was in a nursing facility and applying for assistance the parties agree that under federal law that department could penalize a transfer only if the predecessor trusts wasn't available as us of their eyesight about thirty cases in my brief brief to that effect do any of them do any of them apply the social security system standard the there's around for about thirty or forty are cases that are in essence apply at the social security definition without citing to it but there are three cases that specifically say the s s a standard manual provisions but you seem to contradict that view here is it isn't a fair description of your your position in this case in this case your honor we believe that that particular palms provision regarding this treatment spencer trust ability to compel distributions to trust holes that you don't look to whether you have to undertake litigation to accomplish the access to a resource indeed the palm specifically say the property is not a resource under such circumstances it's part of the law that we are applying that that this trust if you read the trust it's the trustee who is obligated under the terms of the trust could direct all of the trust income to her health maintenance etc the palm's language is that the beneficiary has to have the ability to direct the asset in the case law respect for your honor in both cases th she in that case would have have to compel distributions through legal coersion within and that is that and that is usually a lawsuit in that respect is a provision in the palms that is also not ent present and as of your entire argument as i understand is that the pa was in the context of this case is not entitled to any deference because it's contrary to the statute that country to the regulation of the regulation in two respects the there's a florida statute on point to the fact there's absolutely no contrary authority and when you think about it the purpose of a sponsor of cause is to protect the beneficiary the beneficiaries ability to obtain started out speaks about the ability to liquidate there's no doubt that she could never have directed the trustee i want to liquidate the trust and take all the money she could you direct the trustee to pay for you think that's liquidation of the trust of the entire trust no reason that what the regulation talks about is the power to liquidate the asset and convert it to cash certainly if if if it could not be right but she couldn't ask to have it paid to someone who wasn't providing you know help the benefits to she couldn't she couldn't have said i want this paid to you know a dressmaker or whatever you saying she could have started to direct that and that's not  and that's i mean so even the poems recognizes that the reason why it's a resource is that the individual has a legal interest that is the entitlement that they can enforce the defining trust individual can direct is to trust principle for his or her support and maintenance under the terms of the trust the trust principle it is a resource for  principle but there's a trust standard which is sections fourteen and sixteen of the trust the trust standard is the trustees shell paid to my daughter and i'm skipping a few words so much of the income  point one zero one zero two which says that an individual is not required to undertake litigation to accomplish access to a resource the property is not a resource it which said that the palms rules are going to be applied unless they are for close by the plain language of the regulation and i don't think that these ponds provisions are in fact foreclosed and that in turn was based on this court's prior folks decision where the palms was only not followed because it was directly contrary to our country directory to a regulation that's simply not this  case there's been much discussion by the department of social services about how this is a support trust and cases from hillary on around the country again respectfully i don't think that is the the issue not treating them is the benefit here use research because it's otherwise seems to me that what you're asking us to do is create a blueprint where by very wealthy people could create trusts for beneficiaries that they could use well because what you have a situation where there's a balancing frankly of interest you've got obviously a large trust but the the direction of the trustee to look to her best interests well here's a woman who is in her mid fift has presumably a long life expectancy the trust was created twenty years before obviously her mother knew she was troubled wanted this to be available for her during her lifetime she ends up in a situation where she is in an extraordinarily expensive care facility sixty five thousand dollars a month in the course of time in just the time that this litigation has been pending if the state  able to prevail the entire trust would be depleted and this woman at that point would be totally destitute and so we think that that is not an appropriate public policy in that that there's been a balancing here that  had the exact same amount of money it's he's got in that trust is that trust corpus he would have to pay for her care and at this facility and as you say eventually run out of it what why is the fact that the family put it in frost it's sufficient to say you know what now for sixty five thousand dollars of care becomes the taxpayers rather than the trust part of it is respectfully your honor that the this is not her money and for better or worse the law is that other than spouses where there is a an obligation of support and a in most states  elective share claim if someone passes away parents have no obligation whatsoever to provide for their adult children and if they do so provide they  get to write the terms of it the analogy i would provide to your honor's is that there is a section in the social security act about what are called supplemental needs trusts under forty two u c section thirteen ninety six p d four and these are trusts which are created by the individual and the money is put into the trust and then on the individual's death there has to be a repayment to medicaid and there was a balancing that was created there is no such rule for supplemental needs trust created by parents parents will as part of their estate plan under their wills or under freestanding trusts as in as in this case use language that limits the ability of the medicaid program or the s s i program to count that money and indeed the trust under which the trust that the trust that it which these funds were decanted has that kind of language and  the department of social services in its brief as it is agreed that yes as a third party supplemental needs trust that money is protected so you know twenty years ago twenty five years o almost twenty five years ago when these trusts were created there wasn't frankly that understanding or there wasn't the understanding on the part of the attorney who did this down in florida but there certainly are these countervailing is a much more specific carving out to protect the ability of parents in your situation but i guess my point your honor was that the congress did was to write a special rule if it was your own money and it said you have to pay the money back at the end whatever is left in the trust has to be used to repay medicaid when the individual guys and they made no such requirement on trust created by third parties parents brothers sisters whomever so i think that was the public policy judgment that was made just make a further public policy judgment about how to  and there's any discretion to for the trustee to distribute money for your benefit whether or not the trustee exercises that discretion medicaid or i can count that trust is an available resource anyway but that explicitly only applied to a self settled trust because it was your own money and using your own money in a way that  allowed you to have the benefit of the money if you use yet you know to be able to shelter it from public benefits it was thought not to be an appropriate public policy but that has no application part of that this exception that said well even though the general rule is a self settled trust we're going to count there's an exception if it's one of these supplemental needs trusts with a payback provision and so i think that's the public policy cut that has been made here so i would also just point out that briefly that we don't really think this is a support trust without getting into all of this  frankly difficult and i find confusing and contradictory that because it this trust language also says the trustee supposed to look to the best interests of the of the beneficiary and we think that under this court's ewing versus rummel case that takes it out of the context of being a support trust and certainly i think in these facts with his mid fifty's woman with a sixty five thousand dollars a month bill that would deplete the trust in a year and a half you know if there are other things that could be provided for her the trustee could do that but that the record is silent and i frankly don't know how it's being used currently for her benefit it is not allowed to pay if there are other sources of payment available the council just explained that this is the reality of these trusts set up by third parties that they get to shelter the money in ways that you couldn't do if you were the person sitting up a trust for yourself or did you explain to us why you don't want to stay view it that way in this case your honor there was the predecessor trusts and the document of the predecessor trust was a transfer of us so we're not dealing here with someone just not making a transfer look but the this is a transfer  case not an excess asset case yes if they if they had simply set up a supplemental trust without constituting without doing a transfer a sort of a look back period they the high side probably forty cases in my brief your honor we're trusts that are not as strong as this most of them were all determined to be available assets because the individual direct or compel distributions is that up to make it a resource for s s i purposes are available to us and for medicaid purposes there is overwhelming authority on our side you  the palms manual statement on the effect of a spendthrift trust you speculate is is were is is foolish is what is full well foolish in the sense that it's contrary to  formulated this the standard respectfully skidmore which is perhaps even string court case even more controlling talks about the ability to persuade based on its thoroughness and thoughtfulness and where subtle