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Elder Law Associates PA congratulates Howard S. Krooks on being selected for membership in the Council for Advanced Practitioners (CAP) of the National Academy of Elder Law Attorneys (NAELA). Members of CAP are recognized as:
· the innovators of the profession
· instrumental in leading the future of Elder Law
· a major source of speakers, writers, and leaders of NAELA programs
· NAELA's role models, providing a "vision" for less experienced members
· potential mentors for less experienced members
Please join us in congratulating both Ellen S. Morris and Howard S. Krooks for being selected for inclusion on the Florida Super Lawyers list for 2009. Only five percent of Florida attorneys have been named to the list. They were selected through an extensive process of peer nominations, blue ribbon panel review and independent research.
We provide The Elder Law Update to our clients and our colleagues who make up a wide range of service providers for seniors and people with disabilities to facilitate the dissemination of helpful and accurate information. We thank you for letting us share our knowledge with you. We continue to welcome your comments and questions. You may send them to Info@ElderLawAssociates.com.
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Florida Nonprofit Receives Congressional Support for Affordable Guardianship for Persons with Disabilities and Seniors
Special Needs Tax Credit Alliance Petitions for Tax Refund for Legal Expenses
Congressman Robert Wexler to Sponsor Legislation
 Karen Greenberg and Jaret Vogel, directors of Prosperity Life Planning, a special needs educational nonprofit organization, have created a new corporation called the Special Needs Tax Credit Alliance (SNTCA). The mission of SNTCA is to build national support for Congress to enable a $5,000 refundable tax credit, to reimburse parents of adults with disabilities and seniors with dementia for the legal expenses of guardianship for their loved ones, and/ or creation of a Special Needs Trust. The legal work for this mission was completed pro bono by the international law firm of Proskauer, Rose LLP. An IRS filing for 501(c)(4) status (Social Welfare Organization) is currently in progress. Donations will not be tax deductible for the donor but will be tax exempt for the companies' purpose.
The Special Needs Tax Credit Alliance will enlist the support of national parent, disability, senior and guardianship agencies, as well as attorneys and bar associations to support this tax credit proposal. SNTCA has completed final State of Florida registration to allow solicited donations be made to support their cause, and has applied to New York State for the same approval.
"Having met numerous parents in our counseling of special needs families, we've seen their great surprise to learn that when their child turns 18, the parents are no longer considered the legal guardian. They are further shocked to learn it may cost $5,000 to retain guardianship. Many families cannot afford this legal expense. The child is then left in a 'Catch-22' situation: they do not have the competence to speak for themselves in legal, health care and financial matters, yet the parents cannot afford the legal expense to retain guardianship. The Special Needs Tax Credit proposal addresses these issues, and provides a sensible and affordable method for these parents to protect their loved ones' interests."
Professional fees, court costs and filing fees bring the approximate cost for full guardianship to $5,000. A number of families may have two or more children with disabilities, thus further straining the family budget. Many of these families have had extraordinary expenses over the course of their child's life for therapies, equipment, specialized recreation, specialized diets, and other expenses, that "typical" children do not require.
A "refundable tax credit" is a dollar-for-dollar reduction in the amount of taxes due. To the extent taxes are paid by a parent, a receipt for legal services would allow a tax refund of their expenses. To the extent that the cost exceeds the amount of federal income tax paid, the government would provide the additional tax refund, much like the child tax credit currently employs.
Jaret Vogel, Director of SNTCA states "Since the time of our earliest colonists, Americans have sought to have a voice in their affairs. The Special Needs Tax Credit proposal will enable family members to speak for their loved ones who cannot speak for themselves, currently a disenfranchised population. We see this situation as a violation of the First and Fourteenth Amendments, which guarantee Freedom of Speech and equal treatment under the law. How can these people participate if the family cannot afford the extraordinary expenses of guardianship, expenses "typical" families are not burdened with?"
The Company is seeking to raise $500,000 for their 4-year program in support of this proposal. This article is not intended to be a solicitation for funds. However, unsolicited contributions from other states may be accepted. For more information, call Jaret Vogel at 561-865-2921, or email to info@specialneedstaxcredit.com. |
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Estate Taxes: What's a Taxpayer to Do?
 After almost a decade of changes in the federal estate tax code, and many states changing their tax structure in response to the federal changes, clarity appears to be on the horizon. Congress's recently passed budget resolution would make the current estate tax rules permanent, taxing only estates over $3.5 million in value with the tax rate set at 45 percent. Although no actual legislation has yet been voted on, the nonbinding budget resolution sets guidelines for Congress to follow when writing tax and spending legislation later this year. In light of this and other changes, taxpayers need to review their estate plans with the following issues in mind:
- Simplify if possible. The increase in the tax threshold from $600,000 at the beginning of the decade to $3.5 million today, coupled with the drop in most taxpayers' net worth over the past year, means that many people who had taxable estates no longer do. They may be able to significantly simplify more complicated estate plans that were necessary in the past to eliminate or decrease taxes due at death.
- But beware state tax laws. As a result of changes in the federal estate tax, many states that were tied to the federal system found that their estate tax revenue was dropping to zero. As a result, the states "decoupled" and established their own estate tax plans. Taxpayers need to learn what the law is in their state and whether their existing plan is up to date. This is especially true for taxpayers who have moved from one state to another since signing estate planning documents.
- Review life insurance. All consumers should have their life insurance policies reviewed if they have had them for more than a few years. Some universal life policies that were based on projections made when the economy was stronger may be "underwater" and may need more robust premium payments to sustain them over the long term. With other policies where the premiums were based on old tables measuring life expectancy, the consumer may be able to lower her premium payments or increase the death benefit. Finally, consumers should never simply drop policies they no longer need or can afford. They may be giving up a large benefit for their heirs and they may be able to sell the policy for a larger return than the policy's cash surrender value.
- Refocus estate planning. The threat of the estate tax had the beneficial effect of prompting consumers to do estate planning. But it also diverted them and their advisors from the real purpose of estate planning: to leave the legacy they want. The estate plan people leave can benefit children and grandchildren for decades to come, or it can cause familial strife that tears the family apart. The choice of executor and trustee and the terms under which heirs will receive property are vital issues that deserve full consideration.
For more on estate taxation, click here. |
Accounting for Gifts and Loans to Children in Your Estate
No parents want their children to fight among themselves after they are gone. Sadly, conflicts often arise, especially when a parent has gifted or loaned money to one child and not others. However, a few key words in your estate plan can minimize the potential for conflict.
If you give money to one child, the other siblings may claim that the child should receive a reduced share of your estate. Speaking at a recent meeting of the National Academy of Elder Law Attorneys, Tim O'Sullivan, an attorney from Wichita, Kansas, who has written and spoken extensively on the issue of family harmony, said he recommends that his clients make their intent clear in their estate planning documents. For example, the document could state that you are not making any adjustments based on gifts. This would make it clear to everyone that no one should receive a reduced share. Alternatively, you could specify the gifts that have been made and explain why one child is receiving a reduced share.
Loans are another problem. O'Sullivan says loans can be addressed in a number of ways, depending on your intent. Verbal loans are difficult to prove, so O'Sullivan recommends including a provision in your estate planning documents stating that all verbal loans are a gift. If you have any outstanding verbal loans that you don't want to be a gift, then make sure you put these in writing. If you want the loan to be an advance against inheritance, this can also be specified in your estate planning documents. To avoid a child claiming the loan was forgiven, you can require that the forgiveness be in writing.
The important thing is to make sure your estate planning documents clearly convey your intent. Be sure to consult your attorney to ensure your documents provide guidance you want regarding gifts and loans. |
Book Review: Long-Term Care at Home Consumer Guide
Walter Feldesman. Long-Term Care at Home Consumer Guide. Walter Feldesman, New York, NY. 2009. 393 pages. $23.66 print copy (or free as online download).
Click here to order a print copy.
Click here for free download.
The story of Walter Feldesman is as inspiring to the elderly as his books are helpful to them. After a 67-year career as a corporate attorney, Feldesman has devoted the last decade to developing consumer-friendly guides about elder care benefits and services, including the heralded Dictionary of Eldercare Terminology (2nd edition, 2000).
Now 91, Feldesman has just published his third book, the Long-Term Care at Home Consumer Guide. As with his previous volumes, the author is making the book available online so that families and professionals can download and search the entire contents free of charge.
In the guide, which strives to offer "one-stop shopping" for anyone needing to learn about caring for the elderly at home, Feldesman sets out to answer three crucial questions: What is home care? Where and how can it be obtained? and, What are the sources for paying for it?
The resulting answers fill nearly 400 pages and provide a readable roadmap to the maze of programs and rules that make up our patchwork home care system. All the information is easy to locate thanks to the book's question-and-answer and outline format, with key terms highlighted in bold type.
Readers will learn, for example, the advantages and disadvantages of obtaining care through a home care agency; how to qualify for Medicare-covered home care; the steps in Medicare's complex appeals process; Medicare Part D's rules; what Medigap plans offer; and how to use a home or a life insurance policy to pay for home care.
Notable for its absence is any discussion of veterans' home care benefits, although this would have added to the volume's girth. And, while Feldesman's writing is clear, readers who come to the book with little background might benefit from case examples to illustrate some of Medicaid and Medicare's more arcane rules.
But this is akin to looking a very strong gift horse in the mouth. A wealth of information is contained here and it's exceedingly easy for consumers and professionals alike to peruse it -- even in the print version, which has a useful topical index.
We understand that Feldesman, who recently won the National Council on Aging's first "Exemplars of Vital Aging" award, is currently working on an encyclopedia of eldercare that will combine all of his previous books -- and that will, of course, be available free online. We eagerly await it. |
Online Services Offer Estate Planning for Digital Assets
 Once upon a time, when life was less complicated, the key to a safe deposit box was all loved ones needed to unlock the secrets of a life recently ended. Today, many aspects of our lives -- both financial and personal -- are lived in places accessible only by password. We have e-mail addresses, Facebook and MySpace profiles, and accounts with PayPal, eBay, and online brokerages and banks. In addition, many people communicate regularly with people they know only through game or social networking sites.
When a person dies, access to these accounts and contacts can be lost or extremely difficult to retrieve. As a result, a small online industry has sprung up to help people pass on the digital keys to their online lives should they die or become disabled. Call it "digital estate planning" or creating a "virtual executor."
On a typical site, users sign up and pay an annual fee to upload everything from crucial online passwords to gym locker combinations into a private account. Upon the user's death or disability, the individuals they have designated to receive this private information are notified about how to open the account and access the information. These people may also receive final wishes and a farewell e-mail from the deceased. Some sites even allow users to store estate planning documents like wills and advance directives.
For example, AssetLock (formerly YouDeparted.com) offers a "secure safe deposit box" to hold such things as digital copies of important documents, final messages for family and friends, passwords, hidden accounts, and lock combinations. Once a minimum number (set by the owner) of recipients sign in and confirm the owner's death, the account is unlocked after a time delay (which also can be set by the owner). Similar services are offered by Deathswitch, LegacyLocker and Slightly Morbid
Other services focus on assisting people in sending important messages to loved ones. GreatGoodbye allows users to store e-mails, photos and videos that will be sent to those closest to them in the event of their confirmed death. Similar services are offered by EternityMessage and Last Post.
You can read more about these services in articles in USA Today, PCWorld and the Everyday Estate Planning Blog.
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Requiring Adult Children to Pay for Aging Parents
 Did you know you could be responsible for your parents' unpaid bills? Thirty states currently have laws making adult children responsible for their parents if their parents can't afford to take care of themselves. While these laws are rarely enforced, there has been speculation that states may begin dusting them off as a way to save on Medicaid expenses.
These laws, called filial responsibility laws, obligate adult children to provide necessities like food, clothing, housing, and medical attention for their indigent parents. According to the National Center for Policy Analysis, a conservative research organization, 21 states allow a civil court action to obtain financial support or cost recovery, 12 states impose criminal penalties on children who do not support their parents, and three states allow both civil and criminal actions. (For a list of the states and citations to state statutes, click here.)
Generally, most states do not require children to provide care if they do not have the ability to pay. States vary on what factors they consider when determining whether an adult child has the ability to pay. Children may also not be required to support their parents if the parents abandoned them or did not support them.
The passage of the Deficit Reduction Act of 2005 made it more difficult to qualify for Medicaid, which means there may be more elderly individuals in nursing homes with no ability to pay for care. In response, nursing homes may use the filial responsibility laws as a way to get care paid for. For more information, click here.
For a discussion of filial responsibility laws in the New York Times's "New Old Age" blog, click 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 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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