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HomeMy WebLinkAbout09-24-07 . 1. . ",." IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA ORPHANS' COURT DIVISION In Re: Jeremiah Cox No. ~1-07- O~71 PRELIMINARY ORDER AND NOW, this day of , 2007, it is Ordered that a Hearing be held to determine whether this Petition for ~pproval of Special Needs Trust shall be approved. The Hearing will be held on day of 2007, in Courtroom Cumberland County Courthouse, Carlisle, PA 17013. Notice shall be give to all interested parties forthwith and proof of service shall be presented at the Hearing. BY THE COURT J. ,I ~\~. ~.t ': ./ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA ORPHANS' COURT DIVISION In Re: Jeremiah Cox No. JI- 07- Og7/ ORDER AND NOW, this day of , 2007, upon consideration of the Petition for Approval of Special Needs Trust, said petition is Granted, the prayer of the petition is Granted, and said Trust, established pursuant to 42 U.S.C. ~1396 p(d) (4) (A) for the benefit of Petitioner, Jeremiah Cox is Approved. Andy Hoover, also known as Andrew Hoover, is hereby appointed to serve as Trustee of the Trust pursuant to the terms of the Trust, and the said Trustee shall accept the net settlement proceeds from beneficiary'S share of the proceeds of the litigation involving the drug Zyprexa which proceeds shall constitute the corpus of the Trust. BY THE COURT J. 2 .\# . \ 1'--' IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUN~, PA ORPHANS' COURT DIVISION c"q In Re: Jeremiah Cox No. ~1-()7- og7J j i ;)c) 1_. \: ..'. ~} (1') I \ PETITION FOR APPROVAL OF SPECIAL NEEDS TRUST .'.. FOR INCAPACITATED PERSON UNDER 42 U.S.C. S1396p(d)~t4~(A) \"') -" , I ( ~..! c.! The petition of Jeremiah Cox, by his attorney, David C. Harrison, respectfully submits this Petition seeking approval of a Special Needs Trust, pursuant to 42 D.S.C. ~1396p(d) (4) (A), for his benefit, with Andy Hoover, a/k/a/ Andrew Hoover, to serve as Trustee, authorizing the trustee to receive and administer settlement funds awarded to Petitioner in partial settlement of a personal injury action, and in support thereof, petitioner states the following: 1. He was born on November 22, 1946. He is currently 60 years old and resides, at Two West Penn Apartments, # 207, Carlisle, PA 17013. His social security number is 230-68- 9585. 2. Petitioner is entitled to a recovery based on his use of the drug Zyprexa, because he believes that it caused his diabetes. This claim is part of a class action which has been settled, and petitioner is a class member entitled to share in the proceeds of the settlement. 3. Petitioner is entitled to receive disability bene- fits under the Supplemental Security Disability Insurance program administered by the Social Security Administration, 3 ~ ~ . . . . , and is receiving benefits under the Medicaid Program, administered by the Pennsylvania Department of Welfare. 6. As a result of this settlement, the net amount payable to the Special Needs Trust for which approval is sought will be approximately $32,900.00 7. Petitioner has no assets other than the proceeds of the settlement described above. 8. Petitioner qualifies for and relies upon Medicaid for his medications, which are substantial. 9. In light of his serious and permanent disabilities, Petitioner seeks this Court's approval to create a Special Needs Disability Trust under 42 U.S.C. ~1396p(d) (4) (A) for himself in order to preserve his right to Supplemental Security Income and Medicaid benefits. Andy Hoover, a/k/a/ Andrew Hoover will serve as Trustee and receive and administer the trust pursuant to its terms. For Supplemental Security Income and Medicaid eligibility to continue, all net funds distributable to Petitioner as a result of the settlement in the personal injury suit should be paid directly to Andy Hoover, a/k/a/ Andrew Hoover as Trustee of the Trust. 10. The Trust will contain substantially all of Petitioner's assets. 11. The Federal statute, 42 U.S.C. ~1396p(d) (4) (A), provides that Medicaid benefits to disabled individuals in 4 . . . situations such as this may continue only if the funds are p:aced in a Special Needs Trust. 12. Under 42 U.S.C. ~1396p(d) (4) (A), Petitioner will continue to be eligible for Medicaid benefits. Upon his death, however, the Trustee will be required to reimburse the Commonwealth of Pennsylvania for all Medicaid paYments made on behalf of petitioner during his lifetime. In light of the extraordinary cost of Petitioner's medication, the settlement funds will be depleted well before the end of his life expectancy unless his Medicaid benefits are continued. They can continue only if the Special Needs Trust is approved. 13. Petitioner is unmarried. He has no close relatives. The beneficiary of the Trust is Carlisle Friends Meeting, also the beneficiary under his will. 14. By letters dated August 27 and September 12, 2007 T copies of which are attached to the Certificate of Service submitted herewith, petitioner provided notice of the filing of this petition with a copy of the trust, to the following: Department of Public Welfare, Legal 302 State Office Building 1400 Spring Garden Street Philadelphia PA 19130 SSI Program Support Team Attention: Team Leader Mid Atlantic Program Service Center 3rd and Spring Garden Streets Philadelphia PA 19101 5 . . . I ~ . , WHEREFORE, petitioner respectfully requests that this Court enter the proposed Decree attached hereto, which pro- vides as follows: A. The Special Needs Trust established pursuant 42 u.S.C. ~1396p(d) (4) (A) for the benefit of Petitioner is approved; B. Andy Hoover, also known as Andrew Hoover is hereby appointed to serve as trustee of the said Trust pursuant to the terms of the Trust; C. The Trustee shall accept the net settlement proceeds from Beneficiary's share of the proceeds from the litigation involving the drug Zyprexa, which shall constitute the corpus of the trust. ~ vid . Harrison Attorney for Petitioner Atty. I.D. No.: 11730 1800 J.F. Kennedy Blvd. Suite 500 Philadelphia, PA 19103 (215) 665-1021 6 . 'i . ..... VERIFICATION , Petitioner, verifies that the statements made in this petition for Approval of Special Needs Trust are true and correct. ~e understands that false statements herein are made subject to the penalties of 18 Pa. CS Section 4904, relating to unsworn falsification to authorities. <3llliJ 0/ DATE 7 ,4 " . . CERTIFICATE OF SERVICE I hereby certify that I have served a true and correct copy of petition for Approval of Special Needs Trust by mailing same first-class, postage prepaid, by sending a true and correct copy of the same to the parties shown below on September 12, 2007. A copy of that transmittal letter and the prior letter of August 27, 2007 are enclosed. A copy of the letter transmitting the petition and copy of the trust, dated September 19, 2007, was also sent on the same date Department of Public Welfare, Legal 302 State Office Building 1400 Spring Garden Street Philadelphia PA 19130 Attn: Andrew W. Coates SSI Program Support Team Attention: Team Leader Mid Atlantic Program Service Center 3rd and Spring Garden Streets Philadelphia PA 19101 Attn: Mandy Stokes The Special Needs Trust Depository Attn: Manager TPL Section P.O. Box 8486 Harrisburg, PA 17105-8486 1 September 19, 2007 HARRISON for Petitioner . . l' . DAVID C. HARRISON Attorney at Law SUITE 500 1800 JOHN F. KENNEDY BLVD. PHILADELPHIA, PA 19103 ----------------- (215) 665-1021 Fax: (215) 665-1468 E-Mail: HRLaw@Voicenet.Com , August 27, 2007 Department of Public Welfare, Legal 302 State Office Building 1400 Spring Garden Street Philadelphia PA 19130 SSI Program Support Team Attention: Team Leader Mid Atlantic Program Service Center 3rd and Spring Garden Streets Philadelphia PA 19101 The Special Needs Trust Depository Attn: Manager TPL Section P.o. Box 8486 Harrisburg, PA 17105-8486 RE: Jeremiah Cox SS#230-68-9585 My File No.: C889-X To Whom It May 'Concern: I am sending to each of you the following: 1. Special Needs Trust for Jeremiah Cox. 2. Petition to the Court of Common Pleas of Cumberland County for approval of this trust. 3. Copy of the transmittal letter to the Court of Common Pleas of Cumberland County, Pennsylvania. ~ . . .. Page 2 August 27, 2007 Please advise if you have any objection to the approval of this trust. If there are any objections or corrections .. or other comments that you have, please advise promptly. Very truly yours, DAVID C. HARRISON DCH: Iv Enclosures $ DAVID C. HARRISON Attorney at Law SUITE 500 1800 JOHN F. KENNEDY BLVD. PHilADELPHIA, PA 19103 (215) 665-1021 Fax: (215) 665-1468 E-Mail: HRLaw@Voicenet.Com September 12, 2007 Department of Public Welfare, Legal 302 State Office Building 1400 Spring Garden Street Philadelphia PA 19130 Attn: Andrew W. Coates SSI Program Support Team Attention: Team Leader Mid Atlantic Program Service Center 3rd and Spring Garden Streets Philadelphia PA 19101 Attn: Mandy Stokes The Special Needs Trust Depository Attn: Manager TPL Section P.O. Box 8486 Harrisburg, PA 17105-8486 RE: Jeremiah Cox SS#230-68-9585 My File No.: C889-X To Whom It May Concern: Pursuant to the suggestions of Mr. Coates and Ms. Stokes, I have named as the beneficiary The Carlisle Friends Meeting, or its successor in interest. I also took out the ambiguous language in paragraph six, so that there is no need for notification to interested parties for expenditures under $3,000.00. This, pursuant to Ms. Stokes' suggestions. As the balance, the forms of order have been approved by various Courts and I do not want to change them. , . , September 11, 2007 Page 2 If there are no objections, I will mail the petition to the Cumberland County Orphans Court on Thursday, September.. 20, 2007. I wish to thank Mr. Coates and Ms. Stokes for their assistance. Very truly yours, DAVID C. HARRISON DCH: 1 v Enclosures . . ~. . . " IRREVOCABLE SPECIAL NEEDS TRUST FOR THE BENEFIT OF JEREMIAH COX This Agreement is made this day of , 2007, by and between Jeremiah Cox (hereinafter called "Beneficiary") of Carlisle PA born November 22, 1946 , and Andy Hoover, a/k/a Andrew Hoover (hereinafter called "Settlor/Trustee") of Carlisle, PA. This trust is established pursuant to 42 U.S.C. 1396p(d) (4) (A) and 55 Pa. Code ~178.7(f) (1). This trust shall be known as the "Jeremiah Cox Special Needs Trust". The Trustee shall ascertain whether there are any claims or liens by the Department of Public Welfare and the Social Security Administration before paYment into the trust. A copy of the Special Needs Trust shall be directed to: The Special Needs Trust Depository Attn: Manager, TPL Section P.O. Box 8486 Harrisburg, PA 17105-8486 SSI Program Support Team Attn: Team Leader Mid-Atlantic Program Service Center 3rd & Spring Garden Streets Philadelphia, PA 19101 After paYment of any claims or liens, if any, the Settlor is authorized, subject to Court approval, to transfer, assign and convey unto the Trustee, the property listed in Schedule "A" annexed hereto and made a part hereof, and the Trustee . " . " ~ I agrees to hold such property, together with any other property, real or personal, that may be added to this trust, such proceeds and additions constituting the principal of the Trust, upon the following terms and conditions: FIRST: Jeremiah Cox is a disabled individual, born November 22, 1946. He is disabled as defined by the SSI criteria in 42 D.S.C. ~1382c(a) (3), and is the recipient of Supplemental Security Income Benefits. The extent of his disability has been documented as a mental condition. He is competent to execute this document. SECOND: Settlor declares this Trust to be a Special Needs Trust pursuant to 42 D.S.C. ~1396p(d) (4) (a) and shall be for the sole benefit of the Beneficiary's health, safety, welfare, education and treatment when such items, products or services are not provided by a public agency or government program. The Beneficiary shall be the primary Beneficiary of this Trust. A. Special needs shall mean those requisite items, products or services that can be provided to the Beneficiary to assist in the treatment of the Beneficiary's disability and increase his quality of life. B. Special needs shall include but not be limited to medical expenses, dental expenses, nursing and custodial care, psychiatric/psychological services, recreational 2 ~ therapy, occupational therapy, physical therapy, vocational therapy, durable medical needs, prosthetic devices, special rehabilitative services or equipment, programs of training, education, transportation and required travel expenses, dietary needs and supplements, related insurance, and any other expenses permitted by applicable law or regulation. THIRD: No public assistance or Social Security benefits 'for the Beneficiary shall be added to the Trust. Any additions to the trust in excess of $50,000.00 must be approved by the court having jurisdiction over the trust. No additions shall be accepted by the Trustee after the Beneficiary attains the age of sixty-five (65) years. FOURTH: Trustee shall seek support and maintenance of the Beneficiary from all available public resources, includ- ing,but not limited to the supplemental security income pro- gram (SSI), old age survivor and disability program (OASD), the medicare program and medical assistance program or simi- lar or successor programs. Trustee shall take into conside- ration applicable resources and income limitations of any of those public programs or private agencies for which the Beneficiary is eligible in determining whether to make any discretionary distributions hereunder. PaYments or distri- butions from this Trust which will result in the loss of governmental or other benefits to which the Beneficiary is or 3 . .. . . may be entitled are expressly forbidden. The Trustee should provide the Special Needs Trust Depository with annual statements. FIFTH: Trustee shall have the power to distribute to, 'or apply for the benefit of the Beneficiary such amount of income as the Trustee may from time to time determine to be necessary or appropriate for the Beneficiary's special needs and comfort. Any income not so distributed or applied shall be added to principal. Expenditures of income from the Trust Fund must have a reasonable relationship to the disability of the Beneficiary. SIXTH: Trustee shall have the power to distribute to or apply for the benefit of the Beneficiary, such amount of principal as Trustee may from time to time determine to be necessary or appropriate for his special needs and comfort. Expenditures from the Trust fund must have a reasonable relationship to the disability of the Beneficiary. If principal in excess of three thousand dollars ($3,OOO.OO) is expended for anyone purpose, notice shall be given to all interested parties and to the Department of Public Welfare and Social Security Administration as follows: The Special Needs Trust Depository 4 . . .. . . Attention: Manager, TPL Section P.O. Box 8486 Harrisburg PA 17105-8486 SSI Program Support Team Attention: Team Leader Mid Atlantic Program Service Center 3rd and Spring Garden Streets Philadelphia PA 19101 SEVENTH: It is further the intent of this Trust that no ~art of the Trust established hereunder shall be used to supplant or replace public assistance benefits of any county, state, federal or governmental agency. For these purposes, in determining the Beneficiary's eligibility for such benefits, no part of the principal or income of the Trust established hereunder shall be considered available to the Beneficiary. In the event the Trustee is requested by any department or agency to release principal or income of the Trust established hereunder, to or on behalf of the Beneficiary, to pay for equipment, medication or services that other organizations or agencies are authorized to pro- vide, or in the event the Trustee is requested by any depart- ment or agency administering such benefits to release the Trust principal or income for this purpose or in the event that any department or agency administering such benefits petitions the Court of competent jurisdiction for these same purposes, the Trustee shall deny such request and is directed to defend and contest, at the expense of the Trust estab- 5 . . lished hereunder. Trustee shall have complete discretion with regard to any such claims, including management of all litigation which may result. Trustee shall also be autho- rized in his sole and absolute discretion, to settle, in whole or in part, or otherwise compromise any such claim or litigation. EIGHTH: If the Trustee determines that it is imprac- tical to administer the Trust held under this irrevocable Trust because it is or becomes too small to justify main- taining as a Trust, or because it is no longer suitable for the Beneficiary.s needs, the Trustee shall obtain Court approval to terminate this Trust and to distribute the prin- cipal and income of the Trust as set forth in Paragraph Ninth. NINTH: This Trust shall terminate upon the earlier of the death of the Beneficiary or Order of Court upon petition thereto. A. Upon termination of the Trust during the life- time of the Beneficiary, Trustee shall obtain a determination from the Department of Public Welfare of its claim, if any, for Medical Assistance paYments which it has made on behalf of the Beneficiary. Trustee shall distribute to the Depart- ment of Public Welfare from the remaining principal and accumulated income, if any, an amount equal to the amount of 6 ", " . Medical Assistance and/or Medicaid paid on behalf of the Beneficiary during the time the Trust was in existence. If more than one state is entitled to reimbursement for Medical Assistance and/or Medicaid expenditures, each state shall receive its proportionate share of the total amount of Medi- cal Assistance and/or Medicaid to be reimbursed. If any prin- cipal and accumulated income remains after distribution to the Department of Public Welfare, Trustee shall distribute the remainder in accordance with an Order of Court termina- ting the Trust upon petition thereto. B. Upon the termination of the Trust at the death of the Beneficiary, Trustee shall obtain a determination from the Department of Public Welfare of its claim, if any, for Medical Assistance and/or Medicaid paYments, which it has made on behalf of the Beneficiary. Trustee shall distribute to the Department of Public Welfare from the remaining principal and accumulated income, if any, an amount equal to the amount of Medical Assistance and/or Medicaid paid on behalf of the Beneficiary during the time the Trust was in existence. If more than one state is entitled to reimburse- ment for Medicaid expenditures, each state shall receive its proportionate share of the total amount of Medicaid to be reimbursed. If any principal and accumulated income remains after distribution to the Department of Public Welfare, Trus- 7 '.. .. . . . tee shall distribute the remainder to the Carlisle Friends Meeting, presently situated at 252 A Street, Carlisle, PA 17013, or its successor in interest. TENTH: The interests of the distribution as under Paragraph NINTH, as to both the principal and income, until actually distributed, shall not be subject to anticipation or to voluntary or involuntary alienation. ELEVENTH: Trustee shall, in addition to the powers given by law, and pursuant to the Prudent Investor Rule, 20 Pa.C.S. ~ 7201, et seg., have the following powers applicable to all property held in trust whether principal or income, and exercisable without Order of Court: A. To retain any property transferred to this Trust, and to make such investments, and reinvestments and in such proportions, without limitation to what are known as legal investments, as the Trustee shall consider beneficial. B. To (1) participate in any merger or Reorgani- zation affecting securities held hereunder at any time, (2) deposit stock under voting agreements, (3) exercise any option to subscribe for stocks, bonds or debentures, (4) grant proxies, discretionary or otherwise, to vote shares of stock. 8 ... ... ~ C. To manage, operate, repair, alter or improve real estate or other property and to lease real estate and other property upon such terms and for such period as Trustee deems advisable following due notice to all interested parties, including the Department of Public Welfare and Social Security Administration. D. To buy or sell (and to grant options for the sale of) any real or personal property at public or private sale for such prices and upon such terms as Trustee may think proper, following due notice to all interested parties, including the Department of Public Welfare and Social Secu- rity Administration, without liability on the purchaser to see to the application of the purchase monies. E. To establish a reasonable irrevocable burial trust or account to be used for Beneficiary's funeral and 'burial upon Beneficiary's death, without further court approval. TWELFTH: Trustee shall, in addition to the powers given by law, and pursuant to the Prudent Investor Rule, 20 Pa.C.S. ~ 7201, et seg., shall have the following powers applicable to all property held in trust whether principal or income, and exercisable without Order of the Court, unless specifically required. 9 . .. " .- A. To buy or sell (and to grant options for the sale of) any real or personal property at public or private sale for such prices and upon such terms as Trustee may think proper, following due notice to all interested parties, including the Department of Public Welfare and Social Security Administration, without liability on the purchaser to see the application of the purchaser monies. B. To make necessary structural changes to the real property to accommodate the special needs of the Beneficiary, following due notice to all interested parties, including the Department of Public Welfare and Social Security Administration. c. To purchase an appropriate motor vehicle for transportation of the disabled Beneficiary, following due notice to all interested parties, including the Department of Public Welfare and Social Security Administration. Any motor vehicle purchased shall be considered an asset of the trust. D. To take all actions for the benefit of the Beneficiary which a trustee may take under applicable law. THIRTEENTH: This trust shall be irrevocable, and Settlor shall not have the right to alter, amend, or revoke this Trust Agreement, or any provisions hereto, without the approval of the court having jurisdiction over this matter, 10 . . . . . following due notice to interested, including the Department of Public Welfare and Social Security Administration. FOURTEENTH: If the Trustee shall resign or for any rea- son cease or become unable to act as Trustee hereunder before termination of this Trust, a successor shall be appointed by the court having jurisdiction over this matter. Although an accounting shall not be required by the Court, the Trustee shall be required to file with the court having jurisdiction over this matter, following due notice to all interested ~~rties, including the Department of Public Welfare and Social Security Administration, a Petition for Discharge as Trustee, appending thereto a status report summarizing all transactions. FIFTEENTH: The situs of this Trust shall be the Common- wealth of Pennsylvania and all questions as to the validity or effect of this instrument or the administration of the Trust hereunder shall be governed by the law of Pennsylvania. SIXTEENTH: Unless required by the court having jurisdiction over this matter, the Trustee shall not be =cquired to post a bond. SEVENTEENTH: At such time as the Trust is terminated, or Trustee is relieved from further administration of this Trust, the Court may allow Trustee such compensation as it deems appropriate. 11 ,-. '.~ EIGHTEENTH: The Trustee hereby accepts the Trust cre- ated by this Agreement and agrees to carry out the provisions hereof on its part according to the best of its ability. In Witness Whereof, we have herein set our hands and seals the month, day and year first above written. kdM)/II~ ANDY HOOVER, a/k/a Andrew Hoover, Trustee/Settlor tYcHfL~ ~ witness . 1 12 -. . ~'" . SCHEDULE UA" The property being utilized to fund this Special Needs Trust is approximately $34,000.99 from the settlement of the litigation involving the drug Zyprexa. 13 ...\t. -. . . A', COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBER,LNID .1: . ''', ~;.t':.... ; On this, the' '1'CiJ't-A.. day of c:lu-~ ' 20Q'lJ before me, the undersigned officer, personally appeared Andy Hoover, also known as Andrew Hoover, known to me or satisfactorily proven to be the persons whose names are subscribed to the within instrument and acknowledged that they executed the same for the purposes therein contained. I hereunto set my hand and official seal. NO~~~C ~ COMMONWEf'.LfH uf PENNSYLVANIA hjotanal Seal Kathleen ["issley, Notary Public East Donegal Twp., Lancaster County My Comrrtissio'1 Expires Aug. 27, 2009 Member. .'e "1::,"'1R"lo ll~~ol'll!l\lon 01 Notaries 14 .. ~ )..4 ~ ' .v ,.... COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND On this, the lu-rL'-- day of ll.u~ ' 20~, before me, the undersigned officer, personally appeared Jeremiah Cox, known to me or satisfactorily proven to be the person whose name is subscribed to the within instrument and acknowledged that he executed the same for the purposes therein contained. I hereunto set my hand and official seal. N~~~C~ -AL'fh Of ~ENNS,(LVANIA COMMONW~ Matalia' Seal bI' ", pu IC Kathleen \~Isslev, NolalYter county East Oon~a~ iwg~:.;a::g, 27, 2009 lA-I commiSSIOn =-t'.. , 'V'1 . \ion ot No\anes Member. pennsylvanie. ASSoma 15