Elder Law Issues
Retirement Plan Beneficiary Designation Controls Despite Will Provisions
DECEMBER 11, 2000 VOLUME 8, NUMBER 24 “Estate planning” means more than just preparing and signing a will. The families of Donald and Mary Perkins learned that even when a will is in place, there still may be problems. Mr. and Mrs. Perkins had both been married before. Each of them had three children from
Paternity Question Raised In Probate Thirty Years Later
DECEMBER 4, 2000 VOLUME 8, NUMBER 23 Frank Magrini died in 1965, and his estate was subjected to the probate process in his home state of Washington. The probate took almost ten years to complete, but everything passed to his wife before it was closed in 1974. Nearly a quarter century later three people claimed
Medicaid “Transfer” Is Incomplete Until Joint Owners Withdraw Funds
NOVEMBER 27, 2000 VOLUME 8, NUMBER 22 Dora Steinberg was 76 years old when her husband died. She decided that she should put her children’s names on her account. Right after her husband’s death in 1983 she opened a stock brokerage account with Dean Witter Reynolds with about $120,000. The account was titled in three
Medicare HMOs Continue To Cut Programs Across Country
NOVEMBER 20, 2000 VOLUME 8, NUMBER 21 Three short years ago Congress was pushing for increased use of “managed care” plans as one way to stave off a looming financial crisis for the federal Medicare program. Today the promise of managed care continues to be unmet—largely because of Congress’ own actions. The federal government picks
Unlike Arizona, Oregon Power of Attorney Effective for Gifts
NOVEMBER 13, 2000 VOLUME 8, NUMBER 20 Suzanne C. Pruitt died in 1994 from complications related to her Alzheimer’s disease. At the time of her death her estate was worth over $1.4 million. The IRS argued that it should have been $120,000 more than that, and that the estate should pay just under $50,000 more
Purchase At Tucson Estate Sale Generates $574,730 Profit
NOVEMBER 6, 2000 VOLUME 8, NUMBER 19 “Estate sales” are a popular American pastime. After the owner’s death or disability, personal effects may be offered for sale to the public, and bargain hunters love to poke through the merchandise. Some shoppers are hoping to find a perfect match for their own dishes, some are looking
Same-Sex Couples Can Face Higher Estate Tax Liability
OCTOBER 30, 2000 VOLUME 8, NUMBER 18 Gay and lesbian couples need to take special steps to make sure that their wishes are carried out at death. The law makes some assumptions about the intentions of married couples—that they usually intend to leave their property to one another, for example. There are also tax rules
Conservator Not Liable For Failure To Secure Medicaid Coverage
OCTOBER 23, 2000 VOLUME 8, NUMBER 17 J. Michael Cantore, Jr., was appointed as conservator of the person and estate for Diana Kosminer. Shortly after he took responsibility for Ms. Kosminer he arranged for her admission to the Jewish Home for the Elderly of Fairfield County, Inc., a Connecticut nursing home. Within a year of
The Elder Law Answer Book: A New Resource For Practitioners
OCTOBER 16, 2000 VOLUME 8, NUMBER 16 If you have questions about elder law subjects, you may be interested in a new offering from Panel Publishers. The just-released Elder Law Answer Book provides answers to many common elder law questions. The new book is written by Robert Fleming, partner in the Tucson law firm of
Arizona Community Property Is Not Always Subject To Probate
OCTOBER 9, 2000 VOLUME 8, NUMBER 15 Arizona is one of nine “community property” states in the country, and that can be the source of some confusion about estate planning, taxes and property ownership rights for married couples. Recent changes in Arizona’s law make the “community property” designation a little more friendly and understandable, and
Conservator’s Self-Dealing Set Aside Despite Court Approval
OCTOBER 2, 2000 VOLUME 8, NUMBER 14 If an individual becomes incapacitated someone must take responsibility for his or her business affairs. That may mean the appointment of a conservator (in some states, “guardian of the estate”) by the court. Sometimes the individual will have had the foresight to establish a trust, or at least
Only Preponderance Of Evidence Required To Disinherit Killer
SEPTEMBER 25, 2000 VOLUME 8, NUMBER 13 David Pickett died in Portsmouth, New Hampshire, in February, 1993. The cause of his death, as the New Hampshire Supreme Court later described it, was “the infliction of an incision wound to his neck by one or more unknown persons.” No one has been prosecuted for his murder,
“Inartfully Drafted” Will Leads To $500,000 Estate Tax Dispute
SEPTEMBER 18, 2000 VOLUME 8, NUMBER 12 Lawyers’ clients often complain about the language of the law—it seems unnecessarily strained and convoluted. Even as lawyers try to capture their meaning in more conversational tones, an occasional case will demonstrate the importance of precise language. Kenneth Starkey, whose will was written by his lawyer son, is
Florida Woman Chooses Own Lawyer In Guardianship Action
SEPTEMBER 11, 2000 VOLUME 8, NUMBER 11 When an individual becomes incapacitated, and is no longer able to handle their own finances or make medical or personal decisions, an interested person may file a petition with the local court for appointment of a guardian and/or conservator. In most states (including Arizona), the court will promptly
First Wife Receives Retirement Account As Required By Divorce
SEPTEMBER 4, 2000 VOLUME 8, NUMBER 10 Illinois residents James and Nancy Smithberg had been married for 33 years when they got divorced in 1996. Their divorce decree required James to name Nancy as beneficiary of his state retirement account death benefit, and Nancy in turn gave up her claims to other retirement accounts. The
Trust Under Jurisdiction Of One State Despite Ties To Another
AUGUST 28, 2000 VOLUME 8, NUMBER 9 With the growing popularity of living trusts and the mobility of the American public, the question often arises: which state court has jurisdiction over a trust dispute? Before trusts were common, disputes after the death of a property owner were handled in the courts of the state where
Long Term Care Industry Must Be Accountable, Says Advocate
AUGUST 21, 2000 VOLUME 8, NUMBER 8 By Patricia Nelson* I disagree with a recent Elder Law Issues assertion that higher reimbursement rates are automatically required to meet nursing home staffing needs (see More On DHHS/HCFA Report Of Nursing Home Staff Shortages). Before such conclusions can be made, I await Sen. Charles Grassley’s US Committee
“Common Law” Trust Provides No Shield Against Lawsuit
AUGUST 14, 2000 VOLUME 8, NUMBER 7 Nancy Bracken, an 82-year-old widow living in Tennessee, thought she had found an excellent investment for her life savings. Richard Earl, managing director of something called Financial Services Company, convinced her that she could make good money by helping to finance a treasure-hunting operation in Florida. Between July
More On DHHS/HCFA Report Of Nursing Home Staff Shortages
AUGUST 7, 2000 VOLUME 8, NUMBER 6 Last week Elder Law Issues reported on a government study of nursing home staffing and safety. This week we continue that report. The full DHHS/HCFA report is now online.] As described last week, the Department of Health and Human Services report recommends minimum staffing levels for nursing aides,
Government Reports Nursing Home Staffing Is Inadequate
JULY 31, 2000 VOLUME 8, NUMBER 5 In 1990 Congress became concerned about the quality of care in American nursing homes. The Department of Health and Human Services was directed to prepare a report on nursing homes by the beginning of 1992. Last week DHHS finally sent the first part of that report to Congress
Will Omission Does Not Entitle Estranged Son to Inheritance
JULY 24, 2000 VOLUME 8, NUMBER 4 The general public is frequently misinformed about wills and estate planning. One pervasive notion is that a will must leave some token amount to every child (or other relative) in order to disinherit that individual. While the most frequent formula is to leave $1.00 to each individual, one
Family Charges Physician With Neglect In Supervision Of Care
JULY 17, 2000 VOLUME 8, NUMBER 3 When a loved one is institutionalized, family members usually do not have the skills and information necessary to closely monitor the quality of care. They usually rely heavily on the advice of the patient’s physician to direct the course of treatment. In those cases where the physician becomes
Agency Mistake No Basis For Retroactive Medicaid Eligibility
JULY 10, 2000 VOLUME 8, NUMBER 2 The federal-state Medicaid program was designed to make sure poor Americans would receive necessary medical care. It now pays for about half of all nursing home costs. Tragically, the program is so complicated that it often requires expert legal assistance to ensure that benefits are received in accordance
Lawyer For Proposed Ward Must Advocate Client’s Wishes
JULY 3, 2000 VOLUME 8, NUMBER 1 At age 61 Sonny Lee is living at the College View Nursing Home in Frederick, Maryland. A little over two years ago Mr. Lee, a lifelong alcoholic, passed out in a public park, was hospitalized and ultimately placed in the nursing home. In recent months his condition has
Illegitimate Son Of Long-Dead Blues Singer Receives Royalties
JUNE 26, 2000 VOLUME 7, NUMBER 52 When Robert L. Johnson died in Mississippi in 1938, he was largely unknown. The 27-year-old had a musical gift, and he left a number of blues recordings. There did not appear to be any valuable property in his estate at the time, though, so no probate was initiated.
Indiana Nursing Home Patient Not Liable For CNA’s Injuries
JUNE 19, 2000 VOLUME 7, NUMBER 51 Carol Creasy worked as a certified nursing assistant at Brethren Healthcare Center in Flora, Indiana. She had worked at the facility for almost two years. Among the residents she helped care for was Lloyd Rusk, an Alzheimer’s patient with a tendency to be combative. Mr. Rusk was first
House Passes Estate Tax Repeal Bill, But Its Future Is Uncertain
JUNE 12, 2000 VOLUME 7, NUMBER 50 The big news in the elder law and estate planning field this week was the Friday passage (by the House of Representatives) of a bill to repeal the federal estate tax. The vote to repeal was lopsided, with a 279-136, with 65 Democrats joining the Republican majority. Does
Arizona’s “Orange Form” Permits Withholding Of CPR
JUNE 5, 2000 VOLUME 7, NUMBER 49 Living wills and health care powers of attorney may take care of most of the end-of-life medical decisions you (or a loved one) will face. But for many patients the final medical decisions must be made outside of the hospital setting. Rather than doctors and nurses, the treatment
Failure To Seek Lawyer’s Advice Can Be Foolish—And Expensive
MAY 29, 2000 VOLUME 7, NUMBER 48 People often try to solve their legal problems without the help of lawyers. Frequently they accomplish exactly what they want. Sometimes they complicate their own lives unnecessarily and expensively, when a little sound legal advice would have resolved the difficulty easily. Take, for example, the situation Montanan Boyd
Court Invalidates “Power of Appointment” In Home Deed
MAY 22, 2000 VOLUME 7, NUMBER 47 Lucille Lucareli had three sons: Les Lee, Leigh and Robert. She owned her home in Racine, Wisconsin, and not much else. In 1996 she gave her son Les Lee a durable financial power of attorney, and she also took some steps to plan for the possibility that she