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MASSACHUSETTS

 

State Reporter: Harry S. Margolis

535 Boylston St. - 8th Floor
Boston, MA  02116
Phone:  (617) 267-9700
Fax: (617) 267-3166
Email: hsm@margolis.com
Web site: www.margolis.com

Education: Juris Doctor, New York University School of Law, 1984

Current Position: Managing Attorney.

Certifications:

Memberships: National Academy of Elder Law Attorneys, ElderLaw Answers (founder and president), Massachusetts Bar Association, and Boston Bar Association.

Community Involvement: 

Articles:  "Supplemental Needs Trusts vs. Structured Settlements:  What is the Best Form of Settlement for Disabled Clients?"  Trusts & Estates, p. 54 with Jeffrey A. Bloom - November 2003, "Elder Law in the Border States: Massachusetts"  NYBSA Elder Law Attorney, Vol. 12, No. 1, New York State Bar Association - Winter 2002, Looking Ahead:  Estate and Long-Term Care Planning For You and Your Family, a 76-page booklet for consumers on the issues described in the title - December 2002, "Senior Demographics: A Look Behind the Numbers" McGeorge Law Review, University of the Pacific, Vol. 31, Issue 3 - Spring 2000, "Coping With a Loss: Attorney Harry Margolis outlines steps to take after the death of a spouse or parent," MFS Perspective, p. 5 - Spring 2000.

Your State's Social Security Region: Boston

Your State's Federal Circuit: First

General:

Does your State Have a Specific Special Needs Trust Statute or Discretionary Trust Statute? No.

Are there State-Specific:

Resources: Massachusetts Continuing Legal Education (MCLE)
                   MCLE Practice Series Library

Administrative rules: MassHealth Trust Regulations

Manuals/Standardized Forms: see http://www.uslegalforms.com/Massachusetts.htm

Important Case Holdings: Cohen v. Commissioner of the Division of Medical Assistance, 423 Mass. 399, 413 (1996)

This is the leading case decided by the Massachusetts Supreme Judicial Court (SJC) regarding trusts which state that if the trustee has the ability to distribute ANY principal, then ALL of it is counted as an asset for MassHealth (Medicaid) purposes in determining Medicaid eligibility.

The SJC ruled in Cohen that "exculpatory clauses" in Medicaid qualifying trusts created prior to August 10, 1993, do not protect trust assets from being counted in determining the beneficiary's eligibility for Medicaid.  The ruling does not apply to trusts created after the August 10, 1993, enactment of the Omnibus Budget Reconciliation Act of 1993 because there is no question that the corpus of such trusts with exculpatory clauses would be countable.

This new ruling greatly narrows the use of trusts in protecting assets from Medicaid.  Note that the Cohen restrictions apply only to trusts created by the Medicaid applicant or by his or her spouse.

Pronouncements: None.

Fiats: None.

Interpretations/Unusual interpretations of the law: None.

Does the State run a tab? I.e., does the State track the cost of services to the beneficiary and present a bill if the individual inherits funds or otherwise acquires funds? Yes, the state keeps track of Medicaid expenses upon the beneficiary's death from his or her probate estate, but does not seek reimbursement except when it has a lien on a home that is sold or in the event of a personal injury recovery for medical costs related to the same injury.

Does the State have specific statutes or regulations on County medical services and reimbursement of costs? No.

Have You Seen Creative Uses of Charitable Remainder Trusts and SNT Receptacle Trusts? No.

Do you have a pooled trust in your state?

Berkshire County Arc
Pittsfield, MA
http://www.bcarc.org
(413) 499-4241

PLAN of Massachusetts, Inc.
Newton, MA
(Formerly MARC Trust)
http://www.planofma.org
(617) 244-5552

TLC Trust
Ashburnham, MA
(978) 827-5602

CJP Disabilities Trust
Jewish Family & Children's Services
Newton, MA
http://www.jfcsboston.org

Social Security Rules: 

When a third party (such as a parent or other individual) funds a trust for another person (the "beneficiary") with the third party’s funds, what special rules does your SSA region have on:

Nothing unusual.  A third party (i.e. a parent) can create a trust for the benefit of a disabled person that will not interfere with the beneficiary's eligibility for public benefits, such as Supplemental Security Income (SSI).  The trust must be clearly discretionary in nature so that it can not be interpreted as requiring the trustee to pay for the beneficiary's support.  The trust may be revocable or irrevocable and it may name anyone the grantor chooses as a remainder beneficiary to receive what remains upon the primary beneficiary's death.

Distribution terms:

Accounting/Reports/Notices: 

Housing:

Remainder Beneficiaries:

When an individual funds a trust with his or her own funds, using the authority provided under 42 U.S.C 1396p(d)(4)(A), what special rules does your SSA region have on:

While the POMS require the person creating a (d)(4)(A) trust to be in control of the funds, we have not seen this provision enforced in our region.

Distribution terms:

Accounting/Reports/Notices:

Housing:

Remainder Beneficiaries:

Are you aware of specific issues regarding housing (purchase, maintenance, utilities, gifts of housing, rentals) that have raised questions or caused problems with your state agencies or SSA office? 

Are you aware of certain types of distributions that are likely to raise questions or cause problems with one of your state agencies or SSA office?

Yes, in recent Massachusetts cases regarding State regulated subsidized housing, the Massachusetts Department of Housing and Community Development held that any distributions from a special needs trust were to be treated as income to the beneficiary for purposes of rental subsidies.

 

Medicaid Rules:

When a third party (such as a parent or other individual) funds a trust for another person (the "beneficiary") with the third party’s funds, what Medicaid related considerations are involved?

Nothing unusual.  A third party (i.e. a parent) can create a trust for the benefit of a disabled person that will not interfere with the beneficiary's eligibility for public benefits.  The trust must be clearly discretionary in nature so that it can not be interpreted as requiring the trustee to pay for the beneficiary's support.  The trust may be revocable or irrevocable and it may name anyone the grantor chooses as a remainder beneficiary to receive what remains upon the primary beneficiary's death.

Distribution terms:

Accounting/Reports/Notices:

Housing:

Remainder Beneficiaries:

When an individual funds a trust with his or her own funds, using the authority provided under 42 U.S.C 1396p(d)(4)(A), what Medicaid related considerations are involved?

Nothing unusual, except that the Commonwealth of Massachusetts will not permit a (d)(4)(A) trust to be created by a conservator.  The Commonwealth strictly construes the federal reference to "guardian" which governs both the ward's assets and person.  In Massachusetts, a conservator is appointed only over the ward's estate and, unlike a guardianship, can be consented to by someone who is competent but physically disabled.

Distribution terms:

Accounting/Reports/Notices:

Housing:

Remainder Beneficiaries:

 

Department of Mental Health and Mental Retardation Rules:

When a third party (such as a parent or other individual) funds a trust for another person (the "beneficiary") with the third party’s funds, what requirements does the Department of Mental Health and Mental Retardation have for:

Distribution terms:

Accounting/Reports/Notices:

Remainder Beneficiaries:

 

Are third-party trusts liable for services provided by State Schools or State Hospitals?

How does the State Mental health, Mental retardation agency treat self-settled trusts?

 


State Reporters are not sponsored nor endorsed by NAMI, but have volunteered to provide information. Many of the State Reporters are members of the National Academy of Elder Law Attorneys (NAELA) and the American Bar Association. Several are members of ACTEC (the American College of Trust and Estate Counsel). Many have children and other family members with disabilities. Most have been selected by other attorneys involved with this project, because of their recognized long-term involvement with special needs trusts.

NAMI does not, however, certify all information provided here is accurate. Further, the State Reporters do not certify that information provided by others is accurate. As for the State-specific information, each State Reporter has agreed to provide reasonable updates of information that they believe to be accurate.

Also, there is no coverage here of federal laws, veterans administrations rules, Section 8 housing rules, special education, or special county rules.

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