The Academy of Special Needs Planners (ASNP) hosted its first annual conference March 23-24, 2007 at the Marriott Evergreen Conference Resort in Stone Mountain, Georgia. Open to non-ASNP members, the conference attracted more than 100 participants (mostly disability attorneys) and showcased ASNP's knowledge leaders among the 15 speakers.
This report looks at the ASNP conference specifically from a structured settlement perspective.
Conclusions and recommendations:
- ASNP's collective legal knowledge is extensive, impressive and important for disabled persons, their families, plaintiff attorneys and structured settlement professionals.
- The ASNP conference speakers and handout materials were excellent. Except for the structured settlement handouts (one written in 1996), almost all of the handout materials appeared to be written or updated specifically for this ASNP conference.
- Although most of the ASNP conference topics related indirectly to structured settlements:
- None of the ASNP speakers or topics focused directly on structured settlement legal issues;
- No one from the traditional structured settlement industry attended the ASNP conference or exhibited at the ASNP conference.
- Expanding the structured settlement market requires expanded legal knowledge, scholarship and advocacy.
- One priority topic: how do (and how should) government benefit rules interact with structured settlements?
- Special needs law should incorporate structured settlement legal issues and funding options within its scope of competencies, education and expertise.
- ASNP members should understand structured settlements - and offer legal services to plaintiff attorneys for structured settlement funding options such as:
- Qualified (under IRC section 130) assignments;
- Non-qualified (under IRC section 130) assignments;
- Qualified (under IRC section 468B) settlement funds;
- Self-settled special needs trusts - funded with structured settlement annuities;
- Pooled trusts - funded with structured settlement annuities;
- Medicare set-aside arrangements - funded with structured settlement annuities; and
- Structured settlement factoring transactions - as defined in IRC section 5891 and the 46 state structured settlement protection statutes.
What follows is S2KM's summary of the 2007 ASNP conference presentations - highlighting related structured settlement issues which S2KM encourages ASNP members to address in future ASNP conferences, legal research and legal commentary.
Vincent Russo opened the program with an impressive overview of the "Tax Consequences of Trusts in a Special Needs Practice". S2KM would like to see Russo (and other special needs tax experts) incorporate and address these IRC sections in their SNT analysis: 104(a); 130; 468B; and 5891 - including statutory definitions and penalties. What recommendations can ASNP offer for resolving apparent conflicts among Medicaid, Medicare and tax laws related to structured settlements?
Diedre Wachbrit and Ira Wiesner highlighted special needs advisors and optional protection clauses In their presentation titled "Advanced Drafting Issues: Care Committees, Trust Protectors and Distribution Provisions". S2KM would like to see Wachbrit and Wiesner address advanced drafting issues for SNTs funded with structured settlement annuities. These issues include assignment language; beneficiary designations; and annuity payment rights transfer strategies.
Frank Johns and Patricia Dudek spoke about "Ethics and Administration of Special Needs Trusts, Pooled and Independent". Structured settlements and settlement transfers create many ethical and administration issues for SNTs. The ethics issues include: conflicts of interest; fee arrangements; requirements for disclosure, confidentiality and informed consent; scope of representation; and allocation of authority. The administration issues specific to structured settlements in SNTs include settlement transfer issues. Johns is already a recognized and published knowledge leader for structured settlement ethical issues. S2KM hopes Johns, Dudek and ASNP will continue to focus on structured settlement ethical and administration issues.
Susan Hartley, Martha Ford and William Browning spoke about pooled trusts. Ford's presentation was valuable in understanding the original legislative intent and process in 1993 that created statutory safe harbors for (d)(4)(A) and (C) trusts. Hartley addressed pooled trust management and administrative issues. Browning was simultaneously amusing and insightful while defending and promoting the growing use of pooled trusts. S2KM questions: what role should structured settlement annuities play in pooled trusts? What are the advantages and disadvantages of structured settlement annuities compared with other funding options for pooled trusts?
Michael Gilfix, David Lillesand and Ken Brown examined current SSI issues. Responding to questions following his presentation, Brown stated SSA will issue new POMS in 2007 and the POMS will address structured settlements. Issues S2KM would like these experts to address:
- The roles of SSA, CMS and state Medicaid agencies in determining structured settlement annuity rules for Medicaid eligibility;
- Current SSI rules for structured settlement annuities - and the legal authority for such rules;
- The impact of the Deficit Reduction Act of 2005 on structured settlement annuities.
Carrie Frank offered a plaintiff attorney perspective for special needs attorneys. Her presentation referenced structured settlements and highlighted qualified settlement funds. S2KM encourages ASNP to continue examining the issues Frank identified:
- What is the scope of legal knowledge, responsibilities and liabilities for special needs and personal injury settlement planning?
- What standards and competencies do (should) plaintiff attorneys possess for special needs and personal injury settlement planning?
- What are the appropriate roles, responsibilities, competencies, and compensation for various settlement and special needs planning participants?
- What are the most important structured settlement legal issues related to special needs planning?
John Campbell presented a detailed look at Medicare and Medicaid liens as well as Medicare Set-Aside trusts. Campbell referenced structured settlements and highlighted the growing interaction of Medicare and Medicaid (Medicare Set-aside Special Needs Trusts). S2KM welcomes and encourages Campbell's continuing commentary about structured settlements - especially the conflicting Medicare and Medicaid rules for structured settlements.
The ASNP sponsors and exhibitors greatly enhanced the ASNP conference.
- Notably and coincidentally, MassMutual Financial Group (which recently left the structured settlement industry) was the Platinum Sponsor for ASNP's first conference.
- ASNP conference
exhibitors included:
- The exhibitor handout materials were surprisingly valuable - especially:
- Krause Financial Services' Medicaid Annuity handouts; and
- Mass Mutual's 2006 Resource Guide.
- Although MetLife appears to be among the leaders in estate planning for special kids, the MetLife marketing materials do not reference structured settlements.
Congratulations to Harry Margolis and other ASNP founders and members. Stay focused on structured settlement legal issues. The structured settlement industry needs your legal expertise to help understand and resolve many of the "Inconvenient Questions" it now faces.
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