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6. The Last Will and Testament of Grace Marie Frank created a Trust for the benefit
of her son, Lee Alexander Frank, which was subject to the following provisions:
(a) to pay the net income together with so much of the principal thereof as
Trustee shall consider advisable for the Beneficiary's support and care after taking into
consideration all other readily available assets, sources of income and other resources.
(Exhibit "A" at 3, Item VI (a)).
7. The Last Will and Testament of Grace Marie Frank nominates and appoints her
daughter, Elaine Marie Grove and her sons, Richard Mark Frank and Clarence Michael Frank, as
Co-Trustees of any trust created by her Will. (Exhibit "A" at 3, ITEM VII).
8. Richard Mark Frank and Clarence Michael Frank are unwilling to serve as
Trustees at this time, but, are willing to serve as individual Successor Trustees to Elaine Marie
Grove (Exhibit "A" at 3, ITEM VII).
9. Efforts to fulfill the purpose of the Grace Marie Frank Trust are being frustrated
and a modification of administrative terms of the Trust are necessary to effectuate its overall
purpose of supplementing the care and special needs of the Deceased's son, Lee Alexander
Frank.
10. Lee Alexander Frank has been deemed disabled by the Social Security
Administration due to his mental and physical disabilities; and Lee Alexander Frank receives
Social Security Disability income. A true and correct copy of the Social Security Administration
Notice of Decision -Fully Favorable is attached hereto as Exhibit "B" and incorporated herein
by reference.
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11. As a mentally and physically challenged individual, the son of the Deceased, Lee
Alexander Frank, born August 25, 1968, eligibility for other benefits such as Medicaid and
Department of Public Welfare Programs is jeopardized by the accumulation of income and assets
having a total cash value in excess of Two Thousand Dollars ($2,000.00).
12. Under the Social Security Act, a disabled person under the age of 65 may deposit
his own money into a trust established for the benefit of that person, without adverse effect on
the eligibility of that person for any governmental benefit, provided that all amounts remaining
in the trust upon the death of such person up to an amount equal to the total medical assistance
paid on behalf of that person during the period the trust was in existence will devolve to the
Estate. 42 U.S.C. § 1396 p(d)(4). The Pennsylvania Public Welfare Code, 62 P.S. § 1414, and
Regulations of the Pennsylvania Department of Public Welfare, 55 Pa. Code § 178.7, are
consistent.
13. A Special Needs Trust designated the "Lee Alexander Frank Special Needs
Trust", as set forth in its entirety and attached hereto as Exhibit "C", and as consistent with. the
provisions of federal and state law, will promote the health, welfare, treatment and rehabilitation
of Lee Alexander Franlc by assuring his continued eligibility for federal and state benefits and by
facilitating the prudent management of his income and assets by a trustee.
14. The proposed Trustee is Elaine Marie Grove, the sister of Lee Alexander Frank,
who has no interest adverse to Lee Alexander Frank.
15. The Consent of the proposed Trustee is attached hereto as Exhibit "D".
16. The Consent of the Pennsylvania Department of Public Welfare is attached hereto
as Exhibit "E".
3
17. Lee Alexander Franlc currently receives Eight Hundred Forty-Six Dollars
($846.00) gross/Seven Hundred Forty-One Dollars ($741.00) net per month in Social Security
Disability income, and pays Six Hundred Dollars ($600.00) per month rent for his apartment and
the remaining amount goes to pay his car insurance and food.
18. Lee Alexander Frank will inherit Forty-Seven Thousand One Hundred Forty-Five
Dollars and Thirteen Cents ($47,145.13) which will fund the Trust, pursuant to the Last Will and
Testament of Grace Marie Frank.
l 9. Should the Trust be funded pursuant to the Last Will and Testament of Grace
Marie Frank, Lee Alexander Frank would lose his eligibility to receive Medicaid and Department
of Public Welfare benefits and exhaust the Trust.
20. The Grace Marie Frank Trust cannot fulfill its purpose to supplement the special
needs to the deceased's son, Lee Alexander Frank, if the Trust is funded and Lee Alexander
Frank receives an inheritance, as he is entitled to, pursuant to the Last Will and Testament of
Grace Marie Frank.
21. The terms of the Grace Marie Frank Trust must be modified to deem the Trust a
Special Needs Trust to benefit the Deceased's son, Lee Alexander Frank.
Wherefore, the Petitioner, Elaine Marie Grove, as Trustee of the Grace Marie Frank
Trust, respectfully request that this Honorable Court enter a decree providing the following
relief:
(a) Grant this Petition to Modify Terms of Trust;
(b) Approve the creation of a Special Needs Trust for the benefit of Lee Alexander
Frank;
(c) Grant such other relief as this Honorable Court deems fair and equitable; and
4
(d) Grant Caldwell & Kearns, P.C. reasonable attorney fees and costs, in the amount
of Two Thousand Five Hundred Dollars ($2,500.00).
Respectfully submitted,
Date: January 12, 2012 By:
Eliz eth H. Feather, Esquire
Attorney I.D. 92618
Caldwell & Kearns, P.C.
3631 North Front Street
Harrisburg, PA 17110-1533
(717) 232-7661
(717) 232-2766
efeather(a,ckle ag_l.net
Attorney for Petitioner
11313-001-182464
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I, GRACE MARIE FRANK, of Cumberland County, Pennsylvania, declare
this to be my Last Will and Testament hereby revoking all prior Wills and Codicils.
ITF,i I I. I di~~ect that the e~~penses of my last illness ar~d funeral Ne paid
from my estate as soon as practicable after my death.
ITEM II. I direct that my real estate be held for the use of my children
during their lifetimes. My children residing in my residence shall pay the real
estate taxes, insurance, utilities and the cost of repairs. My son, LEE
ALEXANDER FRANK, shall have a lifetime lease in the real estate for him to use
as his residence. At tl~e time of the death of my son, LEE ALEXANDER FRANK,
if none of my other children choose to live in the property, the property may then
be sold with the proceeds distributed pursuant to the residuary paragraph (Item
IV below). If the property has not been sold when only one of my children is still
living, the property shall become the sole and separate property of that child.
PAGE I OF IV
ITEM III. I hereby reserve unto myself the right to make a list disposing
of items of personal property. If I make such a list, from time to time, it will be
signed and dated, will describe the items to be devised and the individual devisees
thereof. If no such written statement or list is found and properly identified by my
Executor within thirty (30) days after the issuance of Letters Testamentary or
Letters of Administration, it shall be presumed that there is no such statement or
list and any subsequently discovered statement or list shall be ignored. Any
reasonable distribution expenses incurred with respect to tangible personal
property, including but not limited to packing, shipping, storage and insurance
expenses, shall be paid by my Executor as an administrative expense of my estate.
These items are being distributed as a remembrance of my life.
ITETvi IV. I give, devise .and bequeath ali of the rest, residue acid
remainder of my estate of whatsoever kind and wheresoever situate, in equal
shares to my son, CLARENCE MICHAEL FRANK, per stirpes; my son, JEFFREY
EUGENE FRANK, per stirpes; my daughter, ELAINE MARIE GROVE, per
stirpes; my son, RICHARD MARK FRANK, per stirpes; and my son, LEE
ALEXANDER FRANK, per stirpes.
ITEM V. I direct that the bequest to my son, LEE ALEXANDER FR.AN-K,
shall be held in trust for him.
ITEM VI. In the event that a Trust is created by or as a result of any part
of this Will for my son, LEE ALEXANDER FRANK, the duties of the Trustee shall
be to administer the terms and conditions of the Trust as follows:
PAGE II OF IV
a. To pay the net income together with so much of the principal thereof
as Trustee shall consider advisable for the beneficiary's support and
care after taking into consideration all other readily available assets,
sources of income and other resources.
b. If the beneficiary shall die before receiving final distribution of his
entire share, the undistributed balance shall be distributed outright
to my residuary beneficiaries, per stirpes.
ITEM VII. I nominate and appoint my daughter, ELAINE MARIE GROVE,
my son, RICHARD MARK FRANK, and my son, CLARENCE MICHAEL FRANK
to serve as Co-Trustees for any Trust established in or created by this Will. If any
of one of them is unable or unwilling to serve the others may serve together or
serve alone.
ITEM VIII. I nominate and appoint my daughter, ELAINE MARIE GROVE,
my son, RICHARD MARK FRANK, and my son, CLARENCE MICHAEL FP;,ANK,
Co-Executors of this my Last Will. If any of one of them is unable or unwilling to
serve the others may serve together or serve alone.
ITEM IX. I direct that my Co-Executors and Co-Trustees or their
successors shall not be required to give bond for the faithful performance of the
appointed duties in any jurisdiction.
ITEM X. I direct that all taxes due at my death or as a consequence of my
death shall be paid from my residuary estate.
PAGE III OF rV
IN WITNESS WHEREOF, I have hereunto set my hand and seal this . ~,~_ day
of ~K iv p , 2011.
/'~ ~ ~G~' / Dom, ,//C/~/~r~l'
CrRACE MARIE FRANK
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-' U A '~
~ ~~N ~~~ o'- Refer Toy 190-64-3952
~'~'ISTRD`~
Lee A Frank
212 4th St.
Eno1a, PA 17025
Office of Disability Adjudication and Review
SSA ODAR Hearing Ofc
8th Floor
2 North 2nd Street
Hai7-isburg, PA 17101
Date: October 7, 2009
NOTICE OF DECISION - FITLLY FAVORABLE
I have made the enclosed decision in your case. Please read this notice and the decision carefully.
This Decision is Fully Favorable To You
Another office will process the decision and send you a letter about your benefits. Your local
Social Security office or another may first ask you for more information. If you do not hear
anything for 60 days, contact your local office.
The Appeals Council May Review The Decision (7n Its Own
The Appeals Council may decide to review my decision even though you do not ask it to do
so. To do that, the Council must mail you a notice about its review within 60 days from the
date shown above. Review at the Council's own motion could make the decision less
favorable or unfavorable to you.
If You Disagree With The Decision
If you believe my decision is not fully favorable to you, or if you disagree with it for any
reason, you may file an appeal with the Appeals Council.
How to File an Appeal
To file an appeal you or your representative must request that the Appeals Council review the
decision. You must make the request in writing. You may use our Request for Review form,
HA-520, or write a letter.
You may file your request at any local Social Security office or a hearing office. You may
also mail your request right to the Appeals Cowicil, Office of Disability Adjudication and
Review, 5107 Leesburg Pike, Falls Church VA 22041-3255. Please put the Social Security
number shown above on any appeal you file.
Form HA-L761U3-2007)
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Lee A Frank (190-64-3952)
Time to File an Appeal
Page 2 of 3
To file an appeal, you must file your request for review within 60 days from the date you get
this notice.
The Appeals Council assumes you got the notice S days after the date shown above unless
you show you did not get it within the S-day period. The Council will dismiss a late request
unless you show you had a good reason for not filing it on time.
Time to Submit New Evidence
You should submit any new evidence you wish to the Appeals Council to consider with your
request for review.
How an Appeal Works
Our regulations state the rules the Appeals Council applies to decide when and how to review
a case. These rules appear in the Code of Federal Regulations, Title 20, Chapter III,
Part 404 (Subpart J) .
If you file an appeal, the Council will consider all of my decision, even the parts with which
you agree. The Council may review your case for any reason. It will review your case if one
of the reasons for review listed in our regulation exists. Section 404.970 of the regulation lists
these reasons.
Requesting review places the entire record of your case before the Council. Review can make
any part of my decision more or less favorable or unfavorable to you.
On review, the Council may itself consider the issues and decide your case. The Council may
also send it back to an Administrative Law Judge for a new decision.
If No Appeal and No Appeals Council Review
If you do not appeal and the Council does not review my decision on its own motion, you will
not have a right to court review. My decision will be a final decision that can be changed
only under special rules.
Form HA-L76 (03-2007)
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Lee A Frank (190-64-3952)
If You Have Any Questions
Page 3 of 3
If you have any questions, you may call, write or visit any Social Security office. If you visit
an office, please bring this notice and decision with you. The telephone number of the local
office that serves your area is (717)243-0085. Its address is Social Security, 200 S Spring
Garden St, Carlisle, PA 17013-2656.
Peter V. Train
Administrative Law 3udge
Enclosures:
Form HA-L15 (Fee Agreement Approval)
Decision Rationale
cc: Debra K Wallet
24 N. 32nd St.
Camp HiII, PA 17011
Form HA-L76 (03-2007)
SOCIAL SECURITY ADMINISTRATION
Office of Disability Adjudication and Review
ORDER OF ADMINISTRATIVE LAW JUDGE
IN THE CASE OF CLAIM FOR
Period of Disability and Disability Insurance
Lee A Frank Benefits
(Claimant)
(Wage Earner)
190-64-3952
(Social Security Number)
I approve the fee agreement between the claimant and his representative subject to the condition
that the claim results in past-due benefits. My determination is limited to whether the fee
agreement meets the statutory conditions for approval and is not otherwise excepted. I neither
approve nor disapprove any other aspect of the agreement.
YOU MAY REQUEST A REVIEW OF THIS ORDER AS INDICATED BELOW
Fee Agreement Approval: You may ask us to review the approval of the fee agreement. If so,
write us within 15 days from the day you get this order. Tell us that you disagree with the
approval of the agreement and give your reasons. Your representative also has 15 days to write
us if he or she does not agree with the approval of the fee agreement. Send your request to this
address:
Jasper J. Bede
Regional Chief Administrative Law Judge
SSA ODAR Regional Ofc
4th Floor East
300 Spring Garden St
Philadelphia, PA 19123
Fee Agreement Amount: You may also ask for a review of the amount of the fee due to the
representative under this approved fee agreement. If so, please write directly to me as the
deciding Administrative Law Judge within 15 days of the day you are notified of the amount of
the fee due to the representative. Your representative also has 15 days to write me if he/she does
not agree with the fee amount under the approved agreement.
Form HA-L15 (03-2007)
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Lee A Frank (190-64-3952) Page 2 of 2
You should include the social security number(s) shown on this order on any papers that you
send us.
lsl ~.~~ (/. U. ~7Qif/f1
Peter V. Train
Administrative Law Judge
October 7, 2009
Date
Form HA-L15 (03-2007)
SOCIAL SECURITY ADMINISTRATION
Office of Disability Adjuclication and Review
DECISION
IN THE CASE OF CLAIM FOR
Period of Disability and Disability Insurance
Lee A Frank Benefits
(Claimant)
190-64-3952
(Wage Earner) (Social Security Number)
JURISDICTION AND PROCEDURAL HISTORY
This case is before the undersigned on a request for hearing dated July 17, 2008 (20 CFR
404.929 et seq.). The claimant appeared and testified at a hearing held on June 16, 2009, in
Harrisburg, PA. Jan D. Howard-Reed, an impartial vocational expert, also appeared at the
hearing. The claimant is represented by Debra K Wallet, an attorney.
The claimant is alleging disability since April 15, 2007.
ISSUES
The issue is whether the claimant is disabled under sections 216(1) and 223(d) of the Social
Security Act. Disability is defined as the inability to engage in any substantial gainful activity by
reason of any medically determinable physical or mental impairment or combination of
impairments that can be expected to result in death or that has lasted or can be expected to last
for a continuous period of not less than 12 months.
There is an additional issue whether the insured status requirements of sections 216(1) and 223 of
the Social Security Act are met. The claimant's earnings record shows that the claimant has
acquired sufficient quarters of coverage to remain insured through March 31, 2012. Thus, the
claimant must establish disability on or before that date in order to be entitled to a period of
disability and disability insurance benefits.
After careful review of the entire record, the undersigned finds that the claimant has been
disabled from April 15, 2007 through the date of this decision. The undersigned also finds that
the insured status requirements of the Social Security Act were met as of the date disability is
established.
APPLICABLE LAW
Under the authority of the Social Security Act, the Social Security Administration has
established afive-step sequential evaluation process for deterixuning whether an individual is
disabled (20 CFR 404.1520(a)). The steps are followed in order. If it is determined that the
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Lee A Frank (190-64-3952) Page 2 of 5
claimant is or is not disabled at a step of the evaluation process, the evaluation will not go onto
the neat step.
At step one, the undersigned must determine whethet• the claimant is engaging in substantial
gainful activity (20CFR 404.1520(b)). Substantial gainful activity (SGA) is defined as work
activity that is both substantial and gainful. If an individual engages in SGA, he is not disabled
regardless of how severe his physical or mental impairments are and regardless of his age,
education, or work experience. If the individual is not engaging in SGA, the analysis proceeds to
the second step.
At step two, the undersigned must determine whether the claimant has a medically determinable
impairment that is "severe" or a combination o.f impairments that is "severe" (20 CFR
404.1520(c)). An impairment or combination of impairments is "severe" within the meaning of
the regulations if it significantly limits an individual's ability to perform basic work activities. If
the claimant does not have a severe medically determinable impairment or combination of
impairments, he is not disabled. If the claimant has a severe impairment or combination of
impairments, the analysis proceeds to the third step.
At step three, the undersigned must determine whether the claimant's impairment or combination
of impairments meets or medically equals the criteria of an impairment listed in 20 CFR Part 404,
Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, and 404.1526). If the claimant's
impairment or combination of impairments meets or medically equals the criteria of a listing and
meets the duration requirement (20 CFR 404.1509), the claimant is disabled. If it does not, the
analysis proceeds to the next step.
Before considering step four of the sequential evaluation process, the undersigned must first
determine the claimant's residual functional capacity (20 CFR 404.1520(e}). An individual's
residual functional capacity is his ability to do physical and mental work activities on a sustained
basis despite limitations from his impairments. In making this finding, the undersigned must
consider all of the claimant's impairments, including impairments that are not severe (20 CFR
404.1520(e) and 404.1545; SSR 96-8p).
Next, the undersigned must determine at step four whether the claimant has the residual
functional capacity to perform the requirements of his past relevant work (20 CFR 404.1520(f)).
If the claimant has the residual functional capacity to do his past relevant work, the claimant is
not disabled. If the claimant is unable to do any past relevant work or does not have any past
relevant work, the analysis proceeds to the fifth and last step.
At the last step of the sequential evaluation process (20 CFR 404.1520(g)), the undersigned must
determine whether the claimant is able to do any other work considering his residual functional
capacity, age, education, and work experience. If the claimant is able to do other work, he is not
disabled. If the claimant is not able to do other work and meets the duration requirement, he is
disabled. Although the claimant generally continues to have the burden of proving disability at
this step, a limited burden of going forward with the evidence shifts to the Social Security
Administration. In order to support a finding that an individual is not disabled at this step, the
Social Security Administration is responsible for providing evidence that demonstrates that other
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Lee A Frank (190-64-3952) Page 3 of 5
work exists in sigiuficant numbers in the national economy that the claimant can do, given the
residual functional capacity, age, education, and work experience (20 CFR 404.1512(g) and
404.1560(c}).
FINDINGS OF FACT AND CONCLUSIONS OF LAW
After careful consideration of the entire record, the undersigned makes the following findings:
1. The claimant's date last insured is March 31, 2012.
2. The claimant has not engaged in substantial gainful activity since April 15, 2007, the
alleged onset date (20 CFR 404.1520(b) and 404.1571 et seq.).
3. The claimant has the following severe impairment(s): learning disability and
degenerative disc disease (20 CFR 404.1520(c)).
The above impairment(s) causes more than minimal functional limitations.
4. The severity of the claimant's impairment meets the criteria of section 12.OSC of 20
CFR Part 404, Subpart P, Appendix 1 (20 CFR 444.1520(d) and 404.1525).
In making this finding, the undersigned considered all symptoms and the extent to which these
symptoms can reasonably be accepted as consistent with the objective medical evidence and
other evidence, based on the requirements of 20 CFR 404.1529 and SSRs 96-4p and 96-7p. The
undersigned has also considered opinion evidence in accordance with the requirements of 20
CFR 404.1527 and SSRs 96-Zp, 96-6p and 06-3p.
The claimant's impairment meets listing 12.OSC. The "paragraph C" criteria ofthis listing are
met because the claimant has mental retardation initially manifested before age 22 with a valid
verbal, performance, or full scale IQ of 60 through 70 and a physical impairment imposing an
additional and significant work-related limitation of function.
lit order to evaluate the claimant's mental abilities, a consultative examination was done on
August 3, 2009 by clinical neuropsychologist and licensed psychologist Christopher Royer
Psy.D.. An IQ test was given with a resulting valid verbal score of 64, performance score of 73,
and a full scale IQ of 65. In addition, Dr. Royer assessed that the claimant has marked
restrictions in interacting appropriately with the public; interacting appropriately with co-workers;
responding appropriately to work pressures in a usual work setting; and responding appropriately
to changes in a routine work setting. He assessed extreme difficulties in understanding and
remembering detailed instructions; carrying out detailed instructions; and making judgments on
simple work-related decisions. Dr. Royer assigned a GAF score of 42 (Exhibit l OF).
In regards to the onset of the claimant's mental impairment, there is no indication of any
traumatic brain injury or other preceding event which would have caused a decline in mental
status. There is a history of special education and IEP services during school. The claimant
struggled academically and had to repeat grades. There ti~+as a prior IQ test given on June 22,
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Lee A Frank (190-64-3952) Page 4 of 5
1978 at age 9 which indicates a full scale IQ score of 90 (Exhibit 1F). However, IQ results
obtained between ages 7 and 16 should only be considered current for 2 years. Therefore, this
previous IQ score is not a valid indication of the claimant's mental functioning into adulthood.
Given the evidence that the claimant had learning impairments in childhood, it is reasonable to
assume that the claimant's impairment manifested prior to age 22.
In addition to the mental impairment, the claimant suffers from hack problems which also cause
significant work-related limitation of function. The claimant alleges back pain which causes
limitations in lifting, squatting, bending, sitting, and kneeling (Exhibit 4E). An EMG test was
done on March 5, 2008 which indicates acute lesions around the L4-S2 vertebral levels. An MRI
of the spine was done on Apri123, 2008 which indicates spondylolisthesis of L4 on LS and LS
on S1, multilevel degenerative changes, and probable disc protrusion at L4-LS (Exhibit 3F), On
August 25, 2008, Ronald W. Lippe, M.D. of Orthopedic Institute of Pennsylvania concurs that
the claimant has spondylolisthesis at L4-LS with significant foramina) stenosis. Dr. Lippe
suggested that surgical intervention might be a possible treatment option (Exhibit 9F).
The claimant first attempted to treat the back pain with medications, epidural injections, physical
therapy, and a TENS unit. During physical therapy it was noted that lumbar mobility was
moderately restricted with forward and backward flexion, and repeated efforts uicreased the
lower extremity radicular symptoms (Exhibit 3F). The claimant did receive some relief from the
physical therapy, but the claimant reports that the back pain continues to be disabling.
After considering the evidence of record, the undersigned finds that the claimant's medically
determinable impairments could reasonably be expected to produce the alleged symptoms, and
that the claimant's statements concerning the intensity, persistence and limiting effects of these
symptoms are generally credible.
Controlling weight. is given to the opinion of Dr. Royer because it is from an acceptable medical
source, is from an examining physician with a specialty in psychology, and is generally
consistent and supported by the objective medical evidence as a whole (20 CFR 404.1527). His
opinion clearly refers to significantly subaverage general intellectual functioning with deficits in
adaptive functioning which fit the criteria of listing 12.05. The "paragraph C" criteria of this
listing are met because of the additional functional limitations set forth by the claimant's back
impairment.
The State agency medical consultant's physical assessment and psychological consultant's
mental assessment are given little weight because another medical opinion is more consistent
with the record as a whole, and the consultative examination report and other evidence received
at the hearing level shows that the claimant is more limited than determined by the State agency
consultants.
5. The claimant has been under a disability as defused in the Social Security Act since
April 15, 2007, the alleged onset date of disability (20 CFR 404.1520(4)).
See Neat Page
Lee A Prank (190-64-3952) Page 5 of 5
DECISION
Based on the application for a period of disability and disability insurance benefits protectively
filed on February 13, 2008, the claimant has been disabled under sections 216(i) and 223(d) of
the Social Security Act since April 15, 2007.
Peter V. Train
Administrative Law Judge
October 7, 2009
Date
IN RE:
ESTATE OF GRACE MARIE FRANK
And
THE GRACE MAREIE FRANK TRUST
ELAINE MARIE GROVE, TRUSTEE,
PETITIONER
IN THE CUMBERLAND COUNTY
COURT OF COMMON PLEAS,
ORPHANS' COURT DIVISION
NO. 2011-00800
CIVIL ACTION -EQUITY
SPECIAL NEEDS TRUST
This Trust is created, and this Trust Agreement is entered into, this day of
2012, by Elaine Marie Grove, as Settlor, (hereinafter referred to as "Settlor"), and
Elaine Marie Grove, as Trustee, (hereinafter referred to as "Trustee"). This Trust is established
pursuant to the Social Security Act, 42, U.S.C. § 1396p(d)(4)(A), the Pennsylvania Public Welfare
Code, 62 P.S. § 1414, and Pennsylvania Department of Public Welfare regulations, 55 Pa. Code
§ 178.7(f)(1), and shall be known as "The Lee Alexander Frank Special Needs Trust".
ARTICLE I: TRUST ESTATE
1.1 Transfer to Trust. The Settlor will, upon the signing of this Trust Agreement and without
consideration, transfer and deliver to the Trustee the sum of Forty-Seven Thousand One Hundred
Forty-Five Dollars and Thirteen Cents ($47,145.13) receipt of which is hereby acknowledged, and
other property which, together with the interest thereon, shall. ctitute the Trust estate.
1.2 Beneficiary. The Trust estate shall be held, managed, administered, and distributed by the
Trustee as hereinafter provided, for the sole benefit of Lee Alexander Frank, who presently resides
at 632 Enola Road, Enola Cumberland County Pennsylvania 17025, hereinafter referred to as
"Beneficiary". The Beneficiary is disabled as defined at Sections 216(1) and 223(d) of the Social
Security Act, as a result of the diagnosis of learning disability and degenerative disc disease.
1.3 Additions to Trust Estate. The Settlor, and any other person, including the Beneficiary, shall
have the right at any time to add property acceptable to the Trustee to this Trust, and such property,
when received and accepted by the Trustee, shall become part of the Trust estate, provided however,
that no funds shall be placed in the Trust after the Beneficiary reaches the age of sixty-five (65)
years unless authorized and appropriate under then-existing law.
ARTICLE II: IRREVOCABILITY OF TRUST
2.1 This Trust shall be irrevocable and shall not be altered, amended, or terminated by any
person except by the Trustee as is: (A) permitted by law while retaining the irrevocable nature of
this Trust; and (B) necessary to respond to: (i) the requirements of an administrative agency with the
authority to dispense public benefits or regulate this Trust or Trustee; or (ii) changes in statutory,
regulatory or case law, in order to fulfill the Settlor's intent to obtain maximum public benefits for
the Beneficiary and maximum legal protection of the assets of the Trust.
ARTICLE III: DISTRIBUTION
3.1 During the lifetime of the Beneficiary, the Trustee shall have the power to distribute to or
apply for the benefit of the Beneficiary, such amounts of income and principal as the Trustee may
from tune to time determine to be necessary or appropriate for the Beneficiary's special needs and
comfort. Expenditures from the Trust must have a reasonable relationship to the special needs of the
Beneficiary, as further set forth at section 3.3 hereof.
3.2 The Trustee shall make distributions to or for the benefit of the Beneficiary after considering
federal, state, or local entitlements, programs, and benefits, and the rules of eligibility therefore, in
order to meet the special needs of the Beneficiary while maximizing the Beneficiary's eligibility for
such federal, state, and local entitlements, programs, and benefits. It is the intent of the Settlor to
maintain the highest degree of federal, state, or local entitlements, progra.ins and other benefits for
the Beneficiary, while also seeking to provide for the special needs of the Beneficiary and improve
the quality of the Beneficiary's life. Accordingly, the Trust principal and income may be used only
as a supplement to, and shall not replace or be used in substitution for any governmental benefit for
which the Beneficiary may be or become eligible, including Medical Assistance, (MA),
Supplemental Security Income, (SSI), or any other governmental program or benefit. In determining
the Beneficiary's eligibility for such governmental benefits, no part of the principal or income of
this Trust shall be considered to be available to the Beneficiary as a resource or asset.
3.3 "Special needs" shall mean those items, products, goods, or services, not covered by
Medical Assistance or other federal, state, or local govermmental programs, or by private insurance
or other third party liability source, which can be provided to the Beneficiary in order to improve
her quality of life, and are related to the treatment or rehabilitation of the Beneficiary's disability, or
relieve the consequences of such disability, or provide the Beneficiary the customary and reasonable
opportunities of life enjoyed by individuals who are not disabled. Special needs shall include, but
need not be limited to, medical, dental, and opthalmology or optometry services, (including
eyeglasses), nursing and custodial care, psychiatric/psychological services, recreational therapy,
occupational therapy, vocational therapy, physical therapy, durable medical equipment, prosthetic
devices, special rehabilitative services or equipment, disability-related training, education,
transportation and travel, dietary needs and supplements, items of personal comfort and care,
personal support services, professional services, supplemental health insurance, and appropriate
housing, (either leased in the name of the Beneficiary and guaranteed by the Trust; or purchased in
the name of the Trust as owner), together with reasonable and necessary modifications, repairs,
furnishings, and maintenance for any such property.
3.4 The Trustee shall secure the approval of the Court of Common Pleas for any single
expenditure of Trust principal in excess of five-thousand ($5,000.00) dollars.
3.5 The Trustee shall at all times act according to the general standards of law applicable to
Special Needs Trusts, and according to the particular terms of this Trust, and with prudence and
fidelity to the purposes of this Trust, as the Trustee inay in his discretion deem advisable for the
welfare of the Beneficiary.
2
ARTICLE IV: TERMINATION OF TRUST AND DISTRIBUTION OF PRINCIPAL
4.1 Upon termination of this Trust the Trustee shall notify the Commonwealth of Pennsylvania
and reimburse the Commonwealth and any other governmental entity for any unpaid valid lien for
Medical Assistance or other governmental benefits provided to the Beneficiary during the time this
Trust was in existence, as required by 42 U.S.C. §1396p(d)(4)(A) and 62 P.S. X1414, or any
successor statutes, from assets remaining in this Trust at that time.
4.2 If the Trustee determines that it is impractical to administer this Trust because it is or
becomes too small to justify maintaining a trust, or because it is no longer suitable for the
Beneficiary's needs, the Trust may be terminated, and the Trustee shall, after malting any
reimbursement to the Commonwealth required by law, distribute the principal and income of the
Trust as ordez•ed by the Court if the Beneficiary is a minor or incapacitated person, or otherwise to
the Beneficiary outright or as the Beneficiary directs.
4.3 This Trust shall terminate upon the earlier of:
A. The death of the Beneficiary; or
B. The exhaustion of the assets of the Trust under circumstances malting it unliitely that
further contributions to the Trust will occur or be permitted under law.
4.4 Written notice of the death of the Beneficiary or other termination of this Trust shall be
provided to the Pennsylvania Department of Public Welfare, Third Party Liability Unit, Special
Needs Trusts, P.O. Box 8486, Harrisburg, PA 17105-8486. The Trustee shall also request from that
Department a statement of claim.
4.5 Any portion of the Trust estate remaining at the death of the Beneficiary, after
reimbursement to the United States and/or the Commonwealth as required by section 4.1 hereof, and
after any payments set forth at section 5.1(M) hereof, shall be paid to the heirs of the Beneficiary as
designated by Will or statute.
ARTICLE V: POWERS OF TRUSTEE
5.1 In order to carry out the purposes of this Trust, the Trustee, in addition to all other powers
granted by law, shall have the following powers:
A. To retain or invest in, and to sell or exchange, all forms of real and personal property,
at such prices and on such terms and conditions as may be desirable, in accordance with and as
authorized by the Prudent Investor Rule, 20 Pa. C.S.A. §7201, et seq.
B. To open, maintain, close, or transfer assets held in any banlt, mutual fund, money
znarltet, stock, bond, or other financial or investment account, in the name of this Trust.
C. To manage, control, repair, and improve all Trust property, real or personal.
D. To enter into or to modify or rescind any contract or agreement on behalf of the
Trust.
E. To adjust or compromise any claim for or against the Trust,
F. To borrow money and to mortgage or pledge or otherwise encumber Trust assets as
the Trustee may, in its discretion, deem advisable.
G. To exercise any options, rights and privileges available to or acquired by Trustee for
the purchase of any assets.
H. To lease for any term, exchange or sell at public or private sale any Trust asset; and
grant options to lease for any term, exchange or purchase any Trust asset, in each case without Court
Order.
I. To hold investments in bearer form, or register them in Trustee's name or in the
name of its nominee.
J. To subscribe for stock and bond privileges, give proxies, join in any merger,
reorganization or voting trust with respect to investments under this Trust, and vote or refrain from
voting any securities.
K. To make distributions under this Trust in cash, in kind, or partly in each.
L. To pay any taxes, (whether of the Trust or the Beneficiary), interest, and/or penalties; and
to apply for and collect tax refunds and interest.
M. To settle the Beneficiary's personal estate by payment of administrative expenses, valid
debts, taxes, and the payments required by section 4.1 hereof, in the order of priority provided by
law.
N. In accordance with the provisions of Article II, the Trustee may amend this Trust so that
it conforms to federal and state law governing public benefits and programs for which the
Beneficiary is or may be eligible, including, but not limited to, Medical Assistance (MA) and
Supplemental Security Income (SSI).
ARTICLE VI: DUTIES AND COMPENSATION OF THE TRUSTEE
6.1 Allocation of Income and Principal. The Trustee shall determine what is income and what
is principal of the Trust and what expenses, costs, taxes, and charges of any kind whatsoever shall
be charged against income and what shall be charged against principal in accordance with the
applicable statutes of the United States and the Commonwealth of Pennsylvania.
6.2 Limitation on Trustee's Liability. No Trustee appointed under this Trust shall at any time
be held liable for any act or failure to act or any act or failure to act of its agent or of any other
person in com~ection with the administration of the Trust estate, unless caused by Trustee's gross
negligence or by a willful commission of an act in breach of trust.
6.3 Compensation. The Trustee, if a corporation or governmental agency, may retain from the
Trust estate from time to time those fees which are reasonable and customary for the services
rendered.
6.4 Bond, No bond shall be required of the original Trustee hereunder or of any successor
Trustee.
4
6.5 Successor Trustee. If the Trustee named above should be unable or unwilling to serve, then
Clarence Michael Frank shall act as Trustee. If Clarence Michael Frank is unable or unwilling to
serve, then Richard Marls Frank will act as Trustee. If Elaine Marie Grove, Clarence Michael Frank
and Richard Mark Frank are all unable or unwilling to serve as Trustee, then the Guardian of the
Estate of the Beneficiary may appoint another person or corporate fiduciary to act as successor
Trustee. A Trustee may resign by giving written notice to the Settlor or Guardian of the Estate of the
Beneficiary. If t11e Settlor is deceased and no Guardian is appointed, the Trustee then servizlg may
name a successor Trustee in writing, delivered to and following consultation with the Beneficiary.
6.6 Removal of Trustee. In the event that a Beneficiary, Guardian of a Beneficiary, or other
interested person believes that it is not in the best interests of a Beneficiary for the Trustee to
continue to serve as Trustee, the Beneficiary, Guardian, or interested person may petition the Court,
upon cause shown, to z•emove the then-existing Trustee and appoint a successor Trustee.
6.7 Accounting. The Trustee may, but shall not absent an Order of Court be required to, prepare
and file accountings for any Court, with notice and copy to the Department of Public Welfare. Prior
to delivering all of the property of any Trust hereunder to a successor Trustee or the malting of any
final or complete distribution of Trust principal, the Trustee may require an approval of an
accounting by written release and discharge either from the Beneficiary or the Court.
6.8 Professional Assistance. The Trustee may retain, at reasonable and customary rates, the
services of such attorneys, accountants, investment advisors, or other professionals as may be
necessary for the proper administration of this Trust.
ARTICLE VII: BURIAL FUND
7.1 The Trustee shall establish an irrevocable, pre-paid fund sufficient to cover the reasonable
expenses of the Beneficiary's funeral, burial, and grave marker.
ARTICLE VIII: SPENDTHRIFT PROVISION
8.1 The interest of the Beneficiary in the principal and/or income of this Trust shall not be
subject to anticipation or to the claims of his/hez• creditors, or creditors of others, including creditors
of any spouse of a married Beneficiary, nor to legal process, and may not be voluntarily or
involuntarily alienated or encumbered.
ARTICLE IX: CONSTRUCTION OF TRUST
9.1 Governing Law. This Trust shall be governed by the laws of the Commonwealth of
Pennsylvania.
9.2 Copies. Photocopies of this Trust shall be as valid as the original.
IN WITNESS WHEREOF, this Trust Agreement has been signed by the Settlor and the
Trustee on this day of , 2012.
Witness
Witness
Witness
Witness
11313-1-182478
SETTLOR:
Elaine Marie Grove
TRUSTEE:
Elaine Marie Grove
6
COMMONWEALTH OF PENNSYLVANIA
SS
COUNTY OF DAUPHIN
Before me, a Notary Public in and for the Commonwealth of Pennsylvania, the undersigned
officer, personally appeared Elaine Marie Grove, known to me or satisfactorily proven to be the
person described in the foregoing LEE ALEXANDER FRANK SPECIAL NEEDS TRUST, and
acknowledged that She executed the same for the purposes therein stated, and subscribed and sworn
to before me by and
,witnesses, this
day of , 2012.
IN WITNESS WHEREOF, I hereunto set my hand and seal on this day of
2012.
My commission expires:
Notary Public
IN RE:
ESTATE OF GRACE MARIE FRANK
And
THE GRACE MARIE FRANK TRUST
ELAINE MARIE GROVE, TRUSTEE,
PETITIONER
IN THE CUMBERLAND COUNTY
COURT OF COMMON PLEAS,
ORPHANS' COURT DIVISION
NO. 2011-00800
CIVIL ACTION -EQUITY
CONSENT OF PROPOSED TRUSTEE
Elaine Marie Grove, hereby consents to be and act as Trustee of the Lee Alexander Frank
Special Needs Trust.
Date: O ~d ia, By:
arie rove
1210 4`h Street
Enola, PA 17025
E
CERTIFICATE OF SERVICE
I certify that I am this w~ day of , 2012, serving a copy of the
foregoing document upon the person(s) and in the manner indicated below, which service satisfies
the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the
United States Mail at Harrisburg, Pennsylvania, with first-class postage, prepaid, as follows:
Lisa Dees, Esquire
Assistant Counsel
Pennsylvania Department of Public Welfare
Health and Welfare Building, 3rd Floor, West
7cn & Forster Streets
Harrisburg, PA 17120
Caldw 1 & Kearns, P.C. C n
BY~ ~ ~~
CALDWELL &KEARNS
JAMES R. CLIPPINGER
JAMES L GOLDSMITH A PROFESSIONAL CORPORATION OF CDUNSEL
STANLEY J.A. LASKOWSKI
ATTORNEYS AT LAW
JAMES D. CAMPBELL, JR.
DOUGLAS K. MARSICO CHARLES J. DEHART, 111
BRETT M. WOODBURN
MICHAEL D. REED
MICHAEL A. FARRELL
THOM
L, JR
THOMAS M. FRATICELLI 3631 NORTH FRONT STREET 192&2001)
GREGORY D. GEISS HARRISBURG, PENNSYLVANIA 17110-1533
THOMAS $. LEE CARL G. WASS
ELIZABETH H. FEATHER
(1937-2010)
KAREN W. MILLER 717-232-7661
DOUGLAS M. OBERHOLSER FAX: 717-232-2766 RICHARD L KEARNS
DAVID J. EVENHUIS RETIRED
THEFIRMQCKLEGAL.NET
3anuary 20, 2012
VIA E-MAIL: rcoulson(a~ccpa.net
& First Class Mail
The Honorable Christylee L. Peck
Cumberland County Courthouse
One Courthouse Square, Room 405
Carlisle, PA 17013
RE: Estate of Grace Marie Frank
Cumberland County No. 2111-0800
Your Honor:
Enclosed please find Exhibit "E", Consent of the Pennsylvania Department of Public
Welfare, which was missing from my Petition to Modify Terms of Trust to Create Special Needs
Trust which was filed on January 13, 2012.
Thank you for your attention to this matter.
Very truly you~rjs,~']
tV . Ota~
~~~~~
Elizabeth H. Feather
Caldwell & Kearns, P.C.
efeather(a~cklegal. net
EHF:se
Enclosure
11313-002/186200
t '
~~
~~, ;~~
t : ~.
~i
COMMONWEALTH OF PENNSYLVANIA
GOVERNOR'S OFFICE OF GENERAL COUNSEL
January 9, 2012
Hard Copy by Mail
Elizabeth H. Feather, Esquire
CALDWELL & KEARNS
A PROFESSIONAL CORPORATION
ATTORNEYS AT LAW
3631 North Front Street
Harrisburg, PA 17110
Via Email-efeather @clclegal.net
Re: Petition to Modify and Create the Lee Alexander Fral~lc Special Needs Trust
Dear Attorney Feather:
I have reviewed your petition to modify the trust created by the Grace Marie Frank Last Will and
Testament. I have also reviewed the draft copy. of the Lee Alexander Fras~lc Special Needs Trust (SNT)
that will replace Item VI (a) of the decedent's will in its entirety. The Department of Public Welfare
(Department) has no objections to the petition or the creation of the SNT.
The disabled beneficiary's assets that fare used to fund the SNT will not be considered an available
resource in determining Lee Alexander Frank's eligibility for Medical Assistance. If Mr. Frank has other
assets that are not part of the SNT, the County Assistance Office ("CAO") may determine that he is not
eligible for Medical Assistance. liz order to assist the Department in making its determination of Medical
Assistance eligibility, please provide to the CAO (with a copy to me) the documentation regarding the
funding of this SNT and any subsequent additions to the SNT.
Thank you for your attention and cooperation with the Department. If you have any questions, please feel
free to contact me.
c: Susan Naylor
Tammey Hughes
Susan Geiger
Very truly yours,
Lisa B. Dees
.Assistant, counsel
OFFICE OF CHIEF COUNSEL ~ DEPARTMENT OF PUBLIC WELFARE
3RD FL. WEST, HEALTH & WELFARE BLDG. ~ 7T" & FORSTER STREETS ~ HARRISBURG, PA 17120
Ph: 717-783-2800 ~ Fx: 717-772-0717 ~ www dnw state ~a us ~ II~ I~ ~ ~I_
~~-