Monday, March 31, 2008

PBA RPPT Honors Chief John C. Murphy

On March 26, 2008, the Council of the Real Property, Probate & Trust Law Section, of the Pennsylvania Bar Association, unanimously adopted a Memorial Resolution honoring John C. Murphy, the late, former Chief of the Inheritance Tax Division, of the Pennsylvania Department of Revenue.

The Memorial Resolution was sent to John's family -- his wife and two sons.

This is the text of the Memorial Resolution:

The Real Property, Probate and Trust Law Section of
Pennsylvania Bar Association

Recognizing the Services of John C. Murphy

, John C. Murphy, former Chief of the Inheritance Tax Division of the Pennsylvania Department of Revenue, over the course of his career served the citizens of Pennsylvania, as well its practitioners, by encouraging a culture at the Department of Revenue of cooperation with practitioners across the Commonwealth;

Mr. Murphy made himself available to bar associations and practitioners across the Commonwealth, and was generous with his time and his advice;

Mr. Murphy leaves a legacy of public service and integrity, and will be greatly missed, and the Real Property, Probate and Trust Law Section of the Pennsylvania Bar Association is deeply indebted to him for his efforts, his service and advice;

, the Real Property, Probate and Trust Law Section of the Pennsylvania Bar Association resolves formally to express its sincere appreciation on behalf of the membership to Mr. Murphy's family, and its deepest condolences, through this Resolution.

Attest: David E. Schwager, Chair
of the Real Property, Probate and Trust Law Section
of the Pennsylvania Bar Association
I have been an active member of this Section for thirty years. I cannot recall any such memorial resolution so adopted by the Section for a public official during that time.

Thus, this Memorial Resolution is an extraordinary gesture of esteem and affection for a fine gentleman and a recognized leader, who headed a group of State workers within the PA Department of Revenue charged with collecting a sensitive tax -- Pennsylvania's inheritance tax.

John retired on June 15, 2007, but, sadly, did not live long afterwards. He died on December 12, 2007.
See: PA EE&F Law Blog posting "PA Inh Tax Div Chief Murphy Retired" (12/04/07).

John's shoes, as Chief, were filled last week by his long-time friend and co-worker, J. Paul Dibert.
See: PA EE&F Law Blog posting "Dibert Appointed Chief of PA Inheritance Tax Division" (03/27/08).

John will be remembered by many attorneys with respect and fondness, not only for his accomplishments, but also -- and perhaps more so -- for his character. Through both, he indeed "served the citizens of Pennsylvania" well.

"Do what you can, with what you have, where you are."
--Theodore Roosevelt

"Everyone has his own specific vocation or mission in life; everyone must carry out a concrete assignment that demands fulfillment. Therein he cannot be replaced, nor can his life be repeated, thus, everyone's task is unique as his specific opportunity to implement it."
--Viktor Frankl

"Act as if what you do makes a difference.
It does."

--William James

Update: 04/01/08:

John's wife, "Enie", responded to the PBA RPPT Section's action, and then this posting, in an email message sent to me on March 31, 2008.

She gave me permission to post her reply, as a public thanks for all the sentiments expressed about John and for his family:

Words can't describe how we felt when we received this in the mail . . . and then to see it online . . . what a wonderful tribute . . . and how comforting to us. John surely deserved this though; I must agree. We couldn't be prouder.

John's life/work agenda was lead by his heart. I often would ask him why he didn't get upset with people and he would always reply "that's not the side of the mountain I choose to die on."

Our John certainly did make the right choices. And how this is evidenced by the tremendous support we have received from so many many people. I have yet to complete the thank you's.

Perhaps you can post the enclosed picture. It is a picture I look at often! It speaks a thousand words . . . and more! I am positive it is how John would want us to remember him. It was taken on his last day of work.

Thank you all!

Enie, Pat and Tim . . . with John in our hearts forever!

Friday, March 28, 2008

PA Joins "Own Your Future" LTCI Campaign

On March 26, 2008, Governor Edward Rendell announced Pennsylvania's version of the "Own Your Future" publicity campaign, which urges "Pennsylvanians to begin planning ahead to better meet their future long-term care needs."

This statewide campaign is tied into the federal government's "Own Your Future" awareness campaign, as conducted by the National Clearinghouse for Long-Term Care Information in a few states since January, 2005.

The Own Your Future Campaign is a collaboration of the Centers for Medicare & Medicaid Services (CMS), the Office of the Assistant Secretary for Planning & Evaluation (ASPE), and the [U. S.] Administration on Aging (AoA), and has support from the National Governors Association (NGA). * * *

The “
Own Your Future” Long-Term Care Awareness Campaign is a joint federal-state initiative to increase awareness among the American public about the importance of planning for future long-term care needs.

As of March 2007, 15 states [
see map] have participated in the Own Your Future Campaign to increase the awareness of the need to plan for future long-term care services.

State efforts include letters to constituents between the ages of 45-70, promotion of the Campaign, including through an initial press conference, and development and dissemination of state based information and resources, such as long-term care websites. Check the activities and resources of individual Campaign States highlighted on the map. * * *
Pennsylvania is not yet marked on that "map", but soon will be, along with Ohio, another state that joined the Campaign in 2008.

The Governor's Press Release is entitled "
Governor Rendell Announces 'Own Your Future" Campaign; Urges Consumers to Better Plan their Long-Term Care Needs".

“Planning for the future is not something that can be put off. If people do fail to prepare, it can carry very difficult and expensive consequences,” Governor Rendell said. “The ‘Own Your Future’ campaign empowers consumers to take steps now that will give them peace of mind and improve their future quality of life.”

Pennsylvania has the third largest percentage of people over age 65, trailing only Florida and West Virginia. By 2020, approximately one in four Pennsylvanians will be age 60 or older.

According to surveys cited by the U.S. Department of Health and Human Services, many consumers do not realize that standard health insurance, Medicare, and/or disability coverage do not pay for most long-term care services. Medicaid pays for some long-term care services, but only for consumers who qualify because of limited income and financial resources.

As part of Pennsylvania’s Own Your Future outreach effort, 1.7 million state residents ages 45 to 65 are receiving letters this week from Governor Rendell that offer information about planning for the future in areas including finances, legal services, housing, health care and long-term care insurance. * * *

Various resources are posted already on websites of the PA Department of Aging and the PA Department of Insurance.

But, the consumer would be well-served to be inquiring & discerning in consideration of long-term care insurance, as noted in a previous posting, "
PA to Promote Long-Term Care Insurance" (03/12/08).

The promotion of long-term care insurance in Pennsylvania coincides with the roll out, by the PA Insurance Department, of Pennsylvania's version of a Long-Term Care Partnership, authorized by Act 40 of 2007, as described on its web page entitled "Long-Term Care Partnership Policies -- Questions and answers about Pennsylvania's newest option for long-term care insurance", updated on March 26, 2008.

On July 17, 2007, Governor Edward G. Rendell signed Act 40 into law, granting strong consumer protections for purchasers of long-term care insurance and helping to address the growing need for long-term care services.

Act 40 also establishes a “Long-Term Care Partnership”, which offers Pennsylvanians the opportunity to provide for their own needs while helping to conserve taxpayer resources.

The new law protects consumers by requiring that all long-term care insurance policies sold in Pennsylvania provide comprehensive coverage and also gives consumers the ability to exchange existing policies for Partnership Policies. Additionally, the law increases the guaranty fund to protect consumers against loss if an insurance company becomes insolvent. * * *

The Long-Term Care Partnership encourages Pennsylvanians to purchase long-term care insurance by providing asset coverage equal to the benefits paid by the policy. This means dollar-for-dollar asset protection. For example, a person whose qualifying policy paid for $100,000 of care would be entitled to keep $100,000 in assets if they need to apply for Medical Assistance in the future. * * *
For further background about Act 40, see: PA EE&F Law Blog posting "PA's Act 40 of 2007 on Long Term Care Insurance" (07/19/07).

Update: 04/21/08:

Attorney Janet Colliton, of West Chester, PA, addressed PA's "Own Your Future" long-term care insurance promotional campaign in her article published on April 21, 2008, in the Daily Local News (West Chester, PA), entitled "
Pennsylvania tells boomers to own their future". In her article, she mentioned the posting made on this Blog.

Thursday, March 27, 2008

Dibert Appointed Chief of PA Inheritance Tax Division

On March 24, 2008, J. Paul Dibert was appointed "Chief" of the Pennsylvania Inheritance Tax Division, which collects & administers the PA Inheritance Tax.

Paul succeeds his friend and long-time co-worker, John Murphy, who retired on June 15, 2007, but then, tragically, passed away on December 12, 2007.
See: PA EE&F Law Blog posting "PA Inh Tax Div Chief Murphy Retired" (12/04/07). Paul had served as a de facto chief for nine months, since John's retirement.

This news was first noted by Gene Gillin, Esq., of Philadelphia, in an email message sent on the evening of March 25th. The news was further disseminated fifteen minutes later by Bob Wolf, Esq., of Pittsburgh, as a broadcast email message to his P&T Hot Tip recipients:

J. Paul Dibert was appointed yesterday as Chief of the Inheritance Tax Division of the Department of Revenue.

Many or even most of you may know Paul, I would think, as he has been a frequent and long term lecturer for the Pennsylvania Bar Institute every year for virtually as long as I can remember. He has also been available to many of us as practitioners when we have had questions about the Inheritance Tax, and in my experience he has always been candid, fair and helpful.

It is great to see a really good and highly competent person be recognized in government. He is a good example of what an administrator of a taxing authority ought to be like, in my opinion.

Congratulations to him and good news I believe for all of us Pennsylvanians and practitioners.
Indeed, for the past many years, Paul Dibert has served as the "educational arm" of the PA Inheritance Tax Division, through his frequent lectures to attorneys, accountants, other professional advisors, registers of wills, and the public.

One of the continuing legal education providers utilizing his expertise, the Pennsylvania Bar Institute, provided a brief biography (which now must be updated) for Paul:
Mr. Dibert is the Business and Trust Valuation Manager of the Inheritance Tax Division of the Pennsylvania Department of Revenue, Bureau of Individual Taxes.

He received his B.S. degree in business administration from Michigan Technological University.

After eight years in private industry, Mr. Dibert joined the Department of Revenue as a supervisor in the Altoona District Office. He transferred to the Inheritance Tax Division in 1985, where he is a manager.

Mr. Dibert is on the faculty of the Pennsylvania Bar Institute and has participated in presentations at least annually for the last twenty-one years. Also, he has participated in presentations sponsored by the Pennsylvania Institute of Certified Accountants for the last thirteen years.

Mr. Dibert is a member of the Department of Revenue annual statewide Fall Tax Presentation staff. He presents seminars to various estate planning councils and county bar associations across the Commonwealth.
Most recently, on February 28, 2008, Paul participated in PBI's four-hour seminar "How to Prepare the Pennsylvania Inheritance Tax Return", which is available now for online replay.

With this posting recognizing his appointment, I probably embarrass Paul. In response to my congratulatory email message to him when I learned the news, he responded: "I am not one who cares for the publicity. I just am doing my job."

That characteristic response is
exactly why Paul is the right person to be Chief.

Wednesday, March 26, 2008

Proposed Federal Background Checks on LTC Workers

On March 17, 2008, McNight's Long-Term Care News posted a news article entitled "Senate budget to include $160 million for elder abuse prevention".

It reported: "The [U.S.] Senate has set aside funding in its fiscal year 2009 budget resolution for a national system of background checks to keep those with abusive and criminal histories out of nursing homes and long-term care facilities."

The Senate approved an amendment for the funding last week, but the money, which would total $160 million, will only be available upon the Senate's passage of the Patient Safety and Abuse Prevention Act of 2007 (S. 1577). The act would set up a comprehensive nationwide system of background checks for long-term care workers.

Both the Senate and House passed nonbinding budget resolutions late last week. The two bodies plan to reconcile their plans this spring.

"The current system of state-based background checks is haphazard, inconsistent, and full of gaping holes," said Senator Herb Kohl (D-WI), Chairman of the Senate Special Committee on Aging and primary sponsor of the background check legislation. * * *
The United States Select Committee on Aging issued a Hearing Statement on June 7, 2007, entitled "Senators Introduce Bipartisan Bill to Create Nationwide System of Background Checks for Long-Term Care Workers", which addressed Senate Bill 1577, after its introduction.
The bill would prevent those with criminal histories from working within long-term care settings by establishing a nationwide system of background checks.

This new system would coordinate abuse and neglect registries with state law enforcement registries, and also add a federal component to the background check by cross-referencing potential employees with the FBI’s national database of criminal history records.

Under the disorganized, patchwork system of background checks that exists today, employers trying to hire caregivers cannot always determine which applicants have records of abuse or a history of committing violent crimes. As a result, predators are sometimes hired to take care of our most vulnerable citizens, working in situations where they can cause enormous harm. * * *
That Statement noted that "This bill is supported by the Elder Justice Coalition, the National Citizen’s Coalition for Nursing Home Reform, the American Association of Homes and Services for the Aging, AARP and many other organizations dedicated to protecting our nation’s vulnerable citizens." For example, EJC provided a supportive statement (PDF, 6 pages) at a committee hearing.

On July 18, 2007, another press release, entitled "Kohl Background Check Bill Gains Momentum at Forum on Elder Abuse", was issued by the U.S. Senate's Special Committee on Aging.

But, does the bill really have "momentum"? It has a ten-year history, with repeated re-introduction, but consistent non-action -- other than some pilot programs in seven states (not including Pennsylvania), as described in the summary of the currently pending bill for a federal "Patient Safety and Abuse Prevention Act":
The Senate Aging Committee first held a hearing on this legislation in 1998.

A subsequent hearing in 2002 focused on the problem of nursing home abuse, highlighting Senator Kohl's bill as part of a possible solution.

The measure was included in the Medicare prescription drug legislation that passed the Senate in June 2003. The final Medicare Modernization Act that became law included a pilot program in seven states, all of which are up and running and showing impressive results. In addition to Wisconsin, the other pilot states are Michigan, Illinois, Nevada, New Mexico, Alaska and Idaho.

Senator Kohl is taking an active interest in monitoring the pilot program, and is working to expand this initial framework to all 50 States. * * *
That Press Release, issued in July, 2007, was the last one, to date, about U.S. Senate Bill 1577 found in the online Press Room of the Senate's Special Committee on Aging.

In the meanwhile, Pennsylvania requires criminal background checks for most workers who would care for the elderly in a congregate setting, according to this statement provided by the PA Department of Aging, online:
Who needs background checks?

The Act 169-1996 Amendment to OAPSA [the Older Adults Protective Services Act] requires a criminal background check for all employees and administrators of nursing homes, personal care homes, domiciliary care homes, adult day care, and home health care providers.

In addition, Pennsylvania Department of Health has defined home health care organization or agency to include: hospices and birth centers, and the Pennsylvania Department of Public Welfare (DPW) has concluded that the Act is applicable to all DPW-licensed and DPW-operated entities:
  • Personal Care Homes, 55 Pa. Code Ch. 2620;
  • Community Residential Rehabilitation Services, 55 Pa. Code Ch. 5310;
  • Long Term Structured Residences, 55 Pa. Code Ch. 5320;
  • Community Homes for Individuals with Mental Retardation, 55 Pa. Code Ch. 6400;
  • Family Living Homes, 55 Pa. Code Ch. 6500; ICF's/MR (private and state), 55 Pa. Code Ch. 6600;
  • State Mental Hospitals; and
  • Nursing Facilities.
A Home Health Care Agency is further defined to include those agencies licensed by the Department of Health and any public or private organization which provides care to a care-dependent individual in their place of residence.

Individuals with convictions for prohibitive offenses (see Figure 5) are prohibited from employment in these facilities.

An employee is defined as any applicant or new employee hired after July 1, 1998. Individuals employed by the facility on or after July 1, 1998, the facility has one year from the effective date of the act to conduct the background check.

The definition of employee includes contract employees who have direct contact with residents or unsupervised access to their personal living quarters. It also includes persons employed or contracted by a public or private organization to provide care to a care dependent person in his/her own residence. * * * [Formatting added.]
Click here for more information regarding such "Criminal History Background Checks" in Pennsylvania.

Tuesday, March 25, 2008

"Room 335" Assisted Living Documentary

At Vanderbilt University, in Nashville, TN, on April 7, 2008, the Dean of Students will sponsor a public showing of the documentary Andrew Jenks: Room 335, according to a press release, "Cinemax documentary on assisted living centers to be screened at Vanderbilt", issued March 21, 2008.

A Cinemax documentary on assisted living centers will be screened at Vanderbilt University. The event is free and the public is invited.

Andrew Jenks: Room 335 is the result of a summer spent by 19-year-old filmmaker Jenks living in a Florida assisted living center as cameras rolled. He played bingo, watched Jeopardy and generally bonded with the other residents.

In a 2004 study done by the
Harvard School of Public Health, it was reported that a baby boomer turns 60 every seven seconds, which is leading to more of our population living in assisted living centers.

The documentary asks the question of whether this is the best way to treat our older citizens.

“The final scenes of the picture witness Jenks departing with a first-hand, heightened knowledge of the elderly and a grave sadness at the thought of leaving his friends behind – as well as concern over their collective physical deterioration,” said
The New York Times. * * *
Congregate living for college students versus senior citizens often results in dormitory life for the youths, but assisted living for the elders.

What observations would be made by a collegian who transfers his living arrangement from a dorm room into a nursing home room?

This documentary film, released in 2006, provided one perspective -- that of 19-year old Andrew Jenks, who transferred into Room 335 at the Harbor Place senior residence, in Port St. Lucie, Florida, for a summer.

Just like the other residents at the assisted living facility Harbor Place, I played bingo, hung out in the courtyards contemplating “the golden years”, and even helped fellow neighbors change their oxygen tanks.

However, unlike Tammy (age 95) or even Bill (age 80), I am only nineteen years old. * * *

For one summer I did all of the things that old people do. I wanted to find the answer to the question: how do they feel now that they face the end of their lives?

I laughed at their jokes about sex, played baseball with canes instead of bats, and raced through the hallways in my friend’s wheelchair.

By the fourth week, three of my closest friends were hospitalized and my best chum, Bill, stopped talking to me. I coaxed my neighbor through a heart attack, saw the heartbreak of dementia, and witnessed the death of a friend.

By the end of the summer, I had formed unimaginable bonds with some of the greatest, and oldest, people that life has to offer. I came to realize that it is in such friendships and the spirit in which you live that meaning is to be found.

My two good college buddies followed this journey and recorded over 200 hours of footage, creating “Andrew Jenks, Room 335”.

The film was reviewed favorably by some publications, such as Variety, which said: "The raw humanity that it uncovers -- running life's roller-coaster ride that ranges from laughter to poignancy to grief."

At film festivals in 2006, the documentary received awards. It was televised on HBO, and remains available for screening at events, upon request, such as the upcoming showing at Vanderbilt University.

Learn more about the film on its website, which offers photos, a "trailer" with the film's scenes, and credits. The producers also continue to maintain a blog about developments.

The subject of this documentary is important, as noted on the film's blog, which posted a quote:
"This century, the world is expected to experience an unprecedented aging of the human population in countries worldwide. . . .
Demographers predict that by mid-century, people age 65 and over will compose about 15 percent of the world’s population, up from about seven percent today."

-Voice Of America

Monday, March 24, 2008

Colliton Reflects on PA Aging "Town Meeting"

On March 14, 2008, a "Town Meeting" about the forthcoming State Plan on Aging, as sponsored by the Pennsylvania Department of Aging, occurred in West Chester, PA; and Janet M. Colliton, Esq. attended.

Such scheduled public sessions were the subject of previous PA EE&F Law Blog postings:
Town Meetings for PA's "Plan on Aging" (12/28/07); and PA Aging Plan "Discussion Guide" Now Available (01/25/08).

Originally, seven sessions were scheduled, which would have concluded by now. But I note from a recent DoA announcement that the schedule was revised.

Two meetings remain to be held at locations: morning & afternoon sessions scheduled for Tuesday, March 25th, in Philadelphia; and a morning session on Friday, March 28th, in Huntington County.

A recent Philadelphia Town Meeting Announcement posted on the Department's website, repeated the purpose of such sessions:

The purpose of the State Plan on Aging is to help structure the Department’s priorities and to set an aging agenda for the Commonwealth.

The State Plan is submitted to the federal Administration on Aging in order for the Commonwealth to receive federal funds under the Older Americans Act. The Plan will cover the four-year period — October 1, 2008 through September 30, 2012.
On Saturday, March 22nd, Attorney Janet Colliton, of West Chester, PA, sent me an email message attaching a copy of her reflections, in an article, drawn from the recent "Town Meeting" held in her hometown, West Chester.

She noted that her article would be published on Monday, March 24, 2008, in the West Chester Daily Local News. I asked if I could post it, too; and she consented.
I thank her for allowing me to post her article, slightly edited. [Links edited.]

Ideas Expressed at a Pennsylvania Aging "Town Meeting”
by Janet M. Colliton, Esq.

A few weeks ago I related that Pennsylvania’s Department of Aging was coming to West Chester for one of its seven 2008 Town Meetings being held throughout the State. That meeting has concluded, the observations have been duly noted, and the State has moved on to its next and final locations.

Here is a report from West Chester.

On March 14, I watched fascinated as crowds of interested persons streamed into the lower level of Sykes Student Union Building at West Chester University for opening presentations. The event pulled together a dissimilar mix of government administrators and staff, providers, those who actually provide services to seniors, elected officials, and consumers including concerned seniors and their families.

After introductions, Nora Dowd Eisenhower, Pennsylvania’s Secretary of Aging, addressed challenges facing Pennsylvania’s services for seniors over the next four years.

If you have been living in a foreign country or have not read a newspaper or followed CNN, Fox, or network news, you might not have heard the Pennsylvania drum roll but here it is.

Pennsylvania has one of the highest percentages of elder citizens in America. This is expected to continue. Pennsylvania has historically had one of the poorest records of providing at-home services for the disabled and frail elderly funded wholly or partially by the government. The much discussed “Baby Boomers” are aging. The Commonwealth wants Pennsylvanians to receive care in a setting of their choice. Resources are limited and priorities must be established.

As someone who works in the field, I recognize these statements may not be interpreted by the average Pennsylvanian in the same manner as they are by persons accustomed to dealing with government. Therefore, translation, with some interpretation of my own, may be in order.

The statement that Pennsylvania has one of the highest percentages of elderly citizens in America means that it costs or could cost the government a great deal of money to fund services at or near current levels.

Since Pennsylvania has historically had one of the poorest records of providing at-home services for the disabled and frail elderly funded by the government, the government wishes to change this statistic and provide more funding for at-home care. Considering that no increases in taxes are expected, the only way that this can be accomplished is to take funds away from nursing homes.

With “Baby Boomers” aging, there will be further stress on the system.

When Pennsylvania states it wants seniors to receive care in a setting of their choice, it means care at home. Reference is frequently made to a Pennsylvania survey that asked seniors whether they would prefer to receive care at home or in a nursing home. Not unexpectedly, most persons state they would rather be at home than in a nursing home.

Recognizing the budget slashing realities that arise from years of “hold the line on taxes” policies, Secretary Eisenhower has her hands full. Federal funding has been on a long downward swing. Pennsylvania also calls for cuts and is required to have a balanced budget.

Following the opening presentation, Town Meeting participants broke into groups depending on interests and on whether they categorized themselves as consumers of services (seniors and their families) or providers (service providers and government).

Sparks flew and some valuable observations and ideas resulted at the provider meetings I attended. Here is a small sampling. Our area included Chester and Delaware Counties and Philadelphia.
  • Transportation. Experiences of seniors stranded when they called for pick-up and of workers who needed reliable transportation were described. Transportation is an issue.
  • Reimbursement rates. Providers noted, with frustration, that reimbursement rates were too low to attract many quality home care workers. To pay for one or two hours’ care when several hours of transportation time go uncompensated affects delivery of services.
  • Recognition of creative family agreements. If the government wants families to assist, I suggested it should support shared living and shared expense arrangements where children receive compensation from parents without penalty.
You can still provide your own written testimony or comments on senior services either by mail to Pennsylvania Department of Aging at the address given in Harrisburg or by e-mail or complete the survey on-line.
Janet Colliton writes a weekly column for the West Chester Daily Local News regarding her practice areas of elder law, retirement, Medicaid, Medicare, life care planning, and estate administration. She may be contacted at: Colliton Law Associates, PC, 790 East Market St., Ste. 250, West Chester 19382 (Ofc: 610-436-6674; Email:

Friday, March 21, 2008

"Is There An Afterlife?"

Last year, I read the book "The Afterlife Experiments: Breakthrough Scientific Evidence of Life After Death", by Gary Schwartz, Ph.D., with William L. Simon, published by Simon & Schuster, Inc./Atria Books (02/01/2002).

This book approached the question of "survival of death" by attempting to apply scientific methods & tests, and achieve a conclusion supported by evidence.

Estate & trust professionals deal with the effects of death, as an occurrence, on property interests, including taxation & transfers. Those effects may be complicated, but -- man-made -- are quantifiable.

Because of our choice of careers, I suspect that most of us also ask more profound questions about death, including "Is there an Afterlife?" These other-worldly questions appear beyond response by reason or even most personal experience, and so usually become answered by religious faith or personal belief.

But some scientists attempt to apply experimentation to the subject.
The author of The Afterlife Experiments conducted experiments, and then reached a conclusion: Under controlled laboratory conditions, leading mediums could contact dead friends & relatives and bring back detailed information, which could only have been gained if they were indeed in contact with the dead.

This is a description of that book, as offered by EReader:

This riveting narrative, with its electrifying transcripts, puts the reader on the scene of a breakthrough scientific achievement: contact with the beyond under controlled laboratory conditions.

In stringently monitored experiments, leading mediums attempted to contact dead friends and relatives of "sitters" who were masked from view and never spoke, depriving the mediums of any cues.

The messages that came through stunned sitters and researchers alike. Here, as they unfolded in the laboratory setting, are uncanny revelations about a son's suicide, what a deceased father wanted to say about his last days in a coma, the transformation of a man's lifelong doubts about the afterlife, and, most amazing of all, a forecast of a beloved spouse's death.

Dr. Schwartz was forced by the overwhelmingly positive data to abandon his skepticism, reaching some startling conclusions. * * *
The book was reviewed upon its publication by organizations pleased by his conclusions. See, for example:
What if you could have a scientific reason to believe what you already in your heart know is true? The Afterlife Experiments: Breakthrough Scientific Evidence of Life after Death (Pocket Books) by Gary E. Schwartz, Ph.D., offers such a gift for those who know that life is eternal, that the soul survives death of the physical body. A professor at the University of Arizona, Dr. Schwartz and his groundbreaking, double-blind experi­ments have attracted a lot of attention. His methodology removes all the skeptics' objec­tions to survival research except one - that he does such research in the first place. * * *
The Afterlife Experiments is a lucid, well-written, thought–provoking book. The book starts out with a quote from the works of William James, the founding father of American Psychology, a man who actually accepted evolution and believed that our minds had evolved to help us survive! The words quoted state “In order to disprove the law that all crows are black, it is enough to find one white crow.” Presumably, the author has found not one, but five such crows! * * *
IF THE evidence offered by Dr. Gary Schwartz in this book that consciousness survives bodily death does not sway the skeptic, it is likely that the skeptic has closed his mind to truth and is only a pseudo-skeptic, merely a cynic who can't get past his intellectual arrogance or the fear that his structured material world will be shattered. Schwartz offers evidence that goes well beyond the "preponderance of evidence" standard required to prove civil law suits and, in this writer's opinion, easily meets the "beyond a reasonable doubt" standard required for criminal cases. * * *

But the author's methodology (and certainly his conclusion) was criticized publicly by at least one scientist, and critiqued by many self-described "skeptical" groups.

The author,
Professor Gary E. Schwartz, was the Director of the VERITAS Research Program at the University of Arizona, which, as of January, 2008, "expanded into a broader, more comprehensive, spiritual communication project named the SOPHIA Research Program", now also directed by him.

Since 2002, Professor Schwartz has written books on other challenging topics such as The G.O.D. Experiments: How Science Is Discovering God in Everything, Including Us, and The Energy Healing Experiments: Science Reveals Our Natural Power to Heal. These books are described on his website.

The question "
Is there an Afterlife" was addressed in a more recent book, written by Deepak Chopra, M.D., entitled Life After Death: The Burden of Proof (Harmony Books, October 17, 2005). Dr. Chopra had written the foreword to Dr. Schwartz' 2002 book. I noted the book in my posting, "Physicians on Mortality & Dying: Part II" (01/30/07).

Another recent book on the subject, Is There An Afterlife?: A Comprehensive Overview of the Evidence, by David Fontana, was published in February, 2005:
Is death the end of this existence, as some scientists seem to assume?

Fontana, a British psychologist and fellow at Cardiff University, thinks not.

In this manual, he marshals studies and other evidence to demonstrate the persistence of unexplained phenomena that point to the likelihood of life after death. * * *
If you are intrigued by the scientific approach to the question "Is there an Afterlife?", consider these other online resources:
Is the end of life really The End? Though conventional scientific wisdom says so, that hasn't stopped researchers around the world from trying to quantify the soul, explore near-death experiences, and other research into what might come next. Mary Roach, author of the book Spook: Science Tackles the Afterlife talks about her findings.

Dr. Ken Ring published a paper in the Journal of Near-Death Studies (Summer, 1993) concerning near-death experiencers who, while out of their bodies, witness real events that occur far away from their dead body. The important aspect to this phenomenon is that these events seen far away are later verified to be true. * * *

A scientifically controlled NDE that can be repeated which provides such evidence would be the scientific discovery of all time. However, science does not yet have the exact tools to accomplish this. But, science is coming very, very close. This kind of evidence and others provide very strong circumstantial evidence for the survival of consciousness. * * *
Spring began yesterday. Easter will occur on Sunday. Consideration of death and an afterlife, by each of us, could not be undertaken at a better time.

Thursday, March 20, 2008

Evans' Book on "Estates Practice" Updated

In January, 2008, the American Bar Association published the Second Edition of How to Build and Manage an Estates Practice (232 pages), by Daniel B. Evans, Esq., of Philadelphia, PA.

The ABA's web store describes Dan's updated book as follows:

Specifically tailored to the unique needs of the estates and trusts lawyers, this updated second edition of "How to Build and Manage an Estates Practice" focuses on making your practice better.

Written as a "book of ideas," you'll find guidance on marketing, effective client communications, fee agreements, and ethics, including the updates to the American Bar Association's Model Rules of Professional Conduct.

Whether you're a solo practitioner or a lawyer at a large firm, you'll find the tools you need to make a difference.

Authored by Daniel B. Evans, a veteran attorney focusing on the areas of estate planning and estate and trust administration, this edition highlights constructive ways to apply ideas that have worked for him to your own practice.

Organized logically, the book starts with deciding what kinds of clients you want, to finding those clients, to choosing clients and establishing fee agreements, to doing the actual legal work.
Inside, you'll find:
  • Strategies in defining your practice to bring focus and growth
  • The best ways to communicate with your clients
  • How technology and ethics have changed the practice area
  • Analysis of the Department of the Treasury Circular 230 issued in 2005
  • Innovative ideas for finding new clients
  • Ethics issues, including the challenges of marital and inter-generational representation
  • Fee agreements, including ideas on alternative billing in estate planning, administration, and litigation
  • Optimum strategies and practical ideas for billing
  • Tips on hiring personnel
Sample forms, checklists, and questionnaires, such as an Estate Planning Questionnaire, Estate Administration Schedule, and Will Execution Instructions, are included on an accompanying CD.
Dan is indeed a "veteran" estate & trusts attorney. He is the former (2006-2007) Chair of the Pennsylvania Bar Association's Real Property, Probate & Trust Law Section, an active contributor to our RPPT Section listservs, a regular author of articles for our RPPT Section Newsletter, and a frequent speaker at Pennsylvania Bar Institute courses. He is also involved in the Philadelphia Bar Association's Probate & Trust Law Section, and in the American Bar Association's Real Property, Trust & Estate Law Section, which sponsored his book for publication.

A representative of the ABA recently requested that I write a review about Dan's revised book. I am familiar with his first edition, having used it as supplemental material in the teaching of law students in an "Estate Planning & Administration" course at Widener Law School (Harrisburg Campus) for a few years. I agreed, and the ABA sent me a copy.

So, in the near future, I will post a more detailed review of
How to Build and Manage an Estates Practice. Since I still have my copy of his first edition, I will compare the two, and note the updates; and I will also consider what I believe to be the highlights.

We are proud that our fellow
Pennsylvania practitioner, Dan Evans, "wrote the book" on this subject for a national audience -- again.

Wednesday, March 19, 2008

More Estate Planning & Elder Law Blogs

New or revitalized blogs, authored by attorneys in various states, focus on subjects of elder law, personal & estate planning, incapacity issues, estate & trust law, long-term care & Medicaid planning, and related matters.

This expansion is reflected in the gradually lengthening list of active "Notable Legal Blogs" that I maintain in the right sidebar of this blog, published by knowledgeable legal authors in various jurisdictions.

Most blogs on that list have been active for more than a year. Their authors demonstrate passion, professional expertise, & persistence long-term.

Those stalwart "bloggers" have been joined by new blog authors, whose sites I recently added to my list:

  • Nolo's Everyday Estate Planning Blog -- This blog began in September, 2007, and recently resumed regular updates with well-written postings on relevant estate planning topics, like reverse mortgages, pet trusts, reproductive technology, environmentally-friendly funeral arrangements, and more. It is connected with the well-known, commercial, "self-help" legal publisher (print, online, & software), Nolo Press, of California.
  • Michigan Elder Law & Estate Planning -- In Michigan, Attorney Jerry Bartholomew upgraded his new blog into a redesigned "version 2.0". He began his original "blogroll" with two links -- one to David Goldman's Florida Estate Planning Blog, and one to this PA EE&F Law Blog. I am sure that he will add many more to his list. He provided an update in his email message to me recently: "I have nearly completed the transition to the new webpage. * * * Thanks again for your encouragement."
  • GeriLaw, originating in Phoenix, Arizona, is edited by Robert B. Fleming, Esq., of Fleming & Curti, PLC -- a law firm that pioneered, years ago, periodic electronic emailing of elder law updates for a national audience. On the blog that evolved last year, various contributors post on topics of "elder law, estate planning, guardianship and conservatorship, long-term care planning, special needs trust and planning, [and] trust administration". Its "blogroll" includes this Blog.
  • Since January, 2007, Kenneth Vercammen, Esq., has written periodically on his New Jersey Elder Law blog.
Just as such specialized legal blogs increase, so do legal blogs generally, and also the online lists of legal blogs. For some lists of blogs related to the subject matter of this one, see: PA EE&F Law Blog postings featuring them:
Now, lest you think that blogging brings Nirvana, reveals the Holy Grail, or transfers Aladdin's Enchanted Lamp, consider this question, posed & then contemplated on February 29, 2008, in a posting by big-law bloggers Jim Beck (Philadelphia) & Mark Herrman (Chicago), who author the Drug & Device Law blog: "Why Are Blogs Undervalued?"

Tuesday, March 18, 2008

New PA Realty Transfer Regs Affect Assignments

Harris Ominsky, Esq., of Philadelphia, PA, sent me an article, entitled "PA Realty Transfer Taxes: New Regulations Would Tax Assignments of Purchase Agreements", and we exchanged email messages regarding my posting of it.

Harris is a well-known lawyer, now retired as a partner at the Blank Rome LLP law office in Philadelphia, PA, specializing in real estate matters; and he is a prolific writer too.

He is a Past President of the Pennsylvania Bar Institute, and the author of "Real Estate Practice, Breaking New Ground" (PBI, 2000), and "Real Estate Lore, Modern Techniques and Everyday Tips for the Practitioner” (American Bar Association, 2005).

I am pleased to post his article, which I edited very little, only adding links to references mentioned. Any questions regarding the article can be addressed to Harris Ominsky, Esq.

Realty Transfer Taxes: New Regulations Would Tax Assignments of Purchase Agreements
By Harris Ominsky, Esq.

New regulations by the Pennsylvania Department of Revenue would tax assignments of agreements of sale under certain circumstances. This position is now officially confirmed in Realty Transfer Tax Bulletin 2008-01, issued January 3, 2008 in the Pennsylvania Bulletin, as Doc. No. 07-2306, and posted thereafter as RTT Bulletin 2008-01 (PDF, 13 pages). That Bulletin attempts to clarify the application of one of the "Special Situations" under the Department’s Realty Transfer Tax Regulations, specifically under 61 Pa. Code Section 91.170. That Bulletin purports to provide “guidance” through a series of hypothetical scenarios including, among other things, assignments of sale agreements.

All lawyers who deal with real estate transactions should review this Bulletin. If these new rules are enforceable, taxpayers will have to pay substantial transfer taxes for transactions that most lawyers never even imagined could be taxable. The hypothetical scenarios are somewhat complicated, but it now appears that the Department intends to tax assignments of agreements of sale, with certain limited exceptions.

Let’s look at a relatively routine assignment of an agreement of sale in light of these new rules. A buyer enters an agreement to purchase real estate and later either assigns the agreement or nominates an unrelated purchaser to close with the seller at settlement. The owner of the property then conveys the property by deed to the assignee or nominee of the original purchaser.

Up until now, just about everyone in the real estate industry viewed that transaction as taxable based on the stated purchase price in the agreement of sale. The transfer tax was generally split equally between the grantor and the grantee. The Commonwealth of Pennsylvania’s transfer tax is one percent, and the transfer tax by the local municipality ranges from an additional one percent in most places to three percent in Philadelphia.

A Double Tax

Now the Pennsylvania Department of Revenue takes the position that there are two transactions involved in that scenario -- one involving the transfer of the agreement of sale to the assignee or nominee, and another involving the deed from the original owner. In effect, the Department is treating the assignment as though it were a separate deed and looking at what it calls the “substance of a transaction rather than its technical form.” It wants to tax both transactions. A double tax!

Don’t just take my word for it. Read the Bulletin and regulations yourself.

How could this possibly happen? For this purpose, the Department has dragged out a 30-year old case of the Pennsylvania Supreme Court called Baehr Bros. v. Commonwealth, 409 A.2d 326 (Pa. 1979), which honors substance over form. The problem with that choice of precedent is that it arose in a completely different context, and the Court in that case did the opposite of what the regulations purport to do here. The Baehr Bros. case gave the taxpayer a break and held that the Department could not tax a deed that, on its face, is taxable if the deed actually represents a series of excluded transactions that have been reduced to one deed for the convenience of the parties.

Flawed Concept

Even more astounding, the new rules ignore the realty transfer tax statute, which defines a taxable “document” as “any deed, instrument or writing that conveys, transfers, demises, vests, confirms or evidences any transfer or demise of title to real estate.” (Emphasis added.) In addition, the definition of “document” specifically excludes wills, mortgages, and “land contracts whereby legal title does not pass to the grantee until the consideration specified in the contract has been paid or any cancellation thereof unless the consideration is payable over a period of time exceeding 30 years….” This exclusion for agreements of sale is confirmed in the Department’s Regulations. Sec. 91.101, Definition of “Document”(iii).

How then do agreements of sale or assignments of these agreements become taxable “documents”?

The Department’s concept that an assignment of an agreement of sale is in “substance” like a deed is substantially flawed. As any lawyer knows, a whole set of different legal rules apply to a purchaser who has rights under an agreement of sale than to a grantee who has rights under a deed. For example, rights and obligations vary considerably whether one owns the property or merely owns rights under an agreement. Judgments against real estate ownership are treated differently than judgments against interests in an agreement of sale. Lenders’ rights will be secured differently against holders of real estate interests than against interests in agreements of sale. A whole recording system and established rules stem from the concept of mortgaging real estate ownership. Control over the property and obligations for environmental problems, torts and code violations vary considerably depending on whether one is a titleholder or an assignee under an agreement of sale.

End Run around Court

The Supreme Court decision in Allebach v. Comm., 546 Pa. 146 (1996), held that a seller did not have to include assignment payments from an assignee in the purchase price. While the Court wasn’t specifically asked to determine the liability of an assignee, the new regulations seem to be an end run around that Supreme Court decision.

In Allebach, the Department argued that if it did not tax assignment payments, that would create a tax “loop-hole.” The Court responded that even if that were true, it is up to the Pennsylvania legislature to deal with that issue, and it’s not within the scope of the courts to change those laws “simply because we may believe that they do not adequately address the fiscal needs of this Commonwealth.”

Complications and Confusion

The Department’s new position will create anxiety and confusion in the real estate community. It will stir up unnecessary complications and fees in some real estate transactions. It will cause a certain amount of second-guessing of completed transactions that might now be exposed to claims for additional taxes. It will inspire tax planning and new structuring of transactions to avoid possibilities of double or triple taxation on assignments of agreements of sale. For example, if the original buyer under an agreement wants to nominate a purchaser for closing, it could just arrange to cancel the original agreement with the seller and encourage the seller to enter into the same agreement with the new buyer.

Also, what will be the position of the Department about options to purchase and assignments of those options? Will they also be considered taxable in the same way as the Department intends to treat agreements of sale?

How will agreements of sale, or assignments of them or designation of nominees to take title ever be detected? Unlike deeds, these documents are rarely recorded. The Bulletin is so misguided that some lawyers and real estate purchasers may decide just to ignore it. In any event, it seems unlikely that courts will agree with the Department’s position on assignments when it is challenged.

The Department of Revenue is grasping at straws to support its position with the Baehr Bros. case. That stretch hangs on a misreading of the Court’s comment that substance may control over form.

This rather arbitrary reliance on a case that helped taxpayers expand their exemptions, plaintively invokes a hunter-inspired lament: “ Some days you get the Baehr, and other days the Baehr gets you.”