Lawyers & a Judge Educate about Living Trust Scams

On March 20, 2009, the Pittsburgh Post-Gazette published a brief article entitled "Free legal clinic offered on probate, living trusts" that announced a free legal clinic, hosted by both the Allegheny County Bar Association and the Pennsylvania Attorney General's Office, to discuss issues involving probate and living trusts to be held on March 31, 2009, in Pittsburgh.

The clinic will feature a panel discussion of members of the bar association's probate and trust law section in addition to Judge Frank J. Lucchino, administrative judge in the Orphans' Court Division of the Allegheny County Court of Common Pleas, and John Abel, senior deputy attorney general in the Bureau of Consumer Protection.

The clinic will also advise attendees on how to guard against living trust scams targeting senior citizens. * * *

This free session for the public involves representatives of both the judicial and the executive branches of government, and is sponsored by the attorneys of a county bar association. Such joint educational outreach efforts are valuable and laudable.

The clinic will be held on Tuesday evening, March 31st, from 6:30 p.m. to 8:30 p.m. at the Crowne Plaza Pittsburgh South Hotel, across from South Hills Village.

Those interested in attending should call 412-402-6651 to make a reservation.

Health Care Reform Symposium at Susquehanna

In a News Release issued March 9, 2009, Susquehanna University, in Selinsgrove, PA, announced that "National and regional experts will debate merits of universal coverage" during a symposium to be held on campus on Wednesday, March 25th & Thursday, March 26th, 2009.

A panel of respected health policy experts — including lawmakers, a best-selling author and a foundation executive — will meet at Susquehanna University this month to discuss health care reform, a signature issue of the Obama administration.

Author Jonathan Cohn; Pennsylvania state Sen. Ted Hughes; Cara James, director of the Barbara Jordan Health Policy Scholars Program at the Henry J. Kaiser Family Foundation; and Cybele Bjorklund, of the health subcommittee of the U.S. House Committee on Ways and Means, are just four of 15 experts who will weigh in on the issue of universal health care coverage at a symposium March 25 and 26 at Susquehanna University in Selinsgrove, Pa.

Sponsored by the Arlin M. Adams Center for Law and Society, the symposium is a unique opportunity for audiences to hear from all sides: medical, socio-economic, legislative and business, with perspectives from consumers, practitioners, insurers and policy makers. * * *

Click here for a complete schedule and list of panelists.

These are the "highlights" of the two-day event, according to the News Release:

• On March 25 at 7:30 p.m., the keynote presentation by Jonathan Cohn, author of “Sick: The Untold Story of America's Health Care Crisis--and the People Who Pay the Price.” The talk will take place at the Degenstein Center Theater.

• On March 26, 9:45 a.m. to 4 p.m., panel discussions with participants from national and state government, insurance companies, health care practices, public health enterprises and educational institutions. All panel discussions will be held at Stretansky Concert Hall.

• Also on March 26, at 7 p.m., a concluding dialogue presenting both sides of the issue, for and against universal health care coverage, at the Degenstein Center Theater.

• Panel discussions include The Role of Government, Employers and Insurers in Health Care, at 9:45 a.m.; Balancing Affordability and Comprehensive Coverage, at 12:30 p.m.; and Barriers to Reforming the Health Care System, at 2:30 p.m.

As recently as last night, President Obama emphasized during town hall meetings that reforming the national health care system is a priority national issue; and so this symposium is timely, as noted in the News Release:

“President Obama announced last week to a joint session of Congress that the most important issues facing the nation are energy, education and health care,” said Allen Sobel, director of the Adams Center.

“This symposium could not be more timely or on a more important topic. Those who attend will walk away better able to make informed decisions about whether our health care system can be saved and, if so, what needs to be done to save it.”

About 45 million Americans are without health insurance, according to the Congressional Budget Office, which estimates that, without policy changes, the number will rise to about 54 million in 2019. Rising unemployment rates will only accelerate the problem.

“The expense of sudden illness cannot be postponed like the purchase of a new car or clothes,” Sobel said. “Consequently, millions of American constantly face looming financial disaster.”

Personally, I am pleased that an issue of such importance will be debated at Susquehanna University, in Central Pennsylvania.

The symposium is free and open to the public.

"Broken Trust" Elder Abuse Study Released

In March, 2009, a new study on elder abuse prevention, entitled "Broken Trust: Elders, Family, and Finances" (PDF, 40 pages), was issued by the MetLife Mature Market Institute, the National Committee for the Prevention of Elder Abuse, and the Center for Gerontology at Virginia Polytechnical Institute & State University.

Release of the Report was announced in a Press Release dated March 17, 2009, entitled Financial Abuse Costs Elders More Than $2.6 Billion Annually, According to MetLife Mature Market Institute Study, Though Four in Five Cases Are Not Reported posted by BusinessWire and other services.

According to its Executive Summary, the Report "provides a comprehensive understanding about the extent and implications of elder financial abuse in all its various manifestations — personal, institutional, and societal."

Through an extensive review of available information on elder abuse, this research enhances the understanding of the complexities surrounding elder financial abuse, the current magnitude of the issue, reasons why this issue is likely to grow, and some recommendations of ways to potentially mitigate this complex and devastating crime.

While difficult to present any comprehensive or consensus definition of elder financial abuse, this study considers elder financial abuse as “the unauthorized use or illegal taking of funds or property of people aged 60 and older.”

It is perpetrated by those who gain, and then violate, the trust of an older person.

They can be as close as a family member, neighbor, or friend, or as distant as an invisible voice on the telephone or an e-mail from the other side of the globe. * * *

These are the key findings of the Report:

• While underreported, the annual financial loss by victims of elder financial abuse is estimated to be at least $2.6 billion dollars

• Elders’ vulnerabilities and larger net worth make them a prime target for financial abuse

• The increased aging of the population, social changes, and technology advances will lead to a dramatic increase in the opportunity for a growing level of elder financial abuse

• The perpetrators of elder financial abuse are typically not strangers and most are people who have gained the trust of the older individual, including business and service professionals and family members

• The victims of elder financial abuse come from all walks of life, and this type of abuse affects elders regardless of gender, race, or ethnicity.

How widespread is financial elder abuse?

Elder financial abuse is commonly linked with other forms of abuse and neglect and threatens the health, dignity, and economic security of millions of older Americans.

It is estimated to cost Americans tens of billions of dollars annually in health care, social services, investigative and legal costs, and lost income and assets.

Elder financial abuse is a problem in every community and among all social strata. It is underrecognized, underreported, and underprosecuted. * * *

From what source data were these key points and overview derived? News articles.

The methodology that analyzed the elements reported in articles and accounts is distinctive for compiling such a report -- one that could only have been done in an era of the Internet and search engines.

From April through June 2008, leading researchers from the National Committee for the Prevention of Elder Abuse (NCPEA), Dr. Pamela Teaster, Virginia Polytechnic Institute and State University (Virginia Tech), and Dr. Karen Roberto, reviewed all Newsfeed articles from the Administration on Aging’s National Center on Elder Abuse (NCEA), collected by the National Association of Adult Protective Services (NAPSA), which tracks media reports daily of elder abuse through Google and Yahoo Alerts (a process that scans billions of Web pages).

This was the first large-scale analysis using this untapped data resource on elder financial abuse on a national basis. * * *

The Table of Contents indicates the scope of the well-written Report:

Major Findings

• What Is Elder Financial Abuse?
• Who Experiences Elder Financial Abuse?
• Aging Women: Prime Targets for Elder Financial Abuse
• Aging Men: From “Sweetheart” to Victim
• Elder Financial Abuse — An Equal Opportunity Crime Against Elders
  

Prevalence of Elder Financial Abuse

• The Perpetrators of Elder Financial Abuse
• Elder Financial Abuse by Family Members
• Businesses as Perpetrators of Elder Financial Abuse
• Elder Financial Abuse by Acquaintances and Strangers
  

Growing Problem of Elder Financial Abuse
Aging and Susceptibility to Elder Financial Abuse

• Balancing Autonomy and Protection: Understanding the Complexities of Elder Financial Abuse
• The Tip of the Iceberg: Why Victims Do Not Report
  

Identifying the Problem: Leading Signs of Elder Financial Abuse

Lasting Impact of Elder Financial Abuse

Addressing Elder Financial Abuse

• Industry and Professional Efforts
• Governmental Efforts
• States Respond to Elder Financial Abuse
• Examples of Promising Local Practices
  

Preventing Elder Financial Abuse

The Report cites fifty-one sources, and provides excellent bullet points of practical advice in identifying and addressing financial elder abuse.

It concludes with recommendations for preventing financial elder abuse:

1. Education about one’s rights and about the various types of consumer fraud and scams;
2. Financial conservatorship and/or power of attorney for those who are vulnerable;
3. Assignment of responsibility to a trusted outside person, if children are a concern;
4. Additional media attention for this issue;
5. Training financial professionals to properly assist older customers;
6. Assistance from social services, medical/nursing personnel, government agencies;
7. Reporting suspected cases of financial abuse to local authorities.

This easily-read Report adds a new methodology to the study of financial elder abuse. It confirms many subjective impressions and objective findings about the current extent -- and likely expansion -- of this age-related oppression, and then offers strategies to combat it.

With good reason, financial elder abuse has been characterized by some experts as “the crime of the 21st Century.”

–J.F. Wasik, Journalist, quoted in the Broken Trust report (2009)

AHLA Session on Advance Care Planning

On April 8, 2009, at 1:00 p.m. EDT, the American Health Lawyers Association will offer a one-hour teleconference, Honoring Our Patients and Capturing Lost Opportunities: The Financial, Legal, and Practical Benefits of Advance Planning, for a fee of $30 (either member or non-member). Materials for the session will be available on April 1st.

This is the description of the call-in session, which is sponsored by AHLA's Public Interest Committee:

Now, more than ever, healthcare providers and patients have an interest in advance directives.

During this period of economic uncertainty, advance planning can offer precious clarity and increased healthcare efficiency, and yet most Americans have not exercised this valuable right.

Public awareness on this subject has increased in recent years, providing the perfect opportunity for providers to encourage their patients to execute an advance directive. * * *

These are the topics to be covered:

• Improvements in the quality of care when the patient's wishes are known.

• The hospital's continuing legal obligation to inform their patients about advance directives.

• The economic benefits of advance directives for the community.

• Tools and methods for communicating with your patients.

Teleconference participants will also receive a DVD of AHLA's just-released educational video, Loving Conversations: One Family's Story About the Importance of Advance Healthcare Planning.

This video will be extremely helpful in facilitating conversations between you and your client or the healthcare provider and her patient.

The DVD provides the viewer with a dramatic look at the difficult decision making process that a family must undergo when a loved one has no advance directive.

By offering the call-in course, AHLA will show support for National Healthcare Decisions Day (NHDD) which will be on Thursday, April 16, 2009. NHDD is an annual effort to encourage patients to express their wishes regarding healthcare, and to encourage providers and healthcare facilities to respect those wishes, whatever they may be.

Presenters include:

• Nathan A. Kottkamp, Esq., Chair, National Healthcare Decisions Day, of McGuireWoods LLP, Richmond, VA

• Lisa D. Vandecavey, of Botsford Health Care Continuum, Farmington Hills, MI

• Thomas W. Coons (Moderator), of Ober/Kaler, Baltimore, MD

Registration information is available online here; and a printed registration form (PDF, which can be faxed) is available here.

Medicare to Cover Sleep Disorder Treatments

On March 3, 2009, the Centers for Medicare & Medicaid Services announced that Medicare will cover sleep testing for the diagnosis of obstructive sleep apnea.

CMS finds that the evidence is sufficient to determine that the results of the sleep tests identified below can be used by a beneficiary’s treating physician to diagnose OSA, that the use of such sleep testing technologies demonstrates improved health outcomes in Medicare beneficiaries who have OSA and receive the appropriate treatment, and that these tests are thus reasonable and necessary under section 1862(a)(1)(A) of the Social Security Act. * * *

The announcement was noted in a brief article entitled Medicare to pay for sleep apnea tests posted on March 16, 2009, by American Medical News, a service of the American Medical Association.

Some local Medicare contractors have covered the sleep exams, which can range from simple home tests to more complex exams done in a sleep laboratory, but Medicare has lacked a national coverage policy on the testing.

"Medicare beneficiaries who have obstructive sleep apnea face significant risks for cardiovascular disease and other ailments," said CMS Acting Administrator Charlene Frizzera. "This coverage decision establishes nationally consistent coverage and assures that beneficiaries who have sleep apnea can be appropriately diagnosed and referred for treatment."

The relevant CMS coverage memorandum is available online under the heading Decision Memo for Sleep Testing for Obstructive Sleep Apnea (OSA) (CAG-00405N).

An article dated May 1, 1999, entitled Sleep Problems in the Elderly, by David N. Neubauer, M.D., of the Johns Hopkins Sleep Disorders Center, Baltimore, Maryland, posted by the American Academy of Family Physicians, reviewed the incidence of sleep disorders in the elderly.

Complaints of sleep difficulty are common among the elderly. In a National Institute on Aging study of over 9,000 persons aged 65 years and older, over one half of the men and women reported at least one chronic sleep complaint.

Typical symptoms of sleep problems in the elderly include difficulty falling asleep and maintaining sleep, early-morning awakening and excessive daytime sleepiness.

A variety of processes may interfere with sleep and wakefulness in the elderly. Among them are acute and chronic medical illnesses, medication effects, psychiatric disorders, primary sleep disorders, social changes, poor sleep habits and circadian rhythm shifts. Sleep-wake problems may be compounded further by inappropriate treatment initiated by the patient, family members, physicians or other care providers.

The consequences of chronic sleep problems can be considerable. Loss of sleep or chronic use of sedating medications may lead to falls and accidents. Sleep-disordered breathing may have serious cardiovascular, pulmonary and central nervous system effects.

Evidence supports a strong association between sleep apnea and hypertension.6-8 In persons with dementia, severe sleep disruption often leads to nursing home placement.

For all of these reasons, sleep problems in elderly patients should be properly evaluated and treated. * * *

The National Institutes of Health provides an answer to the question What Is Sleep Apnea?

Sleep apnea is a common disorder in which you have one or more pauses in breathing or shallow breaths while you sleep.

Breathing pauses can last from a few seconds to minutes. They often occur 5 to 30 times or more an hour. Typically, normal breathing then starts again, sometimes with a loud snort or choking sound.

Sleep apnea usually is a chronic (ongoing) condition that disrupts your sleep 3 or more nights each week. You often move out of deep sleep and into light sleep when your breathing pauses or becomes shallow.

This results in poor sleep quality that makes you tired during the day. Sleep apnea is one of the leading causes of excessive daytime sleepiness. * * *

The NIH article noted the dangers associated with untreated sleep apnea, which can:

• Increase the risk for high blood pressure, heart attack, stroke, obesity, and diabetes
• Increase the risk for or worsen heart failure
• Make irregular heartbeats more likely
• Increase the chance of having work-related or driving accidents

Lifestyle changes, mouthpieces, surgery, and/or breathing devices can successfully treat sleep apnea in many people. * * *

A connection between sleep apnea and stroke was highlighted in a 2006 study. In Sleep Apnea Ups Stroke Risk in Elderly (08/30/06), by Jennifer Warner, posted by WebMD Health News, it was reported that "[o]lder adults with sleep apnea may face a more than doubled risk of stroke, according to a new study."

Researchers found undiagnosed sleep apnea increased the risk of stroke by 2.5 times among the elderly. Previous studies have linked severe sleep apnea to strokes in middle-aged adults, but researchers say this is the first study to show an increased risk associated with the sleep disorder among older adults. * * *

In the study, published in Stroke: Journal of the American Heart Association, researchers followed nearly 400 adults between the ages of 70 and 100 for six years. Each was evaluated for sleep apnea at the start of the study.

During the study period, 20 strokes were reported. Participants with previously undiagnosed severe sleep apnea were 2.5 times more likely to have a stroke, regardless of their other traditional stroke risk factors such as high blood pressure, smoking, and cholesterol levels. * * *

Thus, as we age, obstructive sleep apnea creates greater risks for general health. Diagnosing and treating sleep disorders in elders covered by Medicare is a step forward for better health.

New Attempts to Abolish PA Inheritance Tax

Pennsylvania's "death" taxes are again targeted for phase-out by some mid-state legislators. But given the grim economy both nationwide and statewide, their chances for success appear dim.

On February 28, 2009, the York [PA] Daily Record & Sunday News reported, in its article entitled 'Death tax' targeted by mid-state lawmakers, by Richard Fellinger, that "a] group of midstate House Republicans are trying to kill the so-called death tax -- or at least cripple it."

Rep. Will Tallman, R-Hanover, has sponsored a bill to eliminate the state inheritance tax this year. The tax is levied on taxable assets that change hands after someone's death.

Meanwhile, Rep. RoseMarie Swanger, R-Lebanon, is preparing to re-introduce a bill that would phase out the tax over the next several years. And Rep. Dan Moul, R-Adams, is pushing a bill that would exclude heirs from paying the tax on estates worth less than $250,000.

Tallman said the tax has to go because it puts a heavy burden on the families of farmers and small business owners after an owner dies.

"What is happening is we are really impairing the ability of businesses or farms to be transitioned to family members," Tallman said. * * * [Links added.]

Not mentioned in the article are other House and Senate bills also introduced in the 2009-2010 Legislative Session with similar long-term phase-out and repeal effects.

The Pennsylvania Farm Bureau lists "Reduction or Elimination of State Inheritance Tax on Farms " as one of its ten key legislative concerns affecting farmers in the Commonwealth.

Pennsylvania’s inheritance tax imposes significant burdens on the ability of farm families to financially manage the transition of farms between generations.

Unlike federal estate tax, state inheritance tax laws essentially impose tax on the first dollar of value of an estate passing from a deceased family member to another family member.

Children who receive a $500,000 farm through death of the parent will be required to pay $22,500 in inheritance taxes.

Payment of the tax is required to be made in cash. If the farm business does not have available cash, the farm family will need to sell off farm assets to pay the tax, with no guarantees that the family will receive a price from the sales of assets that equals what these assets are truly worth.

If land needs to be sold to pay for the tax, succeeding generations will receive farms that are less productive and are less likely to be viable in the future. * * *

That calculation ignores availability of the special rules applying to the valuation of farmland, which are described on page 9 in the Instructions to Schedule A of the REV-1500 (PA Inheritance Tax Return for a Resident Decedent) regarding "Special Farm Use Valuation."

Under Section 9122 of the Inheritance and Estate Tax Act of 1991, land devoted to agricultural use, agriculture reserve or forest reserve may be eligible for preferential assessment measured by particular use, rather than by fair market value. assessments.

If you elect to use this method of valuation, the special use valuation under the Pennsylvania Farmland and Forest Land Assessment Act of 1974, 72 P.S. §5490.1, et. seq. must be reported. You will also be required to submit fair market value appraisals of the residential property, farm outbuildings and agricultural property so that a proper valuation may be made if the special use is discontinued or if the property does not meet all requirements. * * *

Pennsylvania's "Special Farm Use Valuation" provisions differ from the special valuation rules for farms under the Federal Estate Tax. See: Pamphlet, The Pennsylvania Inheritance Tax in Comparison with the Federal Estate Tax (PDF, 2 pages) published & posted by the Pennsylvania Institute of Certified Public Accountants.

But this already-available valuation advantage is not the reason why termination of the Pennsylvania Inheritance Tax likely will not occur any time soon. State budget concerns likely will rule instead, as in the past. See: PA EE&F Law Blog postings "House Passes Bill Abolishing PA Death Taxes" (01/18/08) and "Repeal PA Inheritance Tax?" (11/16/06).

This continuing reality was noted in the recent York Daily article:

As unpopular as the tax is with some conservatives, eliminating it will be a challenge with state revenues on the decline. Gov. Ed Rendell has predicted a $2.3 billion budget shortfall this year.

Last year the inheritance tax brought in $828 million for the state, and this year it was projected to raise $849 million, but collections are down.

As of Jan. 31, the state collected $450 million from the inheritance tax, which is $46.9 million below estimate, according to the Revenue Department.

Swanger introduced her bill to phase out the tax last term, but it languished. She acknowledged it's a longshot this year with the state facing revenue problems.

"But it's something my constituents want done away with, so I'm willing to introduce it," she said. * * *

These are the presently pending House or Senate bills that would affect application of the Pennsylvania Inheritance Tax and the Pennsylvania Estate Tax:

• Senate Bill 80, introduced by Senator ALLOWAY

• House Bill 175, introduced by Representative MOUL

• House Bill 374, introduced by Representative TALLMAN

• House Bill 423, introduced by Representative PETRI

• House Bill 635, introduced by Representative SWANGER

Also noteworthy is House Bill 577, introduced by Representative ADOLPH , which would exempt certain disabled persons from payment of PA Inheritance Tax.