Lawyers who represent family businesses often also represent the business owners, serve as a trustee or fiduciary on the business’s board, and provide personal estate planning for the owners and other family members. While fulfilling multiple goals  for clients may seem effective and efficient, it is important that the attorney consider potential ethical complications and the potential need to narrow the representation, obtain clients’ informed consent, or withdraw from a particular matter.

In a Minnesota appeals court decision, the court ruled that a Medicaid recipient’s irrevocable trust was not a countable asset and that Minnesota law on the matter is preempted by federal law. The decision turned long standing case law on its head, and gave the green light that an irrevocable trust can indeed be a non-countable asset for Medicaid eligibility purposes in Minnesota.

In this case, Geyen was the Grantor of two irrevocable trusts, which were identical except for their names. Her children were Trustees; her children and grandchildren were beneficiaries. Both trusts indicated their irrevocability and gave the Trustees “full power and authority to control” trust property. The trusts forbade the Trustees from loaning or gifting any assets to Geyen.

SSI benefits are means based. Meaning, there are strict financial criteria that must be met to receive the benefits. The SSI program was meant to help disabled, aged, or blind individuals with limited financial means. If a benefits recipient has too much property or income, benefits could be cut off. But what happens when the Social Security Administration (SSA) accuses a recipient of owning property that isn’t actually theirs?

In fiscal year 2018, the SSA started using a LexisNexis online program called Accurint. Accurint is a database that holds information, including ownership information regarding real property. The SSA would go online to check if SSI recipients hold title to real property, thereby disqualifying them for benefits. However, this proved problematic for many benefits recipients.