WHAT HAPPENS WHEN THE PERSONAL INJURY VICTIM ON PUBLIC BENEFITS MOVES TO ANOTHER STATE

by Thomas D. Begley, Jr., CELA

People frequently move from New Jersey to other states for various reasons. Occasionally, an individual is transferred by his/her employer and has little say in the matter.  On other occasions, the individual retires and wants to move to a warmer climate with less taxation.  For most people, the move is straightforward.  However, if the family has a member who is a personal injury victim, the process becomes much more complicated.  Let’s assume the case has settled, the individual is receiving SSI, Medicaid and other means-tested public benefits, and a Special Needs Trust has been established in New Jersey.

Assembling a Team

One of the first considerations is assembling a team to assist the special needs beneficiary and his/her family in the new state.  The Special Needs Attorney who drafted the Special Needs Trust would be a good person to quarterback this effort.  The Special Needs Alliance is a national organization of attorneys.  Membership is by invitation only.  The organization has members in most states.  This is a good place to start.

Members of the team might include the following:

• Special Needs Planning Attorney. The laws concerning Special Needs Trusts vary considerably from state to state.  An attorney in the state to which the family is moving should be contacted to review the existing Special Needs Trust and make any modifications that may be necessary to comply with the new state law. Estate planning documents for the individual with disabilities and other family members should also be reviewed by the attorney in the new state.
• Does the trustee serving in New Jersey have a national charter?  Many banks that serve as trustees are chartered only in New Jersey. They cannot serve outside this state. Many Pooled Trusts are limited to serve in the state in which they are established.  If the trustee is authorized to serve outside New Jersey, it can remain in place. Otherwise, a trustee must be substituted with authority to act in the state to which the individual is moving.
• Certified Public Accountant. Most accountants are familiar with federal tax law, but smaller firms are frequently familiar only with the state law where they are located.  Someone will have to file state income tax returns as well as accountings with the State Medicaid Agency, where required.  First Party Trusts are Grantor Trusts.  Third Party Trusts are usually complex trusts.
• Government Benefits Advocate. Most federal government benefits are fairly easily transferred from one state to another. These include:  SSI, SSDI, Basic Medicaid, Medicare, Federally-Assisted Housing, and SNAP (formerly Food Stamps).  However, state government benefits available in New Jersey may not be available in the state to which the beneficiary intends to move.  Many people want to retire and move to warmer climates with cheaper taxes.  These states tend to be red states and often offer fewer benefits than a state such as New Jersey.  Before selecting a destination, the family should make careful inquiry as to what benefits are available.  Medicaid Waiver Programs vary considerably from state to state.  If these are important to the individual with disabilities, a careful analysis should be made as to whether they can be replaced. A Government Benefits Advocate may be the Special Needs Attorney in the new state or may be someone else.  The advocate should be engaged early on.
• Care Manager. If the individual with disabilities requires hands-on care, how can a Care Manager be found in the new state.  There are some large national organizations that operate in many states.  Do any of these organizations offer the services that are required?
• Life Care Planner. While a Life Care Plan is often prepared as part of the plaintiff’s personal injury case, they tend to provide a “worse possible case” scenario.  Consideration should be given to developing a realistic Life Care Plan based on the amount of money actually received in the settlement and the availability of services where the individual with disabilities will be living.
• Special Education Attorney. If the individual with disabilities is school age, a Special Education Attorney should be identified to assist in the development of an Individualized Education Program (IEP).  Careful consideration should be given to selecting a school that will best serve the needs of the individual with disabilities.  The Special Education Attorney can assist in identifying the school, advocating for the necessary services, and litigating if necessary.
• Investment Advisor. Professional trustees usually have in-house Investment Advisors, but individual trustees do not. Who will serve as Investment Advisor for the trust?
• Professional Fiduciary to Serve as Guardian. Consideration should be given to who will serve as guardian of the individual with disabilities, if a guardian is necessary after the parents are gone.  There are professionals available to provide this service including some not-for-profit disability organizations.

 

Personal Planning

The individual with disabilities may need considerable personal services.  These may include:

• Direct Care Provider. A direct care provider to provide hands-on care.
• Job Coaches and Employers. Job coaches and employers to provide supported employment should be identified, where appropriate.
• If the individual with disabilities requires therapy, it is important to identify good therapists to provide the necessary services.
• Day Programs. If the individual with disabilities is unable to work, day programs should be identified prior to moving.
• Respite Care Providers. Family members of individuals with disabilities often require a break. Respite care providers should be identified.
• Medicaid Waiver Programs. Individuals with disabilities frequently require all sorts of Medicaid Waiver Programs including home care, assisted living facilities, nursing homes, day programs, group homes, etc.  These programs are often funded with Medicaid dollars.  Prior to moving, a determination should be made as to what Medicaid Waiver Programs are available to pay for the services that the individual with disabilities requires.
• Medical Insurance. Most medical insurance policies are limited geographically with respect to coverage. If an individual with disabilities is moving to another state, what medical insurance will be available to pay for the services required by the individual with disabilities?  Coverage under policies varies from company to company and policy to policy.
• Housing Options. Will the individual with disabilities eventually require placement in a group home? If so, it is likely that he/she will go to the bottom of the waiting list in the state to which he/she is moving.
• Estate Planning Update. The individual with disabilities and family members should have their Wills, Living Wills, and Powers of Attorney reviewed to ensure compliance with state law in the state to which they are moving.  Individuals with disabilities seldom have a lot of money, but they do have personal effects that they would like to leave to specific individuals as well as pets, such as service dogs.
• What employment opportunities are available in the locale to which the individual with disabilities will be moving?  These should be considered prior to finalizing the move.

 

Conclusion

In conclusion, moving from one state to another is simple for most people, but when there is an individual with disabilities involved it is much more complex.  It is best to plan carefully before making final decisions on where to move. The planning involves assembling a team of qualified individuals to provide assistance.