“‘[S]pecial needs trusts,’ (SNT) [governed by] Probate Code sections 3600-3605, enables a disabled person to qualify for Medi-Cal benefits by sheltering money that exceeds the limit of the individual’s eligibility.” Herting v. State Dept. of Health Care Services (2015) 235 Cal.App.4th 607, 610.
“In California, Probate Code section 3605 permits a court to order the establishment of a ‘special needs trust’ for a person with a disability, but the order ‘shall include a provision that all statutory liens in favor of the State Department of Health Care Services, the State Department of State Hospitals, the State Department of Developmental Services, and any county or city and county in this state shall first be satisfied.’” Herting v. State Dept. of Health Care Services (2015) 235 Cal.App.4th 607, 613 citing Prob. Code Sec. 3604(d).
“A special needs trust restricts the trustee’s ability to use the trust assets and allows the beneficiary to maintain eligibility for certain needs-based government benefits, such as Medi-Cal.” Shewry v. Arnold (2004) 125 Cal.App.4th 186, 191.
“When the settlement proposes the establishment of a special needs or other trust as provided in Probate Code sections 3600 to 3612, the terms of the proposed trust must be reviewed by the Probate Department. The terms of the trust must include the provisions required in California Rules of Court, rule 7.903, and Local Rule 4.116.” L.A. County Super. Ct. R 4.115(c).
A special needs trust may be established and continued under this section only if the court determines all of the following:
When seeking approval of a SNT, service must be made upon three state agencies including the Dept. of Mental Health, Dept. of Developmental Services, and Dept. of Health Care Services. (Probate Code section 3611(c).) There is no notice of hearing with proof of service in the file (being attached to any brief or separately-filed) to indicate service on the state agencies. Notice of a new proposed SNT instrument and of the new hearing date is required.
A proposed order (MC-351) must be served and lodged with the court. The order approving the SNT properly must attach a copy of the proposed SNT instrument to capture the text of the trust being approved.
When the funding of a SNT is allowed, the court order should include language requiring petitioner to file an accounting within a year and to open a separate proceeding for the trust by filing a certified copy of the settlement order establishing the trust with the Probate court. LASC Rule 4.115(e)(1). Specifically, an order establishing an SNT should include language requiring the submission of a Notice of Commencement of Proceedings for a Court Supervised Trust on LASC Form PRO 044, along with any required bond, within 60 days.
A proposed special needs trust creates a "trust protector" who may with or without cause remove the court-appointed trustee, with the requirement that the court "shall" confirm that removal. C.f. CRC 7.903(c)(7). The "trust protector" is authorized to appoint a successor trustee, which replacement a court "must" confirm upon petition. Id.
The appointment of a successor "trust protector" is proposed not to be subject to court approval, but a determination of of the current "trust protector" or alternatively, by some member of the law firm advancing the petition. C.f. CRC 7.903(c)(7). The "trust protector" is also exempted from common law fiduciary liability, with the only conceivable liability being the "conclusive" establishment of an actual intent to harm the SNT beneficiary or self-dealing for personal benefit. Id.
Under the proposed special needs trust, the "trust protector" is given the unilateral right to modify the terms of the trust without court approval. C.f. CRC 7.903(c)(2). In addition to the special needs trust the receiving compensation, the proposed trust here also entitles the "trust protector" to compensated as well. Id.
Re: Jane Doe, etc. v. Los Angeles County Office of Education, et al. (BC588077) (1) PETITION FOR AUTHORITY TO CREATE SPECIAL NEEDS TRUST; (2) PETITION TO APPROVE COMPROMISE OF DISPUTED CLAIM RE: PERSON WITH A DISABILITY Moving Party: Plaintiff Jane Doe, a minor by and through her Guardian Ad Litem, C.O. Respondent: No opposition filed POS: Moving OK Plaintiff, a 16 year old special needs stud...
..al Assault Sexual Battery On 4/28/17, WCUSD filed its cross-complaint, asserting causes of action against Cross-Defendants LACOE and Roes 1-100 for: Breach of Express Indemnity/Breach of Contract Implied/Equitable Indemnity Apportionment of Fault Contribution Declaratory Relief On 3/14/18, plaintiff filed a conditional “Notice of Settlement of Entire Case.” A Non-Appearance Case Review r...
[TENTATIVE] ORDER RE: PETITION TO APPROVE COMPROMISE Claimant David M. Shaw, a person with a disability, by and through his guardian ad litem David C. Shaw (“Petitioner”), has agreed to settle his claims against Defendants in exchange for $83,333.33. This case arises from the wrongful death of Cheryl Shaw, Claimant’s mother and Petitioner’s wife. The Complaint alleged loss of spousal services on...
..e entire settlement is $166,398.25 and the non-medical costs are $28,718.16. There are no medical expenses at issue. The Probate Department has identified deficiencies as identified below: Terms of the SNT The SNT is not appropriate as submitted either under the CRC or the Probate Code. Petitioner should re-submit a stand alone SNT for further review. Petitioner has provided a document entitle...
The OSC Re Approval of Special Needs Trust and the hearing re Minor’s [Now Incapacitated Adult] Compromise is CONTINUED to November 29, 2018, at 1:30 p.m. in Department 2. Petitioner is ordered to file and serve a modified proposed Special Needs Trust instrument by October 15, 2018 and to serve a courtesy copy in Department 2. This civil action arises from allegations of medical malpractice. Plai...
..129,060.28 cash from the settlement proceeds into a special needs trust (SNT) for the benefit of plaintiff. Initially, petitioner attempted to obtain approval of the SNT by filing a trust action directly in the Probate department, which created Probate case number 18STPB04510. Both the Probate and Civil departments determined that plaintiff’s counsel had made that filing incorrectly and counsel...
Causal Document & Date Filed : Petition - Other, 04/13/2015 The civil courts approved the underlying minor's compromise on June 25, 2015, under seal. This court has only the first five volumes of the civil file, with the balance of file documentation presumably in Ventura. The probate petition asks that the court approve a special needs trust the control the settlement proceeds. Of the anti...
..y. The "in force" annuity is described as a "structured settlement income stream". In the petition, the Guardian ad litem proposes to purchase the latter investment from a general partnership to obtain greater returns for lesser investment than the traditional personal injury annuity. The court needs to discuss this in detail with counsel, in order to negate any meaningful investment risk, as...
S.C., a minor , Plaintiff, vs. Inglewood unified school district , Defendant. Case No.: BC582930 Hearing Date: June 14, 2017 Time: 1:30 p.m. [Tentative] Order RE: petition to approve compromise of pending action on behalf of minor S.C. The hearing is CONTINUED to July 26, 2017, at 1:30 p.m. Petitioner shall file an amended petition with a valid proposed special needs trust no later than June...
..l District for premises liability, negligence, discrimination in violation of the ADA, and gender violence based on an incident that occurred on May 29, 2013. Discussion The court has reviewed the petition and, based on the court’s probate department’s review of the proposed special needs trust (“SNT”), finds the following defects: PROPOSED SNT INSTRUMENT The proposed SNT instrument is funda...
silvina osorio, et al., Plaintiffs, vs. jacqueline elizabeth spears, et al., Defendants. Case No.: 18STCV04591 Hearing Date: October 25, 2019 Hearing Time: 8:30 a.m. [TENTATIVE] ORDER RE: (2) PETITIONS FOR AUTHORITY TO CREATE SPECIAL NEEDS TRUST (MINOR) For the reasons stated below the Court finds that the Special Needs Trusts for minors Sarah and Emily Cota are in order and are approved to...
..or or person with a disability has a disability that substantially impairs the individual's ability to provide for the individual's own care or custody and constitutes a substantial hardship; (2) That the minor or person with a disability is likely to have special needs that will not be met without the trust; and (3) That money to be paid to the trust does not exceed the amount that appears reas...
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· If funds are distributed to a special needs trust, the probate department must review the terms of the trust. “When the settlement proposes the establishment of a special needs or other trust as provided in Probate Code sections 3600 to 3612, the terms of the proposed trust must be reviewed by the Probate Department. The terms of the trust must include the provisions required in California Rules of Court, rule 7.903, and Local Rule 4.116.” (L.A. County Super. Ct. R 4.115(c).)
Los Angeles County, CA
Order Directing Establishment of A Pooled Special Needs Trust filed 12-20-2019. Need amended order with copy of the trust attached. CAROL SWEATT LARA HEISLER ROBERT SWEATT PROBATE EXAMINER NOTES-SUBJECT TO REVISION AFTER REVIEW BY THE JUDGE Need appearances to report status of mediation and 9-2-2020 order to meet and confer The Court is waiting for these items: 1. Report of Atty. Terence Murphy (MNCD) Notes: 1. Opposition filed by Elizabeth Hylander-Priebe 1-10-20. 2.
Contra Costa County, CA
The Court finds that sufficient evidence has been presented to establish a special needs trust on behalf of Claimant Gerardo pursuant to Prob C § 3604. Expenses for vacations and/or recreational activities are permissible. The Court finds it is reasonable that those special needs cited could not be met without the SNT, and that the amount is not more than reasonably necessary to meet Gerardo’s special needs.
Los Angeles County, CA
Hearing: Trustee Friend's First Account and Report of SNT ***** Notice not provided to Conservatee/Beneficiary Owen Sinclair. Can notice be waived? The period (12/01/2016 – 12/31/19) for this account follows the Interim Forensic account period. However, Ms. Friend was appointed temporary successor trustee of the SNT on 8/16/16. The period should have been 8/16/16 - 8/15/17 and then 8/16/17 – 8/16/19. Nevertheless, the Court approves the modified account period.
A court making the order or giving the judgment referred to in § 3600, upon petition by a conservator, may order that the funds be paid to a SNT established under § 3604 for the benefit of the person with a disability. (§ 3602(d).) In turn, § 3604 allows a court to establish a SNT for a person with a disability if a court makes an order under § 3602.
If the the above is resolved, the draft SNT needs to be revised to address the following deficiencies: - The proposed SNT does not discuss the check amounts of $18,943.20, $393.52, and $393.52 that were ordered deposited into Counsel James Studer's atty client trust account on 9/22/20 by the Court. (See Proposed SNT, § 3.1.) Why are these sums not added to the trust estate? - § 5.3 - redraft to state: "Resignation of Trustee.
- Because the Court never approved the substituted judgment SNT, the Chase accounts #1293 and #2997 and all those transactions shall be part of this accounting. - Also include the income received into #3976. (ie, Kroger payroll). - Chase account #3976 is not titled correctly as a Conservatorship account. The bank statement has it listed as a joint account between Jazz R Hart or Kamila Brill. Why? Is this not a conservatorship account? Is Kroger Kamila's paycheck?
Note: Special Needs Trust was established pursuant to Order filed 10-3-12. Accounting was due 10-3-13. None has been filed. RHO-NEE WULFE OLIVER ALEXANDER GREENWOOD THE RONALD WULFERDINGER SPECIA PROBATE EXAMINER NOTES-SUBJECT TO REVISION AFTER REVIEW BY THE JUDGE Unable to review.
Contra Costa County, CA
Hearing: Review Hearing: Transfer In (case initially filed in Solano County) ******************** This matter needs to be set for the First Account and Report of successor trustee. The initial one year account period is 12/06/19 – 12/05/2020. Set the due date for the First Account and Report of the successor trustee on 02/05/2021 and se...
Ventura County, CA
Petitioner is also directed to provide written proof that the heir Crystal McWilliams asks that her share be distributed to the Crystal McWilliams First Special Needs Trust Dtd 7/22/08 and to provide legal authority for making such a distribution. Proposed Order to be lodged prior to hearing per Local Rule 10.00.D.1. __________________ The court discourages in-person appearances in Department J6 during the COVID-19 pandemic period.
Ventura County, CA
Nature of Proceedings: 6th Accounting & Report Absent objection, the Sixth Accounting will be approved, however, bond must be filed, and should be set at $37,953.98....
Nature of Proceedings: 6th Accounting & Report...
Nature of Proceedings: 5th Accounting & Report This matter was continued from 10/20/20 for notice to the Public Guardian and County Counsel. The court has received Notice of Hearing and Proof of Service. Absent objection, the Fifth Accounting will be approved....
Nature of Proceedings: 5th Accounting & Report This matter was continued from 10/20/20 for notice to the Public Guardian and County Counsel, none has yet been filed. Appearance required....
Petition for Substituted Judgment as to Special Needs Trust, the court finds the General Delivery and Email service to be adequate under these very special circumstances. Absent objection, the Petition will be granted. Is it still contemplated that the Conservatorship will be terminated once the Special Needs Trust is established? 2. As to the Report of the Court Investigator, the court notes the memo provided by the Court Investigator. Order(s) are needed.
The Probate Department has determined the proposed special needs trust comports with applicable statutory law. Thus, the petition is approved. CONCLUSION The petition is APPROVED. Petitioner is ordered to give notice of this ruling. Petitioner is ordered to file the proof of service of this ruling with the Court within five days. The parties are directed to the header of this tentative ruling for further instructions.
Personal Injury/ Tort
Los Angeles County, CA
The Court has reviewed Co-Trustee's First Account and Report of the SNT and notes the following deficiencies. The I&A and beginning balance on hand do not match. The I&A filed 12/11/19 relates to the value of the SNT, although it is using the 9/9/2014 date, which is the date that the conservatorship of estate was ordered. The value of the estate is reported as $52,522.94.
Hearing: 1) Conservatorship Second Account & Report AND SNT Second Account & Report 2) Conservator/Trustee Fees 3) Attorney Fees ***** Approve accounts. Conservatorship (8/01/18-7/31/20) Approve conservatorship funds to be transferred to SNT and waive future conservatorship accounts per PC2628.
Expenses for SNT assets should be paid by SNT. Approve $300/month allowance to conservatee. Proposed Order to be lodged prior to hearing per Local Rule 10.00.D.1. __________________ The court discourages in-person appearances in Department J6 during the COVID-19 pandemic period. Appearances in Department J6 should be made by CourtCall (audio or video) whenever possible. A very limited number of people will be allowed in Department J6 at one time to comply with safety protocols.
Petition for Approval of Sixth and Final Account of Former Trustee for the Period of July 1, 2017 to January 31, 2020; Approval of Trustee’s Fees; Approval of Trust Advisory Fees; Approval of Attorney Fees; Petition to Transfer to the San Diego County Superior Court PREGRANT ORDER The courtroom will be open on November 17, 2020. However, becaus...
Petition for Approval of Fourth Account Current of Trustee for the Period of August 1, 2017 to July 31, 2019; Approval of Trustee’s Fees; Approval of Trust Advisory Fees; Approval of Attorney’s Fees; Petition for an Order Removing Certain Members of the Trust Advisory Committee PREGRANT ORDER The courtroom will be open on November 17, 2020. How...
Petitioner attaches all required documents including the required medical records and prior approval of the special needs trust on September 22, 2020. Ruling The petition to approve the minor’s compromise (person with a disability) is granted. Next dates: Notice:
Maurice A. Leiter or Salvatore Sirna
Los Angeles County, CA
First and Current Account and Report of Trustee; Petition to Settle Account; Petition for Approval of Interim Trustee Fees; Petition for Continued Payment of Interim Trustee Fees; Petition to Ratify Expenditure of Certain Assets of the Trust Estate; Petition for Authority to Expend Trust Assets for Educational Tutoring Services for Beneficiary; Pet...
Account and Report PREGRANT ORDER Department 4’s courtroom is open to the public. However, because of emergency orders and public health directives related to the COVID-19 pandemic, appearances need not be in person, but they may be. If the court has an e-mail address on file for a petitioner, attorney or interested person, that person will rec...
Solano County, CA
Kaiser Foundation Hospitals, et al Court Order Re: Continuance of the 11/13/2020 Hearing on Petitioner/Guardian Ad Litem, Jennifer Navarro's Petition to Approve Compromise of Pending Action - With Special Needs Trust -as to Minor Claimant: Alison Madrid (Age 2); Having reviewed and considered the contents of the Petition, and to allow the Probate Department to review and make their recommendation as to the Special Needs Trust, the Court orders earing on Petition to Confirm Minor's Compromise with Special Needs
Personal Injury/ Tort
Los Angeles County, CA
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