USA – CALIFORNIA Law and Practice Contributed by: Jennifer Jordan McCall, Matthew Perotti, Maria Williams and Alexandria Marx, Pillsbury Winthrop Shaw Pittman LLP
8. Planning for Minors, Adults with Disabilities and Elders 8.1 Special Planning Mechanisms In California, a special needs trust may be established if: • the incompetent person has a disability that substantially impairs their ability to care for them - selves; • the incompetent person has special needs that will not be met without the trust; and • the assets transferred to the trust do not exceed the amount reasonably necessary to meet the special needs. A special needs trust (SNT) is designed to preserve public assistance benefits for a disabled beneficiary. A first party SNT is funded with assets that belong to the beneficiary or which the beneficiary is legally entitled. A third party SNT is funded with the assets of anyone other than the disabled beneficiary or their spouse. Ultimately the trust enables the special needs benefi - ciary to receive assets while also staying eligible for supplemental security income, Medi-Cal, and other government benefits. 8.2 Appointment of a Guardian California requires a court proceeding to oversee the appointment of a guardian. The goal of this procedure is to ensure that the guardian is suitable to maintain the best interests of the person under guardianship. Guardians are required to annually submit a status report to the court, providing information regarding the guardianship. This includes details such as the guard - ian’s address, the child’s current residence location, reasons for changes, and other factors. If this report is not submitted by the guardian, the court may order the guardian to make themselves available for pur - poses of investigation of the guardianship. Six months after the appointment of a conservator, a court investigator must visit the conservatee and assess the appropriateness of the conservatorship. The investigator then reports to the court on the con - servatee’s placement, quality of care, and finances.
• expected total return of income and appreciation of capital; • needs for liquidity; and • other resources of the beneficiaries. The trustee can operate a business within the trust property, and he or she can change its structure (ie, incorporation or dissolution). However, this is only per - mitted if the trust document or court allows it. 7. Citizenship and Residency 7.1 Requirements for Domicile, Residency and Citizenship Someone is a resident of CA if they are (i) present in CA for other than a temporary purpose or (ii) domiciled in CA, but outside CA for a temporary purpose. Fac - tors used to determine the strength of one’s ties to CA include, but are not limited to, the: • amount of time spent in CA versus other states; • location of spouse and children; • location of principal residence; • state of issued driver’s licence; • state where one is registered to vote; • location of banks where accounts are maintained; and • permanence of one’s work assignments in CA. Rather than relying on a single factor or a fixed number of ties, CA considers the strength of connections to the state. (State of California – Franchise Tax Board). 7.2 Expeditious Citizenship There is a specified process for gaining US citizen - ship. An immigration attorney should be consulted. It is relatively easy to become a resident in Califor - nia. For example, buying or renting a permanent resi - dence in California, combined with being employed in California and sending children to school in California should suffice. Conversely, it can be difficult to cease to be treated as a California resident. To effectively do so, as many of the domicile factors listed as pos - sible should be established in the desired new state of residence and a California state tax attorney should be consulted.
731 CHAMBERS.COM
Powered by FlippingBook