Page 18 THE EVERETT ADVOCATE – Friday, January 10, 2020 FOPPIANO | FROM PAGE 3 at the Castleton Banquet and Conference Center in Windham, N.H. There is also a possibility that Foppiano could have a match at Encore Boston Harbor this summer. In addition, the City Council recognized Foppiano for her accomplishments during its meeting on December 23, 2019. “Being recognized by the Everett City Council and my community was such an honor for me,” said Foppiano. “The city of Everett raised me; I still live in Everett now and I’m so proud to be from the City of Champions. I will continue to work hard so I can carry on that tradition for my city.” She also described how women’s boxing has fl ourished over the years. “There have always been talented women, but they weren’t getting the same attention as now,” said Foppiano. “Finally allowing women to enter the Olympics in the London games in 2012 was a huge staple for women’s boxing. Since then, many talented female fi ghters have been creating a lot of noise and showing why we belong. I’m very proud to be one of the women striving for greatness in such a male-dominant sport.” LAW OFFICES OF JOSEPH D. CATALDO, P.C. “ATTORNEYS AND COUNSELORS AT LAW” 369 Broadway, Everett, MA 02149 (617)-381-9600 JOSEPH D. CATALDO, CPA, MST, PFS, ESQUIRE. AICPA Personal Financial Specialist Designee SUPERIOR COURT CASE WIN REGARDING LIMITED POWER OF APPOINTMENT A December 9, 2019 Worcester Superior Court decision reversed a Board of Hearings decision denying MassHealth benefits for a nursing home resident due to deemed countable assets of an irrevocable trust. The applicant first applied for MassHealth benefits on March 2, 2018. MassHealth denied her application on April 28, 2018. On July 27, 2018, there was a hearing held by the Board of Hearings due to the applicant filing for an appeal of the denial. On December 18, 2018, the Board of Hearings rendered a decision that upheld MassHealth’s denial of benefits. The applicant then filed for a Mass General Laws Chapter 30A appeal with the Superior Court. The provision at issue was the following: “The Donor reserves a limited or special power of appointment, exercisable during her lifetime, to appoint the remaining principal and any undistributed income, outright, or upon trusts, powers of appointments, conditions or limitations, to such person or persons, among the members of the class consisting of the Donor’s issue of all generations or charitable organizations other than governmental entities, but no such power or payment shall be used to discharge a legal obligation of the Donor.” The Superior Court judge stated that the fact that the Donor can appoint (i.e. distribute) trust assets to children or grandchildren, for example, does not lead to the conclusion that the children or grandchildren will give the assets back to the Donor thereby in effect giving the Donor access to Trust principal. If the Donor, under any circumstances, can have access to Trust principal, the Trust will fail and the Trust’s assets will be countable in a Medicaid determination. The Court further stated that a special or limited power of appointment can only be exercised in favor of a permissible appointee and that it cannot be exercised in favor of an impermissible appointee. By definition, the Donor of a special power of appointment cannot appoint to himself or herself thereby preventing access to Trust principal under any circumstances. The Court went on to say that “it is fundamental that a trust instrument be construed to give effect to the intention of the Donor as ascertained from the language of the whole instrument considered in light of circumstances known to the Donor at the time of its execution.” The Court cited the Supreme Judicial Court’s decision in Heyn, where the Supreme Court stated “ a provision making Trust principal available to persons other than the Donor does not by its nature make it available to the Donor, any more than if the Donor had gifted the same property to such persons when she created the Trust, rather than placing it in Trust.” This was an extremely important decision. We hope that hearing officers will all adopt this ruling at future hearings if MassHealth attempts to attack a Trust provision dealing with special powers of appointment.
19 Publizr Home