IN THE MATTER OF JAMES S. CORN, A DISABLED PERSON
APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT [NO. 60CV-15-1550] HONORABLE ALICE S. GRAY, JUDGE
Winburn, Mano, Schrader & Shram, by: Rebecca H. Winburn and John G. Shram; and Taylor & Taylor Law Firm, P.A., by: Andrew M. Taylor and Tasha C. Taylor, for appellant.
PAUL E. DANIELSON, ASSOCIATE JUSTICE.
Appellant James S. Corn, age fifty-three, brings this appeal from an order of the Pulaski County Circuit Court denying Corn's petition to establish a special-needs trust pursuant to 42 U.S.C. § 1396p(d)(4)(A). Corn is disabled because of a head injury from which he suffers short-term memory loss. Because of the severity of his injury, he receives Social Security Disability (SSD) and Supplemental Security Income (SSI). Corn's eligibility makes him automatically eligible for Medicaid. However, SSI has an asset test which states that Corn would become ineligible if he were to have assets of more than $2, 000. Because of this, Corn's partner, Ms. Yelvington, now deceased, established a special-needs trust for him.
Yelvington also designated Corn as a beneficiary on life insurance policies and her bank accounts. There is approximately $260, 000 that was not transferred into the special-needs trust created by Yelvington, and because Corn is designated as the beneficiary on these assets, they would pass directly to Corn upon Yelvington's death. Because these assets would be passing directly to Corn rather than through a special-needs trust, Corn would be ineligible to receive SSI benefits.
In order to prevent this, Corn attempted to create a trust pursuant to 42 U.S.C. § 1396p(d)(4)(A) (hereinafter "D4A trust"). This statute provides that assets do not count toward the asset limit if the assets are in a trust that
contain[s] the assets of an individual under age 65 who is disabled (as defined in section 1382c(a)(3) of this title) and which is established for the benefit of such individual by a parent, grandparent, legal guardian of the individual, or a court if the State will receive all amounts remaining in the trust upon the death of such individual up to an amount equal to the total medical assistance paid on behalf of the individual under a State plan under this subchapter.
42 U.S.C. § 1396p(d)(4)(A).
On April 10, 2015, Corn filed a "Petition to Establish a 42 U.S.C. § 1396p(d)(4)(A) Special Needs Trust" for his benefit. In that petition, Corn stated that he is entitled, pursuant to the statute, to use a safe-harbor special-needs trust to hold his inherited monies to preserve his eligibility for public benefits. Corn attached a copy of the proposed "James Corn D(4)(A) Special Needs Trust" to the petition and stated that the trust meets all of the criteria for the establishment of a (D)(4)(A) trust, including (1) that Corn is under the age of 65; (2) that he is disabled pursuant to the provisions of the Social Security Act; (3) that the trust will be funded with Corn's assets; (4) that Corn is the sole beneficiary of the trust; (5) that the trust will be established by the court as allowed under the statute; (6) that the trust contains the requisite payback language to the State of Arkansas for benefits paid for the primary beneficiary's care under the Medicaid program; (7) that the trust is irrevocable; (8) that the trust contains a spendthrift clause; and (9) that Corn cannot direct the trustee to use trust principal or income for his support and maintenance. "Schedule A" of the special-needs trust includes approximately $260, 000 in assets from Yelvington's life insurance policies and bank accounts on which Corn is the designated beneficiary.
A hearing was held on June 2, 2015, in the Pulaski County Circuit Court. At the time of the hearing, Yelvington had passed away and her estate was in probate. Corn had not yet received any funds from her estate or from her beneficiary designations. At the hearing, Corn's attorney stated that when Yelvington set up the special-needs trust for Corn, she unintentionally left out a number of assets that would pass directly to Corn. The circuit court asked counsel for Corn what other assets were in the special-needs trust set up by Yelvington. Counsel for Corn stated that he was unprepared at that time to share a report of the assets passing through Yelvington's trust administration or probate. The circuit court then stated as follows:
I can tell you that what my concern has started to be in these cases. You know, I've had some of these where there's $40, 000 in the special needs trust; I've had some where there's $30, 000; I've had others that had already been set up prior to me seeing them. But I'm starting to have a public policy issue with them because people out here who are making $30, 000 a year and paying taxes, their tax money is going to help provide these benefits that your client is trying to keep. And, at the same time, if I'm helping him protect 200-something thousand dollars over here so that he can keep those benefits that poor people are having to pay for, that becomes an issue for me.
When counsel for Corn asked the circuit court if they needed to get a continuance, the circuit court stated,
Well, what I'm going to do – we're here today. We had it on the docket. And most of what I know I've had to kind of drag out of you today. And if this is all you're presenting, I'm going to deny it. And I'm going to let you file your motion for ...