How do you get a living trust to pay for caregiving?

Catherine, thank you for the more explicit explanation. I knew that the person writing the original post wasn't an attorney, hence my skepticism. Sometimes posters create scenarios to trap posters, and I wasn't sure that this wasn't one.

I see now how complicated your situation is and apologize for any suspicion.

I've read and reread your post and honestly am overwhelmed at the complicated level as well as the bind to which you've been subjected. There are so many complicating factors.

I would agree that SD venue is inappropriate for any litigation with the proposed trustee given that you've living in Florida.

I'm wondering if the current Trustee has sole authority to select a successor?

Does the trust actually have a spend down and Medicaid application retirement for disbursement? If I'm reading correctly, the trust essentially is a fallback after you're on Medicaid, which doesn't seem likely as you write b/c of your SS benefits. Are there specific provisions to this effect in the Trust?

I would generally agree to contest the appointment of First Capital. I'm also wondering if any action was taken against it for breach of fiduciary responsibility of the other trusts.

Did a quick check; First Capital Surety & Trust Company is a chartered trust company, so that puts it I believe under different oversight than a national bank - I was thinking if it was a national bank association the Comptroller of the Currency might be involved if there's a breach of fiduciary duty.

I need to do some research to understand the position of your family as remaindermen under the trust, but wonder why there would be an issue of the funds being bequeathed to you at your death, since at that time they would just go to your estate. My understanding of special needs trusts are that they provide for the individual during life, and/or after death of the parents....that the intent is to provide for someone who needs assistance that extends beyond the life of the parents.

Are there specific restrictions otherwise that the funds aren't available to you now?

Just a wild card thought - I'm wondering why the trustees have denied your request for caregiver funds. Is that actually within their fiduciary powers? Are there other terms which restrict the distribution during your lifetime? Do you think there's a chance that doctor's letters could offer support, or are the trustees being unreasonable?

For a Special Needs Trust, it seems to be very restrictive.

I'm going to think this over and post again if I have any suggestions, but this is probably the most complicated trust situation I've heard of. I'm beginning to think that you may need to litigate to prevent the existing trustee from appointing an undesirable successor, which I believe is the crux of the issue.

I'm wondering if some of the guest attorneys might have something to offer; you can contact the admins to request this at:

https://www.agingcare.com/contactus.aspx

Offhand, though, I'm wondering why the trust company is not willing to have a successor trustee appointed by the probate court, which would seem to be more appropriate since probate generally has jurisdiction over estate planning issues.

I am so sorry to read of your predicament. I will post back within a few days, even if I don't have anything to add. There are a few other legal posters here; I hope they'll stop by and offer their insights.

Thank you for your advise. I requested a neighbor to type my question while I dictated the question about locating a successor trustee. I am the sole beneficiary of a trust in which the original trustee is attempting to resign and has requested a non probate court to appoint a trust company in South Dakota to become the successor trustee of my trust where the governing laws are different than those in Florida. I live in Florida where my doctors are located & the trust document was drafted by a sole practitioner who has passed. I am opposed with a court appointing a successor trustee whose primary offices are in S.D. and where I have been advised by 2 trust officers that they each have one client where First Capital Bank and Suerty, the potential successor trustee has lost most of their clients monies. In addition there are several provisions in their acceptance contract that in the opinion of 3 lawyers are against my legal best interest.
There is one provision from the potential successor trustee contract which stipulates that any disputes regarding the " trust" must be resolved in a court of competent jurisdiction of S.D. Looking forward I do not have the physical, medical or monetary ability to litigate a dispute in S.D. I have never received any monies from the trust since my dad passed in 2006. I requested my first distribution
in 2014 from the original trustee for a mouth restoration due to falling out of the bathtub and loosing most of my teeth. I was met with a letter from an attorney stating that no monies would be disbursed until I had spend down all my own monies and had applied for Medicaid. The Department of Children and Family Services has denied my Medicaid application and has advised me that it is highly unlikely that I will ever qualify for Medicaid because my social security benefits exceed the poverty amount per the Florida and Medicaid guidelines. I am unable to utilize the phone or utilize a computer without the assistance of others due to my medical and physical disability. Therefore it is difficult to contact banking institutions to determine if they have a special needs division that will accept an appointment of a successor trustee with assets in my trust in the amount of $ 250 thousand dollars.
I was able to contact 22 banking institutions before my health seriously deteriorated. None of these banking institutions would accept an appointment due to the low amount of assets in the trust. The banking lawyers graciously referred me to several attorneys who did not have the names of many special needs banking trustees to accept my trust assets and take over as the successor trustee. I also contacted the department of the Area Agency of Agency and was advised to consult with an attorney. Further I was referred to an attorney from S.D. who helped develop the banking regulations for special needs trusts in S.D. She is now working as a non litigator attorney in Florida and advised me to contest the appointment of a successor trustee known as First Capital Bank and Surety. Her legal advise was that it would not be in my best medical and or financial interest for the above trust company to be appointed the new successor trustee. She only could refer me to the names of charitable trustees who required that any assets in existence upon my passing would be subject to Medicaid laws. My family members will not agree to a charitable trustee since they are the remainder men per the trust and are mandating any monies or assets in existence upon my death to be bequeathed to me. I am at my wits end as to how to proceed. I am alone and due not have the ability to research these issues anymore. Again the trustees have denied my written request for any monies for a care giver due to my recent diagnosis of Parkinson's, COPD and 19 years as a chronic pain condition. My wheel house was as a sex crime prosecutor and not as a trust or probate lawyer. Any other advise would greatly be appreciated. Thanks for your time.

Catherine, what is your practice area of law? I'm assuming that you have little experience in estate planning? Are you just starting out in your practice?

I don't really understand the situation - you write that you desperately need the money for a caregiver. Is that for you, or someone in your family? Or for a client? I'm also confused that you write that this money is needed for a caretaker but also ask how an individual with no caretaker can find a qualified attorney.

I'm assuming that you want to tap into the trust assets to provide a caregiver for someone?

It would help if you could clarify these issues. There are some facts that just don't make sense.

I also don't understand what Medicaid qualification has to do with retention of an attorney. To the best of my knowledge Medicaid doesn't pay for legal counsel.

Assuming you are an attorney and must be a member of the Florida Bar, I would start with the local county bar association, and contact firms in the elder law and estate planning practice groups, first in your local area, then in a wider range if necessary. Look for firms with their own practice groups rather than a sole practitioner who probably doesn't have the background or experience in trust management.

The larger firms also have affiliations with financial advisors, who may know some trustees willing to accept the assignment, but these larger firms may also have attorneys who will act as successor trustee.

I'm assuming also that the Trust doesn't identify any successor trustees? What about the Settlor? Who does that person want - an individual or a company/bank?

I've never heard of an attorney who would charge $5K to locate a successor trustee; there's something very peculiar about that.

More explanation also should be provided on the issue of litigating a trust case with a bank. Are you looking for fiduciary management or a litigator to challenge the existing trustee?

I would also contact the firm that drafted the trust; it would be the logical source to help either find a successor trustee or act in that capacity, which an individual attorney can do, at least to the best of my knowledge.

You'll need to address as well whether the existing Trustee has the capacity to appoint an alternate or successor Trustee.

If you really want to find a banking institution, just start calling banks. You'll get more response from them than from a forum like this as the questions are more generally directed toward caregiving, with periodic questions on the legal issues. However, to find a specific bank wiling to be successor trustee is a pretty specific task, also involving contacting and interview the banks.

As to an agency that assists in that, I think researching the Florida government structure or even calling the Area Agency on Aging might be the first place to start. If Florida has a specific aging department, I'd start there.

You might also contact the local law schools; professors sometimes have a good knowledge of what exists, especially if you contact one who teaches various estate planning courses.

Does anyone know the name of an agency in Florida to help individuals with their trust issues other than advise them to contact an attorney. I am an attorney and they are very expensive especially if you do not qualify for Medicaid and often trust lawyers rarely have the qualifications to litigate a trust case with a bank. Where does an individual with no caretaker begin to find this qualified " attorney". The last quote I received from an attorney to locate a success trustee for an existing trust was $5000 dollars. All I need is the name of banking institutions in Florida to act as a successor trustee for an existing trust. However since the assets in the trust are less than $ 250 thousand dollars there are no banks willing to retain my services. Banking institutions are only looking to service the rich. Any advise. I desperately need this money for a caregiver.

Who can a guardian hire to help care for their elderly father. Can we hire family because professionals are so expensive. What are the laws.

My sister and I have a POA for my mother. When we went to a bank to cash out a CD in her name, we were told we need a doctor letter to use the POA. We need the money to pay for her at home care and would like to open an account with t he funds to do so. Why is the bank asking for such a letter

It may be true that you cannot be directly forced into a nursing home but if the conditions of a person's life can be manipulated to create a situation where there is no other choice, then doesn't that come down to the same thing?

Ttoneal, Since when does a bank force anyone to go into a Nursing Home?
Assuming that the bank is the Trust holder ( trustee), it still cannot force anyone to live anywhere. Last time I looked this is still the United States of America, and no one can be forced to live anywhere ( except the condemned, felons or those on probation). Suggestion: Use that money for home care 24/7. You may wish to re-read Attorney Mahl's commentary.

You didn't mention whether your friend had put a Power of Attorney in place to manage their finances and business affairs, so it sounds like the only fiduciary who has authority right now is the bank's trust department.

A fiduciary is someone who manages another person's money. The trustee must act in the best interests of the person who put the funds in their trust. The bank, as trustee, should be listening to your requests. You sound reasonable and it is certainly in the best interest of your friend to remain at home, in a less restrictive setting than a nursing home.

The terms written in your friend's Living Trust document should give to the bank the authority to make decisions about how to spend the money wisely for that person's benefit. If the trust office won't let you see the trust document, you can use court processes in your jurisdiction to petition for review of the trust, and how it is being administered.

Your first step would be to find an elder law attorney who can advise you on the best approach to take toward helping your friend.

The bank trustee's advice to spend down the trust funds on a nursing home may be unreasonable, and not in the best interest of your friend. An independent review of all the facts can give you some solid answers.

You didn't mention whether your friend had put a Power of Attorney in place to manage their finances and business affairs, so it sounds like the only fiduciary who has authority right now is the bank's trust department.

A fiduciary is someone who manages another person's money. The trustee must act in the best interests of the person who put the funds in their trust. The bank, as trustee, should be listening to your requests. You sound reasonable and it is certainly in the best interest of your friend to remain at home, in a less restrictive setting than a nursing home.

The terms written in your friend's Living Trust document should give to the bank the authority to make decisions about how to spend the money wisely for that person's benefit. If the trust office won't let you see the trust document, you can use court processes in your jurisdiction to petition for review of the trust, and how it is being administered.

Your first step would be to find an elder law attorney who can advise you on the best approach to take toward helping your friend.

The bank trustee's advice to spend down the trust funds on a nursing home may be unreasonable, and not in the best interest of your friend. An independent review of all the facts can give you some solid answers.

Assuming your friend is of sound mine and has capacity to make decisions ... .Your situation can be resolved in favor of both you being compensated and your friend staying at home, have the assets made available for care while also having Medicaid funding to take care of the costs of the care (in NY State... and if not in NYState...other states have similar provisions)...YOU give him the care AND keep him at home.... I am an attorney in this field... it is a legal and can be accomplished... end result is what you seek and the bank has no control.... if he is not competent... then there is still a way for the same result, just another step... Olga

Assuming your friend is of sound mine and has capacity to make decisions ... .Your situation can be resolved in favor of both you being compensated and your friend staying at home, have the assets made available for care while also having Medicaid funding to take care of the costs of the care (in NY State... and if not in NYState...other states have similar provisions)...YOU give him the care AND keep him at home.... I am an attorney in this field... it is a legal and can be accomplished... end result is what you seek and the bank has no control.... if he is not competent... then there is still a way for the same result, just another step... Olga

Has anyone had first-hand experience with LTC insurance?..... By this question I mean actual payouts to the Nursing Home or Assisted Living facility by long term care insurance. I'm thinking about purchasing LTC insurance for my son.

Caretacker, caregiving is alive and well, but...the idea that a younger generation should work themselves to death caring for someone at home ...is an idea whose time should never have been. Today, many elders have chronic health problems but are able to live for years. Under these conditions, should children give up their lives, for years, so that an elder can be at home? Seems to me the elder needs to step up to the plate and make necessary, if unwanted changes

It is so sad that so few have compassion for de-mented patients. Just put them in a home where they won't bother them. Of course it has to be the sick person's money or else. Too bad that the patient will die prematurely if taken from familiar surroundings. GOODY-GOODY- then I will inherit what is left is what most think.
What is it with this generation? The OLD principal of taking care of the elderly family member no longer applies to this generation.

I cannot advise you on how to obtain some financial assistance from your friend's trust, but I know that Medicaid has a program that is called Adult Foster Care in Massachusetts, but may be called something else in another state. If the individual qualifies for medicaid, which may be the case in this individual's circumstances as the assets are in trust and not in their name, then you may well qualify to be a paid care provider. It sounds like you do enough assisting to qualify for approximately $50 daily, if you do the correct number of assists, which I know is not a lot, but is something. Generally the ill person lives with the care provider, but perhaps they allow for this type of arrangement as well. It can be a friend, parent, child, but they do not pay for spouses. In our area we have the Greater Springfield Senior Service agency who will come out and do a free assessment of what the individual qualifies for (you do not need to be elderly to qualify for their services), but in your area you will have another similar agency - sorry I cannot tell you what the name would be. Other agencies can assist you with AFC specifically, but may not be able to do a complete assessment of needs (you could start with the local Goodwill Industries, perhaps asking for their residential department, but there will surely be other agencies in the area who provide this service as well - I simply don't know your geographical area or service providers in your area so cannot advise in greater detail. Good luck. I know how emotionally, mentally and physically draining it is to care for a loved one, and wish you both the best.

Thank you: Just wanted to give a few more details about my Friend. It's now 3 mos.. later still dealing with bank over this living trust. I have POA and Health care for my good friend and have talked to a attorney about this and they think it is his money for his care, comfort, support but bank continues to say they have sole discretion as to his money. I think their forcing me to put him in a nursing home knowing financially I can know longer help him. I have been living off my credit cards since Aug 2012. Any Help Please. Regards

Sounds like you need to see a lawyer and see about getting conservatorship if your friend has nobody else.

Ttoneal: I'd be interested in the answer to this question from an elder care attorney. My first Q would be: Is this a Revocable Living Trust? Who is the Trustee? The bank? What is your official role in this matter (other than caregiver)?
I would also resist at this time from putting him in a Nursing Home. Somehow, a portion of that $175,000.00 should go to caregiving expenses.