HOW ARE INCOME CAP TRUSTS USED?
An Income Cap Trust is a technique that is used to make a person "income" eligible for Medicaid by assigning that person's income to the Trust. The Income Cap Trust does not require any advance planning, it is not a long range planning tool, and is typically used in a crisis situation when the person applying for Medicaid requires care.

WHO CAN CREATE AN INCOME CAP TRUST?
If the person applying for Medicaid benefits is too ill or disabled to sign a trust, his or her agent under a Durable Power of Attorney can create the trust. If the person is too disabled to understand that he or she is creating a trust, and has not appointed an agent to act as power of attorney, it will be necessary to have the court issue a protective order or appoint a conservator to establish the trust.

HOW DO I ESTABLISH THE INCOME CAP TRUST ACCOUNT?
Once the trust is established, the next step is to create a bank account in the name of the trust. Only the income of the person receiving Medicaid (known as the trust "Beneficiary") can be placed in the account. It may not contain any other resources.

HOW ARE THE FUNDS IN THE INCOME CAP TRUST SPENT?
Complex federal and state rules govern how the income in the trust is to be spent. In Oregon, during the life of the Beneficiary, the income in the trust is used each month to pay the following expenses, in the following order of priority:

A. Personal Needs Allowance/ Maintenance Standard: A fixed amount to the Beneficiary for the Beneficiary's personal needs plus, for people receiving in-home care or assisted living or foster home care, an amount for room and board, which may be payable to the care facility.

B. Administrative Costs: $50 per month to cover the administrative costs associated with the maintenance of the trust. These costs may include any bank service charges,
trustee fees, preparation of yearly tax returns, copy charges, postage, or tax preparer fees, and any income tax attributable to income placed into or generated by the trust.

C. Spouse and Family: A monthly support allowance for the spouse and family.

D. Health Insurance: The health insurance premium for the beneficiary and the beneficiary's spouse.

E. Other Reserves: Other incurred medical care costs that are not reimbursed by a third party.

F. Patient Liability: Any remaining funds are paid to the facility. This is the amount of Beneficiary's income to be paid toward his or her care.
When the beneficiary dies, any remaining funds in the Trust must be paid to the State.

WHAT IS THE COST TO CREATE AN INCOME CAP TRUST?
Like most things, the amount of time and effort involved in setting up the Income Cap Trust will effect the cost. The cost can vary, especially if court time is involved to establish the trust or to have a conservator appointed. Also adding to the cost is the time the attorney spends drafting the trust and creating a distribution schedule that complies with the above mandatory distribution standards. Establishing an Income Cap Trust is not an inexpensive proposition. However, using a "cost versus benefit analysis," even though the process involves an up-front cost, making the person eligible for benefits will repay the costs of establishing the trust in a very short period of time.

WHERE CAN I GET MORE INFORMATION OR HELP WITH AN INCOME CAP TRUST?
An Elder Law Attorney or an attorney experienced in Medicaid can answer any questions you have and determine if this type of a trust is an option for you

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WHAT IS SOCIAL SECURITY DISABILITY?
Social Security Disability is a complex group of programs that provides financial and medical benefits for qualifying individuals who are unable to work before their normal retirement age.

WHAT PROGRAMS ARE AVAILABLE?
The main programs are:

• Adult Disabled Child (DC).

• Social Security Disability (SSDI).

• Supplemental Security Income (SSI).

• Widows and Widowers benefits.

WHAT DOES IT TAKE TO QUALIFY FOR THE DIFFERENT DISABILITY PROGRAMS?
Generally, the requirements for these programs are:

• Adult Disabled Child. (DC):
  A deceased or disabled parent and proof of disability before the age of 22.

• Social Security Disability. (SSDI) Disability:
  forty quarters of work, and disability beginning within five years of the qualifying work.

• Supplemental Security Income. (SSI) Disability:
  resources of less than $3000 ($2000 for a single person) and no substantial income from other sources.

• Widows and Widowers.
  Disability, the marriage lasting over two years and being over the age of 50.

ARE THERE ANY BENEFITS FOR MY CHILDREN?
Auxiliary benefits, now about $400 per month, may be available for your children. These benefits are not available with all of the disability programs. Additionally, child¬ren with severe physical or mental problems may be able to draw Supplemental Security Income on their own.

CAN I GET DISABILITY IF I AM STILL WORKING?
Generally, full time work precludes a finding of disability. Part-time work and work with wages below certain levels, about $800 per month in recent years, may still allow the person to obtain disability. A Supplemental Security Income recipient can also earn wages but the SSI benefit is reduced approximately one dollar for every two dollars earned.

DO I REALLY NEED A LAWYER TO GET MY BENEFITS?
The approval rate for disability suggests that the majority of applicants do not get disability when they first apply. In 2003, approximately 3'/2 million Americans applied for either Social Security Disability or Supplemental Security Income benefits. Almost 63% were denied benefits. Of those that appealed the denial, 85% were again denied benefits. However, over 60% of those who appealed to an Administrative Law Judge were granted disability benefits
(Source, Social Security Forum, February, 2004).

WHAT IF I CAN NOT AFFORD A LAWYER?
Maybe a better question is, "Can you afford not to have a lawyer?." Remember, you have to win your case before you can receive any money from Social Security.

WHAT IF I DON'T HAVE ANY MONEY NOW?
You do not need to pay any money up front to a lawyer to help you. Social Security lawyers get paid on the "contingency" fee basis. This means the lawyer only gets paid for the time spent on your case if you are awarded disability benefits. The legal fee then is only 25% of the money that is owed to you from the date you are found disabled. A lawyer does not get any payment from your monthly benefit after he or she has won your case.

HOW SHOULD I PICK A LAWYER TO REPRESENT ME?
One thing to consider is how much time the lawyer spends on Social Security law. Generally, the more cases a lawyer does, the better he or she becomes in that area. Lawyers specializing in Social Security Disability typically do 50, 60 or more Social Security hearings each year.

I AM STILL NOT SURE. WHAT SHOULD I DO NOW?
Call a lawyer. Social Security lawyers will not charge you anything to discuss your case. There is simply too much at stake for you not to get the best help available. Your Social Security Disability payment, and your future financial wellbeing, depend on what you do now. Don't gamble with your benefits.

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What is probate?
Probate involves the process that transfers legal title of property (the probate estate) from the person who died (the "decedent") to his or her beneficiaries. The probate process also provides for paying outstanding debts and taxes of the estate. Probate sets a deadline for filing claims by creditors against the probate estate. This forecloses any old or unpaid creditors from hounding heirs or beneficiaries after the probate estate is closed. Probate then allows for distribution of the remainder of the probate estate's property to one's rightful heirs. The expense and delays of probate can often be avoided with a properly drafted trust. However, in cases where probate is necessary, we can guide you through the process.

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