Social Security Administration pays benefits for child born of in-vitro fertilization after death of father only after court appeal

By Neal A. Winston

Jackie is a beautiful 10-year-old. Outgoing and smart, she is the child any parent would just love to have. Her mother and grandparents marvel that she is the very image of her father, Jack. Tragically, Jack died before Jackie was born. An ambulance driver, he was covering on Thanksgiving Day so that another driver could be home with his family when he was instantly killed in an intersection accident.

Jackie’s mother, Ruth, has a rare genetic disorder, and cannot naturally conceive. She received donor eggs from her sister, of which several were fertilized with Jack’s sperm in a lab and frozen after a few days. Then, after months of planning and hormone preparation, the embryo was planted in Ruth’s womb. After two unsuccessful attempts, the couple was ready to try one last time, the Monday after Thanksgiving. After the initial shock of hearing about the accident, Ruth’s first call was to the clinic to stop the embryo preparation.

The following February, Ruth proceeded with a successful preparation and implantation, and in November, Jackie was born. However, when Ruth applied for survivors benefits on Jack’s Social Security record for Jackie, she was denied. Even though Jack’s name was on the birth certificate as the father, the SSA made a determination that since Jack had not expressly stated that he would have wished to support his daughter with Social Security benefits on his earnings record if he had died before the procedure was completed, Jackie was not eligible. (more…)

Special Needs Trust Had Properly Drafted Provisions

By Neal A. Winston

A recent case demonstrates the importance of the proper planning and drafting of a special needs trust in order to keep those funds from reducing or terminating Medicaid and other public benefits. Challenging a MassHealth decision, however, should be determined on a case-by-case basis.

Spouses and children receiving court-ordered support may also be eligible for needs-based public benefits such as MassHealth (Medicaid) and Supplemental Security Income (SSI). Both programs are income sensitive, and support that is directly received, including child support to the custodial parent, can cause these benefits to be reduced or terminated. However, if a Court orders the support to be paid directly into a Special Needs Trust (SNT) drafted with certain provisions, then the support would not be countable as it goes into the trust.  Distributions from the trust can then be structured in such a way as to have minimal or no effect whatsoever on public benefits received by the beneficiaries.  (more…)

Did you know that as many as 70 percent of Americans die without a will ⁽¹⁾? If that statistic applies to you and doesn’t scare you, then you haven’t thought about what this means for your loved ones. If you die “intestate,” meaning without a will, you leave it up to the State and the courts to decide how your property and financial assets will be distributed. At that point it will be too late to express your wishes and more importantly, protect your loved ones. You also open the door for a much more complex and lengthy court process, especially if family members disagree with how your assets are being divided. All of this can be avoided with a few essential estate planning documents. (more…)

Special needs attorney Neal A. Winston briefly describes special needs trusts in this video

Special and supplemental needs trusts serve two primary purposes — protecting government support and managing funds for the benefit of those who are not capable of managing funds themselves. Attorney Neal Winston regularly assists parents who may be doing estate planning for a disabled child with their own assets, or setting up planning for a disabled minor or adult who has received funds through an accident or inheritance. In each case, it  imperative that an attorney who is experienced with special needs trusts, carefully reviews the individual’s needs in order to recommend and design the proper trust model. According to Neal, “I like to make the trusts that I draft flexible so that they can be adapted over the years to the changing needs of the individual and governmental programs.”

Neal recently served as president of the Special Needs Alliance, a national, not for profit organization of attorneys dedicated to the practice of disability and public benefits law. Individuals with disabilities, their families and their advisors rely on the SNA to connect them with nearby attorneys who focus their practices in the disability law arena. (more…)

We asked Robert Fleming, a colleague of Neal Winston through the Special Needs Alliance, for permission to republish his recent post on the topic of appointing a trust protector to monitor and manage a special needs trust for when you no longer can.

Planning for the lifelong care of a loved one with special needs is daunting. Even the most carefully constructed special needs trust can’t be expected to account for all contingencies. Appointing a trust protector can provide added security when you’re no longer able to monitor the trust’s management yourself.  (more…)

Boston Elder Law Attorney

Attorney Alex Moschella describes his passion and commitment to elder and disability law, which spans more than 30 years — including teaching elder law at Boston’ Suffolk Law School (his alma mater). Alex enjoys helping people who are vulnerable — helping them to overcome adversity and overwhelmig difficulties navigating government agencies, and to hold on to their hard earned savings.

Please get to know Alex by watching the video below.

See more videos by our Massachusetts estate planning attorneys.

You can reach Alex at (617) 776-3300.

Boston Elder Law Attorney Alex Moschella describes the urgent and complex situation of getting a loved one into a nursing home

Attorney Alex Moschella describes how his firm provides “Crisis Medicaid Planning” for couples or single persons when long-term care in a nursing home is urgently needed. These are “crisis cases,” since decisions must be made immediately as to placement and determining the source of funds to pay for nursing home care — that in the greater Boston area easily averages over ten thousand dollars a month.

The firm regularly assists families facing the crushing blow of dealing with disabling conditions such as advanced Alzheimer Disease, Multiple Sclerosis, Parkinsons, or complex medical conditions. The nursing homes will not accept their loved one if  the method of payment is not determined at the outset.  (more…)

Neal Winston, Special Needs attorney, will be conducting a panel discussion addressing current benefits for the disabled and individual and pooled special needs trusts.  The panel, sponsored by NAMI of Cambridge/Middlesex, will answer such questions as:

How can I assist and protect my loved one while I am living, and after I am gone?

What do I need to know about public  benefits programs and agencies that support the disabled?

How do I create an estate plan including a special needs trust?

Come join Attorney Winston on Tuesday December 6 at 6:30 pm, Macht Auditorium, Cambridge Hospital, 1493 Cambridge Street, Cambridge, MA – free and open to the public (validated parking).

Explained by Massachusetts Social Security Disability Attorney Neal A. Winston, of Moschella & Winston LLP

The Social Security disability application process can be very lengthy and intimidating. Proving a disability requires careful documentation. A disabled person should learn how the application process works prior to applying, so that any unintentionally misleading information does not go into your record.

To learn more, please view this brief video and then contact Attorney Neal Winston for more information.

View additional videos by our Massachusetts estate planning attorneys on the Moschella & Winston YouTube Channel.

Massachusetts Special Needs and Disability Lawyer

Neal Winston is a founding partner of Moschella & Winston, a Boston-area estate planning law firm. In this video, Neal explains his background from working as a VISTA volunteer to helping people solve their problems with governmental agencies such as Social Security, which led to him becoming an elder law attorney. Neal has furthered distinguished his work as an estate and trust attorney by serving children and adults with special needs as a special needs attorney. He has been president of the Special Needs Alliance, a national non-profit lawyers group dedicated to serving children and adults with special needs.

For more information, please watch the video below.

See the related video: What is a Special Needs Trust?

See our comprehensive FAQ on Special Needs Trusts.

To contact Neal Winston, please call (617) 776-3300.