Prohibitions of Due on Sale or Acceleration Clauses in Promissory Notes Secured by Real Estate

By Matthew A. Quick A due on sale clause, or acceleration clause, is the provision in a contract, most often a promissory note (a promise to pay), that authorizes the lender to demand payment of a sum when the property that is acting as security is sold or otherwise transferred. Federal law, specifically Title 12, Chapter 13, Section 1701j-3, restricts the ability of lenders from invoking such a provision under certain circumstances (also called Garn-St. Germain exceptions). These circumstances include, but are not limited to, the following:

The creation of a subordinate lender’s interest; The creation of a purchase money security interest for household appliances; A transfer on the death of a joint tenant; The granting of a leasehold interest of three years or less not containing an option to purchase; A transfer to a relative resulting from the death of a borrower; A transfer where the spouse or children of the borrower become an owner of the property; A transfer resulting from divorce; and A transfer to an inter vivos trust in which the borrower is and remains a beneficiary.

Probate and Taxes (Illinois)

By Matthew A. Quick In a recent decision, the court in the case of In re Estate of Matthews, Deceased (1-10-1427; March 24, 2011; Cook County) ruled when a testator bequeaths real estate, the will must specifically provide for the estate to assume responsibility for real estate tax obligations, including delinquent taxes from years prior to testator's death, if the testator intends to give the real estate free of encumbrances. Although a testator need not use the precise statutory language of Section 20-19 of Probate Act, the testator must still include an express provision directing estate to assume responsibility for real estate taxes to shift tax obligation from a beneficiary to the estate.

The Estate, Issue Nine

By Matthew A. Quick Probate

Probate is the legal process of settling the estate of a deceased person. Settling a decedent’s estate involves making claims on behalf of the estate (collecting money owed to the decedent, bringing medical malpractice claims, etc.), resolving all claims against the estate (paying creditors, responding to lawsuits, etc.), distributing the property in the estate after all claims are made and resolved (distributions are made pursuant to a Will or the statutory rules of intestate succession), and addressing the guardianship of any minor children or other dependents (guardians are appointed in a Will or determined by statutory rules of guardianship).

Probate can be costly and time consuming, but it is not the same process with all decedent’s estates. Some estates do not require probate if there is no property to be distributed. An estate can be left with no property to be distributed, thus avoid probate, if the decedent’s property is not owned solely by the decedent upon his or her passing. Instead of the deceased owning property solely, he or she could hold property in a trust, jointly with another person, or provide a pay-on-death (referred to as “P.O.D.”) or transfer-on-death (referred to as “T.O.D.”) designation.

To own property in a trust, the person setting up the trust (referred to as the “Settlor”) transfers ownership of property to a Trustee based upon certain terms and conditions that are listed in a Trust Declaration. The terms and conditions of a Trust Declaration are instructions that the Trustee is bound to follow in maintaining or investing the Trust Property. One of the terms of the Trust Declaration is how the property that is being held in the Trust is distributed after the Settlor’s passing. Since the Trustee, not the Settlor, owns the property when the Settlor passes, the Settlor will have no property to be distributed through probate, thus negating the need for probate.

Joint ownership is another effective way to avoid probate. Joint ownership occurs when more than one person owns property at the same time, but each has a right of survivorship. Therefore, when one of the owners passes the other owners continue to own the property without the need for probate. Typically, we see joint ownership with real estate and deposit accounts (checking accounts, savings account, etc.).

Probate can also be avoided by setting up P.O.D. or T.O.D. designations on bank accounts, shares of stock, brokerage accounts, 401ks, IRAs, automobiles and life insurance. Any property that has a P.O.D. or T.O.D. designation will pass automatically to designated beneficiaries upon the passing of the owner of the property. P.O.D and T.O.D. designations differ from joint ownership because once someone is made a joint owner they are an owner and have equal right to control the property. Conversely, if P.O.D. and T.O.D. designations are used, the owner of the property retains control of the property until the date of his or her demise, at which time the property is transferred.

If property is owned solely by the decedent upon his or her passing, then the property must be distributed through probate. Estates that must endure probate will follow one of three general processes: (1) that of a testate estate; (2) that of an intestate estate; or (3) that of a small estate. A testate estate is one that follows directions of a valid Will when being administered. An intestate estate is one that does not follow the directions of a Will, but follows statutory rules of administration. A small estate is one that the legislature considers small enough to administer through a summary proceeding, which typically involves very limited, if any, contact with a court. In Michigan, the threshold for a small estate is $15,000 remaining in the estate after debts and expenses have been paid. In Illinois, the threshold for a small estate is $100,000.

The first step to probate a testate estate is to start a case with the Probate Court, which has special jurisdiction over cases involving estates and guardianship. The Probate Court will determine the validity of the Will and appoint a Personal Representative for the estate. The Personal Representative is typically nominated in the Will (when dealing with a testate estate the personal representative is also called an executor (male) or executrix (female)). Through, and with the power of, the Probate Court, the Personal Representative collects and inventories all of the property in the estate, pays any debts, taxes and expenses, follows the instructions of the Will regarding guardianship of any dependents and distribution of property, and adjudicates the interests of interested parties who may have claims for or against the estate.

The first step to probate an intestate estate is to also start a case with the Probate Court, but instead of determining the validity of a Will (since there isn’t one) the Probate Court will nominate and appoint a Personal Representative for the estate (when dealing with an intestate estate the personal representative is also called an administrator (male) or administratrix (female)). Like testate estates, the Personal Representative will act through and with the power of the Probate Court, however, rather than following the instructions of a Will, the Personal Representative must administer the estate in accordance with the laws of the state where the decedent resided at his or her death. This means that the estate must be distributed to the heirs named by the laws regardless of their relationship or kinship to the decedent. In sum, the intestate process takes all control out of the hands of the decedent’s family to distribute property or decide which person should be named guardian of minor children.

After all of the claims against the estate are paid, the claims for the estate are made, and the property that made up the estate is distributed, the case involving the estate is closed. From opening the case to closing the case, probate generally lasts several months, in some instances over a year, and incurs substantial court and attorney costs. To avoid the time, cost and publicity involved with probate it is imperative to organize an estate in a manner that will not require a lengthy court case, but will allow for a seamless transfer of ownership.

The Estate, Issue Eight

By Matthew A. Quick Real Estate Closings

A real estate closing (also referred to as a “settlement” or “escrow”) is the culmination of a real estate transfer. The real estate closing is simply the meeting at which the buyer of a piece of property pays the amount promised in the purchase agreement and is deeded the real estate. However, the process leading up to the closing, as well as the events that occur at the closing, tend to complicate the process.

The purchase agreement initiates the closing process. It is the document that outlines the understanding between the buyer and the seller that typically regards the following items, some of which are explained in further detail below: the date of the closing; the fixtures and personal property that will be sold with the real estate; the purchase price of the real estate; a schedule for depositing earnest money; a mortgage contingency (if not a cash sale); inspection of the real estate and modification of the purchase agreement; how proration of taxes and assessments will be handled; the time allowed to complete a title inspection and the party that is obligated to pay for title insurance; the time allowed to provide a survey and the party that is obligated to pay for the survey; the payment of transfer taxes; and any required disclosures.

Closing Date. The closing date is chosen by the buyer and seller approximately four to six weeks from the date of the purchase agreement with the understanding that the date may be changed if the parties so wish. The period between the execution of the purchase agreement and the date set for closing is intended to allow enough time for the parties to complete the items that comprise the balance of this article.

Fixtures and Personal Property. Fixtures are best understood by first considering the difference between real property and personal property. Generally speaking, real property is land and all of the rights, privileges and improvements to the land, such as buildings, crops and underlying mineral rights. On the other hand, any movable, tangible object is considered personal property, such as a wooden board, a chandelier or a kitchen appliance. A fixture is a piece of personal property that is fixed to real property to a degree that it is intended to become real property. Therefore, if the wooden board is used to make a shelf, the chandelier is attached to the ceiling, or the kitchen appliance is installed, it could become part of the real property as a fixture depending on the extent of the attachment. Rather than debate whether each piece of personal property is a fixture during every real estate sale, the purchase agreement details the items of personal property and the fixtures that will be transferred to the buyer. Typically, the personal property transferred includes kitchen appliances, washer, dryer, lighting fixtures, smoke detectors, window treatments, carpeting and built-in shelving or cabinetry; however, there is no limit to what may be included with the home may it be a stereo system or hot tub. Of most importance is to note in the purchase agreement the items of personal property that will be sold with the real estate so there is no misunderstanding.

Earnest Money. Earnest money is an amount agreed upon by the parties to be deposited by the buyer to bind the parties to the purchase agreement. Earnest money is usually placed in an escrow account and held until the closing date, at which time the funds are used to settle the sale. The deposit of the earnest money may be made all at once or over a period of time, in any instance the initial deposit is required upon the execution of the purchase agreement. If the earnest money deposit is a significant amount, the parties may agree to have the deposit placed in an interest bearing account with the interest paid to the buyer.

Mortgage Contingency. A mortgage contingency is a condition that requires the buyer to secure appropriate financing before the purchase agreement is given effect. It is a critical protection for the buyer, because if the buyer cannot secure appropriate financing the earnest money is returned and the purchase agreement is null and void. What is considered appropriate financing involves an agreement between the parties regarding the amount of financing, the annual percentage rate to be charged by the lender and the period allowed for repayment. By way of example, a mortgage contingency clause may provide “This purchase agreement is contingent upon buyer securing, within 40 days, a firm written mortgage commitment for a fixed rate mortgage in the amount of $300,000, the interest rate not to exceed 5% per year, amortized over 30 years.”

Inspection and Modification of the Purchase Agreement. The purchase agreement will contain an inspection provision that gives the buyer the ability to have the real estate inspected for any defects. The inspection period typically lasts five to seven business days. After the buyer has had the real estate inspected, the inspector will provide an inspection report detailing all of the property’s defects. The buyer and seller may then renegotiate the purchase price or repair of the real estate based upon the inspection report. The time allowed to renegotiate the purchase agreement is called the modification period, or more specifically the attorney modification period, because of an attorney’s role in renegotiating the purchase agreement. The attorney modification period is relatively short, typically no longer than the inspection period.

Title Inspection and Title Insurance. A title inspection is a review of the history of ownership of real estate to ensure that the seller owns and can sell the property he or she is offering. A clear title inspection is required if title insurance is to be purchased. Title insurance is an insurance policy to protect a buyer against loss based upon a seller’s lack of ownership, which could include an encumbrance or lien that was not noticed prior to the sale. In most transactions, the seller purchases the title insurance for the buyer.

Closing and Escrow. Prior to the closing date the parties, or their attorneys, will receive a settlement statement (also called a HUD-1) from the closing agent (who is typically from the title company—the company that issues the title insurance policy). The settlement statement is a balance sheet that details how the funds involved in the transaction will flow. This is an important document to review to ensure that all of the fees, costs and payouts are accurate. In addition, the settlement statement will let the parties know how much money they will need to bring to, or will be getting from, the closing.

On the closing date, the parties meet at the title company. The buyer will need to deliver a cashier’s check or have the funds wired from his or her bank for the balance owed on the purchase price after deducting the deposited earnest money and the amount of the home loan. The seller may also be required to bring funds to the closing to cover costs, fees or liens, such as a loan payoff.

In sum, at the closing, the closing agent will accept and disburse all of the funds pursuant to the settlement statement and the seller will transfer the deed for the home to the buyer. Both the buyer and the seller will be responsible for signing various documents at the closing. All of the documents signed at the closing involve either the transfer of the property being purchased or the funds being borrowed for the purchase.

The typical documents that relate to the transfer of the property are the following:

Warranty Deed. The warranty deed is the conveying document that transfers ownership of the property from the seller to the buyer. This document will immediately be filed with the county recorder of deeds (or register of deeds) to put the world on notice of the conveyance and the rightful owner.

Bill of Sale. The bill of sale is a receipt for purchase of all the personal property and fixtures that were sold with the real estate.

The typical documents that relate to the funds being borrowed for the purchase are the following:

Payoff Letter. The seller will bring a payoff letter for each outstanding loan on the property to give to the closing agent to certify that the funds being paid to the seller’s lender(s) are in an appropriate amount to clear the loans and give the buyer clear title.

Truth in Lending Statement (also known as “Regulation Z” or “TIL”). The TIL discloses to the buyer the interest rate, annual percentage rate, amount financed and the total cost of the loan over its life. It is important to review this document carefully to ensure that the rates are appropriate.

Monthly Payment Letter. The monthly payment letter reveals the break down of the buyer’s monthly payment into principal, interest, taxes, insurance and any other monthly escrows. Again, this document should be carefully reviewed to ensure that all amounts are correct.

Note. The note is the contract with the lender to payback any amounts borrowed.

Mortgage. The mortgage is a lien on the property as security for the loan. This document will be immediately filed with the county recorder of deeds (or register of deeds) to put the world on notice of the security interest in the property.

Although the real estate closing process may seem daunting, with close attention and the help of others the process can be easily managed.

-Real Estate Transfer Taxes-

Real estate transfer taxes are taxes imposed when property is transferred. In Illinois and Michigan the tax is assessed by an ad valorem (according to worth) tax that is based on the value of the property transferred. In some states, however, such as Vermont, a transfer tax is only imposed on gain from the sale; and in other states, such as Indiana, there is no transfer tax.

In Illinois and Michigan, the transfer tax is stated as a fee. For example, in Michigan the state fee for transfer is $3.75 for every $500 of the purchase price, which is equivalent to .75% of the purchase price. Therefore, to calculate the fee, take the purchase price and divide by $500, then multiply the quotient by $3.75 (or simply multiply the purchase price by .0075).

State and local laws may or may not stipulate which party is responsible for paying the tax. In addition, both Illinois and Michigan provide a number of exempted transfers that are not taxed, such as transfers where the consideration is less than $100.

Real estate transfer taxes involve basic mathematics, but the rates and responsibility for such can get confusing and require attention. If any questions arise, please consult a real estate professional.

-Conclusion-

I hope this issue of The Estate has been helpful. Please feel free to contact me with any questions or concerns, or to schedule a complimentary consultation. As a service to all current and prospective clients, I travel at no charge to all meetings and consultations throughout Michigan and Illinois. In addition, informational sessions regarding estate planning are provided free to groups of any size. Please let me know if there is any way I can help.

Adoption Records (Illinois)

By Matthew A. Quick Public Act 96-895, as of May 21, 2010, gives adults that were adopted access to their original birth certificates. For those born before January 1, 1946, they may access their original birth certificates immediately and for those born after January 1, 1946, they may access their original birth certificates after November 15, 2011. Birth parents have the right to remain anonymous.

Mutual Wills (Illinois)

By Matthew A. Quick In the case of Ernest v Chumley, step-children filed a complaint against their step-mother to determine their rights under a mutual will. A mutual will is generally regarded as one of two reciprocal wills that makes promises regarding the distribution of property upon the death of one of the spouses. This type of will is usually only used in situations where one of the spouses has children from a previous marriage and wants property to be distributed to them.

In this case, the mutual wills did not have any provision controlling the use of property during the lifetime of the surviving spouse. However, when the surviving spouse attempted to transfer proceeds from the sale of the home she owned with the deceased into certificates of deposit held jointly with her current spouse, the court opined that she breached the expressed intent of her mutual will by removing property from her estate.

In essence, the surviving spouse is welcome to use the funds from the estate of the deceased spouse in a situation involving mutual wills. However, the funds cannot be directed outside of the surviving spouses estate. In the interest of honoring the mutual wills, a surviving spouse must keep the funds within her estate.

The Estate, Issue Seven

By Matthew A. Quick Real Estate Taxes

Real estate taxes are the main source of revenue for local municipalities, which are used to provide benefits and services such as schools, community colleges, police and fire departments, health care facilities, museums, water and sewer, roads and sidewalks, parks, libraries and so forth. Real estate taxes are calculated using the value of the property, which is called an ad valorem (according to worth) tax. Once the value of a parcel is established, a tax rate is applied, thus yielding the property tax owed. Determining the value of a piece of land (also referred to as a “parcel” or “tract”) and levying the appropriate tax is a process that involves several factors.

For administrative purposes, a property identification number (referred to as a “PIN”) is initially given to each piece of land (usually a 10 to 14 digit number), allowing land and tax records to be easily identified and transferred between municipal departments. Then, to figure the value of the parcel, an assessment is performed by the county or city assessor, who is a public official that appraises the property. The property assessment may be according to one or more appraisal methods, such as market value, replacement cost or income value. In Illinois, parcels are assessed every three to four years; in Michigan, parcels are assessed upon transfer and the assessed values are increased annually by an appreciation factor (the lesser of either the rate of inflation or 5%).

While some municipalities assess the property at its full value, others determine the taxable value of a parcel based upon a percentage. The determination of the assessor as to the taxable value of a parcel of property may be appealed by the property owner, typically within a limited timeframe.

In Michigan, after the property is assessed, there are no further calculations to determine the taxable value. However, after the property is assessed in Illinois, the calculations can get tricky by including such figures as an established assessment rate and state equalization factor, which are set by the county and state (basically, a means to manipulate property taxes without changing the property’s assessed value).

When the taxable value of the property is determined, the tax rate is then applied to determine the amount of tax owed. In Michigan, the taxes are levied as a millage rate, which is equal to 1/1000th of a dollar. Thus, to figure tax on a millage rate of 4.19, simply multiply .00419 by the taxable value of the property. On the other hand, Illinois property taxes are computed on a percentage basis of the taxable value of the property. Additionally, some exemptions are available to homeowners, seniors, veterans and the like, which are dollar for dollar reductions in the amount of tax owed.

When buying or selling property, prorating property taxes is an issue. In Illinois, property taxes are paid in arrears, which means that 2009 taxes are due this year. Therefore, the seller will pay the buyer for the days the seller spent occupying the property that have not yet been paid. In Michigan, however, taxes are paid in advance, which means the buyer will pay the seller for the days the buyer will spend occupying the property that have already been paid.

Property taxes vary in each municipality, be it by tax rate or mode of assessment. Because property taxes represent a substantial expense for property owners, each property tax bill should be independently examined to ensure it is accurate. If there are any questions regarding the accuracy of a tax bill, do not hesitate to contact the assessor, treasurer or a property tax professional.

-IRAs-

Regardless of age or proximity to retirement, one of the most important decisions to be made regarding one’s financial future is the source of retirement income. The federal government and many individual workplace organizations have retirement programs that are offered to employees, such as 401(k) (private sector retirement plan), 403(b) (non-profit sector retirement plan) and 457 (government retirement plan) plans. However, many questions have surfaced as to the reliability and security of these programs in the years to come. Also, many individuals are seeking investment options in addition to workplace plans, which has prompted an interest in individual retirement arrangements (referred to as “IRAs”). IRAs are a great way to diversify investments and secure retirement resources with beneficial tax treatment. IRAs come in many different varieties, thus allowing an IRA to easily be tailored to an individual’s investment and estate plan.

Introduced in 1974, an IRA is a specific retirement plan that can be built to one’s needs. Even though IRAs have developed significantly over the years and have taken several different forms, the traditional IRA and the Roth IRA illustrate the greatest difference that remains among the several types; that is, the method by which each is taxed.

The government has provided beneficial tax treatment for IRAs. Instead of taxing each transaction that occurs within an IRA, which is typical of a common investment, such as buying and selling stock, all transactions within an IRA have no tax impact. With a traditional IRA, a contribution is tax deductible, which means that no income tax is paid on the contribution. Instead, withdrawals are taxed as income. On the other hand, with a Roth IRA, a contribution is not tax deductible, which means income tax is paid on the contribution and withdrawals are not typically taxed.

Currently, the government allows a $5,000.00 per year maximum contribution for those under the age of 50 and a $6,000.00 per year maximum contribution for those over the age of 50. A contributor will be allowed to fund a traditional IRA over the annual contribution limit, but will not be allowed to make a tax deduction of any amount contributed over the annual limit. Alternatively, a contributor is altogether barred from funding a Roth IRA beyond the annual maximum contribution.

In addition to contribution limits, an IRA investor must also fall under an income threshold to enjoy the tax benefits of an IRA. For instance, to make a tax deductible contribution under a traditional IRA, a contributor who is married and filing jointly cannot have a modified adjusted gross income (referred to as “MAGI”) over $177,000.00. To contribute to a Roth IRA at all, a contributor who is married and filing jointly cannot have a MAGI over $177,000.00.

Conversions from a traditional IRA to a Roth IRA have gained substantial popularity this year because there is no income limitation on who can convert. Anyone with any MAGI can make a conversion. While a contributor continues to be barred from directly funding a Roth IRA with a MAGI that exceeds the income limitation, a traditional IRA may still be converted to a Roth IRA. There are several benefits of converting a traditional IRA to a Roth IRA, which include, but are not limited to, tax-free growth, tax-free withdrawals, and no minimum distribution requirements. Taxes would have to be paid on a conversion to a Roth IRA; however, so long as the conversion is done in 2010, the taxes on the conversion may be spread out over the 2011 and 2012 tax years.

Due to the income limitation, some contributors may not qualify to make a tax deductible contribution to a traditional IRA or any contribution to a Roth IRA; however, setting up a traditional IRA that is non-deductible would allow a contributor to convert to a Roth IRA in the future. If the laws remain unchanged in years to come, a contributor that is above the income limitation would be allowed to contribute to a traditional IRA that is non-deductible every year, then convert it to a Roth IRA.

An IRA can only be funded with cash or cash equivalents. Attempting to transfer any other type of asset into the IRA, such as collectibles (art, baseball cards and rare coins) and life insurance, is a prohibited transaction and disqualifies the fund from its beneficial tax treatment. Once a contribution is made to an IRA, the IRA owner can direct the institution that is holding the IRA to use the contribution to purchase most types of securities and investment products.

Although funds can be distributed from an IRA at any time, there are limited circumstances when money can be distributed or withdrawn from the account without penalties. In most situations, to avoid penalty, funds cannot be withdrawn before two circumstances exist: the contributor reaches 59 and a half years of age and a five year period has lapsed since the contribution was made. There are additional exceptions that apply to early withdrawals, such as disability, a distribution to a beneficiary after the contributor’s death and when the funds are used to buy, build or rebuild a first home.

IRAs can be included in several investment arrangements that may be used to achieve sufficient retirement resources. If you have any questions, please be sure to consult a financial professional for more information on IRA eligibility, conversions, contribution limits, when the funds must be used, and what type of IRA would best suit a particular financial profile.

-Update-

Michigan Enacts E-mail and Text Message Prohibition while Driving. As of July 1st, there is a ban on sending, typing or receiving text messages or e-mails while driving (MCL 257.602b). A first offense is punishable by a $100.00 fine; a second or subsequent offense is punishable by a $200.00 fine. There are no points assessed to the driver’s record for violation of this statute.

Illinois Modifies the Process by which a Red-Light Camera Issues Tickets. Effective January 1, 2011, Public Act 96-1016 changes the use of red-light cameras that give tickets automatically as follows: (1) a law-enforcement officer must review and approve all determinations that a car committed a red-light camera violation; (2) additional fees cannot be charged to an alleged violator for exercising his or her right to an administrative hearing; (3) the motorist must be given at least 25 days after an administrative hearing to pay any penalties; (4) governments must produce a recorded image of a red-light camera violation and make the images available on the internet; and (5) a red-light violation cannot be given if the motorist moves past the stop line or cross walk and the vehicle comes to a complete stop, but does not enter the intersection.

Illinois Increases the Surviving Spouse Award in Probate. Public Act 96-968 increases the minimum surviving spouse award from $10,000.00 to $20,000.00 and increases the minimum award for a surviving minor child or an adult dependent child from $5,000.00 to $10,000.00 in estates in which the decedent passed after July 2, 2010.

-Conclusion-

I hope this issue of The Estate has been helpful. Please feel free to contact me with any questions or concerns, or to schedule a complimentary consultation. As a service to all current and prospective clients, I travel at no charge to all meetings and consultations throughout Michigan and Illinois. In addition, informational sessions regarding special needs planning and estate planning are provided free to groups of any size. Please let me know if there is any way I can help.

The Estate, Issue Six

By Matthew A. Quick HIPAA

The Health Insurance Portability and Accountability Act of 1996 (referred to as “HIPAA”) was enacted as federal law to address two main issues: (1) health care insurance coverage of employees and their families when the employees change or lose their jobs; and (2) the establishment of a national standardized means of transferring health care information. When creating the standards regarding the transfer of health care information, privacy rules evolved concerning the dissemination of certain health information. These privacy rules regulate the use and disclosure of Protected Health Information that is held or transferred by Covered Entities. Protected Health Information is considered any information held by a Covered Entity which concerns health status, any provisions of health care, or payment for health care that can be linked to an individual. Protected Health Information has been interpreted rather broadly and, in practice, includes any part of an individual's medical record or payment history. Covered Entities include hospitals, health care professionals, mental health care professionals, health care clearinghouses (billing services, health information management services, etc.), health insurance providers, and any other entity that processes or facilitates the processing of Protected Health Information.

Generally speaking, Covered Entities must keep Protected Health Information confidential, with the exception of a few limited circumstances: (1) Covered Entities must disclose Protected Health Information to the individual upon request and when required to do so by law, such as reporting suspected child abuse; (2) Covered Entities may disclose Protected Health Information to facilitate treatment, payment or health care operations regarding the individual; and (3) most relevant to this article, Covered Entities may disclose Protected Health Information to identified agents if authorization is obtained from the individual.

It is important to address the HIPAA privacy rules when planning one’s estate in order to allow health care attorneys-in-fact (agents or patient advocates that make health care decisions for another) to lawfully receive protected health care information so that the attorney-in-fact can make educated and informed health care decisions. The authorization required to allow Covered Entities to disclose Protected Health Information to health care attorneys-in-fact is called a HIPAA Waiver. A HIPAA Waiver (also referred to as an “Authorization for Use and Disclosure of Protected Health Information”) waives the privacy rules of HIPAA as to Protected Health Information disclosed to certain, identified individuals (health care attorneys-in-fact).

The people who make health care decisions for us when we are unable need to be given broad access to our medical information to make the most informed decisions possible concerning our health care. For that reason a HIPAA Waiver is required for every estate plan.

-Educational Savings Programs-

On March 30, 2010, the Education Reconciliation Act was signed into law, which changes the repayment schedules for student loans. Students who borrow money starting in July 2014 will be allowed to limit payments to 10% of their income and, after 20 years, any remaining balance will be forgiven. Those who enter public service (military, teachers, nurses, and the like) will have any balance forgiven after 10 years.

The costs associated with this new legislation will not be the burden of the taxpayers. The savings associated with ending government subsidies to banks and other financial agencies that have been making and maintaining student loans will absorb the cost and allow a large increase in funds available for grants (money that does not need to be repaid). For example, the new law makes an additional $40 billion available for the need-based Pell Grants, which do not have to be repaid. In other words, by cutting the unnecessary middleman out of the process, the federal government is making the rising higher-education costs more bearable. Even while accounting for the savings associated with this new student loan policy, students will still have to bear significant education costs that continue to rise. In the interest of making the costs a bit more tolerable, there are a few saving techniques that have become quite popular over conventional savings or the use of funds earmarked for retirement. Of note, beginning in 2010, those financing a student’s education will be eligible for tax credits up to $10,000 over 4 years (a tax credit is a dollar for dollar reduction of the amount of tax owed, as opposed to a deduction that just reduces the amount of taxable income). The ability to take the tax credits has an adjusted gross income ceiling of $80,000 ($160,000 for joint filers).

The three main educational savings programs are Section 529 prepaid tuition plans, Section 529 college savings plans, and Coverdell education savings accounts (Section 529 refers to the Internal Revenue Code). A Section 529 prepaid tuition plan is state run and only available in a limited number of states (Michigan has the Michigan Education Trust and Illinois has the College Illinois! 529 Prepaid Tuition Program). A prepaid tuition plan typically locks in the current tuition rate for the amount deposited. For example, if an amount deposited today is equal to 50% of a year of tuition, then 50% of a year of tuition will be credited regardless of the future cost of tuition (even if the tuition has sincedoubled). This plan is simple and does not involve choosing investments or building a portfolio. Locking in the current tuition rate usually offers a better return on investment than a certificate of deposit, money market account or conventional savings account and the funds deposited are tax deductible, with some limitations. If, however, a contributor wishes to make investments rather than lock in the tuition rate, thus potentially resulting in more money over time, a Section 529 college savings plan or Coverdell education savings account may be preferable.

Similar to Section 529 prepaid tuition plans, Section 529 college savings plans are tax-exempt college savings utilities. Unlike Section 529 prepaid tuition plans, there is no lock on tuition rates and no guarantee of return on investment, because a Section 529 savings plan is an investment in a portfolio, which is subject to the market. The investment allocation under a Section 529 college savings plan can only be changed twice per year and must be invested through a money manager. Withdrawals from a college savings plan may only be used for qualified higher education expenses (college and up) in order to be withdrawn tax free. However, unlike the Coverdell education savings accounts, as discussed below, there is no age limit for contributions to a Section 529 savings plan and no income limit for contributors.

Similar to Section 529 college savings plans, Coverdell education savings accounts are funded through investment portfolios and are subject to the market, however, no money manager is required and there is no limit on investment allocation changes—investments may be controlled by the contributor. The student must be under the age of 18 to receive contributions and under the age of 30 to make withdrawals. The current maximum annual contribution amount is $2,000 and the current adjusted gross income limit is $95,000 for single filers and $190,000 for joint filers. Contributions to the Coverdell education savings account are generally not tax deductible, but the withdrawn funds are tax-free if used for qualified education expenses. Coverdell education savings withdrawals may be used for any level of education (K-12 and higher), as opposed to the Section 529 college savings plans that can only be used for post-secondary education.

Each of the programs discussed can be used together to effect the greatest possible outcome. Because this article could only consider the basics of each program, be sure to consult a financial professional for more information on eligibility for student loans, transferability of the plans, contribution limits, and when and how the funds must be used.

The Estate, Issue Five

By Matthew A. Quick Trusts

A Trust is a legal arrangement where one person (the “Settlor” or “Grantor”) gives legal title of property to another (the “Trustee”) to hold for the use and benefit of a third-person (the “Beneficiary”). The Settlor is the owner of the property that is to be placed into the Trust, thus becoming Trust Property. Trust Property can be money, stock, real estate or any other form of real or personal property. The Trustee is the person or entity (such as a bank) that agrees to maintain or invest the Trust Property for the use and benefit of the Beneficiary. It is common for a Settlor to also be the Trustee, meaning the person who creates the Trust maintains or invests the Trust Property for the use and benefit of the Beneficiary (so no one else needs to be nominated or hired as Trustee so long as the Settlor/Trustee is able to act). The Beneficiary is the person or entity for whom the Trust is created.

To create a Trust, the Settlor transfers ownership of property to a Trustee based upon certain terms and conditions that are listed in a Trust Declaration. The terms and conditions of a Trust Declaration are instructions that the Trustee is bound to follow in maintaining or investing the Trust Property.

In practice, when a Settlor is also going to be the Trustee, the Settlor will transfer property to himself as Trustee and select a person or entity to succeed him. Upon death or disability of the Settlor/Trustee, his successor will then become Trustee and follow the terms and conditions of the Trust.

There are three main reasons to employ the use of a Trust. First, a Trust keeps the Settlor’s estate from having to endure probate, as a Trust outlives the Settlor and can distribute the Settlor’s estate after his death. Second, a Trust can be used to gain significant tax-saving advantages by reducing the taxable portion of an estate. Last, a Trust can shelter property from creditors, loved-ones who cannot handle large amounts of money, and the government. Consider a Trust that regulates the amount of funds children receive or a Supplemental Needs Trust, which is a Trust used when one needs to retain eligibility for government benefits (specific trust arrangements will be discussed in future issues).

Trusts are a great tool to achieve one’s future planning objectives. If you seek greater control and protection of your property and its distribution, a Trust is the ideal utility to include in your estate plan.

-Seasonal Affective Disorder-

Now that the holidays have come and gone it can be hard to believe there is still a stretch of winter yet to endure—the cold, the snow and the bleak skyline. Referred to as the “winter blues,” it is common to feel the effects of the winter season on an emotional level. Moods may decline, frustration levels may rise, and a general sense of sadness may seem to set in. Symptoms of the winter blues tend to persist during the cold, dark months and dissipate with the arrival of the spring season. As with most aspects of mental health, it is important to differentiate between the experience of one or two symptoms during a brief period of time, and several signs and symptoms that persist on a more long-term basis. While some may experience a lighter level of the winter blues, others may be coping with a more serious condition known as Seasonal Affective Disorder (referred to as “SAD”).

According to the National Mental Health Association, SAD affects more than half a million people who live in environments of variable climate change. Common factors linked to the onset of SAD include sunlight depravation that alters our circadian rhythms (or internal biological clock) and an increase in the hormone melatonin (which is tied to symptoms of depression and actually rises during long-term exposure to darker environments). Also, a family history of depression may lead to a genetic predisposition for SAD and other depression-related symptoms.

Common signs and symptoms of SAD include frequent changes in mood, feelings of fatigue or apathy, and an overall decline in self-esteem. There can also be shifts in sleeping and eating habits, as well as a decline in social interest. Previously enjoyed activities that do not inspire the same sense of happiness can also be a noticeable symptom of SAD. Differentiating itself from other depression-related concerns, symptoms of SAD are relieved with the change in season and tend to return around the same time the following year.

Treatments for SAD include light-exposure therapy, melatonin-suppressing medications, and talk therapy with a qualified mental health professional. For anyone experiencing mild symptoms of SAD or winter blues, there are several ways to alleviate your symptoms at home. By taking a long walk once a day, you are exposed to fresh air and daylight that are key factors to the biological components of your symptoms. Also, increasing the levels of light in your home (via windows or additional light sources) can be extremely helpful. Talking to a trusted family member or friend can be very beneficial in creating an understanding of your thoughts, feelings and actions, which is important for both yourself and those who are close to you. In addition, setting time aside once a day to do something you enjoy, whether it is reading a book or going to the gym, can be crucial to increasing your overall sense of well-being during these long, dreary months.

If you observe significant signs and symptoms of SAD over the course of several winter seasons, it is recommended to discuss these findings with your doctor. Given that our mental health is equally as important as our physical health, awareness and appropriate decision-making in this area can greatly impact your friends, your family, and your future.

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Carly Quick is a licensed clinical social worker who practices at Lake Bluff Middle School in the northern Chicago suburbs and invites any questions or comments via email at carlyjacks@hotmail.com. More information on SAD can be found at www.nmha.org.

-Update-

Federal Deposit Insurance Coverage (“FDIC”) Has Been Extended. The standard insurance amount for FDIC of $250,000 was set to expire January 1, 2010, but has been extended until December 31, 2013. On January 1, 2014, the amount will return to $100,000 for standard insurance. The $250,000 amount is permanent, thus will remain viable after January 1, 2014, for certain retirement accounts, which includes IRAs. For more information on the amount and applicability of Federal Deposit Insurance Coverage, please visit www.fdic.gov.

Michigan Enacts Smoking Prohibition. Beginning May 1, 2010, it will be unlawful to burn any matter or substance that contains a tobacco product in an enclosed, indoor public area. The new Act, which can be found after it takes effect at MCL 333.12601, et seq., and MCL 333.12905, et seq., will continue to allow smoking at cigar bars, tobacco specialty retail stores, and the gaming area of casinos, but only if these entities are in existence at the time the law takes effect.

-Conclusion-

I hope this issue of The Estate has been helpful. Please feel free to contact me with any questions or concerns, or to schedule a complimentary consultation. As a service to all current and prospective clients, I travel at no charge to all meetings and consultations throughout Michigan and Illinois. In addition, informational sessions regarding special needs planning and estate planning are provided free to groups of any size. Please let me know if there is any way I can help.

Transfer of Vehicle Outside of Probate at Death of Owner (Michigan)

By Matthew A. Quick Michigan law allows for the transfer of vehicles of deceased owners outside of the probate process with Secretary of State Form TR-29. The controlling law, MCL 257.236(2), provides:

If an owner of 1 or more vehicles, which vehicles do not have a total value of more than $60,000.00, dies and the owner does not leave other property that requires issuance of letters as provided in section 3103 of the estates and protected individuals code, 1998 PA 386, M.C.L. 700.3103, the owner's surviving spouse, or an heir of the owner in the order specified in section 2103 of the estates and protected individuals code, 1998 PA 386, M.C.L. 700.2103, may apply for a title, after furnishing the secretary of state with proper proof of the death of the registered owner, attaching to the proof a certification setting forth the fact that the applicant is the surviving spouse or an heir. Upon proper petition, the secretary of state shall furnish the applicant with a certificate of title.

Real Estate and a Certificate of Trust Existence and Authority (Michigan)

By Matthew A. Quick As provided in MCL 565.431, et seq., a certificate of trust existence and authority (referred to as a "certificate of trust") or the entire trust declaration may be filed at a register of deeds office. Filing either a certificate of trust or the entire trust declaration when real property is placed into trust is beneficial and, in some cases, necessary for the orderly administration of the trust (allowing for smoother transfer of real property held by the trust). Filing a certificate of trust over the entire trust declaration is beneficial for several reasons. First, a certificate of trust is a shorter document, which does not cost as much to file with a register of deeds office. Second, a certificate of trust is a much more private option because it only contains excerpts of the actual trust document and does not include distribution provisions, among others. Third, an updated trust declaration must be filed with a register of deeds office if portions of the trust declaration are modified or revoked. If a certificate of trust is originally filed, a new certificate of trust is only required if the excerpted portions contained in the certificate of trust are changed.

The requirements of a certificate of trust are as follows, pursuant to MCL 565.432:

(a) The title of the trust. (b) The date of the trust agreement and any amendments to the trust agreement. (c) The name of the settlor or grantor and the settlor's or grantor's address. (d) The names and addresses of all of the trustees and successor trustees. (e) The legal description of the affected real property. (f) Verbatim reproductions of provisions of the trust agreement, and any amendments to the trust agreement, regarding all of the following: (i) The powers of the trustee or trustees relating to real property or any interest in real property and restrictions on the powers of the trustee or trustees relating to real property or any interest in real property. (ii) The governing law. (iii) Amendment of the trust relating to the trust provisions described in subdivision (a) to (f)(ii). (g) Certification that the trust agreement remains in full force and effect. (h) A list of names and addresses of all persons who, at the time the certificate of trust is executed, are trustees of the trust.

Pursuant to MCL 565.433:

A certificate of trust existence and authority shall be executed by the settlor or grantor; an attorney for the settlor, grantor, or trustee; or an officer of a banking institution or an attorney if then acting as a trustee. The certificate shall be in the form of an affidavit.

On the issue of third-party reliance, MCL 565.435 provides:

A purchaser or other party relying upon the information contained in a recorded certificate of trust existence and authority shall be afforded the same protection as is provided to a subsequent purchaser in good faith under section 29 of chapter 65 of the Revised Statutes of 1846, being section 565.29 of the Michigan Compiled Laws, and shall not be required to further examine the trust agreement, unless an instrument amending or revoking the trust agreement or certificate of trust existence and authority is recorded in the same office in which the trust agreement or certificate of trust existence and authority was recorded.

Powers of Attorney and Living Wills (Illinois)

By Matthew A. Quick A health care power of attorney appoints an agent to act on a patient's behalf when he or she is unable, pursuant to a list of directives. On the other hand, a living will sets out a list of wishes, but does not give anyone the power to act on a patient's behalf (akin to a note to the doctor). Pursuant to Illinois law, if an agent is acting under a health care power of attorney, a living will is rendered inoperative. 755 ILCS 45/4-11.

Trust Subject to Attorney Approval (Illinois)

By Matthew A. Quick In light of the recent holding in Dunn v Patterson, Nos. 3-07-0881, & 3-08-0350, estate planning documents that do not allow amendment or revocation except with the drafting attorney's consent or upon order of court are not void as against public policy. The Court noted that it is reasonable for an attorney to include provisions to be sure requests for amendment or revocation were not based on undue influence or coercion, especially when a client has a special need to to age or disability.

Successor Trustees and a Limited Power to Convey Real Estate (Michigan)

By Matthew A. Quick Pursuant to Land Title Standard 8.5 of Michigan, "If an express trust contains a power of sale which is not limited to the named trustee, a successor trustee may convey real property pursuant to the trust terms. If a trust does not contain a power of sale or contains a power of sale limited to the named trustee, the probate court may enter an order removing any trust provision limiting the successor trustee's power of sale, thereby permitting the successor trustee to convey real property pursuant to the court's order." The authority for this Land Title Standard is derived from MCL 700.1302, 700.7201 and 700.7402.

In cases where a general, thus unlimited, power to convey real property exists pursuant to a non-testamentary trust declaration, and a successor trustee is appointed by the court, the appointed successor trustee receives the power to convey real property without particular order of the court. However, in the event the power to convey real property is limited to the named trustee in the trust declaration, the court must order that the appointed successor trustee has the power to convey real property. This rule does not apply to situations involving a testamentary trust, because the probate court has jurisdiction to appoint successor trustees after a sole, or other successor trustee, is removed. MCL 700.7201 and 700.1302.

Powers of Attorney and Medical Records

By Matthew A. Quick Pursuant to the Illinois Health Care Surrogate Act and the Illinois Power of Attorney Act, to wit, 755 ILCS 45/4-7(a) and 755 ILCS 40/15, respectively, and the Michigan Estates and Protected Individuals Code, to wit, MCL 700.5506, a Power of Attorney delivered to a person’s physician is made part of the person’s medical record.

When consulting a medical professional, be sure to take a copy of your Power of Attorney for Health Care so that it may be made part of your medical record. Thus, if anything were to happen, your medical professional would have the contact information and the respective powers of your Agents and Patient Advocates.

The Estate, Issue Four

By Matthew A. Quick Wills

A Will (also known as a “Last Will and Testament”) is a legally-binding instrument that, in the event of death, directs property and the care and custody of minor children. A Will does not direct all property in a person’s estate while they are living, only the property that remains titled solely in the name of the deceased. For example, a Will does not direct property that is transferred to a beneficiary at death (as is usually the case with life insurance); a Will does not direct property or accounts that are held jointly and remain with the survivor (such as jointly held real estate or bank accounts); nor does a Will direct property that has been placed in a trust during the decedent’s lifetime.

Regarding the care and custody of minor children, a Will can propose a guardian. In most instances, a Guardianship Information Form or Letter of Intent Information Form is incorporated into the Will, thus giving the proposed guardian information regarding the minor children that includes medical and educational history, religious preference, special needs, recreational activities and other helpful information.

Furthermore, a Will makes arrangements for the payment of debts, taxes, expenses and costs, and elects a person to take the necessary legal steps to carry out the instructions put into the Will (referred to as a “Personal Representative” or “Executor/Executrix”).

In order for a Will to function it must be given power by a court through a process referred to as probate. During the probate process, the Will is authenticated; creditors, fees, costs and taxes are paid; and the directions of the Will are followed. Probate can be costly and time consuming, thus an educated analysis of one’s estate should be completed to determine whether probate should and could be avoided. CAVEAT: consult an estate planning professional before changing ownership of property to avoid probate; the consequences of changing ownership could be unintended and detrimental without appropriate consideration.

Regardless of how complex or simple the estate, a Will is always included in an estate plan, whether it is used to dispose of someone’s entire estate, direct the care and custody of minor children or act as a safety-net for property that was accidentally not included in a trust or other arrangement. Rather than a simple form that can be purchased online or at an office supply store, a Will is a document that requires significant thought to include proper detailed instructions and avoid improper taxes and fees.

-Dental Insurance-

This article unfortunately cannot contemplate all types of dental insurance; however, let us consider the two primary dental insurance models: managed care plans and fee-for-service plans. Managed care plans, according to the American Dental Association (www.ada.org), are cost containment systems that direct the utilization of health care. In other words, a managed care plan controls medical costs by (a) restricting the type, level and frequency of treatment; (b) limiting the access to care; and (c) controlling the level of reimbursement for services.

Two main divisions of managed care plans have emerged: a Dental Preferred Provider Organization (referred to as a “Dental PPO”) and a Dental Health Maintenance Organization (referred to as a “DHMO”). A Dental PPO allows the patient to choose a dentist regardless of whether the dentist is in-network or out of network. An in-network dentist under a Dental PPO is contracted by the insurance company to receive a discounted fee for services. Alternatively, an out of network dentist under a Dental PPO does not have a contract with the insurance company; thus, the patient would then likely have to co-pay for services.

According to the American Dental Association, a DHMO is a capitation plan that pays contracted dentists a fixed amount (usually on a monthly basis) per enrolled family or individual, regardless of utilization. In other words, in exchange for a fee, a patient would have access to dentists that are paid by the insurance company. In return, the dentists agree to provide specific types of treatment to the patient at no charge (for other treatments, a co-payment is required). Theoretically, the DHMO rewards dentists who keep patients in good health, thereby keeping future costs low. DHMO models typically offer the least expensive dental plans.

A fee-for-service plan (known as a “dental reimbursement plan” or “DR Plan”) is typically a freedom-of-choice arrangement under which a dentist is paid for each service rendered; and is the insurance plan recommended by the American Dental Association. A DR Plan differs from a managed care plan because the patient pays the dentist directly for each service provided rather than the dentist receiving payment from an insurance company. A patient is reimbursed for the cost of the service by an arrangement with the patient’s employer. The patient can seek service from any dentist under this type of insurance plan and does not have to worry about whether the dentist is in a specific network. Ultimately, a DR Plan offers the patient great freedom and offers both the patient and the dentist broad authority to make decisions that are most beneficial to the patient.

Please visit the American Dental Association’s website, as referenced above, for a list of items to consider before choosing an appropriate insurance plan.

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Adam Winckler, D.D.S., enjoys a general dentistry practice with The Waters Dental Group in Sandwich, Illinois, and Geneva Family Dental in Geneva, Illinois. Dr. Winckler invites any questions or comments via the website of The Waters Dental Group (www.watersdentalgroup.com); the website of Geneva Family Dental (www.genevafamilydental.com); or by phone at 815.786.2146.

-Update-

Illinois has enacted the Banking Convenience Account for Depositors Act. Much like its Michigan counterpart, the Illinois Act permits a convenience account holder to be added to a bank account. In practice, the financial institution may deal with the person that is a convenience account holder as though they were an owner of the account. However, the convenience account holder does not hold title to the money in the account, thus would not be given the money upon the owner’s death. The convenience account holder is not considered to be a joint owner in the deposit account, simply someone that is helping.

The Illinois Secretary of State will act as a depository for wills and trust documents that a lawyer is safekeeping. In order to deposit the Will or trust, however, the attorney must certify that the person who created the documents cannot be located after a diligent search.

Illinois Real Estate Methamphetamine Disclosure. A seller of real estate in Illinois must now disclose whether the property for sale has been used for methamphetamine manufacture.

-Conclusion-

I hope this issue of The Estate has been helpful. Please feel free to contact me with any questions or concerns, or to schedule a complimentary consultation. As a service to all current and prospective clients, I travel at no charge to all meetings and consultations throughout Michigan and Illinois. In addition, informational sessions regarding special needs planning and estate planning are provided free to groups of any size. Please let me know if there is any way I can help.

Convenience Accounts (Illinois)

By Matthew A. Quick Public Act 96-123 creates the Banking Convenience Account for Depositors Act, which permits a convenience account holder (or someone to accommodate the transfer of funds) to be added to a deposit account. In practice, this means the financial institution may pay out of an account to the convenience account holder without affecting the title of the deposits (the convenience account holder is not considered to be a joint owner in the deposit account). This Act is effect January 1, 2010, but is automatically repealed January 1, 2015.

Letter of Intent

By Matthew A. Quick A Letter of Intent is a document prepared by a caretaker of a loved-one with special needs and details his or her past, present and future information. A Letter of Intent can give information and instructions on medical care, personal care, education, religion, recreation, general needs and preferences, and any other information detailing the daily life of a loved one with special needs. Even though a Letter of Intent is not a legal document, it may be the most important document involved in special needs planning because courts, future caregivers, estate and financial planners, and others can look to it for guidance in understanding a loved-one with special needs—through a Letter of Intent the present caregiver can continue to inform of the best possible care for a loved-one with special needs.

Supplemental Needs Trust

By Matthew A. Quick A Trust is a legal arrangement in which legal title of property is given to a person or entity (referred to as the “trustee”) to hold for the use and benefit of another person (referred to as a “beneficiary”). A Trust contains instructions that the trustee is bound to follow in safekeeping the trust property. There are three main reasons to employ the use of a Trust: it keeps the principal’s estate from having to endure the probate process; it may have significant tax-saving advantages by reducing the taxable portion of an estate; and it shelters property from people or entities such as creditors, loved-ones who cannot handle large amounts of money, and the government. A Supplemental Needs Trust is defined by the instruction to distribute the Trust property for the use and benefit of a loved-one with special needs, but only for permissible “extra” quality of life items and services not provided by government benefits. Put another way, distributions from a Supplemental Needs Trust will supplement the benefits provided by the government, but not jeopardize eligibility for such benefits.

A Supplemental Needs Trust may be created by a third-person or by the loved-one with special needs. In the event a Supplemental Needs Trust is properly created by a third-person and properly administrated, then a loved-one with special needs will remain eligible for government benefits and not be required to reimburse the government for the same. Furthermore, the third-person who created the Supplemental Needs Trust can direct the further distribution of the property of the Supplemental Needs Trust upon the death of the loved-one with special needs.

On the other hand, if a loved-one with special needs receives property outright, then his or her eligibility for government benefits would be in jeopardy. To remain eligible for government benefits, the special needs loved-one would have to create a Supplemental Needs Trust that, upon the death of the special needs loved-one, would be subject to the benefit payback requirements of federal law. There are two (2) Supplemental Needs Trust options for this situation: first, a Medicaid Payback Trust established pursuant to 42 USC 1396p(d)(4)(A) (also referred to as a “(d)(4)(A) Trust”); or, second, a Community Pooled Account Trust established pursuant to 42 USC 1396(d)(4)(C) (also referred to as a “(d)(4)(C) Trust;” these Trusts are collectively referred to as “OBRA 1993 Special Needs Trusts” because of the federal law, the Omnibus Budget Reconciliation Act of 1993, that established the use of these Trusts).

Do-Not-Resuscitate Orders (Illinois)

By Matthew A. Quick The Health Care Surrogate Act with regard to a Do-Not-Resuscitate Order (also known as a "DNR"), to wit, Chapter 755 of the Illinois Compiled Statutes, Act 40, Section 65, now only requires one witness to the signing of the Do-Not-Resuscitate Order instead of two witnesses; but requires the witness to attest that the person executing the Do-Not-Resuscitate Order had the opportunity to read the Do-Not-Resuscitate Order. These changes shall become effective January 1, 2010.