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Page 14 THE MALDEN ADVOCATE–Friday, July 19, 2024 BHRC | FROM PAGE 11 to responsibly offer happy-hour drink discounts; allow local breweries and distilleries to sell their products alongside local wineries at farmers markets; increase opportunities for a more diverse SETTLOR CONTROL OVER AN IRREVOCABLE TRUST I n determining whether the principal of an irrevocable Trust can be withdrawn by the Settlor, or given to the Settlor Health, to make a complicated review of irrevocable Trusts, Congress could have simply pointed to the “grantor-type” Trust rules. When passing federal Medicby the Trustee, or is in any other way “available” to the Settlor when seeking eligibility for MassHealth benefits or SSI benefits, the fact that the Settlor may reserve some rights or powers over the irrevocable Trust should not be a relevant factor. If Congress had made a determination that any aspect of a Settlor’s control over an irrevocable Trust would affect whether or not the assets housed in such a Trust would be countable for MassHealth or SSI purposes, it would have specifically stated so in federal Medicaid and SSI Trust laws. Congress has not so stated. Congress has long been aware that a Settlor can reserve different aspects of control over an irrevocable Trust. When Congress passed the Internal Revenue Code of 1954, many years prior to passing the current Medicaid Trust laws in 1985 and 1993, Congress had already dealt with control by Settlors in the Trust income taxation area with the well-known “grantor-type” Trust rules. The provisions of Internal Revenue Code sections 671-679, the “grantor-type” Trust rules, are very detailed, and indicate that Congress is very much aware that there are many varieties of Trust provisions where Settlors can reserve varying degrees of control over irrevocable Trusts. In proper statutory interpretation of federal laws, Congress is presumed to know about other laws it has passed. In the Medicaid context, if Congress had been concerned about trust control issues and wanted state agencies, such as Massaid Trust laws, Congress did not indicate concern for control issues by making any cross-reference to the grantor-type Trust rules, or inserting provisions directly in the federal Medicaid Trust law prohibiting any degree of control by the Settlor. When passing federal Medicaid Trust laws, Congress simply allowed each state to implement their own debtor-creditor laws. MassHealth had been attempting to redefine well-settled Trust law in an attempt to deny MassHealth benefits. Its legal department was attempting to stretch any legal theory it could come up with to the point of the theory being nonsensical. From a pure Trust law standpoint, the vast majority of Elder Law/Trust Law attorneys believe that these attempts to interpret Trust law in such a way as to achieve MassHealth’s end goal of not approving MassHealth applications, represented a lack of good faith and a definite lack of administration consistency on the part of MassHealth. Elder Law attorneys depend upon consistency by hearing officers who end up reviewing irrevocable Trusts and rendering decisions on the countability of assets housed in them for eligibility purposes. The bar advocacy for applicants has done an outstanding job in Massachusetts over the last ten years in finally achieving the goal of having clients being able to successfully transfer assets to irrevocable trusts that are properly drafted without having to deal with continuous challenges by MassHealth based upon unjustifiable legal positions. Asset protection planning is a perfectly permissible objective of any family. I have yet to have a tax client come to my office and say to me “I want to pay more in income taxes this year than the law requires me to”. Joseph D. Cataldo is an estate planning/elder law attorney, Certified Public Accountant, Certified Financial Planner, AICPA Personal Financial Specialist and holds a master’s degree in taxation. public sector teaching force; and raise from 17 to 18 the age at which persons can be tried as a juvenile. The hike would apply to many crimes for which 18-yearolds would be tried as juveniles instead of as adults but would not change existing law that allows 18-year-olds charged with the most serious offenses, including first- or second-degree murder, to be prosecuted and sentenced as adults. “Massachusetts is home to great talent, industry and education, but we must act now to remain competitive in a changing global and national economy,” said Sen. Barry Finegold (D-Andover), Senate Chair of the Committee on Economic Development and Emerging Technologies. “This economic development bill bolsters our state’s competitiveness by strengthening sectors we already excel in and creating pathways to secure the lead in emerging fields.” “Life sciences and climate technology are synonymous with Massachusetts because of the past decade of strong investment,” said Senate President Karen Spilka (D-Ashland). “The Senate’s action today ensures that we build on that leadership in the coming decade, amplifying the diverse and thriving economic ecosystem that enables people to stay in our state to build careers and families." “I’m excited the Senate has created long-term investments in key sectors of our state’s economy by passing this economic development bond bill,” said Sen. Mike Rodrigues (D-Westport), Chair of the Senate Committee on Ways and Means. “With ambitious initiatives in life sciences, robotics, artificial intelligence and other cutting-edge disciplines, we lay a strong foundation for the new and global economy for generations to come. While we look to the future, the bill also reinforces the traditional economic drivers of the commonwealth, notably small business, education and advanced manufacturing.” (A “Yes” vote is for the bill.) Sen. Jason Lewis Yes REDUCE SHORT-TERM CAPITAL GAINS TAX (S 2856) Senate 5-34, rejected an amendment that would reduce the short term capital gains tax from 8.5 percent to 5 percent over a three year period from 2025 to 2027. “We have the highest short term capital gains tax in the Northeast and amongst the highest in the nation,” said Sen. Ryan Fattman (R-Sutton) who supported the amendment. “Lowering it could help business investment and actually provide economic activity.” Amendment opponents said the Legislature recently passed, and Gov. Maura Healey signed into law, the largest tax cut in state history. They noted that the tax cut package included a reduction in the short-term capital gains tax. "Only last year, we passed significant tax reductions," said Sen. Pat Jehlen.(D-Somerville). "We don't yet know all the impact. We need enough revenue to meet our needs for housing and transportation. Those investments are much more important than tax cuts for our economic future." (A “Yes” vote is for the reduction in the short-term capital gains tax. A “No” vote is against it.) Sen. Jason Lewis No JUVENILE JUSTICE AGE (S 2856) Senate 31-9, approved an amendment that would raise from 17 to 18 the age at which a person can be tried as a juvenile. The hike would apply to many crimes for which 18-year-olds would be tried as juveniles instead of as adults. The amendment would not change existing law that allows 18-year-olds charged with the most serious offenses, including first- or second-degree murder, to be prosecuted and sentenced as adults. Similarly, a juvenile 18 or younger could be charged as an adult for any felony if the he or she had been previously committed in the Department of Youth Services, committed an offense that involves serious bodily harm or violated certain firearm laws. “We will never achieve racial equity in Massachusetts without addressing the systemic biases in our systems, including our criminal legal system—and giving our children a fair shot at life from birth onward,” said Senate President Karen Spilka (D-Ashland). “By raising the age today, I am proud that the Senate is making the commonwealth a fairer place for young people who should not be judged for their whole life by a mistake they made as an 18-year-old.” "As the former Senate Chair of the Joint Task Force on Emerging Adults in the Massachusetts Criminal Justice System, I heard from stakeholders across the juvenile and criminal justice systems about the countless public safety benefits of raising the age of juvenile jurisdiction," said Sen. Cindy Creem (D-Newton). "Including 18-year-olds in the juvenile system will help ensure all high-schoolers have access to the high-quality rehabilitative programming available through the Department of Youth Services, which will help reduce recidivism and have a long-term positive impact on public safety." "This amendment to an Economic Development bill sought to raise the juvenile age of criminal prosecution to 19 years old,” said Sen. Ryan Fattman (R-Sutton) who opposed the amendment.“First, criminal justice policy shouldn't be snuck into an economic development bill. Second, the Chief Justice of the Massachusetts Trial Court identified numerous concerns about raising the juvenile age … includingincreased financial costs to the court system; increased delays with justice in the juvenile court, including child welfare and protection cases that are already backlogged by 13,000 cases; and concerns about the mixing of minors and "emerging adults" in a juvenile detention center causing challenges with the federal Prison Rape Elimination Act which is supposed to prevent children from being in 'sight and sound' contact with adults.“ Fattman continued, [“There are] concerns from numerous law enforcement agencies that raising the juvenile age of criminality emboldens young people to commit crime, as other offenders may use this law to make young people pawns in the dangerous criminal activity in which the older adults engage. (A “Yes” vote is for raising the age to 18. A “No” vote is against raising it.) Sen. Jason Lewis Yes ALSO UP ON BEACON HILL PRESERVE SPECIAL NEEDS TRUSTS FOR DISABLED SENIORS (H 4841) – House approved and sent to the Senate a bill that would restore the ability of disabled seniors to receive support from special needs pooled trusts for care and needs that are not covered by MassHealth. Sponsor Rep. Kate Hogan (D-Stow) said she filed the legislation in response to a new MassHealth regulation that eliminated this support for seniors. “Pooled trusts allow persons with disabilities to maintain dignity and quality of life when confined to a nursing home or receiving home care,” said Hogan. “The trusts help provide for companion services, uninsured medical care, dental and pharmacy care, transportation, clothing, personal needs and household items, assisted living and many other kinds of support that MassHealth does not provide. Current MassHealth regulations penalize disabled seniors over 65 for using pooled trusts since they are counted in determining eligibility.This legislation would allow this vulnerable population to use the exemption for the purposes of determining MassHealth eligibility.” REDUCE THE SHORTAGE OF DENTAL HYGIENISTS (H 4842) – The House approved and sent to the Senate a bill that supporters say would streamline the process for foreign-trained dentists to obtain a dental hygienist license in the Bay State. These dentists would have to have at least five BHRC | SEE PAGE 15

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