[WSBAPT] POA question

[Marcus Fry]

David:
The tax ID doesn’t necessarily mean it is revocable.  In fact, because both Trustors were also the beneficiaries then it likely was taxed as a grantor trust with one or both of their SSNs.  It is possible that a tax id should now be obtained if grantor status has been lost, but it is likely still a grantor trust.  It depends on the terms of the now irrevocable trust.

Your client is mom, correct?  Is daughter POA for mom?  I would suggest filing under the POA statute for approval of the care contract if in fact daughter is POA and your client as the principal requesting approval with notice to step kids.  TEDRA definitely works instead of a petition to the court for approval of arrangement if you can get it from family.  But I think you need to do one of these options to avoid a VAPO/APS complaint in the future, particularly if you client becomes mentally incapacitated and daughter assumes role as trustee and continues to pay for caregiving services out of the trust.

Because your client is mom, then the payments to the daughter should be as employee and appropriate withholdings need to be performed.  If daughter gets injured in caring for mom, you don’t want your client’s assets in trust (the trust would be the employer because those assets are being used) exposed to a L&I claim.

Also, for Medicaid purposes you need to follow the WAC on paying for a family caregiver (See WAC 182-513-1363(4)).

My $.02

Marcus J. Fry
Lyon, Weigand & Gustafson, P.S.
P.O. Box 1689
Yakima, Washington  98907
Telephone:  (509) 248-7220
Facsimile:  (509) 575-1883

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From: wsbapt-bounces at lists.wsbarppt.com [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of David Faber
Sent: Wednesday, September 27, 2017 12:22 PM
To: WSBA Probate & Trust Listserv
Subject: Re: [WSBAPT] POA question

I'm dealing with a similar issue right now and figure it's better to continue this old thread rather than start a new one, but the issues here are a bit more complex. Hopefully someone can help me address the issues present:

(1) Mom is the surviving trustor on a trust that impliedly became irrevocable on her husband's passing (the Trust only provides for power to revoke during the joint lifetimes of the Trustors). The only asset of the trust is $180k in cash held in a checking account (screwy, yes, but thems the reality of the situation). The Trust does not currently have a tax ID number, so presumably the bank considers it revocable still, if that is relevant to any potential avenues in addressing this situation...

(2) The marriage was a blended family and there are step-children involved.

(3) Mom is aged and wheelchair bound. She lives with daughter, who is named to become co-trustee with one step-child upon mom being rendered incompetent or upon death. Mom is still legally competent to act, however, and is still serving as trustee.

(4) Mom wants to pay daughter for room and board (including home care, because daughter quit her job to help mom).

(5) Mom and daughter are both concerned that mom will eventually require Medicaid, and so the five-year lookback is weighing heavily on this situation.

As I see it, there are a slew of complexities here that really orbit around two situations (1) how to safely make payments to daughter and (2) how to do it in such a way as to not disqualify mom from medicaid when her assets have been consumed. Here's where I'm at right now:

(A) If mom pays daughter, step-siblings may cry foul, so I am thinking that a TEDRA Agreement might be the best option to establish an agreement between family members for payment to daughter laying out exactly how much daughter is going to be paid from the Trust.

(B) That gets into a question about whether such payments would then be classified as payments to an employee of the Trust/Mom? And what about income taxes/social security/medicare contributions for Daughter? My thought is we could 1099 the Daughter and she would just have to report the earnings on her tax return, correct? Anything that we could reasonably exclude?

(C) Provided we can get over the potential family stumbling blocks and get a TEDRA Agreement in place, and the tax questions can be settled effectively, we have the Medicaid question. Is there a method of ensuring that these payments to Daughter would not be seen by Medicaid as a gift or otherwise as a disqualifying event? Do you think having a rental agreement and some sort of 1099 paper trail would be enough?

Any and all thoughts are much appreciated, including noting things that I'm potentially missing.

Best,
David J. Faber
Faber Feinson PLLC
210 Polk Street, Suite 1
Port Townsend, WA 98368
(360) 379-4110

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On Thu, Apr 7, 2016 at 11:09 AM, Sarah Jael Dion <sarah at dionlaw.com<mailto:sarah at dionlaw.com>> wrote:
Thanks all- I appreciate everyone's insight on this!

Sarah Dion

On Apr 7, 2016, at 9:33 AM, Marcus Fry <mfry at lyon-law.com<mailto:mfry at lyon-law.com>> wrote:
I wouldn’t bother with TEDRA.  RCW 11.94 has a mechanism and so do the new POA Act to obtain court approval of the proposed act.  I would definitely get court approval unless the POA has an alternate POA, then the current POA could decline to act with regard to the particular transaction, i.e., negotiation and execution of room and board agreement, and the alternate POA could sign the agreement.

Marcus J. Fry
Lyon, Weigand & Gustafson, P.S.
Adoption Attorney*
P.O. Box 1689
Yakima, Washington  98907
Telephone:  (509) 248-7220<tel:(509)%20248-7220>
Facsimile:  (509) 575-1883<tel:(509)%20575-1883>

NOTICES:
 *Adoption Attorney reflects election as a Fellow of the American Academy of Adoption Attorneys, an invitation based organization of 300+ attorneys nationwide, under its criteria of experience, ethics and peer recommendation. Washington's Supreme Court has not yet developed or recognized a credentialing process for specialties, and certification/fellowship is not required to practice law in this state.
Confidentiality: This e-mail transmission may contain information which is protected by attorney-client, work product and/or other privileges.  If you are not the intended recipient, you are hereby notified that any disclosure, or taking of any action in reliance on the contents, is strictly prohibited.  If you have received this transmission in error, please contact us immediately and return the e-mail to us by choosing Reply (or the corresponding function on your e-mail system) and then deleting the e-mail.

From: wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com> [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of George Edensword-Breck
Sent: Thursday, April 07, 2016 8:57 AM
To: WSBA Probate & Trust Listserv
Subject: Re: [WSBAPT] POA question

You don’t indicate what other relatives are in the picture, but whether there are any or not, this seems like a good TEDRA action situation..

From: wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com> [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Sarah Jael Dion
Sent: Wednesday, April 06, 2016 2:32 PM
To: WSBA Probate & Trust Listserv
Subject: [WSBAPT] POA question

Hello-

Looking for practical, as well as legal, input on a situation.

Acquaintance is POA for her incompetent stepfather. Acquaintance is moving into a larger home, which has extra room, and would like to move her stepfather in so he can be in closer contact with the family. She plans to charge him rent, but is nervous about doing so, because she would be writing the rent checks to herself.

It seems to me that this must come up routinely- although it hasn’t with any of my clients. Can a family member who is the agent ethically charge rent to the person for whom she is the fiduciary? If so, what precautions are best taken?

I’d appreciate any thoughts!

Sarah Jael Dion

Dion Law PLLC
206-550-4005<tel:(206)%20550-4005>
sarah at dionlaw.com<mailto:sarah at dionlaw.com>
dionlaw.com<http://dionlaw.com>

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