I am "back-filling" my Friday post with an item that I found originally last week, but did not post, thinking it was not relevant to this blog. Instead, I had emailed it to Professor Gerry W. Beyer; and he had noted it on the Wills, Trusts & Estates Prof Blog, which he moderates, in a posting found online here.
However, over the weekend, I reconsidered the importance of this article for Pennsylvanians.
I quote part of Prof. Beyer's post; and then I'll add my further thoughts.
Battlefield Doctors and Living Wills
Should battlefield doctors know whether an injured soldier has executed a living will? That is the issue being debated at a symposium sponsored by the Army's Wounded Warrior Program.
The following excerpts are from Gregg Zoroya, Army explores issue of living wills as more return from war in comas:
With technology as good as it is, they can keep that soldier alive, but they can't put their hands on a digitized piece of paper" containing a do-not-resuscitate order, says Ed Salau, a former Army lieutenant who lost his left leg during combat in Iraq. * * *
Troops can fill out living wills instructing doctors to withhold care. Those at the symposium recommended that troops be better educated about the process and that the wills be accessible to doctors.
* * *
See also Gregg Zoroya, Families bear catastrophic war wounds, USA Today, Sept. 25, 2006, at 8A:
One recommendation from the symposium was for the military to more aggressively urge soldiers to fill out living wills containing directives about whether medical treatment should be withheld in the event of a dire brain injury.
The matter of "advance care directives" for service personnel is important to Pennsylvanians (and should be noted on this blog) -- because so many of our Commonwealth's citizens serve in the military. Whether full-time or part-time, many maintain a home and their residence in this Commonwealth. And many face a potentially imminent "end-of-life" decision situation due to their service.
For example, the Pennsylvania National Guard, which includes the Pennsylvania Air National Guard and the Pennsylvania Army National Guard, is the largest and (we PA people believe) the best Guard unit in the nation. Today it is tasked with more duties, for longer times of service, than any time in its history. It is supported by the Pennsylvania National Guard Associations, and also by certain state government initiatives, including those proposed by Governor Rendell in April, 2005, as described online here.
These service personnel must address the issue raised in the article. For more information, see "Living Wills: A Matter of Life or Death", by Elaine Wilson, Air Force Public Information Office, published on July 12, 2005, by the Family Military Network, and found online here.
Whatever the differences, Mr. Brasher said he recommends a living will based on where people live, whether a resident or not, to remove the “guess work.”
“It’s best to have one for the state you live in or (move) to so the local doctor has a document he’s familiar with,” he said.
However, since each state has its own format, the legal office [in Texas] includes a header that asks for the will to be recognized nationwide.
This article notes that military personnel are entitled to free preparation of a "living will": "Any military legal assistance office can prepare living wills free of charge to active-duty servicemembers, family members, retirees and reservists on active duty for 30 or more days."
Friday, September 29, 2006
I am "back-filling" my Friday post with an item that I found originally last week, but did not post, thinking it was not relevant to this blog. Instead, I had emailed it to Professor Gerry W. Beyer; and he had noted it on the Wills, Trusts & Estates Prof Blog, which he moderates, in a posting found online here.
Thursday, September 28, 2006
On May 11, 2005, by a unanimous vote (196-0), the Pennsylvania House of Representatives adopted House Resolution 131 (Printer's No. 1861), found online here.
The Resolution was sponsored primarily by Rep. Glen Grell, joined by 33 other co-sponsors in the House. It is summarized as follows:
A Resolution directing the Joint State Government Commission to review current guardianship statutes and programs and make findings and recommendations on the effectiveness of these statutes and programs in meeting the needs of vulnerable incapacitated persons.The Resolution's Legislative History is found online here.
The full text of the Resolution is as follows:
WHEREAS, Pennsylvania's guardianship law has not changed in more than a decade; andThe Joint State Government Commission noted in its staff report list (found online here) that a responsive report was originally anticipated to be produced by November, 2005. However, formal appointments to the study group did not occur until January, 2006.
WHEREAS, Pennsylvania has a growing population of persons requiring long-term care services; and
WHEREAS, Long-term care facilities in this Commonwealth are increasingly faced with providing care for individuals who lack the capacity to make decisions about their financial and personal affairs and who do not have anyone willing and able to make personal and health care decisions for them;
Therefore be it RESOLVED, That the House of Representatives direct the Joint State Government Commission to review the current guardianship statutes and programs in this Commonwealth and their effectiveness in meeting current demand for guardianships; and
Be it further RESOLVED, That the Joint State Government Commission include in its review specific findings and recommendations relating to the ability of current programs and services to respond to the growing incidence of incapacitated long-term care residents in need of guardianship services; and
Be it further RESOLVED, That the Joint State Government Commission report to the Aging and Older Adult Services Committee and Judiciary Committee of the House of Representatives with the results of their findings and recommendations within six months of the adoption of this resolution.
The Guardianship Study Committee membership, as appointed, is broad-based as to viewpoints, organizations, & expertise. I am priviledged to be a member, representing practicing attorneys.
This Ad Hoc House Guardianship Study Group first met on January 26, 2006. It has met numerous times since then, most recently today, September 28, 2006.
The Group has reviewed various national & Commonwealth studies or proposals occurring in the fourteen years since the current Pennsylvania Guardianship statute, Chapter 55 ("Incapacitated Persons"), of the PA Probate, Estates & Fiduciaries Code, was enacted (and while it has remained unchanged). An unofficial version of PEF Code Chapter 55 can be accessed online here. For examples of such documents, see:
- Report of the Subcommittee on Guardianships and Powers of Attorney of the Task Force and Advisory Committee on Decedents' Estates Laws, May 1996, found online here.
- Wards of the State: A National Study of Public Guardianship, found online here.
- 2001 House Bill 1647, Printer’s No. 2014 (not enacted), found online here.
Now, the Guardianship Study Group is asking for input on points of change -- first, in the nature of procedural "tweaking" to the Guardianship statute intended to improve the current conduct & administration of guardianships ,and to align it with more recent fiduciary laws adopted, such as the Uniform Trust Act referenced in a posting found here; and, second, in the nature of improved support for guardians.
By mid-November, the Study Group will reconvene and examine suggestions.
The private bar -- elder law, trusts & estates, and probate lawyers -- are invited to offer concrete suggestions in anticipation of this meeting.
Any suggestions may be forwarded either to Sally Shoffstall, Esq. (firstname.lastname@example.org), of Orefield, PA, or to me (email@example.com), for presentation to the Guardian Study Group at its next meeting.
Wednesday, September 27, 2006
In an earlier posting, I referenced the new "Elder Abuse Unit" of the PA Attorney General's Office, created by Tom Corbett:
"Sadly, Pennsylvania seniors often suffer at the hands of those entrusted with their care," Corbett said. "The sole mission of the Elder Abuse Unit is to investigate and prosecute all forms of abuse of the elderly and fight the exploitation of our seniors."
That Unit is active, as evidenced by a press release, entitled "Attorney General Corbett announces criminal charges against McKean County woman accused of stealing from her elderly mother", issued on September 25, 2006, which is found online here. A related video is found online here.
Attorney General Tom Corbett today announced that agents from the Attorney General's Elder Abuse Unit have filed criminal charges against a McKean County woman accused of stealing in excess of $100,000 from her 73-year old mother.
Corbett said that Grace Damon was appointed to act in the best interests of her elderly mother, Maria Telese, under the terms of an August 1999 power of attorney. Damon is accused of systematically withdrawing or transferring funds from her mother's bank accounts for her own benefit. Damon is also accused of emptying a trust account that had been created for her young daughter.
"This is a case of greed overpowering family loyalty," Corbett said. "Rather than helping to take care of her widowed mother, Grace Damon took care of herself - taking advantage of her mother's faith and trust and looting her mother's assets."
In Maria's situation, it is alleged that there should have been sufficient assets saved during her marriage for her care once she became a widow. But then her own family member is alleged to have interfered:
The criminal charges state that despite the substantial financial assets that had been set aside for Maria, by the fall of 2004 her bank accounts were nearly empty and she was left with insufficient money to purchase groceries or pay overdue utility bills.
Corbett said that according to the criminal complaint, a review of financial records indicated that Grace Damon had systematically used her mother's money and assets for her own personal gain, transferring thousands of dollars from her mother's accounts to her own personal bank accounts.
Corbett noted that the terms of the power of attorney required that Damon keep Maria's funds separate from her own and to maintain accurate records documenting the proper use of those funds.
Instead, the criminal charges state that Damon failed to document thousands of dollars in withdrawals and payments from her mother's accounts and regularly combined money from accounts that were supposed to remain separate, allegedly in an effort to make it difficult to track the spending of these funds.
The press release describes the alleged misappropriation or misapplication by her daughter of Maria's assets -- a trust account for her granddaughter, which was liquidated; her personal bank accounts, which were transferred; her two cars, which were retitled; and her home, which was mortgaged.
If these allegations prove true, Maria's daughter faces severe criminal penalties, highlighted below:
Corbett said that Damon is charged with one count of identity theft, a first-degree felony punishable by up to 20 years in prison and a $25,000 fine, along with two counts of forgery, both second-degree felonies each punishable by up to ten years in prison and a $15,000 fine.
Damon is also charged with one count each of theft by unlawful taking, access device fraud, theft by deception and theft by failure to make required disposition of funds. Those counts are third degree felonies punishable by up to seven years in prison and a fine of $15,000.
Additionally, Damon is charged with a first-degree misdemeanor count of theft by unlawful taking, punishable by up to five years is prison and a $10,000 fine, along with second-degree misdemeanor counts of misapplication of entrusted property and securing execution of documents by deception, each punishable by up to two years in prison and a $5,000.
Is such alleged conduct unusual within a family relationship? It is not, according to a recent Wall Street Journal article published August 30, 2006, entitled "Getting Going: Retirees Should Be Wary of Family Betrayal".
The article notes that:
Financial swindles are one of the fastest-growing forms of elder abuse. By some estimates, as many as five million senior citizens are victimized each year, says Sara Aravanis, director of the nonprofit National Center on Elder Abuse, which provides information to federal and state policy makers. * * *
Yet it's not dodgy financial experts or crooked caregivers who are the biggest threat. It's family. Children, siblings, grandchildren, nieces and nephews, and even spouses are the people most likely to rob the elderly, according to elder-law advocates and attorneys. The data that exist -- albeit in a spotty manner -- suggest that financial crimes rank as the third-most prevalent abuse of the elderly.
The article outlines the types of financial elder abuse, its tell-tale signs, and the best means of self-protection. One of the best defenses is a reliable legal counselor, notes the article:
Establish a relationship with a local elder-law attorney (you can find one through the National Elder Law Foundation, www.nelf.org). These lawyers can help set up legal safeguards. More important: They can read between the lines if you show up with someone else in tow looking to change your will or power-of-attorney.
A complete version of the article, as republished by the Pittsburgh Post-Gazette, can be found online here.
The AG's Elder Abuse Unit seeks to remedy financial elder abuse; a good elder law attorney seeks to prevent it.
"Prevention is better than cure."
-- Desiderius Erasmus, Dutch Humanist (c.1466-1536)
Tuesday, September 26, 2006
On September 21, 2006, United Press International carried a report that national Republican lawmakers have turned their focus towards domestic security bills, and away from further repeal/reform proposals for the federal estate tax:
WASHINGTON, Sept. 21 (UPI) -- Republican Party leaders have scaled back their domestic agenda for the fall, shifting focus instead to U.S. Homeland Security issues.This report is confirmed in a posting from a contributor to the TPM Cafe Blog, and cross-referenced here on the website of OMB Watch, posted on September 22, 2006, by Dana Chasin, who is a Senior Advisor in its Federal Fiscal Policy group.
The Wall Street Journal reported the party has abandoned plans to push for further cuts to the federal estate tax and other domestic issues in favor of focusing on reaching a consensus on details of the Pentagon and Homeland Security budget bills.
His post, entitled, O-for-Trifecta: Don't Extend Yourself, Dr. Frist, states:
Last Friday, the four GOP Senators tapped by Senate Majority Leader Bill Frist to find enough sweeteners to get the Democratic votes needed to pass the three-part package (H.R .5970) known as the “trifecta” – a set of popular tax credit extensions, a permanent reduction in the estate tax and an increase in the minimum wage – were due to offer Frist a legislative recommendation. H.R. 5970 fell three votes short in the Senate on a cloture motion in early August.The posting is long, detailed, and energetic in its viewpoint, but well worth reading.
But no such recommendation issued from them and all acknowledge that the trifecta package is dead, at least until after the Nov. 7 midterm elections.
Based on these reports, we must wait until after the November elections to hear more on the topic of federal estate tax repeal/reform. The results of the elections will affect what we hear.
Monday, September 25, 2006
The Pittsburgh Post-Gazette reported, in an article by Milan Simonich published last Tuesday, September 19, 2006, about an application of Pennsylvania's "Slayer's Act" in a case alleging murder by a spouse.
The Slayer's Act provisions of the Pennsylvania Probate, Estates & Fiduciaries Code, Chapter 88, found online here, mandate that: "No slayer shall in any way acquire any property or receive any benefit as the result of the death of the decedent. . . ." These provisions carry out a policy of the Commonwealth "that no person shall be allowed to profit by his own wrong, wherever committed."
Pennsylvania is one of many states that codified and clarified the common law "Slayer's Rule" developed by courts. Wikopedia, the free online encyclopedia, generally describes the common law "Slayer's Rule" doctrine in the United States as follows:
[It prohibits] inheritance by a person who murders someone from whom they stand to inherit. The effect of the slaying was that the slayer would be treated as though they had died before the person who had been murdered. The wrongful killing need only be proved by a preponderance of the evidence. If the slayer were later convicted of the murder, that would conclusively divest them of their interest; but if the slayer were acquitted of the murder, the court could still weigh the evidence and determine that they should be divested.In the reported case, access to marital assets by a slain urologist's wife is blocked during the criminal prosecution of the murder case against her in Mercer County, PA.
Donna Moonda, charged with hiring a gunman to murder her husband, has been blocked from obtaining almost $1.8 million in joint marital assets.By its provisions, Pennsylvania's Slayer's Act is applied broadly, and covers all types of property interests -- descent rights & testamentary bequests; survivorship property, reversions & remainders, powers of appointment, and insurance proceeds.
Estate lawyers for the late Dr. Gulam Moonda used a Pennsylvania law called the Slayer's Act to stop her from accessing money from six brokerage accounts the couple held together.
"Had she made a move for that money, we would have gotten an injunction or stay to prevent it," said Pittsburgh attorney John Quinn, who was hired by executors of Dr. Moonda's will to invoke the Slayer's Act. The law prohibits a person from profiting from the unlawful taking of another's life.
Mrs. Moonda, 47, is accused of arranging her 69-year-old husband's death so she could collect millions in inheritance, life insurance proceeds, real estate holdings and investment accounts. A premarital contract would have limited her to a $250,000 settlement had she filed for divorce.
Damian Bradford, 25, who was having an affair with Mrs. Moonda, has admitted he killed the doctor with a bullet to the face after tailing him on the Ohio Turnpike the evening of May 13, 2005.
Mr. Bradford said he acted at the behest of Mrs. Moonda, who promised him half the money she expected to collect from her husband's death. He said he thought he would receive a seven-figure payday for killing the doctor, a urologist who practiced in Mercer County for 35 years. * * *
Through her lawyers, Mrs. Moonda says she is innocent and looks forward to her day in court.
In this case, the article further reported the breadth of affected assets and interests:
Dr. Moonda's inheritance tax return showed assets of about $3.5 million. Of that, the couple had $1.79 million in joint investment accounts.The article concludes with the possible outcomes:
The largest of the accounts was worth $630,000 at the time of Dr. Moonda's death. Two others were worth about $400,000 each. The others were for $224,000, $110,000 and $26,000.
Donna Moonda could have tried to claim the money but decided not to. "She knew if she did, we would have stopped her," Mr. Quinn said.
Dr. Moonda's tax return shows that he left another $1.2 million in real estate holdings. * * *
He had corporate ownership holdings of $239,000, and the couple had other joint property holdings of $205,000. Another $37,000 of his assets were in cash and miscellaneous personal property.
On top of this, he left $667,000 in life insurance proceeds. The insurance is not mentioned in the tax return. Because of the murder charge against Mrs. Moonda, she has not collected on the policies.
If Mrs. Moonda is convicted of murder for hire or accessory charges, the Slayer's Act would preclude her from receiving all but a small fraction of the joint holdings or what was willed to her, Mr. Quinn said. The bulk of the money would be returned to the estate for redistribution to the heirs.The full article can be found online here.
If she is acquitted, she would not necessarily receive the money, either, Mr. Quinn said. A civil lawsuit still could be brought under the Slayer's Act to try to stop her from collecting.
See the article "Moonda Widow Wants 3rd Lawyer -- Suspect Faces Death Penalty for Ohio Turnpike Murder", published Tuesday, October 17, 2006 , by Milan Simonich, in the Pittsburgh Post Gazette, found online here:
AKRON, Ohio -- Murder suspect Donna Moonda yesterday asked a judge to provide her with a third lawyer paid for by the public. Because Mrs. Moonda could be put to death if she is convicted of arranging her husband's shooting death on the Ohio Turnpike, she already is assured of receiving two lawyers at taxpayer expense. U.S. District Judge David Dowd said he would rule soon on her request, weighing whether a third defense attorney is necessary for her to get a fair trial. Federal prosecutors called her request excessive.Update: 12/09/06:
For an update on the criminal proceeding on the charges against Donna Moonda, see the article Donna Moonda to stand trial in June in husband's killing, published by the Pittsburgh Post Gazette, on December 9, 2006.
For a discussion about problems in the dispostion of life insurance proceeds in this case, see the article "What Will Happen To Dr. Gulam Moonda's Money? --Northwestern Mutual Wants Out Of Controversy", posted on December 21, 2006, by WPXI Channel 11 TV (Pittsburgh, PA), which introduces the controversy as follows:
Prosecutors believe Dr. Gulam Moonda's wife planned his murder so she and her lover could get his money.But who will end up with it if she is convicted in the case? * * *Update: 02/18/07:
Prosecutors said Donna Moonda wanted her husband dead so she could collect on his multimillion-dollar estate and life insurance policies.
Even though she is the beneficiary of those policies, the insurance company hasn't paid out. Now it wants to wash its hands of the whole thing.
The case progresses. See: "Firm asks court to take control of Moonda estate", by Milan Simonic, published February 17, 2007, in the Pittsburgh Post-Gazette.
The investment firm Merrill Lynch wants a federal court based in Pittsburgh to take control of more than $2 million that the late Dr. Gulam Moonda held in five accounts.
One of the accounts was jointly owned by Dr. Moonda and his wife, Donna, who is charged with his murder.
The other four were individual retirement accounts for which Dr. Moonda listed no beneficiary.
Merrill Lynch, in a civil lawsuit filed yesterday, said it "seeks guidance" from U.S. District Court as to what should be done with the money.
Mrs. Moonda, at least for now, cannot claim any of it. A Pennsylvania law known as the Slayer's Act prevents a person charged with murder from profiting from the crime. * * *
Sunday, September 24, 2006
Do not trust all men, but trust men of worth; the former course is silly, the latter a mark of prudence. -- Democritus, Greek philosopher (460 BC - 370 BC)In a Harris Poll, dated August 8, 2006, the polling organization asked: "Would you generally trust each of the following types of people to tell the truth, or not?" The Harris Poll® (No. 61) was conducted by telephone between July 7 & 10, 2006, by Harris Interactive® among a nationwide sample of 1,002 U.S. adults. The respondents were asked about 10-11 occupations each, on a rotating basis.
Love all, trust a few. Do wrong to none. -- William Shakespeare (1564 - 1616), "All's Well That Ends Well", Act 1 Scene 1
Sometimes I think we're the only two lawyers in Washington who trust each other. -- Elizabeth Dole, U.S. lawyer & government official (b. 1936), as quoted in Newsweek magazine, p. 13 (August 3, 1987, speaking of her husband, Senator Robert Dole, who was also a lawyer).
The results were noted in September, 2006, by LexisOne, in its online offering "Balancing Life & Practice" found online here.
The results are not flattering to lawyers.
Among the twenty-two subject occupations and professions, the most trusted are . . . doctors and teachers.
Who are the least trusted? Actors and lawyers are at bottom. We only beat them by just one percent. Stockbrokers and pollsters also faired poorly, but better than lawyers.
Twelve of the twenty-two professions measured by The Harris Poll® are trusted to be truthful by 60 percent or more of U.S. adults, with doctors (85%) and teachers (83%) topping the list. * * *These are the actual results regarding judges and lawyers:
[T]hose rounding out the top five of generally trusted occupations and professions are scientists (77%), police officers (76%) and professors (75%).
Conversely, the five occupations that are least trusted to be truthful include actors (26%), lawyers (27%), stockbrokers (29%), trade union leaders (30%) and opinion pollsters (34%).
Judges —> 70% = Would Trust; 24% = Would Not Trust; 5% = Not Sure/No Answer.As to lawyers, the only good news is a slight increase since the last poll results (in 2002) in the percentage of U.S. adults who trust that we tell the truth. But that increase is only 3% to the positive. Judges did better -- up 5%. Stockbrokers and bankers did even better -- up 6% and 11%, respectively. But all of those professions were bested by the accountants' improvement (up 13%).
Lawyers —> 27% = Would Trust; 68% = Would Not Trust; 5% = Not Sure/No Answer.
The ordinary man or woman carries an approval rating of 66%.
Why are lawyers not trusted as much as others? And why are lawyers, who become judges, raised to a trust level of 70% instead?
I suspect that it is because of built-in characteristics of our profession that require zealous advocacy and confidential representation of client interests.
I would be interested in the result of a further poll that would ask this question instead: "Would you generally trust each of the following lawyers in particular practice areas to tell the truth, or not?" I would hope that trust & estate lawyers would -- at least within our lawyer bracket -- rise to the top.
The poll report acknowledges that professional pollsters are upset by the results reflecting on them:
Even though many polls (at least in national elections) generally do an accurate job, a 54 to 34 percent majority of the U.S. adult public does not believe that pollsters generally tell the truth.Lawyers should be upset too. This should be seen by us, too, as a "wake-up call" for more public education about our work, and for more emphasis on teaching, practicing, and preaching trustworthiness.
Obviously, the results are disturbing to those of us in the public opinion polling profession. This should be seen as a wake-up call to the pollsters that we must do more to educate the public about surveys and work more to earn the public’s trust.
The complete survey report, with comparision charts and rankings, can be found online here.
Saturday, September 23, 2006
On the Online Blog dedicated to Lawyers & Law Firms hosted by the Wall Street Journal, a refreshing narrative was posted on September 22, 2006, entitled "Pressing the Flesh in Philadelphia".
It is the fourth installment of that Online Journal's "Diary of a Law-Job Seeker", by Christopher Slowik, a 37-year-old Brooklyn Law graduate who is looking for his first law job. You can read the first three installments here, here, and here.
In his latest dispatch, Chris related how he altered his approach from applying to jobs via email and fax, and tried giving "networking at an industry conference a shot".
Resumes were handed out, business cards were collected, promises were made to stay in touch down the road. I left the conference with a clutch of new leads, but more importantly, with a real sense of excitement and a vision of the future. Getting out and meeting people had recharged my batteries, just as I thought it might.
Why am I so impressed by his enthusiastic reaction?
Because Chris Slowik was hanging out at a legal conference in Philadelphia with Trust & Estates Lawyers!
I decided to go where the potential employers were. The trusts and estates section of the state bar association sent me a flyer advertising its fall meeting. T&E is on the short list of practice areas I want to pursue. So I ponied up the $300 registration fee and headed off to the meeting in Philadelphia.
Of course, I wanted to meet people who might hire me. I also wanted to get a better feel for the practice: Were veteran attorneys happy to be working in this field? Did they see it as a good area for a new attorney? What would they say to someone just starting out? I was eager to get the straight dope. * * *
On the bus to dinner, I chatted with a solo practitioner who described his practice as an intriguing mix of estate planning, elder law and litigation. During the cocktail hour, I chatted with partners and associates from firms throughout the state. One attorney told me about the steps she was taking to safeguard the affairs of an institutionalized client who had no family or friends, and it was clear that her genuine concern for this man was far more than simply a matter of professional duty.
At dinner, I sat with lawyers who were working at firms, for trust companies, and even for software vendors. I listened and asked questions. Everyone with whom I spoke was pleased to share his or her thoughts with a rookie. People spoke freely and without restraint. Almost without exception, I was moved by the obvious depth of feeling that these attorneys had for their work. It was clear to me that they loved what they did, and it was becoming increasingly clear to me that I would love it too.
My experience for thirty years in this field of law parallels that of Chris during his short exposure to T&E lawyers at the seminar.
We practice in an "intriguing field", invest "genuine concern" in our cases and towards our clients, and routinely go beyond our "professional duty." Trust & estate lawyers do possess a "depth of feeling" that issues from the "love" we feel for what we do.
You are welcome to come into the clubhouse, Chris.
Friday, September 22, 2006
On September 19, 2006, the Bucks County Courier Times (a Calkins Newspaper) published, and the Philly Burbs website made available online, an article by Crissa Shoemaker Debree entitled "Helping Senior Avoid Scams".
She reported the appearance and remarks of Pennsylvania Attorney General Tom Corbett at a seminar attended on Tuesday by fifty senior citizens at a hotel in Lower Southampton, Bucks County, Pennsylvania, on the topic of financial scams targeted at senior citizens.
The article reported the PA AG's essential message to the audience: Senior citizens are frequent targets of financial scams. Therefore senior citizens must protect themselves and their assets.
"They target older people,” Corbett said. “Why? You’re a little more trusting. Forty years ago, you probably left your keys in the car. You’ve got to start being a little suspect.” * * *
One Cambria County senior lost $65,000 to a common scam, Corbett said. A caller told her she had won the Canadian lottery and needed to send a check to cover international taxes, the AG said.
“They keep calling her,” he said. “We keep telling her, ‘Don’t do this.’ ” * * *
Corbett also advised seniors not to hire anyone who doesn’t have a physical business address or a business phone number.
“If they have an 800 number and no address, how are we going to track them down?” Corbett asked.
The newspaper reported that two other experts -- a local elder law attorney, and the president of a financial services company sponsoring the series of seminars -- also spoke to the audience about legal documentation and financial planning.
I believe that this seminar represents the sort of informative, cross-professional, and trustworthy presentations that seniors should attend.
On the other hand, I believe that seniors should avoid seminars with a "scare tactic" approach, a blatant marketing motive, or a "one-size fits all" solution for the attendees. Such seminars could be more a part of the problem than the solution.
The full article is found online here.
The PA AG's press release about the General's appearance can be found online here.
Thursday, September 21, 2006
An article that appeared on September 7, 2006, in the Wall Street Journal, entitled "Who Will Mind Mom? Check Her Contract", received attention from at least two prominent legal blogs -- the "Elder Law Prof Blog", in a posting on September 8, 2006, and the "Wills, Trusts & Estates Prof Blog", in a posting on September 19, 2006.
Both postings contained excerpts from the article, but did not lead to the full text of the article. The article is now available free in its entirety from the Pittsburgh Post-Gazette online here.
The article examines the growing use of written contracts to document care-giving arrangements provided by certain family members to other elderly or disabled family members. This arrangement -- known as "personal service" or "personal care" -- is employed more frequently, and thus becomes the subject of more documents prepared by lawyers.
Such negotiated, detailed arrangements can reduce family friction, reward those family members more involved in caretaking, and evidence the expense as reasonable and efficient in anticipation of questioning by third-parties, such as a governmental agency administering Medicaid, an estate beneficiary, or a creditor.
For example, the article notes:
Medicaid isn't likely to "disqualify you for making those payments to your children if you have an arm's length, commercially reasonable contract, in writing, ahead of time," says Charles Sabatino, director of the American Bar Association's Commission on Law and Aging in Washington. * * *
In order for a caregiver contract to be respected -- and to pass muster with Medicaid authorities -- it has to follow certain formalities. For one, you can't pay the caregiver an inflated rate in order to shift lots of money out of your estate. Instead, you should specify what duties the caregiver is expected to perform and then contact local home-care agencies or geriatric-care managers to establish the market value of those services in your area. Such duties can vary from preparing meals, bathing and dressing to housecleaning and chauffeuring, as well as arranging doctor's appointments and friends' visits and overseeing medications.
The article notes that there are tax consequences to consider in such inter-personal arrangements:
The compensation is considered ordinary income, so the caregiver has to pay income taxes on the payment. Also, depending on how the contract is structured, Social Security and other payroll taxes may have to be withheld.
The article also raises issues of source of funding for such an arrangement, cost of document preparation, consideration during estate planning, and government programs allowing such arrangements.
The article does not address the position of the Social Security Administration on such arrangements where the care-giver is also a "representative payee" for a social security recipient.
The article references reputable websites that offer information on caregiving contracts or related issues, as follows:
*National Academy of Elder Law Attorneys
*American Bar Association Commission on Law and Aging
*National Family Caregivers Association
*Family Caregiver Alliance
*National Alliance for Caregiving
If you want to see a model of such an agreement, one graciously has been posted by attorney Dallas Leigh Atkins, P.O. Box 30738, Santa Barbara, CA 93130 (Ofc: 805-687-8782), entitled "Template for Lifetime Personal Care Services Contract" (with provisions revised as of June 22, 2006). It is available online here.
Wednesday, September 20, 2006
Lawyers and other personal or financial service professionals should be aware of the extensive training and ongoing educational efforts involving long-term health care workers and medical personnel in Pennsylvania. These care providers and managers are our teammates in serving clients-patients.
One example of such cutting-edge education is found in the forthcoming 2006 Annual Education Symposium sponsored by the Pennsylvania Medical Directors Association (PMDA).
PMDA -- "Pennsylvania's Association for Long Term Care Medicine" -- will hold its 2006 Symposium, on Friday, September 29, 2006, in Harrisburg, PA, at the Wyndham Harrisburg-Hershey Hotel.
PMDA is affiliated with the Pennsylvania Medical Society, located at 777 East Park Drive, Harrisburg, PA 17111.
PMDA describes itself as:
"[T]he professional organization committed to the continuous improvement of quality care for Pennsylvanians across the long-term care continuum, by providing advocacy, education, and professional development services for medical directors, physicians, and other healthcare team members. PMDA advances its mission by outreach to other groups involved in long-term care."PMDA's organizational objectives are further outlined, as follows:
- To promote excellence in medical care for residents of all ages in nursing homes and other long-term care settings.
- *To promote peer education among medical directors, attending, referring, and consulting physicians on nursing home staffs and in long-term settings.
- To assist non-medical providers, consultants, nursing home staff and regulatory agencies in maintaining high standards of resident care.
- To assist family and others in the understanding, acceptance, and assistance for residents in long-term care.
- To establish and promote educational programs for maintaining a high standard of professional care in long-term institutions.
- To act as liaison with other professional organizations and individuals to promote quality resident care.
- To promote the enactment of laws, regulations, and payment systems to accomplish these objectives.
*Family Medicine Physicians; *Internal Medicine Physicians; *Geriatricians; *Psychiatrists; *Registered Nurses; *Nursing Home Administrators; *Physical Medicine & Rehabilitation Professionals; *Social Workers; *Pharmacists; and *Therapists.Various topics scheduled for the Symposium include:
*Rethinking Advance Care Planning: Moving From Patient Preferences to Actionable OrdersThe complete brochure for the Symposium can be found online here.
*Hospice Care in the Nursing Home
*Complying with F314, Advancing Wound Care Practice in Long-term Care
*Billing, Coding and Survival
*Infection Control: C.difficle, Influenza and Other Top Priorities in the Nursing Home
*Evaluation and Management of Weight Loss in the Nursing Home Patient
*Public Policy Discussion
Tuesday, September 19, 2006
"Fleece" -- "Swindle somebody out of money; to take too much money from somebody by cheating or overcharging" -- Microsoft® Encarta® 2006
Financial elder abuse is often described in general terms with generic warnings to follow; but so often, the family & personal situations are not reported. Following is one case that provides details.
A news report, dated September 18, 2006, found online on the website of the Phoenixville (PA) News , provides details about charges filed by the West Chester District Attorney's Office, of West Chester, PA, in a local District Justice Court against an elderly woman's grandchild in the nature of "multiple counts of forgery; bad checks; and receiving stolen property".
These charges were filed against defendant Kimberly Ann Wadsworth, 32, with a last known address on the 200 block of High Street, Phoenixville, PA, at the same time as additional charges were filed on other matters, including: criminal conspiracy; possession of a controlled substance, drugs, device or cosmetic; possession of drug paraphernalia; and recklessly endangering another person.
Wadsworth was ordered to stand trial in district court last Thursday, September 14, 2006, on forgery charges, after she allegedly stole several of her grandmother's checks to pay rent in July.
The article recites some details, derived from testimony, as follows:
According to court testimony, Terri Acevedo, the manager at Pennsylvania House Hotel, said she received four checks from Wadsworth that came back with a stop payment or account closed notice.
Acevedo said that Wadsworth passed four checks from an account belonging to her grandmother between the dates of July 15 and July 26.
Mike Martin of the Chester County District Attorney's Office presented the four checks to Acevedo for her inspection.
"The four checks, one for $175, $480, $400, and $270, were made out to Wadsworth from her grandmother," said Acevedo. "The checks were endorsed on the back by Wadsworth."
Acevedo testified that the $270 was a stop payment and the $480 check was cashed by her.
"I cashed the $480 for her because she said she needed the cash to get her car out of the shop," she said.
After telling the court that Wadsworth's rent is $170 weekly, Acevedo said that she'd spoken with Mary Ann Powell, Wadsworth's mother, in August.
"We spoke in August to let me know that the account to the checks was closed," she said.
Powell testified that she is the power of attorney for her mother since 2004, and she had to stop payment on some missing checks.
"There were checks from a Vanguard account and credit card checks," said Powell. "I got a call from Acevedo asking me if any of the checks were good, and I told her, 'No'."
Powell said she never gave Wadsworth permission to take or use the checks.
"She was allowed to write checks out before," she said. "My mother would sign them. However, these checks were taken from my home, and there are other checks that have been forged."
The article reports that, after hearing all of the testimony, District Justice Ted Michaels held the charges over for trial. The defendant was "remanded back to Chester County Prison on ten percent of $1,500 bail", with her next court appearance on this matter scheduled for Thursday, September 21, 2006, in the Court of Common Pleas of West Chester, Criminal Division.
The article can be read online here.
Monday, September 18, 2006
The Pennsylvania Bar Association is preparing a two-week campaign, to run from October 24 to November 7, 2006, on "Identity Theft Prevention". Identity theft is the nation's fastest growing crime, impacting more than 10 million Americans each year.
The Pennsylvania Attorney General's Office, through its Bureau of Consumer Protection, investigates & prosecutes such crimes. The PA AG explains what is "identity theft" online here, as follows:
Identity theft and identity fraud are crimes in which someone wrongfully obtains and uses someone else's personal information. Identity theft includes credit card fraud, utilities fraud, and bank fraud.
BroadbandInfo, on its website in an article found here, indicates that senior identity theft is increasing:
Did you know that 11% of senior citizens, 65 and over are the most likely victims of Internet identity theft. According to cpcusociety.org, thieves target anyone, but seniors are particularly vulnerable because seniors have more cash reserves and also higher disposable income. Seniors are more trusting in their elder years and most importantly, seniors are not necessarily Internet or computer savvy. And seniors don’t check their credit rating very often. * * *
And, the Federal Trade Commission (FTC) notes that identity theft targeting seniors over age 60 jumped from 1,800 cases in 2000 to almost 6,000 cases the following year, with most cases involving the use of social security numbers. Seniors beware!
AARP offers its free educational seminar, "Preventing Identity Theft", found online here.
The PA AG's Office is aware that many victims of such crimes are seniors, and so operates its "Senior Crime Prevention University", described online here, as follows:
With a large percentage of citizens over the age of 65, Pennsylvania residents are target for a wide variety of scams, cons and other crimes. The Senior Crime Prevention University (SCPU) educates older Pennsylvanians and their families throughout the Commonwealth on crime prevention. Our goal is to make Pennsylvania's older population aware of the threat of fraud to the elder community, teach them how to avoid being victimized; and to make sure they know who they should call when they are concerned about their safety and well being.
Educating seniors about crime and how to avoid it is the best way we can help seniors to help themselves. The theme of the Senior Crime Prevention University is "AWARE, AVOID, ALERT". We want to make seniors "aware" of the scams and frauds that are out there; teach them how to "avoid" becoming the next victim; make them "alert" and observant of their surroundings and situations they are facing; and, encourage them to report any instances of scam or fraud to their local law enforcement.
The PBA supports the PA AG's efforts in this educational campaign. The PBA is acting through its "Client and Community Relations Committee".
Twenty-six Pennsylvania county bar associations will participate in the campaign, including those in the counties of: Adams, Beaver, Berks, Blair, Bucks, Butler, Cambria, Crawford, Cumberland, Dauphin, Franklin, Fulton, Jefferson, Lancaster, Lawrence, Lebanon, Lehigh, Luzerne, Lycoming, Monroe, Northampton, Northumberland, Philadelphia, Washington, Wayne and Westmoreland. Other local bar associations may join the campaign by the end of this week.
The campaign is funded by a grant from the Pennsylvania Bar Insurance Fund and Trust. Advertisements will be placed in newspapers throughout the Commonwealth through the PBA's partnership with the Pennsylvania Newspaper Association.
A brochure entitled "How to Avoid Identity Theft" is made available by the PA AG's Office online here. The AG's Office advises: "If you believe you have become a victim of identity theft, contact the Office of Attorney General's Bureau of Consumer Protection at 1-800-441-2555."
Sunday, September 17, 2006
Republican candidate for Governor, Lynn Swann, proposes to eliminate the Pennsylvania Inheritance Tax (PIT).
In a statement on his campaign website, posted September 7, 2006, his position is made clear:
Swann has proposed a plan to phase-out the inheritance tax rates in order to provide relief for small manufacturing and non-manufacturing businesses and vital family-owned farms in Pennsylvania, which is only one of nine states still imposing an inheritance tax.
On September 7, 2006, the Pittsburgh Post-Gazette published an article entitled "Swann Targets Inheritance Tax Again" referencing Swann's position on repeal or phase-out of the PIT, which the candidate repeated during a vist to a small business in Harrisburg. That story indicated, in part, as follows:
Republican gubernatorial candidate Lynn Swann yesterday reiterated his call to phase out the state's inheritance tax, which raised $745.2 million last fiscal year.
He would make up for the revenue loss through unspecified spending efficiencies, Mr. Swann said during a campaign stop yesterday at the W.O. Hickok Manufacturing Co., a Harrisburg business owned by the same family for 162 years and five generations.
The state inheritance tax could stand in the way of a sixth generation taking over the company, Mr. Swann said.
The tax can be up to 15 percent of the estate's value, depending on a beneficiary's family relationship to the deceased.
"We're talking in the millions, and we don't have that cash flow. All our money is sunk in the business," said Peter Hickok, owner of the manufacturing plant, during a phone interview after Mr. Swann's visit. "Basically, my heirs would have to sell the business to pay the tax on it."
That's the kind of thing Mr. Swann wants to prevent.Also on September 7th, in an article entitled "Swann Blasts Inheritance Tax", the Allentown Morning Call reported that Swann "wants to phase out the levy over four to seven years".
The article noted the revenue raised by the PIT:
The state took in $745 million from the tax in the 2005-06 budget year and expects to reap $778 million this year, according to the state Department of Revenue. Swann did not spell out how he would replace those revenues.
The state taxes inheritances at a rate of 4.5 percent — down from 6 percent in 2000 — for direct descendants such as children and 15 percent for so-called ''non-lineal'' heirs, budget figures showed. Spouses are exempt.
In an article posted online by the Centre County Times entitled "Swann Tax Cuts Worth $2.5 Billion", it was noted that Rendell's campaign challenged Swann's assertion that the tax cuts can be absorbed without significant cuts in state programs:
"The magnitude of the tax cuts that Lynn Swann is talking about will necessitate deep and severe cuts to essential government services," said spokesman Dan Fee. "Either Lynn Swann doesn't intend to keep the promises that he makes or he's not telling the truth."* * *
Fee questioned the reliability of Swann's plan, noting his recent decision to prolong the proposed phase-out of the inheritance tax from a maximum of seven years to a maximum of 12.
"How can anyone say that there's a level of predictability when (he) is changing it just weeks after he proposed it?" he asked.
On September 7, 2006, the Governor's Campaign website had posted a Press Release criticizing Swann's plan. However, it did not mention any position by the Governor as to the present or future application of the Pennsylvania Inheritance Tax.
Saturday, September 16, 2006
I am not aware of any surveys conducted in Pennsylvania regarding "end-of-life" care.
However, in our sister state of West Virginia, since 1999, the West Virginia Center for End of Life Care has conducted a random survey of 1,000 West Virginia residents every two years regarding their attitudes toward "end of life" care options. These results may illuminate the views of a region, not just that state.
In March, 2006, the Center compiled the results of its 2006 Survey, and then released its summary.
Key findings are found online here:
• 39% of West Virginians have completed a living will, a medical power of attorney, or a combined form. This is the highest percentage in the nation. Most states report an average of 20-25% completion.
• DNR ("Do Not Resuscitate") awareness is continually increasing. In 1999, only 45% reported they were familiar with the DNR law. In 2006, 64% reported awareness.
• Two-thirds of West Virginians have talked to a family member or close friend regarding their end of life treatment desires, yet only 21% of West Virginians have discussed these desires with their doctor.
• 65% of West Virginians’ stated that friends or family who passed away within the last year received good or excellent care for their pain and suffering at the end of their life.
• Concern over dying in pain has dropped from 30% in 1999, to 19% in 2006.
• Overall rating of end of life care in West Virginia has increased from 46% who believed it to be good to excellent in 1999, to 61% in 2006.
The survey was conducted by RMS Strategies in Charleston, WV. The margin of error was +/- 3%.
Friday, September 15, 2006
On September 13, 2006, the Centre Daily Times posted online an article by the Associated Press regarding an alleged forgery of a power of attorney that was the subject of a criminal prosecution in Dauphin County, Pennsylvania. The defendant was acquitted after a non-jury "bench" trial.
The article reports, in part, as follows:
HARRISBURG, Pa. - A state police trooper was acquitted of charges that he forged a power-of-attorney document and allegedly tried to use it to sell property that he owned with his ex-wife.In Pennsylvania, the court most involved in questions regarding "powers of attorney" is the Orphans' Court Division, of the Court of Common Pleas in a county, pursuant to Section 711 of the PA Probate, Estates & Fiduciaries Code (Title 20 of PA Consolidated Statutes).
Dauphin County Judge Lawrence F. Clark Jr. who heard the case against Trooper Kirk A. Perkins without a jury, said the prosecution did not prove all the elements of the crime beyond a reasonable doubt.
"The judge was sitting in place of a jury, and that's his job, and we have to accept his judgment," said prosecutor Fran Chardo. "If what (Perkins) did is not a crime, it ought to be."
Perkins, of Mechanicsburg, was charged by the state police's internal affairs unit in February with forgery and tampering with records or identification and was suspended without pay. He worked in the Carlisle barracks.
He allegedly altered the expiration date and property reference on a power-of-attorney document for his ex-wife, Lorien A. Mickelson, of Cantonment, Fla.
This case appears to have been presented instead in the Criminal Court Division for consideration under the PA Crimes Code.
In that setting, the judge applied a higher standard of proof in considering whether criminal fraud had occurred, than would the Orphans' Court Division in determining whether the POA was valid when exercised.
The complete article is available online here.
This ongoing dispute was the subject of a further report on December 8, 2006, in an article entitled "Ex-wife charged with harassment", by Frank Cozzoli & Pete Shellem, of the Patriot-News (Harrisburg, PA).
The update on the case demonstrates the far wanderings of litigation:
Hampden Twp. said Mickelson made a series of phone calls to Perkins after he told her to stop calling on Sept. 28 and that the only communication between them should be through their attorneys.
Perkins reported the phone calls to police on Sept. 29.
Police traced the calls to a cell phone number assigned to Bryan Mickelson of Cantonment, Fla.
On Oct. 25, Perkins reported more harassing phone calls, police said.
Police said Lorien Mickelson also made two Sept. 28 hang-up phone calls to Abom, who represented Perkins during a forgery trial involving his ex-wife.
In February, Perkins was charged with forgery and records tampering for allegedly signing his ex-wife's name to a power of attorney to sell a Harrisburg property that was in both their names. Clark acquitted him of those charges after a nonjury trial in September.
The charges led to Perkins being suspended from the state police without pay from his post at the Carlisle Barracks. After his acquittal, Perkins was returned to restricted duty on Oct. 12 pending the conclusion of an internal investigation, said state police spokeswoman Linette Quinn.
Thursday, September 14, 2006
Previously, on September 6, 2006, I posted a message about the new Pennsylvania Uniform Trust Act. I mentioned the generally-anticipated effective date of November 4, 2006.
I stand corrected. Because November 4, 2006, will be a Saturday, the real effective date will be Monday, November 6, 2006.
A question was raised about the calculation of the effective date during the first presentation, on September 12th in Philadelphia, of the "Pennsylvania Uniform Trust Act", seminar, which is co-sponsored by the Pennsylvania Bar Institute and the Pennsylvania Bankers Association.
In a prior posting, I discussed this statewide course offering.
Ted Watters, Esq. yesterday clarified the real effective date in a letter, as follows:
The effective date for Chapter 77, the Pennsylvania Uniform Trust Act is in fact Monday, November 6, 2006, not as stated in the outline, November 4. As you know, during the seminar, a question was raised concerning the effective date, and we stated that it was November 4. Research that afternoon indicated that we were incorrect.
Pennsylvania has a wonderfully arcane rule (one might even say nonsensical) for effective dates. Under 1 PA CSA §1908, if an effective date is stated as a number of months after signature by the Governor, then the effective date can fall on a weekend or holiday. For example, the Pennsylvania Prudent Investor Rule was part of a bill signed by the Governor on June 25, 1999, and became effective on Christmas of that year, December 25, 1999. In contrast, if the effective date is stated as a number of days, and the date falls on a weekend or holiday, the actual effective date is the next business day.
The Governor signed Senate Bill 660, making it Act No. 98, on July 7, 2006. 120 days later is November 4. However, November 4 is a Saturday, so the effective date of Chapter 77, the Pennsylvania Uniform Trust Act, is Monday, November 6, 2006.
Ted's advice can be trusted on this point. For his summary of the major changes being wrought by the PA UTA, see his article posted online.
Thomas Jefferson once wrote:
"The true key for the construction of everything doubtful in a law, is the intention of the law givers. This is most safely gathered from the words, but may be sought also in extraneous circumstances, provided they do not contradict the express words of the law."
— Jefferson's Letter to A. Gallatin, 1808
In this case -- where we are counting the days to the effective date of the PA UTA -- Saturday is just such an "extraneous" circumstance.