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We hope you had a happy holiday season and New Year. We are pleased to bring you the January issue of The Elder Law Update, a monthly e-newsletter full of the latest legal developments and other trends of vital interest to seniors and their advocates. Read on for articles about making a will uncontestable, the latest news about reverse mortgages and much more.
Recently attorney Ellen Morris had her voice heard at a Public Hearing before the Palm Beach County Legislative Delegation held at Florida Atlantic University in Boca Raton. She gave a broad overview of elder law issues on behalf of the Elder Law Section of the Florida Bar and the Association of Florida Elder Law Attorneys. Then Ms. Morris specifically discussed the importance of funding for the Diversion Program. She reminded the legislators that she is the leading resource for information concerning any legislation that may affect seniors or persons with disabilities and that she is always available to review pending legislation for its effectiveness. Kudos to Ms. Morris!
Attorney Howard S. Krooks, CELA, will co-present "State Implementation of the DRA: New York, New Jersey, and Florida" and "Advanced Medicaid Planning" at the American Law Institute/American Bar Association (ALI-ABA) Advanced Course of Study: Elder Law: What You Need to Know on January 17-18 in Coral Gables, Florida. This is the third year that Mr. Krooks will be an instructor at this nationally attended course. And for those who cannot attend in person, the course is offered live via the Internet through a video webcast.
Ms. Morris will present "Litigation and Administrative Advocacy" on January 24 at the Elder Law Certification Review Course offered by The Florida Bar Continuing Legal Education Committee and the Elder Law Section in Orlando, Florida.
As always, we welcome your comments and questions. You may send them to Info@ElderLawAssociates.com. |
| Preventing a Will Contest
 Emotions can run high at the death of a family member. If a family member is unhappy with the amount they received (or didn't receive) under a will, he or she may contest the will. Will contests can drag out for years, keeping all the heirs from getting what they are entitled to. It may be impossible to prevent relatives from fighting over your will entirely, but there are steps you can take to try to minimize squabbles and ensure your intentions are carried out.
Your will can be contested if a family member believes you did not have the requisite mental capacity to execute the will, someone exerted undue influence over you, someone committed fraud, or the will was not executed properly. (For more information on will contests, click here.)
The following are some steps that may make a will contest less likely to succeed:
- Make sure your will is properly executed. The best way to do this is to have an experienced elder law or estate planning attorney assist you in drafting and executing the will. Wills need to be signed and witnessed, usually by two independent witnesses.
- Explain your decision. If family members understand the reasoning behind the decisions in your will, they may be less likely to contest the will. It is a good idea to talk to family members at the time you draft the will and explain why someone is getting left out of the will or getting a reduced share. If you don't discuss it in person, state the reason in the will. You may also want to include a letter with the will.
- Use no-contest clause. One of the most effective ways of preventing a challenge to your will is to include a no-contest clause (or in terrorem clause) in the will. This will only work if you are willing to leave something of value to the potentially disgruntled family member. A no-contest clause provides that if an heir challenges the will and loses, then he or she will get nothing. You must leave the heir enough so that a challenge is not worth the risk of losing the inheritance.
- Prove competency. One common way of challenging a will is to argue the deceased family member was not mentally competent at the time he or she signed the will. You can try to avoid this by making sure the attorney drafting the will tests you for competency. This could involve seeing a doctor or answering a series of questions.
- Videotape the will signing.
A videotape of the will signing allows your family members and the court to see that you are freely signing the will and makes it more difficult to argue that you did not have the requisite mental capacity to agree to the will.
- Remove the appearance of undue influence. Another common method of challenging a will is to argue someone exerted undue influence over the deceased family member. For example, if you are planning on leaving everything to your daughter who is also your primary caregiver, your other children may argue your daughter took advantage of her position to influence you. To avoid the appearance of undue influence, do not involve any family members who are inheriting under your will in drafting your will. Family members should not be present when you discuss the will with your attorney or when you sign it. To be totally safe, family members shouldn't even drive you to the attorney.
For an article on how to use a will to disinherit a relative, click here. |
Report, Senate Hearing Highlight Successes, Problems with Reverse Mortgages
 On the 20th anniversary of the law establishing the reverse mortgage program, reverse mortgages are getting a closer look thanks to a Senate hearing and a new report by the AARP. The AARP's Public Policy Institute released a report on homeowners' attitudes and satisfaction with reverse mortgages. The report finds that while consumers' opinions of reverse mortgages are generally favorable, high costs are a big deterrent to purchasing a reverse mortgage. The AARP released the report at a Senate Special Committee on Aging hearing on the rapid growth of reverse mortgages.
The AARP surveyed homeowners who had taken out loans and homeowners who had decided against loans in addition to surveying the general public on their awareness of reverse mortgages. The report found that, in general, reverse mortgage borrowers have a favorable opinion of their loans. Ninety-three percent of borrowers said their reverse mortgages had a positive effect on their lives, and 58 percent of borrowers indicated that the loan had completely met their needs. According to the report, the biggest reason for not purchasing a reverse mortgage is the high cost.
The AARP report also highlighted a problem with some reverse mortgage companies, which is overly aggressive marketing. According to the report, lenders offered 9 percent of borrowers additional financial products, such as annuities and long-term care insurance, which may not be good investment choices given the high cost of the mortgages. In addition, the Senate panel also heard testimony from advocates for the elderly who warned that unscrupulous sales agents sometimes promote reverse mortgages in order to generate funding to purchase products like annuities, as well as testimony from family members of those harmed by reverse mortgage brokers.
The AARP report concludes with recommendations to make reverse mortgages a more mainstream option for homeowners, including recommendations for reducing costs, upgrading consumer counseling and information, and improving the marketing practices of lenders.
To read the report, click here.
For more information on reverse mortgages, click here
For an article about the Senate hearing, click here. | |
Feds Publish List of 54 Poorest-Performing Nursing Homes
 Federal officials have released a list of the 54 poorest-performing nursing homes in an effort to motivate the facilities to improve their care.
The federal Centers for Medicare & Medicaid Services (CMS) says release of the list was prompted by the number of facilities that were consistently providing poor quality of care, yet were periodically instituting enough improvement that they would pass one survey only to fail the next. Such facilities with an inconsistent compliance history rarely address underlying systemic problems that trigger repeated cycles of serious deficiencies.
All nursing homes on the list were designated as a "special focus facility," a designation CMS uses for nursing homes that are among the poorest five or 10 percent in each state and require inspections every six months. There were 128 such facilities out of about 16,000 active nursing homes in October 2007, according to CMS. The 54 listed nursing homes are the worst of these poorest performers. Nursing homes that receive federal funding are inspected about once per year by regulators who assess criteria such as whether a facility is administering proper medications to residents, helping residents with activities of daily living like bathing, and taking necessary steps to avoid accidents and infections.
"Nearly three million Americans, most of who are enrolled in Medicare or Medicaid, depend on the nation's 16,000 nursing homes at some point during each year to provide life-saving care," said CMS Acting Administrator Kerry Weems. "Release of this national list of special focus facilities reinforces CMS' commitment to provide beneficiaries and their families the information they need when making long-term care choices."
Typically, homes that get the special focus designation do show improvement. Federal data indicate that about half the special focus homes improve their quality of care significantly within 24 to 30 months.
Following release of the list, CMS has been criticized for failing to release the names of all 128 special focus facilities to the public, while giving the names to the nursing home industry. For an article by the Center for Medicare Advocacy on this controversy, click here.
For the list of the 54 poorest performing nursing homes, click here OR here.
For a Senior Journal article about the list, click here. |
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Book Review: You Can't Take It With You, So How Will You Leave it Behind?
 Steve Allen. You Can't Take It With You, So How Will You Leave it Behind? 2007. Legal Awareness Series, Inc. 264 Pages.
$27.95. Click on book to order.
In You Can't Take It With You, estate planning attorney Steve Allen advocates using a revocable living trust as the foundation of your estate plan. Extremely easy to read, with entertaining anecdotes, the book provides a strong case for not procrastinating in setting up an estate plan.
The book provides an overview of the probate process and the reasons to try to avoid probate. According to Allen, a revocable living trust can help you avoid probate, keep your estate private, paying lower taxes, and steer clear of problems with joint tenancy, among other things. He provides case studies of how to use a trust and gives advice on how to find the right attorney to help you set up the trust. But readers should be aware that the probate process and costs can vary dramatically from state to state, so probate avoidance is not necessarily beneficial in all situations. Feel free to consult Elder Law Associates PA to determine whether a revocable living trust is appropriate in your situation.
Allen also explains various methods for protecting assets from creditors or judgments, including a family limited partnership, asset protection trust, and a Medicaid annuity. In addition, he discusses protecting business assets, including special recommendations for doctors and other licensed professionals.
Each chapter concludes with action items and the final chapter is an action list to get you started. In addition, you can go to Allen's web site to download checklists and forms. |
Court Refuses to Help Man Get Back Oil Rights He Gave Away in Order to Defraud Medicaid
 A Mississippi a man who transferred oil interests on his property to his girlfriend in order to conceal them from Medicaid is not entitled to get the interests back, a state appeals court has ruled.
Following his father's death, Rickey Ellzey inherited some property. In 1994, Mr. Ellzey had a heart transplant and he qualified for Medicaid. While he was receiving Medicaid benefits, he learned that an oil well on the inherited property was beginning to produce and that he soon would be receiving royalty checks. Believing that these checks might "have a detrimental effect on his overall health" by affecting his Medicaid eligibility, Mr. Ellzey executed a deed giving his mineral interests in the property to his girlfriend, Sherry James, with the intent that she would return the interests back to him after 14 months.
Ms. James did sign a deed to return the mineral interests, but it was never recorded and the original of this document was lost. After the 14 months had passed, Ms. James refused to give the interests back to Mr. Ellzey, and he filed a complaint in court, asking for their return. The court noted that it could accept a copy of the deed but that it would not do so in this case because that would "help him recover what he lost by defrauding the State of Mississippi." Mr. Ellzey appealed.
The Mississippi Court of Appeals agrees with the lower court, holding that Mr. Ellzey is not entitled to have a court remedy a problem that he created by his own fraudulent act. According to the court, Mr. Ellzey could not use the court's "hands to draw equity from a source his own hands ha[d] polluted."
To download the full text of this decision, Ellzey v. James (Miss. Ct. App., No. 2006-CA-00758-COA, November 20, 2007). in PDF format, click here.
(If you do not have the free PDF reader installed on your computer, download it here.) |
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Elder Law Associates PA is a boutique elder law firm that practices exclusively in Medicaid and long term care planning including long term care insurance, Medicaid applications, home and community-based Medicaid waiver services, diversion program benefits, nursing home benefits, spousal refusal applications, and Medicaid fair hearings and appeals; nursing home and assisted living facility residents' rights litigation; asset preservation planning with a special focus on planning in light of the Deficit Reduction Act of 2005, including personal service agreements, the purchase of life estates, income producing real estate and spenddown planning; disability planning, including special needs trusts and guardianship; estate planning, including wills and trusts and advance directives; and probate, which encompasses estate and trust administration as well as specialized litigation.
We assist clients in planning for the possibility of disability, incapacity, home health care, assisted living and/or nursing home placement. Our firm enables clients to avoid impoverishment caused by the escalating cost of long term care, to maintain their right to make health care decisions and to avoid unnecessary medical treatment.
We hope you have enjoyed The Elder Law Update. If you have questions about something you read, elder law matters or issues concerning persons with disabilities, we would be delighted to hear from you. We serve as an elder law resource to many professionals and organizations and want to become your elder law resource as well. You can reach us at Info@ElderLawAssociates.com.
Warm regards,
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Ellen S. Morris, Esq. & Howard S. Krooks, Esq., CELA
Elder Law Associates PA
phone: (561) 750-3850 / (800) 353-3752
fax: (561) 750-4069
This publication is intended for general information purposes only. It is not intended to constitute individual legal advice to any specific client. |
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