Elder Law Issues
Special Needs Trust Defective Because Arbitrary Rules Not Followed
JULY 22, 2013 VOLUME 20 NUMBER 27 We often find ourselves reassuring clients that the law makes sense. It may not be obvious or intuitive, but we can usually explain why some legal principle developed the way it did, and why it would be a bad thing if it were otherwise — even if that
Are You an Organ Donor? Are You Sure?
JULY 15, 2013 VOLUME 20 NUMBER 26 Do you have strong feelings about being an organ donor? It is a topic that too often goes undiscussed while preparing your estate plan. That’s one time to consider whether you want to be an organ donor — particularly if you have meant to address it but haven’t
Nursing Home Bills and “the Doctrine of Necessaries”
JULY 8, 2013 VOLUME 20 NUMBER 25 Under the English common law (inherited, to a greater or lesser degree, by all the states of the U.S.), a husband was obligated to support his wife and children. Because women could not legally enter into enforceable contracts, a person who provided goods or services to a woman
Powers of Appointment and Trust Reformation
JULY 1, 2013 VOLUME 20 NUMBER 24 Sometimes things just don’t work out the way you intend. That is hardly a novel observation, but it can have a big effect on the work you hire a lawyer to do for you. Let’s try an example. Suppose that you want to give some money to your
A Chilling Story of Fraud Targeting an Elderly Victim
JUNE 17, 2013 VOLUME 20 NUMBER 23 Last week a colleague told us a story that we think needs to be shared. Patricia Sitchler, a nationally-known San Antonio lawyer with the prominent Texas firm Schoenbaum, Curphy & Scanlan, P.C., described her client’s eye-opening experience with a fraudulent attempt to access her bank account. We asked
Privacy and Medical Records: A Few Words About HIPAA
JUNE 3, 2013 VOLUME 20 NUMBER 22 A delightful, intelligent and witty client of ours (nearly all our clients are delightful, intelligent and witty) visited her podiatrist’s office. Our client has always battled problems with her weight, so when an assistant insisted that she step onto an office scale she declined. I’m pretty sure, she
Estate Planning Issues For People With Pets
MAY 27, 2013 VOLUME 20 NUMBER 21 Does anyone else remember reading “Rhubarb,” a 1946 novel by H. Allen Smith? The basic story: an eccentric millionaire leaves his entire fortune to a stray cat (the eponymous Rhubarb). Among the assets in the cat’s inheritance is a baseball team (the fictional New York Loons). Hilarity ensues.
Trust Administration Dispute Ends Up Costly for Complainant
MAY 20, 2013 VOLUME 20 NUMBER 20 One of the reasons people create living trusts is to reduce the likelihood of disputes among family members. In fact, any well-written estate plan — whether it involves a living trust or not — should focus at least partly on that worthwhile goal. Most estates do get settled
Court Avoids Deciding Fate of Unnecessary Special Needs Trust
MAY 13, 2013 VOLUME 20 NUMBER 19 We read an interesting appellate court case this week involving an Indiana special needs trust. The court’s resolution of the case was actually not all that interesting — it was dismissed on technical grounds. But the story was an interesting one, and involved a problem that we see
Bypass Trusts, Disclaimer Trusts and Portability in Estate Planning
MAY 6, 2013 VOLUME 20 NUMBER 18 Last week we wrote about questions we often hear from our clients in the wake of big changes to the federal estate tax structure. Almost immediately we heard from a reader asking about portability and disclaimer trusts; our reader suggested we try to explain the two concepts and
Some Questions We’re Being Asked a Lot Lately
APRIL 29, 2013 VOLUME 20 NUMBER 17 You probably have read that Congress has made big changes to the estate tax system. More accurately, Congress has made “permanent” the big (but piecemeal and temporary) changes introduced over the past decade. We hear a lot of questions from our clients about what those changes mean. Here
Court Ruling on Special Needs Trust Does Not Resolve Medicaid Eligibility
APRIL 22, 2013 VOLUME 20 NUMBER 16 This week we bring you a story that is simultaneously simple yet profound. It involves an arcane corner of law — the intersection of trust administration and Medicaid eligibility. Its simplicity is obvious: it results in a court determination that Medicaid eligibility is determined by the state Medicaid
How To “Fund” Your Revocable Living Trust
APRIL 15, 2013 VOLUME 20 NUMBER 15 We keep bumping into versions of the same story: “Mom and dad created a revocable living trust. They wanted to avoid probate, and my sister lives in a group home because she is developmentally disabled. The trust named me as trustee, and my sister’s share goes into a
Upon Death of a Loved One, Some Things to Address
APRIL 8, 2013 VOLUME 20 NUMBER 14 More than three years ago we wrote about what you need to do when a family member dies. Our focus was on the immediate things that need to be dealt with: securing the house, taking care of pets, forwarding the mail. We thought we would get back to
Driving, Aging and Dealing With Family Dynamics
APRIL 1, 2013 VOLUME 20 NUMBER 13 Driving. It’s an issue for seniors. And their families. According to the Centers for Disease Control, drivers over age 75 are at particular risk for fatal accidents, and that risk continues to grow as those older drivers age. The CDC is candid: it’s hard to tell how much
Special Needs Trusts and the New Medicare Tax
MARCH 25, 2013 VOLUME 20 NUMBER 12 You may have heard about a potentially significant new tax liability for special needs trusts. With adoption of the Patient Protection and Affordable Care Act (what is often referred to as “Obamacare”) Congress created a new tax intended for high earners to contribute to Medicare. A fairly complicated
Long-Term Care Insurance: A 2013 Update
MARCH 16, 2013 VOLUME 20 NUMBER 11 A colleague recently asked if we knew why long-term care insurance premiums might be climbing significantly in the next month or so. We didn’t, but it got us thinking about how the industry has changed over the past few years. Is it still a good idea to purchase
New York Judge Takes Bank, Lawyer to Task Over Special Needs Trust
MARCH 9, 2013 VOLUME 20 NUMBER 10 We don’t very often focus on trial court decisions, and especially not in cases from outside Arizona. Trial judges are often very dedicated and bright, and their opinions may be eloquent and well-reasoned, but they do not establish precedent we can describe for our readers. Once in a
Can a Person with Dementia Sign Legal Documents? (Part 2)
MARCH 4, 2013 VOLUME 20 NUMBER 9 Last week we posed the question, and then mostly wrote about competence (or capacity) to sign a will. We promised to explain more about the level of competence required to sign other documents. So let us now tackle that concept. A person with a diagnosis of dementia may
Can a Person With Dementia Sign Legal Documents?
FEBRUARY 25, 2013 VOLUME 20 NUMBER 8 Let’s get the answer to the question out of the way first, and then we can deal with more nuance. Yes, a person with dementia may be able to sign legal documents. The inability to sign documents (what is usually known in the law as “incompetence” or, sometimes,
Book Review: “The Military Guide to Financial Independence and Retirement”
Review by Javier Centonzio, Esq., Alexandria, Virginia Book by: Doug Nordman As I read The Military Guide to Financial Independence and Retirement, I found myself regretting not having read it before joining the Marine Corps at the age of eighteen. This book is a must read for anyone who is considering joining the military. However,
“What Color is your Parachute? (For Retirement)”
Review by Jessica Fisher, Esq., Carlisle, Pennsylvania Book by: John E. Nelson and Richard N. Bolles This book begins with a history of retirement and then transitions into what the authors call the “New Retirement.” This concept of the New Retirement is very interesting because it is not only about finances it is about your
Book Review: “Can I Retire?”
Review by: Gerardo Olivarez, Jr., Esq., of Tampa, Florida Book by: Mike Piper I found this book to be one that I could easily give to a client. The author provided a basic background of retirement planning. The material is not overwhelming for the average reader. The subject of retirement planning focuses on retirement living
Put Your Accounts in Your Daughter’s Name — What Could Go Wrong?
FEBRUARY 18, 2013 VOLUME 20 NUMBER 7 Seniors are subjected to a constant drumbeat of advice: make sure you have no assets in your own name, or you will lose them to the nursing home. Transfer everything to your children to “protect” your assets. Is it good advice? We usually counsel against such transfers. They
Book Review: “How To Retire Happy”
Review by Gary Mansfield, JD, Aventura, Florida Book by Stan Hinden I was intrigued by this book for several reasons. First, it has actually been published in three prior editions, and as such I felt that it must have some worthwhile information. Secondly, the publisher of the same is The McGraw-Hill Companies, Inc. This publisher
Good News for Trustees, Beneficiaries of Special Needs Trusts
FEBRUARY 11, 2013 VOLUME 20 NUMBER 6 Last fall the Social Security Administration quietly released the text of changes to the Program Operations Manual System — the POMS. Though described as “clarifications” by Social Security, they were actually far-reaching changes that would have driven up the cost of trust administration, complicated the lives of beneficiaries
The Couple’s Retirement Puzzle: 10 Must-Have Conversations for Transition to the Second Half of Life
Review by Ann Mackey Kling, Las Vegas, Nevada Book by Roberta K. Taylor, RNCS, M.Ed., and Dorian Mintzer, M.S.W., Ph.D. This is a book about how to communicate with your partner regarding the important choices surrounding retirement to allow you both to make decisions that suit your needs, talents, resources and dreams. Its purpose is
Estate Planning Smarts: A Practical, User-Friendly, Action-Oriented Guide
Review by Pamela Zimba, Oakland, California Book by Deborah L. Jacobs Among the many reasons that I like this book, is that it’s a combination of estate planning (EP) information and retirement planning (RP) information. The Table of Contents, which contains the listing of the 19 Chapters in the book, provides a brief description of
Accounting Requirements for Irrevocable Trusts in Arizona
FEBRUARY 4, 2013 VOLUME 20 NUMBER 5 Arizona adopted a version of the Uniform Trust Code in 2008, to be effective at the beginning of 2009. The UTC has been the subject of much discussion across the country — it has been adopted in about half the states, and soundly rejected in a few others.
Divorce Case Includes Useful Pointers for Elder Law Attorneys
JANUARY 28, 2013 VOLUME 20 NUMBER 4 At Fleming & Curti, PLC, we don’t spend much time reading appellate decisions about divorce, property division and child support. That’s because we don’t practice family law, and there’s plenty to keep up with in our chosen realms of law. But a recent decision from the Arizona Court