Caregiving

Back to the Basics – Understanding Contested Estates

Published on: December 15, 2016 | by Ettinger Law Firm

Probate and Contested Estates

When an individual dies, their transfer of property through the legal system is known as probate. During this process, the court determines the validity of a legally formed will or a how property will be distributed if it has not been designated to be inherited by another named party. When an estate enters probate, all of the debts and taxes owed by the deceased on the property are paid, any remaining income, dividends, stocks or investments are sold and the property is distributed or transferred out to the heirs of the deceased. While the deceased individual can leave property or assets to any party they wish, there are certain situations that call into question the validity of the transfer. If one of these suspicious situations arises, a party may raise a contested issue with the distribution.

Examples of Contested Estate Issues

Sumner Redstone Sues Claiming Elder Abuse

Published on: December 13, 2016 | by Ettinger Law Firm

Sumner Redstone, the 93 year old media mogul who has infamously alienated both family and friends over the past few years while determining the terms of administration for his estate, added another dramatic chapter last month when he made claims of elder abuse against two of his former girlfriends. The billionaire business man has claimed that his two former girlfriends conspired to take advantage of his wealth and now owe him over $150 million dollars, given in gifts over a period of years.

Some of the gifts to the women included designer clothing and bags, access to any of Redstone’s credit cards, vehicles and real estate located throughout the world. In addition to the gifts given while alive, both women stood to inherit nearly $23 million dollars each, before Redstone altered the terms of his will when he evicted the women from his home. There were numerous tax implications that came with the gifts given by Redstone that left him in financial trouble.

Last year, Redstone’s mental competency was called into question when one of his girlfriends, Manuela Herzer, filed a lawsuit against Redstone following her eviction from his home. The former girlfriend then petitioned a court to regain decision making power of Redstone’s estate and to regain what he originally set aside for her in his will. Herzer made allegations of financial abuse by his family members, however, her case was thrown out after testimony by Redstone was released from a deposition hearing proving that Herzer maintaining decisionmaking power would not be in his best interest.

Dementia on the Decline and How it Impacts Elder Care

Published on: December 2, 2016 | by Ettinger Law Firm

A study released in late November in the JAMA Internal Medicine journal reported that dementia rates for individuals over the age of 65 years old is down almost 24% from rates found in 2000. There are a variety of reasons why this decline may have happened, including elders with higher education levels than those before them, as well as better heart and brain monitoring, and more awareness as to social and behavioral changes that elders have as a way to combat Alzheimer’s Disease.

This news comes as a welcome surprise, as in 2016, 5.4 million Americans lives with Alzheimer’s Disease, roughly translating to one in nine people over the age of 65 years old. By 2050, the elder population will have tripled in size, amounting to a staggering 84 million people over the age of 65 years old. With the aging population growing at such a rapid pace, medical, legal and social professionals are working to determine how to cope with such a large amount of the population potentially living with this disease.

These recent findings shed some light on how the disease, which generally exhibits symptoms of memory loss, confusion, limited social skills, mood changes and disorders as the result of irritability and anxiety, as well as confused speech and muscular movement.

Back to the Basics – The Gift Tax

Published on: November 28, 2016 | by Ettinger Law Firm

Putting your assets in an irrevocable trust has a number of benefits, including: allowing the settlor, also known as the maker of the trust, to establish how his or her assets will be kept and eventually distributed, it allows the settlor to have access to the income produced by the trust, as well as the numerous tax benefits such as capital gains taxes being either deferred or in the event of gifting, avoided.

According to the Internal Revenue Service, the federal tax code applies a gift tax on an individual level, however, that tax does not apply to trusts. If you transfer funds from your personal account, whether it is a savings or checking, to another, in excess of $14,000 you will be subject to a tax for the gift made, however, the IRS does not place these same taxes on trusts, depending on how the gift was made.

If the beneficiary makes a discretionary gift to another, a gift that can be shown to be made for the immediate benefit of another, it depends on whether the donation is viewed as present or future interest in the gift. If it can shown that the gift was made for the future interest of another, the IRS will not subject the trust to gift tax, however if it can be perceived that the gift was made for a temporary relief of another, the gift tax will be applied to the donation made.

Fiduciary Duties & The New Rule for Financial Advisors

Published on: November 22, 2016 | by Ettinger Law Firm

The New Rule

When consulting a financial advisor, we all assume that they would have our best interest in mind when determining where our portfolio should be invested and what investments best suit our interests, however, this has not always been the case. This year, the Labor Department issued new regulations that require industry professionals dealing with individual retirement accounts and 401k accounts to act on the best behalf of their clients.

Before this new standard was issued, financial advisors only needed to meet a suitability standard, meaning that the financial advisor only has to choose what is suitable for the portfolio, which is not always what is in the client’s best interest. A financial advisor under this standard could invest in a fund he found suitable, but may be more risky or expensive, although a similar option is available with a different fund. This suitability standard led to many advisors investing in funds they were personally interested in, sparking a need for change.

How to Properly Choose a Caregiver For your Loved One

Published on: November 5, 2016 | by Ettinger Law Firm

There comes a time when difficult conversations must be had with an elderly loved one in your life that requires a caregiver, but is not receptive to the idea. These conversations can initially be overwhelming for both the loved one and the elderly person, as they start to make a plan about how their lives will change, but as so many Americans continue to live longer with a number of chronic health problems, enlisting the help of a caregiver is a very realistic and responsible choice in order to ensure an elderly person is well taken care of. This also tends to be the best option for those families who are not geographically close enough to care for their loved one full time but see the need for change in the current situation.

In determining the needs of your loved one, continue the dialogue to assess what is most important to both of the parties, such as, full time versus part time care, what daily activities the individual partakes in and what kind of assistance is needed with those, if any, as well as whether overnight care or meal assistance is needed, among many other factors.

Once needs have been determined, it is important to build a pool of applicants to interview. Caregivers build a very personal and intimate relationship with those they care for, thus, it is critical that the individual not only approves of the caregiver, but shares something in common and can trust that person.

Trust Settlement & Disbursement after Beneficiary Death

Published on: November 2, 2016 | by Ettinger Law Firm

Upon the happening of an event described in a trust, whether it is a term being met, a beneficiary reaching a certain age, or the death of a certain party, the trustee must settle the trust, terminating it and distributing the assets out. While sometimes these terminating events can be easily foreseen and planned for accordingly, such as a beneficiary reaching age attainment, other events may be more sudden. These sudden events, such as an unforeseen death, can cause particular difficulty for those administering the trust as well as those seeking the trust continue to pay for certain expenses, including funeral costs.

When the event occurs, the trustee, in most states, must either file paperwork with the court or notify all the of the beneficiaries of the event, the trust’s consequential termination, and next steps for distribution. This release is required in order for the trust to distribute out and for the trustee’s duties to terminate. The trustee’s acknowledgement of the event insulates the trustee in the event that the estate or any of its beneficiaries attempt to bring legal action against the trustee.

What many beneficiaries of a trust do not realize is that upon the happening of the event, as of that day, the trust going forward can no longer allocate any assets to pay costs that may have formerly been taken care of by the trust, such as real estate taxes or various bills. The trust must act as if it is then frozen in time in order to preserve what will eventually be distributed out. While it can be inconvenient in terms of timing as well as financially, the trustee can no longer pay out or make distributions on behalf of the trust because it fails to exist and the will of the grantor is no longer known.

Arbitration and Nursing Home Contracts

Published on: October 12, 2016 | by Ettinger Law Firm

In continued efforts to protect the rights of elders, The Department of Health and Human Services has passed a rule to further ensure that elders are not taken advantage of and have the right to decide whether they seek a trial or alternative dispute resolution measures when bringing a legal claim. Currently, a majority of nursing home contracts contain arbitration clauses in the event that a residents bring a claim against the nursing home for incidents such as safety, quality of care, sexual harassment, elder abuse, as well as wrongful death.

Arbitration is a method of alternative dispute resolution that is used as a way to settle a legal claim instead of using litigation. Arbitration involves both parties and a third party neutral arbitrator, who listens to both sides present their case, similar to a judge, and renders a decision after both sides are heard. While arbitration can be a very useful and effective legal tool, the implementation of mandatory arbitration has left room for abuse of the system and injustice for residents and their families who seek legal recourse when bringing their claim. One benefit of arbitration is that it is also a private process; unlike legal proceedings, arbitration proceedings and their rulings will not be made public record, which makes it more difficult to measure rates concerning legal claims brought by elders against nursing homes.

Currently, there are roughly 1.5 million elders in nursing homes who are said to be affected as a result of this rule change, and this number will continue to grow. There may be some confusion regarding the applicability of this new rule however; the rule will only apply to new nursing home contracts that are entered into going forward. Those nursing home contracts already existing that contain a mandatory arbitration clause will be enforceable under the Federal Arbitration Act, according to the Center for Medicare & Medicaid Services. Additionally, a nursing home and potential resident can enter into a contract for arbitration if they wish, but it will not be mandatory in their contract.

The Emergency Preparedness Rule

Published on: September 29, 2016 | by Ettinger Law Firm

The Centers for Medicare and Medicaid Services finalized a rule recently in light of the most recent natural disasters in Louisiana that compromised the safety and well being of many Medicare and Medicaid beneficiaries throughout the affected area. Unfortunately, this rule came as a direct response not only to the devastating natural disasters we have experienced within the last decade, but the man made disasters as well, including terrorist attacks and health care scares. The rule was established in order to provider coordination for federal, estate, tribal, regional and local systems, that will now be required to comply with a unified system of emergency preparedness.

The need for additional support was realized when several patients who received treatment covered under Medicare or Medicaid were not able to obtain their care in light of the disaster, which furthered their need thereafter for additional care. Some of the organizations that provide care have complied with other emergency preparedness measures in order to receive accreditation, many residential mental health centers do not have a plan established, leaving a very vulnerable population without help in times of need.

In an effort to individualize emergency preparedness requirements, the new rules will apply to all 17 provider types, but will be different for each in order to receive certification. In order to comply with the rules, an annual training program will be implemented in order to ensure compliance and staff will be subject to drills and exercises to demonstrate their knowledge of the emergency rules.

End of Life Counseling and Medicare

Published on: September 25, 2016 | by Ettinger Law Firm

Medicare was established by the federal government as a way to provide health insurance for people 65 years old and above, as well as younger people with disabilities. This program provides coverage through a variety of different plans for different services, such as skilled nursing home care, hospice care, doctor visits, outpatient care, as well as prescription drug services. Depending on the plan covered under, Medicare will pay for a specific amount of counseling services, which now will also include end of life counseling services.

Roughly 25% of Medicare spending is done for beneficiaries in their last year of life, and with the largest number of older adults turning 65 years old a day in United States history, end of life planning is more important than ever. While many doctors consult their patients about their wishes as they near closer to the end of their life, Medicare now will cover end of life care and advance care planning. Supporters of the change think that this will now allow doctors and other medical professionals to spend the time necessary with the patient to make these advance plans and have important conversations, since they are able to also bill for that time.

Currently only 17% of adults say they have had end of life discussions with their doctor or health care provider, but majority said they would want to have one. As of January 1, 2016, the Center for Medicare and Medicaid Services regulations for advance care planning will be in effect and directly cover costs instead of partially reimbursing any planning discussed. It will be billed to Medicare at $85 for the first 30 minutes to meet regarding explanation of advance directives and standard forms, and $75 for every 30 minutes thereafter. Medicare is currently working to establish a national final fee schedule for the counseling, and expects the Medicare administrative contractors to assist with that process for claims.