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NORTH CAROLINA

 

State Reporter: A. Frank Johns

Booth Harrington & Johns, LLP
239 N Edgeworth St.
Greensboro, NC 27401
Phone:  (336) 275-9567
Fax: (336) 373-8747

Email: afj@nc-law.com
Web site: www.nc-law.com

Education: Juris Doctor, Florida State University School of Law, 1971

Current Position: Partner

Certifications: Certified Elder Law Attorney (CELA); Registered Guardian (RG)

Memberships: National Academy of Elder Law Attorneys (NAELA) Fellow, National President 1999-2000, National Board 1992-2001, N.C. Charter Chapter Chair, 1992, Editor-in-Chief, NAELA Quarterly 1994-1996; American College of Trust & Estate Counsel (ACTEC) Fellow; National Guardianship Association (NGA), Charter Board Member, National Board, 1988-1991; American Bar Association(ABA); North Carolina Bar Association (elder law section and past charter chair).

Community Involvement: Current president of the Western Carolina Chapter of the Alzheimer’s Association Board of Directors; Numerous presentations for State Bar of North Carolina, the American Bar Association and numerous national lectures and keynotes ; Association of Retarded Citizens; Advocacy Center for Children’s Education and Parent Training (ACCEPT); Carolina Legal Assistance – legal services for institutionalized persons with disabilities; Board – Society of Financial Service Professionals (SFSP); Board member Seniors Resources of Guilford; Board member Charlotte Mecklenburg Senior Centers

Articles:

Your State's Social Security Region: Atlanta

Your State's Federal Circuit: Fourth

General:

Does your State Have a Specific Special Needs Trust Statute or Discretionary Trust Statute? Yes, see NCGS 36A-59.10 et seq. North Carolina Community Trust Act.

Are there State-Specific:

Resources: North Carolina Adult Medicaid Manual, Section MA- (can be accessed at http://info.dhhs.state.nc.us/olm/manuals/dma/abd/man/index.htm)

Administrative rules: North Carolina Adult Medicaid Manual. Section MA (can be accessed at http://info.dhhs.state.nc.us/olm/manuals/dma/abd/man/index.htm)

Manuals/Standardized Forms: North Carolina Adult Medicaid Manual, Section MA- (can be accessed at http://info.dhhs.state.nc.us/olm/manuals/dma/abd/man/index.htm)

Important Case Holdings:

Pronouncements:  Lowe v. NC Dept. of Human Resources, 72 NC App. 44, 323 S.E.2d 454 (1984)(Compliance with statutes and regulations); Campbell v. NC Dept. of Human Resources, 153 NC App. 305, 569 S.E.2d 670 (2002)(DMA has right of subrogation to injured party, Medicaid recipient’s settlement from tortfeasor, even if injured party a minor).

Fiats:  Correll v. Division of Social Services, 332 N.C. 141, 418 S.E.2d 232 (1992)(A section of the manual does not require Medicaid applicants own their primary place of residence to claim exempt property).

Interpretations/Unusual interpretations of the law:  Elliott ex rel. Casstevens v. Dept. of Human Resources, 115 N.C. App. 613, 446 S.E.2d 809, aff’d. 341 N.C. 191, 459 S.E.2d 273 (1995)(Use of resource spend-down not required)

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, North Carolina keeps track of the costs of services for purposes of Medicaid estate recovery and recovery in the event of a tort settlement.

Does the State have specific statutes or regulations on County medical services and reimbursement of costs?

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

Do you have a pooled trust in your state? Yes - two.  1) The Corporation of Guardianship, Inc. and 2) Life Plan Trust, affiliated with the Arc of North Carolina.

Social Security Rules: SSA POMS

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:

Distribution terms: None.

Accounting/Reports/Notices: None.

Housing: None.

Remainder Beneficiaries: None.

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:

Distribution terms: None.

Accounting/Reports/Notices: None.

Housing: None.

Remainder Beneficiaries: None.

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? Yes, currently General Assembly is attempting to strengthen rules regarding life estates.

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, specific distributions to the beneficiary of the trust for room and board, food, transportation and cash.  Generally, the trustee should avoid making distributions directly to the beneficiary.

 

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?

Distribution terms: Trustee discretion.  However, cash distributions to the beneficiary, food or shelter provided to the beneficiary are income in the form of in kind support and maintenance.

Accounting/Reports/Notices: None.

Housing: None.

Remainder Beneficiaries: None.

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?

Distribution terms: Trustee absolute discretion; supplemental distributions, spend thrift, pay-back, irrevocability, sole benefit.

Accounting/Reports/Notices:

Housing: None.

Remainder Beneficiaries: Payback to Medicaid upon death of beneficiary.

 

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? Not if funded by one other than the person receiving services and the trust is irrevocable.

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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