Between now and 2026, the Elder Law Practice of David L. McGuffey, LLC is committed to helping families who cannot afford to plan for their special needs children by establishing up to 200 third party supplemental needs trusts. These are trusts that help protect special needs children after their parents are gone. They can hold an inheritances, life insurance proceeds or other resources for the benefit of the special needs child without causing a loss of SSI or Medicaid. EZ Elder Law describes third party supplemental needs trusts as follows:
A third party trust is a trust established with assets that belong to someone other than the Medicaid or SSI applicant. To qualify as a third party trust, the Medicaid applicant (trust beneficiary) cannot have legal authority to revoke or terminate the trust and use funds to meet his or her own needs, and cannot have authority to direct the use of the trust principal for his/her support or maintenance under the terms of the trust. See POMS SI 01120.200.D.2. If the beneficiary has that authority, then the trust is a countable resource; conversely, if the applicant does not have that legal authority, then the trust is not countable. If the beneficiary can sell his or her interest in the trust (e.g., there is no valid spendthrift clause), then the trust is countable. Source: EZelderlaw.com.
This pro bono project is limited to GEORGIA families and includes preparation of the third-party trust, a letter to family and friends telling them how to contribute to the trust, and a short Guide for Trustees. It also includes one hour of our time explaining how the trust works, how it can be funded and to answer other questions related to the trust. It includes submission of the trust to the Georgia Department of Community Health’s Trust Unit for approval. It does NOT include submission of the trust to the Social Security Administration, although you should be able to submit it at your local office. If for any reason the SSI program requests modifications to the trust after it is accepted, POMS SI 01120.200(K) provides for a 90 day grace period to amend the trust to conform with SSI rules; if you bring paperwork to us during the 90 day grace period showing the nature of SSI’s objection, we will make the requested modifications at no cost, but you remain responsible for dealing with the Social Security Administration. Unless we agree otherwise, the pro bono representation does NOT include securing a tax payer ID number for the trust, although you can apply for one online at the IRS website or by completing and submitting IRS Form SS-4. We reserve the right to add other limitations or to alter the terms of our pro bono representation at any time.
The pro bono project does NOT include any of the following: (1) Wills, Powers of attorney or health care advance directives for anyone, including but not limited to parents, grandparents or the special needs child; (2) any self-settled special needs trust for the special needs child; (3) assisting you in completing beneficiary forms for assets such as life insurance proceeds going into the trust; (4) preparation of deeds, assignments or other funding documents; or (5) any other service. Although Mr. McGuffey has a Georgia insurance license, we are not agreeing to help you find or review life insurance products that could be used to find the trust; instead we refer you to your own insurance agent or to an independent insurance agent. We also reserve the right to limit pro bono services to one per family.
Cards will be printed, numbered 1 through 200, and distributed to North Georgia private and government offices that work with special needs families who reside in Georgia. We will accept the representation from those persons or offices that a card holder is unable to pay the cost of our services with an estimated value of $5,000 per family. If a family later becomes able to pay for the services rendered, then we ask that the family donate in an appropriate sum to one of the following charities: (1) the Bobby Dodd Institute (Atlanta, GA); (2) the Tim Tebow Foundation’s Night to Shine; (3) the Marcus Autism Center (Atlanta, GA); (4) the Anna Shaw Children’s Institute (Dalton, GA); or (5) the Chattanooga Autism Center (Chattanooga, TN).
The cards will have no cash value. They cannot be used to pay for other services and do not create a debt or other obligation for the firm or any of its attorneys or employees if for any reason the firm is no longer in business. We have not agreed to provide pro bono services to anyone under any other circumstances or to anyone who does not present one of the cards discussed on this page. Further, these cards may not be copied; only the original 1 – 200 will be accepted and once a numbered card has been accepted, any other person presenting a card with the same number is not entitled to pro bono services under this program. The cards will expire on 12/31/2026 if unused.
Since we are a for-profit law firm and must pay our bills, we reserve the right to limit scheduling of pro bono clients to no more than one per week.
All pro bono clients will be asked to complete a special needs planning questionnaire and sign a pro bono fee agreement stating that our representation ends upon execution of the documents described above. It will also include standard terms and conditions in our fee agreements, including the following:
Terms and Conditions to Representation Agreement
Our Fees. There will not be a fee for the pro bono work. However, with respect to any other work, if we agreed to a flat-fee, then you agree to pay our fees before we begin any work unless we expressly agreed to some other arraignment. If we agreed to an hourly rate, then you agree to pay our non-refundable retainer before we begin any work unless we expressly agreed to some other arraignment; attorneys and staff are billed in quarter-hour increments ranging from $225 per hour to $1,000 per hour for Mr. McGuffey. We will not convert a flat-fee agreement to an hourly agreement after our work begins. All flat-fees and retainers are deemed earned when paid and are not refundable.
Expenses. When we quote a fee, expenses are not included. Any third party expense of any kind is always charged in addition to our fee. If we need to hire another professional to provide excluded services (e.g., perform a title search), then that professional’s charges will be billed to you as an expense. You agree to pay all expenses.
Things we never do. We never do the following: (1) illegal, immoral or unethical acts; (2) plan regarding any assets you failed to disclose in our questionnaire; (3) prepare, present or prosecute a VA application for a fee; (4) represent you in connection with a Social Security claim except under an approved fee agreement; (5) title searches of any kind; (6) preparation of any written legal description from a plat; (7) business succession planning; (8) monitor your situation after our agreement expires; (9) make investment decisions; (10) prepare tax returns; (11) make health care decisions; (12) any work that would constitute practicing law outside of Georgia or Tennessee. Further, we will not knowingly assist you with a fraudulent conveyance. If you are an agent, we will not knowingly assist you in altering a known estate plan without consent from all adverse parties.
Limitations on flat-fee agreements. Flat-fee agreements do not include any of the following: (1) litigation or court appearances unless we expressly agreed to them; (2) appeals unless we expressly agreed to include an appeal; (3) making copies, running errands or tracking down information or documents you failed to provide; (4) managing your money or accounts; (5) travel to any location other than our offices; (6) Medicaid IMEs other than up to three months of nursing home bills; (7) going with you to meetings outside our office; or (8) any of the “things we never do.” If you fail to disclose significant information that results in additional work, or if you request excluded services, then we reserve the right to increase any flat-fee or charge an hourly fee for the additional work you request.
Accuracy of facts. We will review documents you provide, but ultimately you are responsible for the accuracy of the information you provide. If you provide inaccurate or incorrect information, we may rely on that information and it may result in a negative outcome.
No Guarantee of particular results. We do not guaranty any particular result or timeframe. There are many factors beyond our control such as changing laws and lack or cooperation from third parties. What we promise is diligence and competence.
Termination. If you hired us on an hourly basis, this Agreement ends when our work is complete. If you hired us on a flat-fee basis, this Agreement ends on the earlier of the following: (1) when our work is complete; (2) one-year from the date you hired us; (3) when you die; and (4) if you hired us to apply for Medicaid, this Agreement also ends on the earlier of (i) when you are approved (ii) when your marital status changes; (iii) when you no longer reside in Georgia or Tennessee; or (iv) after the first fair hearing. Any continuation of our services after the term ends will result in an additional fee.
Client Centered Approach. Whether we work for an Elder or someone with special needs, you understand and agree that our principal goal is to protect our client rather than to maximize someone’s inheritance. Therefore, asset protection is not the principal goal except to the extent it improves the position of our client (e.g., allowing you to pay for care in the least restrictive environment). With that in mind, our planning approach is not designed to ensure a maximum transfer of wealth to the next generation.
Miscellaneous. We reserve the right to make staffing changes. We reserve the right to modify our fees to account for increasing expenses and inflation. We reserve the right to terminate our services if you refuse to cooperate with us. This is our entire Agreement. Regardless of whether we help you in Georgia or Tennessee, this Agreement is deemed executed in Dalton, Georgia and is governed by Georgia law.
Additional information. There are numerous resources on special needs law and special needs planning. First, there is a significant amount of information on an educational website we created called EZelderlaw.com. Second, there is information on the Special Needs Alliance website, including a free trustee handbook. Third, there is a wealth of information in Hal Wright’s book “The Complete Guide to Creating a Special Needs Life Plan: A Comprehensive Approach Integrating Life, Resource, Financial and Legal Planning to Ensure a Brighter Future for a Person with a Disability” (available on Amazon); Fourth, the Georgia Parent2Parent website has a significant amount of information, including a graphic resource directory. Finally, the Bobby Dodd Institute in Atlanta will prepare a life care plan for a fee; often that fee is paid for through Medicaid. If you have questions about any of these resources, please do not hesitate to ask us.
