HomeMy WebLinkAbout01-20-06
IN RE: BARBARA A. FARROW
: IN THE COURT OF COMMON PLEAS
: OF CUMBERLAND COUNTY,
: PENNSYL VANIA
: ORPHANS' COURT DIVISION
a disabled person
: NO. ')., - <::)~ _ ~~ Co ~
On the Petition of Joyce F. Gifford
PETITION FOR ORDER AUTHORIZING THE CREATION AND FUNDING OF A
SPECIAL NEEDS DISABILITY TRUST FOR THE BENEFIT OF A DISABLED
PERSON
AND NOW COMES Petitioner, Joyce F. Gifford, by and through her attorney, Marielle
F. Hazen, Esquire, and files the within Petition, and in support hereof, avers as follows:
1. Petitioner is Joyce F. Gifford of 18 Park Circle, Camp Hill, Pennsylvania 17011.
Joyce F. Gifford is the sister of BARBARA A. FARROW.
2. BARBARA A. FARROW, the disabled individual, is fifty-eight (58) years of age,
her date of birth being February 4, 1947. BARBARA A. FARROW currently resides at a
personal care home located at 427 Hogestown Road, Mechanicsburg, Pennsylvania 17050. She
was recently discharged from the Harrisburg State Hospital where she had resided since March
of 1994.
3. BARBARA A. FARROW's intestate heirs are her sisters: Joyce F. Gifford
(Petitioner), of 18 Park Circle, Camp Hill, Pennsylvania 17011, and Marguerite Gire, of 389
South Drexel Avenue, Columbus, Ohio 43209.
4. BARBARA A. FARROW is presently eligible for and is receiving government
benefits, including Medical Assistance because of her physical health disabilities. She is a
disabled~ridividual aSgefi-Pe9 ig Title XVI of the Social Security Act, 42 V.S.C. ~1382c{a){3).
5. BARBARA A. FARROW's physical and mental disabilities include: breast
cancer, schizophrenia, and psychosis.
6. BARBARA A. FARROW's assets total approximately One Hundred Eighty-nine
Thousand Dollars ($189,000.00), held in a savings account. These funds were received from an
inheritance from her deceased mother's estate.
7. BARBARA A. FARROW currently has no income. She will need to apply for
Supplemental Security Income ("SS1") from the Social Security Administration to pay for her
care at the personal care home.
8. BARBARA A. FARROW needs the funds in her savings account to provide for
her supplemental needs while residing in the personal care facility.
9. Pursuant to 55 Pa.C.S.A. ~ 178.1 04, assets may be held in a trust for the benefit of
BARBARA A. FARROW without rendering her ineligible for public benefits. The funds would
then be available to supplement, not supplant, her public benefits.
10. Petitioners' attorney, Marielle F. Hazen, has drafted a Special Needs Disability
Trust in accordance with 42 V.S.C. ~1396p(d)(4)(A) and 55 Pa.C.S.A. ~178.7(f)(1). The trust
would receive the funds currently in BARBARA A. FARROW's name as outlined in Paragraph
6. above, and any additional funds received by BARBARA A. FARROW from any other
source(s). This is necessary to obtain and maintain her eligibility for Medical Assistance and
Supplemental Security Income which are necessary public benefits. The funds can be used for
BARBARA A. FARROW's supplemental needs as deemed appropriate by the Trustee.
11. The trust is for the benefit of an individual under the age of sixty-five (65) who is
disabled as defined by the criteria in 42 V.S.C. ~1382c(a)(3). A copy of the proposed trust is
attached hereto as Exhibit "A".
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12. BARBARA A. FARROW's sister, Joyce F. Gifford, is willing to act as Trustee of
the trust.
13. The trust contains a provision that the Commonwealth of Pennsylvania will
receive the amounts remaining in the trust upon the death of BARBARA A. FARROW, up to the
total amount of benefits paid on behalf of BARBARA A. FARROW.
14. Petitioner believes and therefore avers it is in the best interests of BARBARA A.
FARROW that this trust be created and funded. Such trust is authorized under both state and
federal regulations for these types of situations.
WHEREFORE, Petitioner requests this Honorable Court to establish the Special Needs
Disability Trust for the benefit of BARBARA A. FARROW, and to fund the said Special Needs
Disability Trust with the remaining principal and income from BARBARA A. FARROW's
inheritance from her deceased mother's estate and any additional funds received by BARBARA
A. FARROW from any other source(s).
Respectfully Submitted,
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Date: (j{j n
/((,,:2000
~Sq.
Attorney for Petitioner
Attorney ID# 68003
2000 Linglestown Road, Suite 202
Harrisburg, PAl 711 0
(717) 540-4332
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VERIFICATION
We verify that the statements made in this Petition are true and correct. We understand
that false statements herein are made subject to the penalties of 18 P A.C.S. S 4904, relating to
unsworn falsification to authorities.
CJ:r.~ if #~
JOYCE F. GIFFOIW1
Sworn to and subscribed before me this
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dayo~ ,2006
COMMONWEALTH OF PENNSYLVANIA
Jes . Notarial Seal
SIl<Ul~!::! A. Hol/and, NotRn, Publ'
............anna Twp n -" Ie
My Commission E~'PI' aUPMhrn County
res ar. 4, 2006
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SPECIAL NEEDS DISABILITY TRUST
FOR THE BENEFIT OF BARBARA A. FARROW
This Declaration of Trust (the "Trust") is established by The Court of Common
Pleas of Cumberland County, Pennsylvania, with JOYCE F. GIFFORD, currently of 18
Park Circle, Camp Hill, Pennsylvania 17011, authorized by the Court to execute this
trust document in her capacity as Trustee, for the benefit of BARBARA A. FARROW,
born February 4, 1947, who is an adult, disabled individual as defined in Title XVI of the
Social Security Act (the "Act"), 42 V.S.C. S1382c(a)(3).
This Trust is established in accordance with a special provision of Title XIX of
the Act, specifically 42 V.S.C. S1396p(d)(4)(A), as amended by the Omnibus Budget
Reconciliation Act of 1993 (and any federal or state regulations or other rules
promulgated pursuant to that provision) which exempts the assets held in the Trust from
being included in the determination of BARBARA A. FARROW's eligibility for, or
amount of, medical benefits under a State Plan under the Act, and therefore, the property
directed to this Trust shall in no way be deemed to have been or to be available to
BARBARA A. FARROW.
JOYCE F. GIFFORD shall serve hereunder as Trustee and hold all assets and
property acceptable to the Trustee which are added to this Trust, and shall manage, invest
and reinvest said property, shall collect the income therefrom and shall distribute the net
income and principal in accordance with the following provisions. In the event of the
renunciation, death, or inability to act, for any reason whatsoever of JOYCE F.
GIFFORD, the Trustor hereby nominates and appoints MARGUERITE GIRE, of 389
(;y-h I };)/ f I ( f) "
.
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South Drexel A venue, Columbus, Ohio 43209 as successor Trustee to hold all assets and
property acceptable to the Trustee which are added to this Trust, and to manage, invest
and reinvest said property, shall collect the income therefrom and to distribute the net
income and principal in accordance with the following provisions:
FIRST:
A. During BARBARA A. FARROW's lifetime, the Trustee shall pay to or
apply directly for BARBARA A. FARROW's benefit such parts or all or none of the net
income and principal as the Trustee shall determine in the Trustee's sole and absolute
discretion for the extra and supplemental care of BARBARA A. FARROW, subject to
the provisions of Item SECOND herein. Any income which is not distributed shall be
accumulated and may be (but is not required to be) added to principal. In exercising her
discretion, Trustee may consider all other sources of income and resources actually
known to her to be available to BARBARA A. FARROW and all circumstances and
factors deemed pertinent by the Trustee. In making discretionary distributions to or for
the benefit of BARBARA A. FARROW, Trustee shall not consider the effect such
distributions may have upon the interest of any remainder beneficiary.
B. Upon the first to occur of BARBARA A. FARROW's death or the earlier
termination of this Trust, the Trustee shall pay to the Commonwealth of Pennsylvania,
Department of Public Welfare, or any successor agency, and/or any other state which has
provided BARBARA A. FARROW with medical care under a state medical assistance
program, as a beneficiary hereunder, an amount which is equal to the lesser of the amount
paid to BARBARA A. FARROW under such plan or plans from the time of creation of
this Trust until her death or earlier termination of this Trust (as finally determined by
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such state or states), or the balance remaining in the Trust, in accordance with 42 U.S.C.
S 1396p(d)(4)(A).
C. The Trust shall terminate upon BARBARA A. FARROW's death and the
Trustee shall distribute any principal remaining in the Trust, after the distribution directed
in paragraph B., in equal shares to BARBARA A. FARROW'S natural heirs: JOYCE F.
GIFFORD and MARGUERITE GIRE, Per Stirpes.
SECOND:
A. Wherever the Trustee has the discretion to determine whether or to what
extent principal or income shall be distributed to or used for the benefit of BARBARA A.
FARROW, the Trustee shall consider the resources and sources of funds available to her
through any state or federal public assistance program. In making this determination, the
Trustee shall consider that the purpose of this Trust is not to supplant public assistance
benefits, but to supplement those benefits by providing only for BARBARA A.
FARROW's special needs, that is, to provide the extra and supplemental care for
BARBARA A. FARROW which will not disqualify her from any local, state or federal
benefits. No portion of the principal or undistributed income of the Trust shall be
considered available to BARBARA A. FARROW for determining eligibility for
assistance from any local, state or federal government agency, department or program. If
BARBARA A. FARROW receives assistance for basic maintenance, support, care or
services, the Trustee is prohibited from using or applying the Trust assets in any way that
would jeopardize such assistance. In making discretionary distributions to or for the
benefit of BARBARA A. FARROW, Trustee shall not consider the effect such
distributions may have upon the interest of any remainder beneficiary.
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If the Trustee ever petitions the Court to authorize a distribution from principal or
to amend or modify the terms of the Trust, notice shall be provided to the Department of
Public Welfare.
B. The term "special needs" refers to the maintenance of BARBARA A.
FARROW's good health, safety and welfare when, in the discretion of the Trustee, such
needs are not provided by any public assistance agency or other public or private source.
Such needs may include but are not limited to extra and supplemental medical and dental
care, physical and mental health care, nursing and custodial care, therapies, nutrition, pre-
paid irrevocable burial expenses, socialization, transportation, maintenance, education,
equipment, therapeutic travel and recreation and the like over and above the amount of
benefits she otherwise receives from any local, state or federal government or from any
other private or public source.
THIRD:
The Trustee is expressly authorized to receIve additional property from
BARBARA A. FARROW or any other person and to administer and distribute it as a part
of this Trust.
FOURTH:
This is a discretionary, non-support Trust. No principal or income of the Trust
shall be anticipated, assigned, or encumbered. The Trust shall not be liable for any debt,
contract or engagement of any beneficiary nor subject to any legal process. No part of
this Trust estate shall be construed as being subject to the claims of the beneficiary's
voluntary or involuntary creditors. The Trustee shall deny any request by any public or
private entity to disburse Trust funds for support or other care that such entity has the
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obligation to provide to the Trust beneficiary. Any discretion under this document, if
exercised or not exercised, shall be conclusive upon all persons concerned so long as
such discretion is exercised in good faith.
FIFTH:
Upon BARBARA A. FARROW's death, any principal or income to which a
beneficiary under the age of twenty-one (21) years becomes entitled absolutely under the
foregoing provisions may nevertheless be retained by the Trustee in Trust for the
beneficiary until the beneficiary attains the age of twenty-one (21) years and income may
be accumulated and invested in accordance with the investment powers given the
Trustee. The Trustee may apply such part or all or none of the income and principal as
the Trustee may determine in the sole and absolute discretion of the Trustee for the
education, support and welfare of the beneficiary, by the payment of bills therefore or by
direct payment to the beneficiary or by payment to any person selected by the Trustee to
disburse such funds, whose receipt shall be a complete discharge of the Trustee therefore.
If the Trustee determines that it is impractical to administer a share hereunder, the
Trustee may in discharge of all duty hereunder deposit it in an interest-bearing account in
the name of the beneficiary, with or without restrictions on withdrawal prior to age
twenty-one (21), as the Trustee deems appropriate or may pay the beneficiary's share to
the parent or other person having custody of the beneficiary, or may transfer the funds to
a custodian designated by the Trustee for the beneficiary under the Uniform Transfers to
Minors Act of Pennsylvania or similar legislation in any other jurisdiction. All funds not
paid to or applied for the beneficiary in accordance with the foregoing provisions shall be
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paid to the beneficiary at age twenty-one (21) or to the beneficiary's personal
representative in the event of the beneficiary's death prior to age twenty-one (21).
SIXTH:
If BARBARA A. FARROW's testamentary estate, exclusive of her residence and
tangible personal property, shall be insufficient to pay her debts, funeral expenses, and
expenses of the administration of her estate, the Trustee may in the sole discretion of the
Trustee pay any part or all of such debts and expenses out of the principal of this Trust
but none of said debts or expenses shall be enforceable against the Trustee by reason of
this provision.
SEVENTH:
All estate, inheritance and other death taxes and any interest and penalties thereon
imposed by reason of BARBARA A. FARROW's death on property forming the
principal of this Trust at BARBARA A. FARROW's death shall be paid out of the
principal of the Trust without apportionment or reimbursement. In addition the Trustee
shall have the power but not the duty to pay from the principal of such Trust, either
directly or to the personal representative of BARBARA A. FARROW's estate, as much
of such taxes, and interest and penalties thereon, on the balance of her gross estate for tax
purposes as the Trustee may determine in order to facilitate the settlement of BARBARA
A. FARROW's estate. No beneficiary shall be required to refund any part of such taxes,
interest or penalties.
EIGHTH:
All Income derived from assets received as principal of this Trust during
BARBARA A. FARROW's lifetime which has accrued when such assets become subject
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to this Trust but which is received by the Trustee thereafter, whether the same is legally
principal or income, shall be applied in accordance with the provisions herein set forth
for the distribution of income.
NINTH:
The Trustee shall have the following powers during the administration and until
the completion of distribution of this Trust and any trusts hereunder in addition to any
powers given the Trustee by law which the Trustee may exercise in the sole discretion of
the Trustee and without Court approval:
A. To retain and invest in all forms of real and personal property, including
stock, common trust funds and mutual funds of any corporate trustee hereunder of any
holding company controlling the corporate trustee, and including real property to be used
as a residence suitable for BARBARA A. FARROW's special needs notwithstanding the
fact that such property is non-income producing, without restriction to investments
authorized by law.
B. To join in any merger, consolidation, reorganization, voting trust plan or
similar action, and to delegate discretionary powers or duties with respect thereto.
C. To sell at public or private sale for cash or credit, to exchange, or to lease
for any period of time, any real or personal property, to give options for sales, exchanges
or leases and to allocate premiums from the sale of options to income or principal.
D. To take any and all action which the fiduciary deems necessary to prevent,
abate, "clean up" or otherwise respond to any actual or potential violation of any federal,
state or local law, rule or ordinance affecting any property held in this Trust related to the
generation, use, treatment, storage, disposal, release, discharge of, or contamination by,
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any materials or substances that are prohibited or regulated by federal, state or local law
or that pose a hazard to the environment or human health, and to charge the expense
thereof to principal or to income or partly to each.
E. To borrow money from anyone, including a Trustee hereunder, and to
mortgage or pledge any assets as security therefore.
F. To compromise or settle claims without obtaining BARBARA A.
FARROW's consent.
G. To make distribution in kind and to cause any share to be composed of
cash, property or undivided fractional shares in property different in kind from any other
share, giving consideration to such extent as the Trustee determines to the federal income
tax basis of such property.
H. In the sole discretion of the Trustee to apply any payment of income or
principal to which BARBARA A. FARROW is entitled hereunder directly for her benefit
or to pay it to her natural guardian or legally appointed guardian or such other person as
the Trustee selects to disburse it for BARBARA A. FARROW's benefit. The receipt of
the person so selected shall be a complete discharge of the Trustee therefore.
I. To repair and maintain any real or personal property and to charge the
expense to income or principal.
J. To apply to income or principal any corporate distribution which is
described or designated by the corporation as a stock dividend or as a distribution which
may be received either in cash or in shares of the corporation at the option of the holder.
K. To arrange for the services of any public or private organization
established to assist disabled persons, to monitor BARBARA A. FARROW's living
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conditions, evaluate her needs and identify available social, financial, developmental or
other programs, without diminution of compensation otherwise properly payable to the
Trustee and to charge the expense thereof either to principal or to income or partly to
each, without liability for any act or omission of any such individual or organization or
for any act or omission made in reliance on the advice of such individual or organization
provided such person or organization was retained with reasonable care and prudence.
L. To retain legal or professional assistance in establishing and administering
this Trust and accomplishing her purpose, without diminution of compensation otherwise
properly payable to the Trustee and to charge the expense thereof either to principal or to
income or partly to each, and without liability for any act or omission of any such
individual for any act or omission made in reliance on the advice of such individual
provided such person or organization was retained with reasonable care and prudence.
M. To register investments in nominee name or to hold investments in bearer
form.
TENTH:
All reasonable expenses in establishing, maintaining, administering, and
defending this Trust, including but not limited to reasonable attorneys' fees, accounting
fees, trustee's fees, and costs shall be proper charges to the Trust.
ELEVENTH:
The situs of this Trust is Pennsylvania and all questions pertaining to the validity,
construction, interpretation and administration of this Trust shall be determined III
accordance with the laws of Pennsylvania and the applicable laws of the United States.
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TWELFTH:
A. The Court having jurisdiction of this Trust and the Trustee with the
approval of said Court may amend this Trust so that it conforms with 42 U.S.C.
~1396p(d)(4)(A) and any related statutes or regulations, including state statutes and
regulations, consistent with the provisions and purposes of OBRA '93 and any
amendments thereto.
B. Anything hereinbefore to the contrary notwithstanding, the Trustee with
the approval of said Court, shall have the discretion to terminate this Trust at any time if
the Trustee in her sole and absolute discretion determines that the continuance of the
Trust is impractical, uneconomical or for other reasons unwise. Upon such early
termination, the Trustee shall first make any distribution required under Item FIRST,
paragraph B. and any remaining principal shall be distributed directly to BARBARA A.
FARROW, or, if BARBARA A. FARROW is legally incapacitated, to the guardian of
her estate or other legal representative in accordance with the Order of said Court.
THIRTEENTH:
This Trust shall be irrevocable. Notwithstanding any common law or statutory
provision to the contrary, neither BARBARA A. FARROW nor any legal representative
acting for BARBARA A. FARROW shall have the right to alter, amend or revoke any
provision of this Trust, or to withdraw any funds from this Trust.
FOURTEENTH:
A. The Trustee, or successor Trustee, shall have the power to designate a
successor corporate Trustee to serve in her place if she is unable to serve or to continue
serving as Trustee.
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B. Any corporate Trustee shall receive compensation for the performance of
its functions as Trustee hereunder in accordance with its schedule of fees in effect from
time to time during the period in which its services are performed.
c. No Trustee shall be required to enter bond or other security In any
jurisdiction.
IN WITNESS WHEREOF, the Trustor and the Trustee, has caused this
Declaration of Trust to be executed on the _ day of
, 2006.
Attest:
Witness
JOYCE F. GIFFORD, Trustor,
pursuant to authority granted
from the Court of Common Pleas
of Cumberland County
Witness
JOYCE F. GIFFORD, Trustee
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COMMONWEALTH OF PENNSYL VNAIA
COUNTY OF DAUPHIN
On , 2006, before me a Notary Public for the
Commonwealth of Pennsylvania, personally appeared JOYCE F. GIFFORD, as Trustor
SS:
and Trustee, known to me to be the person whose name is subscribed to the within
instrument and acknowledged that she executed the same for the purposes therein
contained.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
Notary Public
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INRE: BARBARAA.FARROW
: IN THE COURT OF COMMON PLEAS
: OF CUMBERLAND COUNTY,
: PENNSYL VANIA
: ORPHANS' COURT DIVISION
a disabled person
: NO.
On the Petition of Joyce F. Gifford
CERTIFICATE OF SERVICE
I, MarieHe F. Hazen, Esquire, certify that on 'f!j fl. I q , 2006, I served a true
and correct copy of the within Petition to Create and Fund a Special Needs Disability Trust on
the parties named below, by depositing same in the United States mail, certified mail, postage
prepaid as follows:
Marguerite Gire
389 South Drexel Avenue
Columbus, OH 43209
Andrew A. Coates, Esq.
Senior Assistant Counsel
Department of Public Welfare
Room 1700
State Office Building
1400 Spring Garden St.
Philadelphia, P A 19130
Annie Strite
Personal Care Home
427 Hogestown Road
Mechanicsburg, P A 17050
Respectfully Submitted,
~. /q. !lOO(n
ate
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{/ -{ ... --
M rielle F. Hazen, Esq.
P A J.D. No. 68003
2000 Linglestown Road, Suite 202
Harrisburg, PAl 711 0
(717) 540-4332