Tuesday, July 31, 2007

PBI Revises "Estate Planning in PA"

The Pennsylvania Bar Institute published, on May 1, 2007, an updated edition of its "Estate Planning in Pennsylvania" reference. This revised edition includes both the book & sample forms on CD-ROM.

The 944-page publication is promoted currently on PBI's home page:

Newly Updated From PBI Press!
Estate Planning in PA (Revised Edition) (#4461)
The only two-volume book of its kind that takes you step-by-step through the estate planning process in Pennsylvania.
Two-volume set and CD-ROM for only $199! Click
here for details.

PBI describes the book as the "Definitive Guide to Handling Estate Planning Issues in PA".
Whether you are handling your first or your hundredth estate planning matter, Estate Planning in PA includes substantive, procedural, and practical information that any lawyer will find valuable in representing clients with estate planning needs.

This easy-to-use desk reference offers practical, proven-effective solutions to estate planning problems presented by a broad range of typical clients. This book takes you from the initial stage of interviewing the client to terminating representation and offers expert discussion of a myriad of estate planning issues that crop up in between.

Extensive forms are included, in text and on disk, for ease of use. The full text of the book is included on the searchable CD-ROM.
The publication is unusual due to its nature as a compendium of knowledge from many authors. The reference is edited by Terrance A. Kline, Esq., of Media, PA, and Daniel R. Ross, Esq, of Philadelphia, PA, whose biographies show them to be experienced, specialized, trusts & estates lawyers.

Most impressive is the list of well-known & reliable Pennsylvania attorneys who contribute to the work, pro bono & ongoing, for the benefit of advisors & consumers:
Jerry B. Chariton, Esq.
Kevin P. Gilboy, Esq.
Daphne Goldman, Esq.
Carol Sikov Gross, Esq.
Paul C. Heintz, Esq.
Kenneth E. Lewis, Esq.
Jeffrey A. Marshall, Esq.
C. Scott Meyer, Esq.
Alan J. Mittelman, Esq.
Mark R. Parthemer, Esq.
Scott S. Small, Esq.
Kathleen A. Stephenson, Esq.
Nina B. Stryker, Esq.
Kirby G. Upright, Esq.
Michael S. Warner, Esq.
The contents of the book address, comprehensively, the most common estate planning concerns, documents, & techniques to accomplish effective personal & estate planning:
  • Interviewing the Client
  • Ethical Issues
  • Mapping the Plan
  • Drafting the Will
  • Drafting the Trust
  • Tax Planning
  • Planning for Closely Held Businesses
  • Planning for Nontraditional Couples
  • Planning Using Charitable Gifts
  • Powers of Attorney & Advance Directives for Health Care Declarations
  • Medicaid Payment for Long–term Care
  • Choosing Fiduciaries
  • Transferring Assets Outside of Probate
  • Execution & Safekeeping of Documents
  • Terminating the Representation
This revision updates the prior publication with recent developments in trust, estate, & taxation law, deriving from changes in both federal & Pennsylvania law, including:
  • PA Uniform Trust Act [new Chapter 77 of Title 20 of PA Cons. Statutes]
  • PA Rule Against Perpetuities [Abolition]
  • Modification or Termination of Irrevocable Trusts
  • Gifts of Subchapter S Stock
  • Spousal Waiver Rules
  • Standing to Enforce Charitable Use Restrictions
  • Mental Health Care Declarations & Powers of Attorney
  • Act 169 of 2006 [Chapter 54 of Title 20 re Health Care Directives]
  • The Deficit Reduction Act of 2005
  • Medicaid Estate Recovery in PA
Consumers might consider a purchase to prepare in advance for an appointment with their personal & estate planning professionals.

If those professionals don't have familiarity with the subjects covered in this book, then find another one who does, so you can be better served.

Professionals, read up.

Monday, July 30, 2007

Another PA Estate Planning Blog

Mark E. Jakubik, a sole practitioner in Philadelphia, PA, began his "Pennsylvania Estate Planning Blog" on July 3, 2007. He made consistent postings throughout this month.

This blog focuses on "estate planning, trusts & estates, probate & related litigation".

Mark also authors another blog, the "
Pennsylvania Family Law Blog", which he began last year, in November, 2006. Mark describes that blog as "a discussion of family law issues".

In his
biographical information on that blog, Mark describes himself & his method of practice:

I am also what noted blogger Chuck Newton has labeled a “Third Wave Lawyer” - I practice primarily from a home office, utilizing the latest technology to handle my clients matters in the most timely and efficient manner possible. My office arrangement enables me to provide my clients with maximum flexibility, as well as cost efficiency.
Mark's address is not highlighted on either blog, but it is available through a West resource listing: 7715 Crittenden Street, Philadelphia, PA ( Phone: 215-242-4756; Email: mjakubik@mac.com).

As we can see from his email address,
Mark uses a "Mac" computer. Apparently, he loves it. See: "Does Anyone Use A Mac In The Law Practice?", posted on the American Bar Association's listserv for its Solo Practitioner Section. The responses to his inquiry were very supportive. Those replies would be useful to other lawyers who use Apple computers, not the standard Windows PCs, in their practice.

For his PA EP Blog, Mark scans online sources, then reports interesting material. He links to other blog postings and news articles often.

Mark presently lists seven "customized" links on his PA EP Blog (before his site provider lists their mandatory umpteen other sponsored blog sites); and this Blog is one of them. In return, I added his blog site to my listing.

Good luck, Mark, in your two blog endeavors!

Update: 07/30/07:

Mark & I exchanged email after my posting about his new PA EP Blog. Then he kindly posted a note of recognition, entitled "
Thanks to Neil Hendershot".
Neil Hendershot, who publishes the Pennsylvania Elder, Estate and Fiduciary Law Blog, was kind enough to put up a post about this blog earlier today. I wanted to take this opportunity to thank Neil for his kind words, and also for publishing a blog that is a tremendously valuable resource for anyone who either practices trusts and estates law in Pennsylvania, or who has any interest in the field. Neil's blog is the gold standard, and I urge anyone who reads this blog to make Neil an every day read.

Friday, July 27, 2007

End-of-Life Rights & Choices

Major media organizations have published excellent, extensive articles about end-of-life care or hospice topics, that are available online, full-length. And new books were published on these topics.

Chicago Tribune writers Judith Graham & Vincent J. Schodolski published their article "End-of-life care takes forefront" on January 18, 2006. It remains available presently through the
Seattle Times, as reposted here.

Physician-assisted suicide was a hot issue in bioethics in the mid-1990s, when Oregon became the first state in the nation to legalize the controversial practice. Today it doesn't command the same attention. Though opinions on the topic remain deeply divided, the debate has gradually shifted to a larger concern — the way America cares for people who are dying.

"The central issue, we all realize, is end-of-life care," said Dr. Ezekial Emanuel, chairman of the department of clinical bioethics at the National Institutes of Health. "Assisted suicide is really a sideshow."

For the vast majority of people who are terminally ill, the question is not whether they'll ask a doctor to help them end their life, it's whether anyone can relieve their depression and manage their pain, Emanuel said. * * *

The article focused on the political debate and law-making that surround end-of-life care & decision-making.

As to the day-to-day decisions to be made by medical providers, the New York Times published a widely-noted article on October 10, 2006, by Jan Hoffman, entitled "The Last Word on the Last Breath". The non-profit organization Death with Dignity subsequently reposted the article on its website.

The patient, only 35, had been in a persistent vegetative state for 15 years. Recently, he had developed septic bedsores and pneumonia. His kidneys were failing, and despite the feeding tube, he was losing weight. Now he was in cardiac arrest. He was dying.

But the young staff doctor had no choice. The patient’s relatives, convinced that the man could communicate, had insisted that all revival efforts be made. So the doctor gave the patient a few mouth-to-mouth breaths, climbed on the bed and began vigorous chest compressions, trying cardiopulmonary resuscitation. * * *

* * * [T]he question of who has final say over whether CPR should be attempted on a gravely ill patient — the doctor, the patient or the patient’s representative — is live and unsettled in law and medicine. * * *

The article reviews the views of physicians, patients & their advocates, legislators, and lawyers, through interviews & historical developments, regarding end-of-life medical treatments. The article considers the current status & enforceability of "do-not-resuscitate orders", "living wills", and advance health care directives. The article acknowledges that medical approaches to end-of-life care remain unsettled & non-standard, nationwide.

Some of the confusion arises from the very definition of "death". This is the subject of an article by Claude Lewis published
in the Philadelphia Inquirer on July 25, 2007, entitled "If 'death' ain't what it used to be, when is life over?":
As far back as human history can be traced, death has been seen as a single, irrevocable event, the end, after which the body was prepared for burial or destruction, even before grieving got under way.

But in the 21st century, things are dramatically changing. What we mean by death, when it occurs, what constitutes it - all these are changing, with ramifications for medicine, law and society at large. * * *
Individuals, however, can be empowered in making such personal decisions. An article by Susan Orr, published April 25, 2007, by the Evansville (Illinois) Courier & Press, entitled "Families face tough end-of-life choices, noted a lecture by an author who advocates just such empowerment.
Pat McCormick of Evansville still remembers the day she saw her father shed tears of pain. He was dying of cancer, hurting and being whisked off for a medical test.

“Not ’til later did I realize I could have said no,” McCormick said.

McCormick’s experience ­— witnessing a terminally-ill loved one enduring unnecessary pain and invasive medical care, is a common one, but it doesn’t have to be, said health-care writer Stephen Kiernan.

Kiernan is the author of “Last Rights: Rescuing the End of Life From the Medical System,” a New York Times-bestselling book about end-of-life care. * * *

* * * [L]egal, ethical and religious considerations can make it difficult to decide when enough is enough, he said.

The good news, he said, is that there are things that individuals, and society at large, can do to improve end-of-life quality.

Individually, people can write advance health care directives that spell out the amount of care they want when facing an incurable disease or condition. They can also volunteer at a hospice and talk to their loved ones about end-of-life issues to reduce the fear surrounding the topic. And faith communities should get involved with the issue as well, Kiernan said.

“It is fundamentally a spiritual event and a family event way more than it is a medical event,” Kiernan said.

That book, "Last Rights", was published on November 4, 2006, by St. Martin Press, as described by Amazon here. The online reviews rate it highly. Many bookstores sell it.

Well-known Newsweek writer Jane Bryan Quinn published her thoughts on June 18, 2007, in an article entitled "
Patients have a right to make their own medical decisions" [Link expired].
There's more reason than ever to leave written instructions about the medical care you want if you're unable to speak for yourself.

In the wake of the Terri Schiavo case, in which her husband and parents fought over whether to remove her feeding tubes, right-to-life activists have been working on state legislatures.

Their objective: requiring doctors and families to keep life support going for patients in a permanently comatose state. If that's not what you want, you need to make it clear. * * *
She briefly answers three questions:
  • "What's happening?"
  • "Have any states made it easier for families to make life-and-death decisions?"
  • "What can you do?"
She confirms what most lawyers, doctors, health care providers, & hospice workers say: Execute an advance health care directive or a "living will".

Both such documents can be executed with assurance in Pennsylvania under the new
Chapter 54 of Title 20, PA Consolidated Statutes, enacted by Act 169 of 2006, which took effect on January 29, 2007 (as discussed in many other postings on this Blog).

Another well-known journalist, Jane E. Brody, published an article in the New York Times on November 28, 2006, entitled "Medical Due Diligence: A Living Will Should Spell Out the Specifics" This article also was reposted in full, by Addicus Books on its website here, as a review of its book, published in October, 2006, entitled
"Understanding Your Living Will: What You Need to Know Before a Medical Emergency", by Ferdinando L. Mirarchi, D.O.
When I ask people whether and how they have made preparations for the ends of their lives, the most frequent response is, “Well, I have a living will.” But chances are they are unaware of the serious limitations inherent in such a document and how it is likely to be interpreted by medical personnel should a life-threatening crisis arise.

A living will is an advance directive, a document that states your wishes about how you should be cared for at the end of your life. It is meant to be activated when you are unable to say what you do or do not want to be done medically — if, for example, you are in a terminal condition, your heart and breathing cease, you are in a persistent vegetative state because of severe brain damage or you are too demented to understand the situation.

A living will lists your general preferences for or against life-prolonging treatment like cardiopulmonary resuscitation if your heart suddenly stops, or mechanical respiration if you cannot breathe well enough on your own. But the simple statements contained in most living wills, more often than not, are hard to apply to the great variety of medical situations that can arise. * * *
One step, often overlooked, that can be taken in an acknowledged "end-of-life" situation, is hospice care.

Most recently, Forbes Magazine posted an article, dated July 25, 2007, entitled "
End-of-Life Hospice Care Underused", about hospice care as a viable medical treatment alternative in an end-of-life situation:

Too few Americans entering life's final phase are availing themselves of high-quality hospice care, despite the fact that Medicare covers the expense, experts say.

The situation is only going to become more problematic as the nation's "baby boomers" reach the end of their expected life spans in coming decades, according to two articles in the July 26 New England Journal of Medicine.

"Hospice care is underutilized -- only a third of Americans die under the care of hospice, and hospice care is free," noted the author of one article, Dr. Gail Gazelle, assistant clinical professor at Harvard Medical School. "Far too often, patients end up in an ICU, rushed to the emergency room, and they end up dying there, when really they would much rather have died in their own home," she added. * * *

"Baby boomers are going to turn all of this around," Gazelle said. "They are so empowered around their health care and the health care of their loved ones -- they're going to push hard to make sure that their needs are met."

Wright agreed. "I think that we will see the reimbursement structure change dramatically over the next decade," she said. "Baby boomers have received the best medical care imaginable for their entire lives -- why should their death be any different?"
I collect & repost any such references that I find onto a dedicated website, entitled PA HealthCare DecisionMaking. If you encounter any, please send me an email with the information for posting.

Thursday, July 26, 2007

PA's Act No. 56 on Assisted Living Facilities

On July 25, 2007, Governor Rendell signed Senate Bill 704, P.N. 1272, as Act No. 56 of 2007. Act 56 addresses, for the first time in the Commonwealth, a statutory & regulatory framework governing operations of assisted living facilities.

SB 704 was transmitted by the Legislature to the Governor on July 15th, and was signed by him into law as Act No. 56 of 2007 ten days later. The Act will take effect in ninety days.

I discussed this legislation previously in my posting "PA's "Assisted Living Facility" Bill (likely, Law)" (07/16/07).

The Governor's Office issued a Press Release dated July 25, 2007, entitled "Governor Rendell Says Older Adults and Persons with Disabilities Will Benefit from Historic Assisted-Living Legislation":
Governor Edward G. Rendell said today that Pennsylvania has broken a decade-long deadlock by enacting assisted-living legislation that will allow Pennsylvanians to maintain their independence and continue to exercise personal choice while receiving the support they need.

“Until today, Pennsylvania was one of only a few states that did not have separate licensing standards for assisted-living residences,” said Governor Rendell. “Now, Pennsylvanians will enjoy a wider range of options when it comes to choosing services for their long-term living needs. The legislation I’m signing today creates standards that will protect the health and welfare of Pennsylvanians living in assisted-living residences.”

Pennsylvanians who do not need a higher level of care -- such as the care provided by a nursing home -- will now be able to confidently choose a less restrictive, licensed, assisted-living residence that meets state standards. Senate Bill 704 also creates a “special care” designation so that consumers can easily identify facilities that are certified to provide Alzheimer’s and dementia care. * * *

“I applaud Rep. Phyllis Mundy and Sen. Pat Vance for working with us in a bipartisan way to break a decade-long impasse by enacting this legislation. Many individuals came together and worked tirelessly to make this important legislation a reality,” the Governor said.

The Department of Public Welfare will have oversight of assisted-living residences and is creating a new unit responsible for licensing and inspections. Every residence must undergo at least one unannounced site inspection each year.

The department will apply for a new waiver from the federal government to support Medicaid recipients who wish to live in assisted-living residences. The waiver will provide funding for necessary personal assistance and support for people who are Medicaid-eligible in assisted-living residences. By creating a new funding source, DPW will ensure that the development of assisted-living residences will not hamper the continued growth in home and community based waivers and services. * * *
This is the third significant legislation signed into law in July, 2007 to address long-term health care in Pennsylvania.

The first was Act 40 of 2007, signed on July 17, 2007, dealing with long-term care insurance under the federal Medicaid Program. See: PA EE&F Law Blog posting "PA's Act 40 of 2007 on Long Term Care Insurance" (07/19/07).

The second was the package of Acts 46, 47, 48, 49 & 50, signed on July 20, 2007, relating to certain health care professionals. See: PA EE&F Law Blog posting "Assistants to be Elevated in PA Healthcare" (07/17/07).

The third, Act 56, signed on July 25th, will regulate assisted living facilities.
“This bill is crucial to meeting our goal of better balancing the long-term living system,” said Governor Rendell.

“Assisted living provides individuals who need personal assistance and health care services a much needed option to live independently with privacy and dignity – values that are important to every Pennsylvanian.”
The Philadelphia Inquirer had reported about the legislation on July 20, 2007, in an article by Nancy Phillips entitled "Assisted-living rules in the works". The article noted that "Pennsylvania is poised to place tough new regulations on assisted-living facilities, defining for the first time what services they must provide and imposing penalties for homes that are not properly licensed."
Until now, the same set of rules applied to all homes for the elderly and disabled - from small personal-care homes to larger facilities that provide more intensive supervision and care.

The new law requires assisted-living facilities to be licensed by the state, to meet new standards of staff training, and to undergo unannounced inspections at least once a year.

"It's quality assurance," said State Rep. Katherine M. Watson (R., Bucks), who helped draft the bill. "A lot of these facilities are really nice, and they do a great job, but there are exceptions."

As The Inquirer reported earlier this year, at least 55 residents of assisted-living facilities have died since 2000 under circumstances that raised questions about the quality of their care. Uncounted others were beaten or neglected. At least five were raped.

State regulation of such facilities had been so lax that many troubled homes continued to operate without penalty, and in some cases, problems went unchecked and residents suffered injuries or even death.

Advocates for the elderly called it one of the state's worst failures.

The new rules are designed to correct that, said State Sen. Pat Vance (R., Cumberland), the bill's prime sponsor. Vance, a registered nurse, spent nearly a decade advocating stricter regulation of assisted-living facilities.

By defining the level of care that such homes must provide, she said, the state is creating a sound alternative to nursing homes. Assisted living is designed for people who need help with bathing, dressing, and other personal care, but do not have extensive medical needs. * * *

The article noted, however, that regulations implementing the new law likely will become the subject of contentious debate.

* * * Although the bill mandates new rules for assisted-living homes, some of the specifics have yet to be determined. * * *

One state official said drafting those regulations could well be a contentious process.

"I know that there's going to be a lot of debate," said Mike Hall, deputy secretary for the state's Office of Long Term Living. "There's a pretty wide spectrum of opinion" on the topic. * * *

Update: 07/27/07:

For a Press Release issued by the Pennsylvania House on July 25, 2007, see: "Mundy: Assisted living bill signed into law".
* * * Assisted living residences provide housing, personal care services and access to supplemental health care in a home-like environment that respects the individual’s privacy, dignity and self-direction. Although many personal care homes – meant for people with fewer care needs – refer to themselves as assisted living residences, until this legislation was passed, Pennsylvania did not have a licensing statute in place.

The final version of the bill was a collaborative effort among the bill’s prime sponsor, Sen. Pat Vance, R-Cumberland/York, and [Rep. Phyllis] Mundy, who introduced an assisted living bill in the House (H.B. 1583); the Rendell administration; and various stakeholders, including AARP Pennsylvania and the Alzheimer’s Association. [Links added.]
Update: 07/30/07:

The Observer-Reporter (Washington Co., PA) posted an Associated Press article, dated July 26, 2007, about Act 56, entitled "Gov. Rendell signs assisted living bill".

The article offers quotes from people involved in its adoption or its future implementation.

"The big winners in the legislation are indeed the consumers of assisted living," said Sen. Patricia H. Vance, R-Cumberland, the bill's sponsor.

Assisted living residences will be licensed to provide basic health-care services, such as administering intravenous medications or treating bed sores, said Dr. Stuart Shapiro, head of the Pennsylvania Health Care Association, which represents long-term care providers. * * *

The law sets strict standards for assisted living centers. For example, it requires single living units - unless two residents voluntarily share a room - with private bathrooms, kitchen areas and minimum space requirements to be determined by the Department of Public Welfare. Also, health-care services must be packaged and sold separate from the residential agreement.

The idea is to create a type of facility that is distinct from personal-care homes or nursing homes. "This is about more than providing health-care services in personal-care homes," said Mike Hall, deputy secretary of the Office of Long-term Living, which is operated jointly by the departments of Public Welfare and Aging.

The Public Welfare Department, which will regulate the assisted living residences, plans to seek a waiver from the federal government so eligible residents can be covered by Medicaid.

The first assisted living licenses may not be issued for two years - after the department's regulations are written and approved, Hall said. * * *
See also: "Vance's Assisted Living Legislation Becomes Law", posted July 27, 2007, by the Republican State Committee of Pennsylvania.
Sen. Pat Vance's (R-Cumberland/York) legislation defining and licensing assisted living facilities has become law after the Governor signed the bill today.

"This new law will allow Pennsylvanians to make educated decisions about their own care or the care of a loved one and better understand the limitations of a specific facility," Vance said.

"Currently, there is some confusion about what kind of care different personal care homes provide. By creating a specific assisted living licensure process, it will be easier to identify the differences between facilities." * * *

Update: 07/22/08:

For further developments, see PA EE&F Law Blog posting "
New PALCA for Assisted Living Standards" (07/22/08).

Wednesday, July 25, 2007

Learning About "Estate Planning for Pets"

If you are convinced, as I am, that pets -- as a special, beloved form of "property" -- need planning for their preservation & protection, how can you learn more, so that you can put an effective plan into place? I offer two upcoming educational opportunities:

  • A half-hour interview about "Estate Planning for Pet Owners" to be broadcast on radio station WCOJ-AM in Eastern PA on Saturday, August 4, 2007, from 10:00 to 10:30 am.
  • A "Call-In" course entitled "Estate Planning for Pets" to be presented by PBI on Friday, September 28, 2007, from 12:00 to 1:30 pm.
Radio Broadcast:

The broadcast was pre-recorded in early June, 2007, as a telephone conversation between me and "talk-show-hostess"
Jan Colliton, Esq. , of West Chester, PA, on the topic "Estate Planning for Pet Owners".

Jan is an experienced elder law attorney, who practices through Colliton Law Associates, P.C. I know Jan through her participation in the Probate & Trust Law Division, of the Real Property, Probate & Trust Law Section, of the Pennsylvania Bar Association.

Jan also
has written extensively on elder law topics, as indicated on her website:
For the past 9 ½ years, Ms. Colliton has authored a weekly newspaper column, “Planning Ahead” on senior planning issues in West Chester’s Daily Local News, totaling over 400 columns on subjects such as Social Security, Long Term Care Insurance, Medicare Health Insurance Supplements, and Medicaid applications. * * *
Her website contains an archive of her past columns for the years 2002, 2003, 2004, 2005, 2006, & 2007, which you can access.

The basis for our conversation was the article mentioned in my previous posting, "
Pets, as Property in PA, Need Planning" (07/20/07): "What the General Practitioner Needs to Know About Pennsylvania Animal Law (Part II)—Personal and Estate Planning for Pennsylvanians Owning Pets", which was published in Volume 77 of the Pennsylvania Bar Association Quarterly, in July 2006.

In that conversation, I briefly mentioned the legal device of a "pet trust". As of November 6, 2006, the Pennsylvania Uniform Trust Act (Chapter 77, of Title 20, of PA Consolidated Statutes) has authorized use of a
"trust for care of [an] animal" under its Section 7738 and Section 7739. Such trusts can be enforced under Section 7710, if properly created under Section 7732.

Jan then wrote a column about the topic, entitled "
Trusts Can Protect Your Pet’s Future", dated June 18, 2007.
A few years ago, a fellow West Chester attorney asked me what I thought of Pet Trusts in estate planning. Honestly, I had never given the matter any thought and quickly shelved the idea away with many other notions never implemented in my experience.

Recently, this planning tool merited a second look. Neil Hendershot, an extremely well known and highly regarded attorney with the Harrisburg office of Goldberg Katzman, PC, who has served as Chair of the Pennsylvania Bar Association’s Real Property, Probate and Trust Law Section, and hosts the
PA Elder, Estate & Fiduciary Law Blog, raised the same issue. This time Professor Hendershot caused me to sit up and take note.

Neil cited the multiple studies that show that pet owners tend to be happier, healthier, and more efficient on their jobs than those who do without.

Also, in times of illness, stress, and loss, humans who have contact with pets fare much better. Children, seniors and those suffering from degenerative illnesses, in particular, benefit from contact with pets and there are measurable improvements in outcome based on the animal-human bond. There are actually more households in America today with pets than with children.

For persons who forged a strong connection with their pets and even consider them to be members of their families, it may come as some surprise that, under the law, pets are property.

In fact, as Neil explained, “There is almost no distinction under the law between a dog and a chair.” One difference is that pets come needing care. Many of them are destroyed where they cannot easily be placed in new homes.

Recognizing all of this, Neil noted that there are some actions that pet owners can take to protect their non-human family member. * * *

While Jan & I talked about what could -- and should -- be done to protect pets ("companion animals"), I referred her listeners to the website of Professor Gerry W. Beyer, a pioneer in this area. Jan explored his website further, and included some tips in her article.

These ideas are taken both from Neil Hendershot’s discussion with me and from the website of Gerry W. Beyer, Professor at Texas Tech University School of Law.

To learn more, listen to the WCOJ Radio 1410 broadcast between Neil Hendershot and me which will air on Saturday, August 4 at 10:00 am and also consult the website of Gerry W. Beyer at www.professorbeyer.com.

If you cannot receive the broadcast, you may still be able to hear our conversation. After the "air date", I will attempt to post the audio recording as an MP3 file attached to this Blog. Then you could listen to it online.

Call-In Course:

Prior to my conversation with Jan, I had asked Gerry Beyer if he would be interested in participating with me in a "call-in" course to be presented by the Pennsylvania Bar Institute. To my surprise, he agreed.

Those who register for the session will hear the foremost expert nationwide on "estate planning for pets". I am privileged to participate with Gerry.

Gerry previously participated in a similar call-in course sponsored by the American Bar Association, offered nationally.

He also maintains the most complete, current, website about "planning for pet owners", as he noted in a posting (09/11/06) on the Wills, Trusts & Estates Prof Blog, which he edits:

Updated Materials on Estate Planning for Pet Owners

I have recently updated my materials relating to estate planning for pet owners.

For the non-attorney audience, I have posted the "Top 20" most frequently asked questions about pet trusts as well as an article entitled Prepare for Your Companion Pet's Future [PDF Format] which was prepared for Phoenix Landing and includes special tips for parrot owners.

For attorneys, I have posted an article entitled Estate Planning for Non-Human Family Members [PDF Format].

You may be interested to note that at least 38 jurisdictions now have statutes specifically addressing pet trusts.

The session will be presented to registrants with reference to Gerry's website, and also with reference to a website that I am constructing. Mine will be organized around the material in my original article. It will require a log-in by course registrants, and may not be public for awhile.

Here is the publicity information from PBI about our call-in course:
Telephone Seminar: Estate Planning for Pets
1.5 Credit(s) Including 0.0 Ethic(s)
Join Neil Hendershot and Professor Gerry Beyer as they explore the issues you need to know to help your clients plan for the future care of their pets.
More information & registration
Estate Planning for Pets
1.5 Total CLE credits (No Ethics)

Note: This telephone seminar will begin on Friday, September 28, 2007 at 12:00 PM to 1:30 PM Eastern Time.
Product №:5095T
Duration: 90 minutes

Item Description | Faculty | Pricing
Item DescriptionBack to top
Join Neil Hendershot and Professor Gerry Beyer as they explore the issues you need to know to help your clients plan for the future care of their pets. Professor Beyer is the national expert on planning for pets, as well as a recognized scholar on estate planning in general. He joins us from the Texas Tech University School of Law.

This Call-In CLE will explore estate planning for pets both in Pennsylvania and nationally with a focus on Pennsylvania pet trust laws which are identical to those in the model Uniform Trust Code.

PBI is pleased to offer a special price for this 1.5 hour session. Members of the Pennsylvania and other Bar Associations: $89. Nonmembers: $109.

As to registration, PBI notes: If you wish to sign up through PBI’s Customer Service, you must sign up no later than 1 hour prior to the start of the seminar. If you wish to sign up online you may sign-up as late as 5 minutes before the program begins.

If you are interested, I recommend registration far earlier than that deadline.

If you cannot hear the course at its scheduled "call-in" time, you can hear it later. PBI will make it available for online listening by registrants, and likely also will issue it on an audio CD.

Monday, July 23, 2007

ACTEC Notes Blogs on T&E and Taxes

The American College of Trust & Estate Counsel (ACTEC) recently noted, for its members, a short listing of "Notable Trust & Estate and Taxation Blogs", including some authored by ACTEC Fellows.

I am pleased that the PA Elder, Estate & Fiduciary Law Blog is included in the initial listing of useful blogs on these "trusts & estates" and "taxation" topics. I updated my own list of "Notable Legal Blogs" (in the column to the right) with the ACTEC listing.

This is the ACTEC Trust & Estate and Taxation Blog Listing presently:

ataxingmatter -- Edited by Wayne State University Law School professor Linda Beale

California Estate and Business Law Blog -- Edited by Allison Consulting

PA (Pennsylvania) Elder, Estate & Fiduciary Law Blog -- Edited by ACTEC Fellow Neil E. Hendershot

Tax Policy Blog -- Edited by the Tax Foundation

TaxProf Blog -- Edited by University of Cincinnati College of Law professor Paul L. Caron

The Texas Probate Web Site -- Edited by ACTEC Fellow Glenn M. Karisch

Wills, Trusts & Estates Prof Blog -- Edited by Texas Tech University School of Law professer and ACTEC Fellow Gerry W. Beyer

The ACTEC T&E and Taxation Blog List was compiled by Donald H. Kelley, Esq., of North Platte, NE, & Colorado Springs, CO, an ACTEC Fellow with great experience both in trusts & estates law and also in technology. Don is listed by Thompson-West in its "National Expert Directory" as an expert in both "Estate Planning" and "Estate & Gift Tax".

I learned about Don, and then "met" him through email exchanges, due to his involvement with technology as applied in these areas of the law. He is the author of a premier professional planning software program, the "Intuitive Estate Planner", distributed by Thompson-West since 1999. IEP is now in Version 10, and was most recently updated on July 5, 2007. I have used that software to teach estate planning to law students.

Don writes extensively on topics developed at that intersection of trust/estate law and technology, in his "Technology Review" column published in the highly-esteemed Trusts & Estates magazine for professional fiduciaries & their advisors. That periodical is described here as follows:

Trusts & Estates is the monthly journal for estate planning and wealth management professionals.

Published since 1904, Trusts & Estates continues a long tradition of editorial excellence and credibility in the high-net-worth arena.

Subscribers include estate planning and probate attorneys, trust bankers and officers, accountants, investment and insurance advisers, financial planners, and key decision-makers at non-profit institutions, foundations, government agencies and educational institutions. * * *

These are some of his past excellent articles, as listed by Trusts & Estates on its website here, under the heading "Technology Review":

Patented Tax Strategies
May 16, 2007 By Donald H. Kelley
The article Patenting Tax Strategies by Mary Lee Turk of McDermott, Will and Emery in Chicago in the December 2006 issue of Trusts & Estates discusses recent cases on the patenting of tax strategies, examines the issues pertaining to the patented stock option grantor annuity trust (SOGRAT) strategy raised by Wealth Transfer Group LLC v. Rowe, No. 3:06-cv-00024-AWT (D. Conn. Jan. 6, 2006) and advocates changes in the treatment of patented tax strategies.

Microsoft Vista and Office 2007 -- What Have You Done for Me Lately?
Apr 11, 2007 By Donald H. Kelley
Microsoft Vista and Microsoft Office 2007, along with other products (like Internet Explorer 7, which was released before Vista) offer a variety of new features potentially useful to the trusts and estates practitioner.

Online Securities Valuation
Mar 15, 2007 By Donald H. Kelley
Appraise, a service provided by Evaluation Services, Inc. of Old Tappan, NJ, furnishes securities pricing for estate and gift tax returns, cost basis research and corporate action information through a web-based platform.

Retirement Income Navigator
Feb 21, 2007 By Donald H. Kelley
Kelley Rating (one asterisk = lowest, to five asterisks = highest):
  • ease of navigation, design of interface and learning curve ***
  • instructional documentation and help system ***
  • carries out the goal of the product as advertised ****
  • overall usefulness ****
Heckerling 2007: A View From the Booth
Jan 18, 2007 By Donald H. Kelley
The 41st Annual Heckerling Institute on Estate Planning (held in Orlando, Fla. on Jan. 8-12) offered exceptional expert presenters and written materials for the trusts-and-estates practice. The event featured numerous exhibitors displaying the latest products and services in an informative and educational manner.

Holiday Wish: a Trusts and Estates Desktop
Dec 20, 2006 By Don H. Kelley
If you were starting from scratch with a reasonable budget to create a complex of software and quick Internet references for assisting with an efficient trusts-and-estates practice, what should you include on your wish list?

Forms on the Web for the T&E Practice
Nov 27, 2006 By Donald H. Kelley
Why consider looking for forms on the Web? There are numerous websites with trusts-and estates-related drafting forms and drafting advice, both for free and for a fee. You should, of course, shop for such forms with the same care you apply to evaluating any other products you use in your practice.

Planned Giving Resources
Oct 19, 2006 By Donald H. Kelley
The World Wide Web offers some excellent resources for calculating and presenting the financial and tax implications of charitable giving. These tools serve a valuable function -- they help potential donors devise financial plans aligned with their values and objectives -- while changing the way people think about philanthropy.

So You Think You Know PowerPoint
Sep 20, 2006 By Donald H. Kelley
You don't need to be an advanced PowerPoint user capable of injecting all the bells and whistles into a slide show to quickly create a useful presentation. When you need to accomplish succinct and effective communication with a client, colleagues or a group, you can do so through PowerPoint without fuss and furor.

Aug 23, 2006 By Donald H. Kelley
Tracks the gains and losses in securities portfolios and supplies a variety of tax preparation assistance.

Jul 12, 2006 By Donald H. Kelley
Facilitates navigation among files, file management and the scanning and organization of documents.

Introducing Adobe Acrobat
Jun 12, 2006 By Donald H. Kelley
You may create PDF files for convenient document delivery and collaborative drafting, with Adobe Acrobat. Here are some suggestions and information for getting the most out of Acrobat.

State and Inheritance Taxes
Apr 19, 2006 By Donald H. Kelley
The Economic Growth and Tax Relief Reconciliation Act (EGTRRA) of 2001 phased out the federal credit for estate taxes for deaths starting in the year 2005.

Web-Based Calculators -- Part 2
Mar 22, 2006 By Donald H. Kelley
For your retirement planning practice, there are many calculating resources available online. Here are some examples relating to pension plans, individual retirement accounts (IRAs) and Roth IRAs.

Web Based Calculators -- Part 1
Feb 8, 2006 By Donald H. Kelley
You may be surprised at how many calculating resources that could be of use in your practice are available free on the Internet. How many times a day could you use quick, standalone calculations that would spare you having to launch larger, more comprehensive estate or financial planning programs?

Internet Resources for Family Offices
Jan 19, 2006 By Donald H. Kelley
What's on the Web to assist with the formation, organization and operation of a "family office" -- an office serving a number of families in a professional manner.
Until Don begins to author his own "blog", you must either subscribe to Trusts & Estates, or look to its archive, for his articles.

But, of course, keep reading those good blogs on the list that he compiled.

Friday, July 20, 2007

Pets, as Property in PA, Need Planning

With the enactment of the PA Uniform Trust Act, Pennsylvanians owning pets received a legal bonus: the ability to create a statutory "Trust for a Non-Human Beneficiary", more commonly known as a "pet trust".

Just before adoption of the
PA UTA, I wrote a detailed article, "Personal and Estate Planning for Pennsylvanians Owning Pets", which was published in the Pennsylvania Bar Association Quarterly, in its July, 2006, issue. The Quarterly is the scholarly publication of the Pennsylvania Bar Association that began publication in 1929, and that is distributed to all members of the PBA.

In the article, I noted the importance of companion animals in the lives of Americans, more specifically in the lives of young, elderly, & disabled persons. I examined prior Pennsylvania court decisions regarding pets as "property", and considered the need in Pennsylvania for more predictable legal devices for pet owners to make protective arrangements taking effect
during an owner's lifetime, upon an owner's disability, and after an owner's death.

Through the assistance of Rebecca L. Safford, then a second-year student at Washington & Lee University School of Law, the article reviewed the laws of all states on the issue of segregated funds for the benefit of pets. I reviewed the benefits of a "pet trust"; and I wished for a statutorily-authorized "pet trust" law in Pennsylvania too.

Just after that issue of the Quarterly was distributed, the Legislature adopted, and the Governor then signed into law, Act 98 of 2006 -- the
PA UTA -- and thereby granted my wish! The ability to create a "pet trust" took effect on "PA UTA Day", that is, on November 6, 2006.

Thereafter, the article was noted by the Real Property, Probate & Trust Law Section, of the American Bar Association, in its "
Keeping Current" listing for Nov/Dec, 2006, assembled by Editor Gerry W. Beyer, a Professor at Texas Tech University School of Law, in Lubbock, Texas.

Pennsylvania. In What the General Practitioner Needs to Know About Pennsylvania Animal Law (Part II)—Personal and Estate Planning for Pennsylvanians Owning Pets, 77 Pa. Bar Ass’n Q., July 2006, at 107, Neil E. Hendershot provides a detailed discussion of how pet owners may best provide for the care of their animals.
After I had sent the article to Professor Beyer upon publication, he & I became occasional "pen pals". We periodically exchange email regarding the blogs that we write. He authors the highly-esteemed & widely-read Wills, Trusts & Estates Prof Blog.

He is on vacation now, but I must tell him about a series of important "pet" cases, deriving from one set of facts, in Pennsylvania.

On July 11, 2007, the Pennsylvania Superior Court, through a panel, issued a decision & opinion in
Snead v. Society for the Prevention of Cruelty to Animals of Pennsylvania. The appeal developed after the SPCA, as defendant, was found liable for euthanizing dogs belonging to the plaintiff, Laila Snead, and was assessed damages of $154,926.37, including $100,000 in punitive damages.

Early in the opinion, the three-judge panel noted:

[T]he facts involving the condition of the dogs at the heart of this case are very disturbing. Although we will repeat several times infra that under Pennsylvania law, the animals are considered property, this court clearly recognizes that dogs as pets hold a unique place in many people’s lives as friend, companion, and family member.
A Humane Society officer had investigated a charge of animal abuse, found dogs in a degraded condition, and removed them from Snead's house. Dog-fighting charges were filed by the officer, but were dropped by the district attorney, so that the dogs should have been made available for return to Snead. Instead, the dogs were euthanized by the SPCA.

Snead then sued the SPCA in a magistrate court, and obtained a judgment for $8,450, the alleged value of the dogs. The SPCA appealed to the court of common pleas. Snead responded with civil claims based on trespass, conversion, negligence, and violations of 42 U.S.C.A. § 1983.

The case was transferred to compulsory arbitration; and the arbitrators entered their report finding in Snead’s favor on all counts. The SPCA appealed that award; and the case proceeded to a jury trial. But, after Snead presented testimony as plaintiff, the SPCA moved for a "directed verdict" in favor of it, as defendant. The trial court judge granted that motion based upon the conclusion that, under the pleadings & the facts presented, Snead did not have any sustainable legal causes of action for a jury to decide.

That ruling was appealed, and a panel of the Superior Court held that Snead could not sustain a Section 1983 claim for violation of her Fourth Amendment
right to privacy based on the warrantless search and seizure of the dogs. See: Snead v. Society for the Prevention of Cruelty to Animals of Pennsylvania, No. 402 EDA 2004, unpublished memorandum (Pa.Super. filed February 1, 2005). However, the remaining claims were remanded for a trial, where a jury could consider the conflicting evidence.

In that trial, the jury rendered a verdict for the judgment noted above, which then was appealed.

The Superior Court held that Snead's claims of conversion (taking of property unlawfully) and negligence (in the handling of the animals) could be asserted against the SPCA. It could not rely on the doctrine of sovereign immunity or PA's Political Subdivision Tort Claims Act, for immunity. The Court also addressed Snead's ability to press other claims.

For pet owners, the important language is found in the Court's references to "pets as property" and the causes of action that can derive from such "property". Here are various relevant quotes:

  • [W]e find that Snead had a significant property interest in her dogs. As stated [above], Pennsylvania law considers dogs as property. In addition, although there was evidence the animals were unhealthy and suffered from neglect, Snead testified at length concerning her love and devotion to the animals and her efforts to nurse them back to health, and we must credit this testimony as the jury apparently did.

  • [There] was sufficient evidence for the jury to find that SPCA had inadequate procedures/policies in place to safeguard Snead’s property interests in the dogs.

  • Snead proved actual damages by presenting expert testimony concerning the value of the dogs.

  • SPCA deprived Snead of her use and possession of the dogs, which are considered property in Pennsylvania, when it euthanized them.
The Superior Court panel reversed the award of punitive damages, however:

[W]e agree the evidence was sufficient for the jury to find SPCA was negligent; however, the evidence does not support a conclusion that Spencer and/or Beltram acted with intent or malice in euthanizing Snead’s dogs. * * *

Even accepting Snead’s testimony as true and resolving all reasonable inferences in her favor, we cannot say that SPCA acted in conscious disregard of a risk of harm to Snead when it euthanized the animals. Therefore, we reverse the award of $100,000 in punitive damages and will re-enter judgment accordingly.
Finally, there was the issue of attorneys fees expended by Snead in pursing remedy under her other, valid, Section 1983 claim:
[T]he proper inquiry was whether Snead proved all of the material elements of her cause of action and demonstrated a compensable injury. * * *

Since Snead established a constitutional violation and received $54,000 in compensatory damages, she was successful in proving her case against SPCA and therefore should have recovered reasonable attorney’s fees.
Far preferable to such litigation is proper advance planning for companion animals.

I will address that topic in a further posting, when I'll talk more about "pet trusts", Professor Beyer, and a course on planning for pets that he & I now plan for the Pennsylvania Bar Institute.

Update: 07/23/07:

Last Friday, July 20, 2007, I received an email message from Attorney Richard H. Elliott, in Doylestown, PA. Dick represented the PA SPCA, as defendant, in the first jury trial,
"at which Judge DiBona granted a directed verdict in our favor."

He made further comments, some of which I quote:
With respect, I would like to correct you on one point.

We filed an appeal from a Municipal Court award of some $4,200 to Snead at which hearing PSPCA was not represented and the case was referred for compulsory arbitration on Snead's complaint alleging civil rights violations, among other counts.

After a Philadelphia Common Pleas Court panel heard about five hours of testimony, it deliberated for less than ten minutes and came in with a finding for PSPCA on all counts.

Snead's counsel then appealed that finding to the Common Pleas Court and sought a jury trial. Snead appealed the grant of directed verdict in our favor to the Superior Court which remanded in part.

It was necessary for health reasons for us to bring in new trial counsel to deal with remand on the limited issues delineated by the appellate court. Cross appeals were heard by the Superior Court and it is [that] opinion which is the subject of your blog. * * *
Dick further expressed some personal insights & opinions about the case, which I will not post, since these do not bear on the intended "educational" nature of this Blog.

He concluded with these final comments:
Thanks for doing a great job in keeping us all informed.

Heard you speak at the first PBI Animal Law program. I was on the agenda late in the day at that program. [I] have used some of your materials in a presentation to the Orphans Court Section of the Bucks County Bar Association on trust instruments for the benefit of pets.
If any reader wishes to pose questions or comments to Dick about the case, you may contact him at Elliott & Magee, in Doylestown (215-230-9900).

Update: 07/25/07:

For my follow-up posting on this topic, as promised, see:
Learning About "Estate Planning for Pets" (07/25/07).

Thursday, July 19, 2007

PA's Act 40 of 2007 on Long Term Care Insurance

PA Senate Bill 548 (Printer's No. 1299) was signed on July 17, 2007, by Governor Rendell as Act 40 of 2007. After unanimous adoption by the Legislature in separate final votes, SB 548 was signed in the Senate on July 16th, in the House on July 17th, and by the Governor upon his receipt. It became effective immediately, on July 17, 2007.

The new law establishes a new "Long-Term Care Partnership Program" under federal guidelines to promote long-term care insurance in the Commonwealth under the auspices of the PA Department of Public Welfare.

The website of Senator Jake Corman, the bill's prime sponsor, described the bill's general intention:

With the enactment of the Federal Deficit Reduction Act, states can now offer individuals the option of a LTC partnership where they can protect their assets when they purchase long-term care insurance.

Partnerships create an alternative to "spending down" assets to become eligible for Medicaid. With a partnership program, an individual is permitted to retain assets equal to the amount of benefits purchased under an approved LTC insurance policy, and Medicaid becomes the payer only after the long-term care insurance benefits are exhausted.

This is an approach that encourages individuals to take personal responsibility for their future LTC needs, while also preserving funds for their families.
SB 548 was substantially revised from its original version into its second & final version as Act 40 of 2007. See: SB 548's Legislative History. Technically, it amends the existing "Insurance Company Law of 1921" (an unconsolidated act).

A major addition is contained in a new Section 1110.1 of the Insurance Law, which now reads as follows:

(a) There is hereby established the Long-Term Care Partnership Program, to be administered by the Department of Public Welfare in accordance with the requirements for qualified state long-term care insurance partnerships.

The purpose of this program is to reduce future medicaid costs for long-term care by delaying or eliminating dependence on medicaid by providing incentives for individuals to ensure against the potentially substantial costs that arise upon the need for long-term care.

(b) In order to implement the program, the Department of Public Welfare shall file a state plan amendment with Centers for Medicare and Medicaid Services of the United States Department of Health and Human Services pursuant to Title XIX of the Social Security Act (49 Stat. 620, 42 U.S.C. § 1396 et seq.) within 30 days of the effective date of this section.

The program, including the treatment of assets for Medicaid eligibility and estate recovery
, shall be structured and administered by the Department of Public Welfare in accordance with federal law and applicable federal guidelines for qualified state long-term care partnerships.
On July 17, 2007, SB 548 was described in an article entitled "Corman's Long-Term Care Insurance Incentive Bill Headed to Governor", which appeared in the State College News.
* * * The General Assembly gave final approval this week to Senate Bill 548, which is intended to give people the opportunity to protect their personal assets by purchasing long-term care the insurance.

"Under the current system, health care consumers are required to 'spend down' their assets before taxpayer-funded Medicaid steps in to cover the expenses associated with long-term care," [Senator Jake] Corman said.

"As a result, many individuals and families lose all of their assets well before they go into long-term care, and then taxpayers are forced to pick up the costs, which can be significant."
* * *
The article further explained the need for legislative action and the anticipated changes upon the Medicaid program in Pennsylvania:
Corman said that the Department of Public Welfare has missed its self imposed deadline to submit Pennsylvania’s plan to the federal government, which necessitated this legislation.

"Until this administration files Pennsylvania's plan, families cannot accurately plan to protect assets," Corman said. "This issue is too important to delay, and my bill will ensure that Pennsylvania consumers have the option to purchase the insurance they need."

Under the LTC Partnership Program, individuals would be allowed to retain an amount equal to the amount of long-term care insurance they hold. Therefore, a person who has a $100,000 policy would be entitled to keep $100,000 in assets when Medicaid steps in. That means Medicaid would realize savings of $100,000, based on the amount paid by the policy, and the individual would be able to keep $100,000."

This is a common sense bill that will help to lower health care costs and protect consumers in cases where long-term care is needed," Corman said.

"Long-term care is the largest single line item in the public welfare budget, and we must look at all alternatives to reduce the growth of this taxpayer-funded program as we look to cut costs and be more fiscally responsible."

The legislation now is in effect. Thus, the filing required from the PA Department of Public Welfare to the federal government will be due on August 16, 2007.