so I don't know what good that does you but in theory I think it would protect you from IRS tax lien I agree and I think to give the worst case scenario on these spendthrift provisions or the idea that this person doesn't control and distribution the beneficiary does not control and beneficiary when distributions are mandated let's say that beneficiary that special needs trust goes out and does something horrible to somebody some civil violation beat somebody up and breaks them into little pieces and that person is injured and in the hospital recovery for a year if that person who was injured by the beneficiary sues that beneficiary and gets a nice big judgment against them and then comes and tries to get the money from that trust trustee does not have to make that distribution is that how that would work with the special needs trust most likely yeah because you're gonna have the same spendthrift provision a special needs trust in fact it's even more restrictive than like a child's trust I think where I see issues is that sometimes people will say well my child has tax problems or my child is going through a divorce and so I'm gonna give them a special needs trust and it's like no that's that's not what you want you don't they don't need a special needs trust they need a they might need a trust to hold their share in trust a child's trust with a spendthrift provisions yeah right and and some restrictive distributions but but it's not a special needs trust you have to understand the special needs trust is for a very narrow set of circumstances people who are qualifying for governmental benefits and want to continue to qualify for governmental benefits that's it it's not for any other purpose not for your child who's going through their fourth divorce right now we have other trusts for that and we can you know there's other ways to set that up but it's not gonna be with a special needs trust so that's where I see problems is that people get these special needs trusts who shouldn't have them and it does cause problems because imagine if you had money sitting in an account you're not on governmental benefits and you could use some money to help put a down payment on a house well if you had a regular child's trust the money could be used for o'problem special needs trust it can't be you later that so now what do you gotta go to court yeah it's it's a mess so you got to be careful about how you set these things up in the first place do we have another question k Larry we just got a question in from Facebook can an attorney communicated and answer questions for a beneficiary who is monitoring the costs so I'm sorry were you asking about that's it I'm sorry I misunderstood there was two separate questions can an attorney communicate and answer questions for a beneficiary that's the first question attorney for the trustee I would assume yes I think so what are you a question I'll clarify the question so the idea is you're a beneficiary of a special needs trust can you call the trustees attorney and talk to them directly and get information about the trust right yeah the answer is I mean you can certainly call the trustees attorney and ask for questions but that is not your attorney that's the trustees attorney and so ultimately what they're going to tell you is you need to get your own attorney to give you your own legal advice which is what you want to do anyway because if you got your own attorney it'd be somebody who'd look out for your interests the trustees attorney is looking out for the trustees interest which may or may not be your interests correct I mean hopefully it's helpful to you but maybe not but I think people get confused because they think well this is the attorney for the trust so therefore the attorney for me right as a beneficiary it doesn't work that way there's no there's no such thing as an attorney for a trust the attorney is either representing the trustee it is a person or they're representing the beneficiary which is a person not both so you have to do one or the other and so there really is no attorney for the trust would you agree with that 100% and so whoever who's asking that question if you want to take a first stab at trying to talk to the attorney there's nothing wrong with that but keeping in mind they can't advocate for you and in many cases you're gonna get them to say you know I can't tell you a whole lot you need to go get your own lawyer because they just don't wanna have to deal with you calling them saying you saying to them hey you know you told me back on October 22nd you know this is gonna happen this is gonna happen this is gonna happen the lawyer doesn't know any duties to you right they owe duties to the trustee it's really a conflict to throw that attorney to be going too deep into the advice because you can't advise the trustee and the beneficiary simultaneously because there's times when their interests are gonna conflict that's right so better the better rule is to get your own lawyer have them read you the trust they can call the trustees attorney and figure out what's going on I agree the other part of that question was who is monitoring the costs yes sir who's monitoring the cost of these trusts no one so that that leaves it up to you the beneficiary to ask for accountings and again this shouldn't be real expensive accounting they can be informal they might be court-ordered depending on what the trust terms say but at least getting an accounting once a year is a good idea looking at the big-ticket items what are the trustees fees one of the attorneys fees distributions making sure you're looking at the distributions going yep got that I got that I got that there is a distinction just if you write this down it's easier to remember that there's disbursements and distributions in the accounting and disbursements are gonna be what keith and distributions are gonna be what disbursements are payment of expenses and bills that the trust incurs and distributions are payments out to beneficiaries right so they're they sound similar but they're different things right so disbursements are going to be to the healthcare providers to the wheelchair manufacturer to farms pharmacies for a special medication you'll see that all on a list in the accounting and then you'll look at your distributions under the trust and you'll see if that's in line with what you remember receiving if all of that looks good chances are there's not a whole lot you need to do but if you start seeing distributions to you that you never got that's where you may need to follow up with a lawyer of your own just to find out what's going on or disbursements for expenses that are unexplained you know or for companies that you don't understand I think it's interesting though that you point out and I think it's very important that people understand this that there is no independent government agency that are monitoring these expenses you can't call up somebody and say hey have you been paying attention to my trust no it's the beneficiaries ultimately the beneficiary's obligation I suppose not legally but practically speaking to pay attention to what's happening and to ask for accounting from I agree and let me say this to whoever asked that question if there is a problem and the trustee has been spending too much money on things they shouldn't have been doing for whatever reason they've committed breaches of trust once you do file that with the court now you're gonna get a court that has their own review attorneys in the back of the courthouse they're gonna pay particular attention to a special needs trust so there's gonna be some review there and then of course you hopefully would have your own lawyer who's going to be able to point out to the court anything the court may have missed in their review or to enhance what the court has already reviewed and then you get hopefully like we have in the one case where judge Karimun hammered a trustee for a significant amount of money because of inappropriate expenditures right yeah but that that's going to court and taking the trustee to court yeah takes some work yes i'm some work there good question have any other questions Kayla that's it for tonight okay so we're gonna try a new segment called our opinion and I'm gonna move over here for a second I'm gonna put Kayla there I'm gonna put Manisha in the hot seat this is Monisha hi everybody so you might remember Manisha from last week's live broadcast when she was here helping us explain what paralegals do yes indeed and so today you're going to what ask us some questions or dialogues absolutely as mentioned in our paralegal statement I am a non-attorney so I'm a consumer more like the people that are watching and some questions do come to mind the first thing I wanted to do was ask I guess elaborate on the question that we answered from Facebook and there's something that the the person who asks a question in reference and that was PvP attorney hmm so in that situation can the beneficiary go to those attorneys and ask those questions and expect to be provided with answers well I know a couple PvP attorneys all good people yeah I'm a Pvt let's explain that a little bit so my understanding is that is unique to Los Angeles County is do we have that in Orange County as well well the term PvP comes out of LA which is the private volunteer panel but you see the same type of concept in a lot of different counties even if they don't call them PvP attorneys necessarily but PvP originated in Los Angeles and what it is is it's a list of private attorneys that the court has and anytime somebody needs a court-appointed attorney in a conservatorship or a guardianship then they go down the list and they just choose the next one and it's a rotating list and they just go around a lot of counties do that I think Orange County does do it Riverside San Bernardino they all have court-appointed attorneys for minors and disabled people and conservatorships so yeah they I guess but there's there's a distinction with that type of an attorney versus an attorney for a beneficiary and what I mean what do you how would you just classify that distinction well I think it's it's as you stated I think they've been appointed by the court for a specific purpose and so I think what I've seen if there's money available many times if somebody is the PvP attorney helping out somebody they have their own lawyer as well so if that person was getting that can I just rely on what the PvP attorney is telling me you might be able to I mean it's not the worst it's not the worst place to be but ultimately you may want your own lawyer helping you out yeah because with the PvP panel they are there to talk to and advise the disabled person that's true they are kind of advocating for them but they also have the ability and conservatorship actions to express an independent opinion about the situation that may not be what the individual wants because individual might lack capacity and so the PvP attorney is there to advise and represent the moreso to advocate based on what they think is good which is a little different from what a true lawyer does that advocates fully for their client at all times based on what the client will that's right yeah so it's a little bit of a distinction but I would say this a PvP attorney is better than talking to the trustees attorney I agree so one of the questions that I have was who should a special needs trust beneficiary ask for help in understanding their trust funds so would this be a good person for them to go to not necessarily I think they should get their own attorney and there are attorneys who specialize in medical planning and all of those sorts of things those are great attorneys to ask because they're really up to speed on all of this again we deal with it in litigation so every now and again we're litigating a case that has one of these trusts but we don't create them we no longer advise people on on creating them or setting them up we used to do that years ago but there are qualified attorneys who do that and that's why I would suggest what do you think so well and I think this all goes back to if you're the beneficiary of a special needs trust or any trust for that matter monster you know get get an accounting once a year from the trustee review it look at it last week just briefly just discussed if if you see something that doesn't look right chances are it's not right maybe it's a mathematical err but it may be more than that and so that's when you're gonna want to go see a lawyer and that that lawyer be personal to you and you'll be able then to have that lawyer contact the trustees lawyer and hopefully get to the bottom of what the problem is there may not be a problem at all maybe it just can be cleaned up really quickly or in some cases there may be a problem and we need to have a trustee pay some money back to the trust right so another question that I have is if the financial circumstances of a special-needs beneficiary changes and maybe they don't need assistance from the government like they may have what can they do is there a way for them to access more of their trust fund or to to change the the the type of trust fund it is what can they do if they are in a different situation now and they would like to be able to access more funds you got to go to court and I think that's what we were talking about earlier is that if you want to in most circumstances you're gonna have to go to court and seek a court order to modify the trust terms change the distributions to change the type of trust is or terminate the trust altogether I mean the you know there's a number of options you'd have to analyze there what do you think it's the art of lawyering at this point do you have a good reason to terminate that trust or to change that trust or to modify that trust and this goes back to judge Mac Fisher who said tell the court what you want and tell the court what authority it has to do it and so that's good lawyer II it's making sure to take the time to put a clean concise clear thinking motion in front of a judge saying judge we want to tear it's a petition in this case we want to modify this trust for these various reasons most courts if you do a good job and asking for it and lining out the precedent that's allows the court to do this they're going to work with you as long as there's not some third party showing up and objecting for whatever reason if there is an objection then the courts gonna want to hear what that objection is and then the court can make a determination from there maybe even after a small trial the court will make a determination so somebody does object it's going to take some time to work out chances are there won't be too many people objecting and you'll get some modification under the facts you just gave and the thing I would add to what Stuart just said which is a really good point is part of it too if you're gonna present your argument to the court is saying why ok I'm not on govern this beneficiary is not on governmental benefits now are they going to come back onto the government benefits at some point because the judge is gonna want to know that and so you kind of have to anticipate what makes a judge feel comfortable terminating something that's been established for somebody who needs help and if you can show them that for whatever reason this person has improved and they're going to remain in this improved state for a very long time or indefinitely you're gonna have a better chance of getting that through the court and and by the judge right so what are some of the things that a parent should consider when deciding whether or not to set up a special needs trust well does your child have a disability if your child has a disability and that disability is provided for by Medicare or Social Security or some other type of federal or state entity then you're gonna want to be thinking do we need a special needs trust yeah and that's hugely important because there's a lot of people who certainly may have some sort of disability but that doesn't mean they should have a special needs trust it may not be the type of disability that allows them to qualify for governmental benefits or it might be the type of governmental benefits that are not extinguished just because you got an inheritance there are some things that you can get from the government even though you have an inheritance and so I think there needs to be a discussion about what is it that this child needs and is this the right way to address it and I think people are too quick to rush into these things and say yeah special needs trusts go ahead and set it up well that's where again they aren't a lawyer and get a good lawyer that knows what they're doing in this area and I think that you'll see you know you it'll save a lot of heartache and even costs down the road if you get a lawyer to begin with that knows what they're doing to give you good advice because it you may not end up setting up a special needs trust you might do a regular trust with a spendthrift provision and a strong discretionary power to the trustee and it meets the goal that you're looking for rather than setting something up that you got to go kill in the future - then go set up what you were going to should have set up in the first place if that makes sense I'm like this I like this segment I like monisha are you here and she gets to put us out of the gun and I was really nervous my hands were shaking I was holding them tight if you don't know what she's gonna say no never gonna come out of left field yeah could be something like I don't have an answer she's got access to my Facebook account I know she's been following me all over I mean although one of the things you've been talking about art of lawyering a lot and one of the arts of lawyering is if you don't know just make it up just be real confident yeah just be I'm right just say it with with confidence and you can do it it's also nice to have a non-lawyer sit-in because number one it's more interesting because lawyers are boring right especially Stewart you guys definitely are not boring okay well that's good and plus you can kind of think sometimes I noticed that we'll be talking about a concept or something that we just kind of take for granted and I think it's unfortunate because there's a a gap in how lawyers think and talk versus how not lawyers think and talking it's nice to be able to bridge that gap we talked about that last week that is nice feel the bridge head capsule thank you great it's nice to be able to come to you while we're actually talking to everybody you're not after and share it yeah so hopefully other people can learn from as well well I want to say in ending that monisha and Kayla really are the two that make all of this available we just come in and and chat away so thank you very much ladies we appreciate it and you know if Kayla if you'll come back on the screen for just a moment you can block [Music] so anyway I want to thank everybody for joining us thank you Manisha thank you thank you for having me and we look forward to seeing everybody next time on the stamp fight win live stream remember you can always find a recorded version of this video on Facebook and YouTube and you can listen to an audio only version on pod B I'm being yes cuz I always get it wrong thank you for joining us all right bye.