New PA Court System Initiative on Senior Issues

In Issue 2 of 2011 (July) of AOPConnected  the newsletter of the Administrative Office of Pennsylvania Courts, on page 3, I found a column entitled An All Too Common Tale, by Zygmont A.  Pines, Esq., the Court Administrator of Pennsylvania.

He identifies a new "initiative" that I would equate with a "sea change" for the Pennsylvania court system regarding elder abuse issues and controversies.

That initiative "will examine some of the myriad issues, (e.g., technology, information-gathering, fiduciary misconduct, monitoring of guardianships), that have an impact on seniors in our legal system."

He and I have talked in the past about the need for the Pennsylvania court system to respond to the increasing and specific needs of the Commonwealth's aging population.  I anticipate he wants to spread the word about the Pennsylvania Supreme Court's new initiative, so he should not object to this Blog's re-posting and highlighting of his column.

This is it:

Last year, in connection with the Interbranch Commission on Juvenile Justice’s report, this column made reference to the fairy tale of Little Red Riding Hood.

The Grimm brothers described their stories as Children’s and Household Tales.  Now is an apt time for another one.

The Old Grandfather and His Grandson is a tale of a very elderly man who was abused and neglected by his son and his wife.  The old man was physically frail and often spilled his soup at the kitchen table.  When the old man with shaking hands dropped and broke his earthenware soup bowl, he was harshly scolded and given a wooden bowl to eat from.

One day the four-year old grandson was found making something with wood.  When the father asked his son what he was doing, he simply said, “Oh, I’m making a little trough for you and Mother to eat from when I’m big.” The man and woman looked at each other and cried.  Thereafter, they brought the old man to the table and let him eat with them. According to the tale, “And if he spilled a little, they did not say a thing.”

This simple childhood tale came to mind when I read the following article on the web.  The story was from South Carolina.  It was captioned: “Parrot’s Chilling Comments Aid Police in Elder Abuse Case.”

A talking parrot provided what could be taken as chilling evidence in the case of a 60-year old South Carolina woman charged with neglecting her 98-year old mother, who was found on the verge of death suffering from severe bedsores.

The parrot was mimicking,“Help me.  Help me.” Then he would laugh.  “We thought he was mimicking the mother when he said, ‘Help me.  Help me,’ and mimicking the daughter when he laughed,” said Sergeant Bonnette.

Anne Copeland died at a hospital Tuesday after being found by authorities in poor condition at her home Monday…Her daughter, Gloria Park Clark, has been charged with abuse and neglect resulting in the death of a vulnerable (Source: ABA Journal, December 2010, article by Martha Neil)

Truth mirrors fiction and vice versa.  The parrot story about poor Anne Copeland could serve as a simple plot line for a “CSI” or “Law and Order” episode.

As for the grandfather’s tale, it is fiction in form only.

The childhood story was reportedly based on an autobiographical novel that the Grimm brothers had read.
Both reflect the timeless theme of elder abuse.

During the last few decades, courts have done exceptionally good work (particularly in Pennsylvania) addressing the needs of society’s abused and neglected children.  The paramount concern has been on the protection of children who depend on others for their safety and welfare.

More recently, some court systems have been paying closer attention to the other side of life’s spectrum, the so-called twilight years, when infirmities and isolation increase one’s helplessness in dealing with the evils of abuse and neglect.  The Conference of State Court Administrators speaks in terms of “the demographic imperative.” Simply put, it is the other face of dependency.

Pennsylvania ranks third in the nation for the percentage of people 65 and older.  Recognizing the harsh realities behind this statistic, our Supreme Court has endorsed an initiative that will examine some of the myriad issues, (e.g., technology, information-gathering, fiduciary misconduct, monitoring of guardianships), that have an impact on seniors in our legal system.

Chief Justice Castille recently advised us that the Supreme Court has designated Justice Debra Todd to work with the AOPC in forming a small working group.

It is a promising start.

AOPC looks forward to working with Justice Todd and others.  We hope to learn from court systems (both local and nationwide) that have pioneered good practices in the elder field.  It is an example of our justice system once again adapting and changing and helping, despite austere economic times.

For nearly five years on this Blog and elsewhere, I have advocated for such a focus and for changes to the court system that will protect seniors.  I am thrilled with the possibilities that such an initiative can pursue.

Bowmaster Decides Difficult Medicaid Lien Issues

On December 29, 2009, the Pennsylvania Supreme Court issued an opinion in E.D.B., v. Gerald Clair and Centre Community Hospital, No. 78 MAP 2008, that resolved a conflict in decisions issued by the Superior Court and the Commonwealth Court as to the extent of the statutory lien provided to the Pennsylvania Department of Public Welfare upon private litigation proceeds, for reimbursement to DPW of its expenses advanced to a Medicaid beneficiary.

The Court's ruling vacated the Superior Court’s prior holding in the case, and reinstated the Order of the Court of Common Pleas of Centre County, dated November 6, 2006.

The Supreme Court’s E.D.B. opinion settles the “incompatible--indeed opposite—holdings” reached by the two Pennsylvania lower appellate courts -- the Superior Court in Bowmaster v. Gerald Clair and Centre Community Hospital, 933 A.2d 86 (Pa.Super. 2007) [PDF, 11 pages], and the Commonwealth Court in Shaffer-Doan v. Department of Public Welfare, 960 A.2d 500 (Pa.Cmwlth. 2008) [PDF, 9 pages]. See also: Jordan v. Western Pennsylvania Hospital, ___ A.2d ___, No. 346 C.D. 2008, 2008 WL 4831303 (Pa. Cmwlth. Nov. 10, 2008) [PDF, 12 pages], and Galindo v. Crozier-Keystone Health System, No. 1136 C.D. 2008 (Pa.Cmwlth., January. 8, 2009) [PDF, 9 pages].

The Supreme Court majority sided with the Commonwealth Court's analysis by holding that a minor Medical Assistance (Medicaid) recipient has a cause of action against a third-party tortfeasor to recover, but then reimburse the Department of Public Welfare, for Medical Assistance benefits received during minority.

Specifically, the Court majority interpreted subsection 1409(b) of the Pennsylvania Fraud Abuse and Control Act to supersede, according to the dissent, “centuries’ worth of Pennsylvania jurisprudence which places the responsibility to raise a child upon her parents”. The Court majority favored the public interest of protecting taxpayers and the public treasury in the provision of Medical Assistance benefits, which historically were not considered in common law parental support principles.

Notably, the Supreme Court recognized that the General Assembly had enacted subsection 1409(b), conferring upon the Department of Public Welfare a statutory right to reimbursement from the “entire amount of any settlement” “notwithstanding any other provision of law”, prior to the United States Supreme Court’s monumental decision in Arkansas Department of Health & Human Services v. Ahlborn, 547 U.S. 268, 126 S.Ct. 1752 (2006).

Because the operative facts of E.D.B.’s case arose pre-Ahlborn, the Court leaves the door open for post-Ahlborn challenges to claims for reimbursement by the Department when a beneficiary’s complaint unequivocally fails to assert damages for medical expenses incurred during minority.

Notably, the Department of Public Welfare appears to be proactively preempting the opportunity for any such argument by actively intervening in minors’ actions that do not seek recovery for medical expenses during minority, as contemplated in 62 P.S. 1409(b).

For the Department's general Statement of Policy in this regard see: Implementation of Third-Party Liability Provisions of Act 2008-44, published Saturday, November 1, 2008, 38 Pa.B. 5970, which states "how the Department will interpret and apply sections 1409 and 1409.1 of the Public Welfare Code (code) (62 P. S. §§ 1409 and 1409.1) to tort claims involving MA recipients."

Note: Thanks to Nora E. Gieg, Esq., of Tucker Arensberg, P.C., for contributing to this article, edited and expanded by Neil E. Hendershot, Esq. for this Blog.

New Cause of Action under FINRA Found

A decision issued on June 30, 2009, by a three-judge panel of the U.S. Third Circuit Court of Appeals, in Sarah Grammer v. John J. Kane Regional Centers-Glen Hazel (PDF, 23 pages), likely will impact nursing home and rehabilitation facilities that provide care subject to the Federal Nursing Home Reform Amendments (FNHRA).

The decision reversed a ruling by the United States District Court for the Western District of Pennsylvania, and, by its fresh interpretation of FNHRA, recognized new causes of action under those amendments to federal law.

The decision was noted by Professor Katherine C. Pearson, who is the Director of the Elder and Consumer Protection Clinic, of Penn State - Dickinson School of Law, and who now is Chair of the Elder Law Section of the Pennsylvania Bar Association. She sent me an email message with a link to her web article about the decision, and granted me permission to repost it. I do so now (reparagraphing & links applied), with thanks to her.

Should Federal Standards for Care by Nursing Homes be Enforceable
by Private Suits for Damages under Federal Civil Rights Laws?
The Third Circuit Says Yes.

by Katherine C. Pearson

Advocates for elders and disabled persons in nursing homes have long been frustrated by the absence of an express cause of action in federally imposed “Nursing Home Residents Rights,” a key feature of the Nursing Home Reform Act (NHRA) at 42 U.S.C. § 1396r.

On June 30, 2009, however, the Third Circuit Court of Appeals ruled in the case of Sarah Grammer v. John J. Kane Regional Centers-Glen Hazel that a private cause of action does exist under federal civil rights laws, at 42 U.S.C. § 1983, for violation of the resident’s rights under the NHRA. State action, necessary for a civil rights suit, existed because the defendant facility was a county-operated home.

In 1987, Congress enacted key nursing home reform laws in an effort to respond to widespread complaints about quality of care in facilities that were accepting Medicare and Medicaid dollars. Until that legislation, it was not uncommon to hear complaints about aged residents routinely being restrained in beds or chairs to prevent wandering, or being heavily medicated solely to make the residents easier to “manage.”

The Nursing Home Reform Act for the first time mandated that with the exception of emergencies, a doctor’s detailed, written order would be required before physical or chemical restraints could be imposed, and then only when necessary for the physical safety of the residents. The federal law mandated that facilities must care for residents “in such a manner and in such an environment as will promote maintenance or enhancement of [their] quality of life. . . .”

The legislation was widely hailed as ushering in a new era of accountability for institutional caretakers. But individual residents and their families have frequently questioned whether administrative sanctions for violations of the law, such as civil fines or threats of defunding, are sufficient to protect residents.

In the Grammer case, the complaint alleged breach of the duty to ensure quality care under NHRA standards, citing the death of Melviteen Daniels from poor care that resulted in malnourishment, decubitus ulcers and sepsis, and alleging the cause of action under 42 U.S.C. § 1983.

The District Court in the Western District of Pennsylvania dismissed the complaint for damages, finding no cause of action existed at law.

The Third Circuit reversed in a 2 to 1 ruling. In the majority opinion, Circuit Judge Nygard gives a detailed explanation of how the NHRA should be recognized as unambiguously conferring federal, substantive rights on residents to quality care, rights that are enforceable under federal civil rights statutes.

The dissent notes that the NHRA was enacted as part of an Omnibus Budget bill, pointing to Supreme Court decisions that have rejected attempts to infer substantive rights from “Spending Clause” cases.

The Third Circuit's decision in Grammer opens new doors for recovery on behalf of older adults and disabled persons in public facilities, including the potential for attorneys' fees for successful civil rights claimants.

The outcome also suggests a new question, whether privately-owned nursing homes are also subject to a civil rights suit for violations of NHRA-mandated standards of care. Are private owners operating under color of state law when they are certified as Medicare and Medicaid qualified facilities and accept public dollars for their services? At a minimum, does the existence of a federal cause of action against public facilities strengthen the argument by resident-advocates that violation of federal standards constitutes "negligence per se" for common law tort claims?

Another open question is whether mandatory arbitration provisions in nursing home admission agreements will be treated as limiting or barring courtroom litigation of federal civil rights claims.

New Advance Directive Form Released

Recently, Robert B. Wolf, Esq., of Pittsburgh, PA, sent an email alert to his "P & T Hot Tip" recipients and to the Pennsylvania members of the American College of Trust and Estate Counsel regarding a newly-revised Health Care Power of Attorney and Living Will document developed and posted jointly by physicians and lawyers in Western Pennsylvania.

With his permission I repost his message, with links added.

I am pleased to advise that last week the Board of the Allegheny County Medical Society approved a Durable Health Care Power of Attorney and Living Will document and brochure updated for Act 169 and which was already been approved by the Probate & Trust, Elder Law and Health Law Sections and the Board of Governors of the Bar of the Allegheny County Bar Association.

It is available for FREE DOWNLOAD and use by attorneys, physicians, other health care providers and the general public as a public service by the Allegheny County Bar Association and the Allegheny County Medical Society.

It can be found within the ACBA site under "For the Public" [here].

At the present time, the form and brochure is the only one in Pennsylvania jointly endorsed by a Bar Association and a Medical Society. The form and brochure will be copyrighted, so it may not be altered and retain the endorsement logos of the two associations.

Of course, filling it in for an individual client and reproducing it is perfectly fine -- it is the intended use.

In the near future there will be a news release to the media and the general public but not until decisions have been made relative to the availability of hard copies, and likely an electronic fill-in form.

There were a total of close to a quarter of a million copies of the original form endorsed in 1993 distributed in the decade following its endorsement and publication. The surprising thing is that more than half of the total were sent out in individual orders of one or two copies at a time indicating that the promotion efforts successfully reached households in western Pennsylvania (and to some degree across Pennsylvania).

This is an opportunity for attorneys who have not already done so to consider updating or revising their forms to take Act 169 into account and to consider reaching out to their clients to be sure that these important documents are up to date.

The Allegheny County Medical Society recently referenced, under its "News & Events" heading Revised Health Care Power of Attorney and Living Will Available, that there was a development, but the text links to a web page previously posted by ACMS in 2007, not recently updated.

That web page provided an introduction to Pennsylvania's Advance Care Directive law, effective January 29, 2007, which authorized such modern health care decision making documents.

A quick overview of Act 169 which may be helpful for you, as well as a more detailed summary of the Act which may be informative to your physician and helpful to your attorney, are available at the website for the Pennsylvania Medical Society.

Additional more technical legal information can be found at [PA HealthCare DecisionMaking]. * * *

If you have further questions, we suggest that you discuss them with your attorney and your physician. * * *

Interestingly, the Advance Health Care Directive form still linked on that web page on the Allegheny County Medical Society (PDF) is that produced in 1994 by both organizations, not yet the 2009 form already posted by the Allegheny County Bar Association (PDF). Certainly, use the newer form.

[Update: 05/14/09 -- I am pleased that the Allegheny County Medical Society updated its Advance Health Care Directive webpage since my original posting, to accurately reflect the "Revised Advanced Directive and Health Care Power of Attorney now available." See: 2009 form posted by the ACMS, which is identical to that posted by the ACBA. The link to the 1994 form was removed. Unfortunately, so was the text that contained the link mentioned below. C'est la vie! It was nice while it lasted.]

As author of the PA HealthCare DecisionMaking website, I am pleased that it is listed by ACMA as a reliable resource regarding Chapter 54 of Title 20 of PA statutes.

As a patient and as a citizen, I am pleased that the lawyers and physicians in Western Pennsylvania cooperated in producing this updated, reliable document for use by anyone at no cost.

Proposed Expansion of PA Medicaid Recovery

On Friday, May 1, 2009, Katherine Pearson (Professor of Law, Penn State Dickinson School of Law), as Chair of the Pennsylvania Bar Association's Elder Law Section, sent an email message alerting section members that, "[a]s part of a plan to implement Governor Rendell's proposed budget for the Commonwealth, legislation was introduced on April 28 that would significantly affect Medical Assistance (MA) Estate Recovery."

This legislative proposal would create far-reaching changes in the law -- not only for Medicaid recovery, but also for estate planning, real estate ownership & transfer, creditors' rights & lien priority, and fiduciary liability in estate & trust administrations. I hope that it is not reviewed lightly or superficially given these potential effects.

With her permission, I repost her alert.

In the key bill, House Bill 1351, at Section 1412 [See: Footnote 1, below], the proposal expands the ability of the Commonwealth to seek reimbursement of MA monies paid to/for a person 55 or older by giving the Commonwealth the right to make a claim against all real property, personal property and other assets in the deceased's probate estate, including any such property in which the deceased had "any legal title or interest at the time of death . . . including such assets conveyed to a survivor, heir, or assign of the deceased individual through joint tenancy, tenancy by the entireties, tenancy in common, survivorship, life estate, living trust or other arrangement.

Section 1412 further creates a lien on the property, that follows the property into any surviving party's hands, and establishes the Commonwealth's priority rights of repayment, with the potential for penalties on executors or administrators who fail to protect the lien.

Section 1412, subsection 10, seeks to restrict attorneys fees payable from an estate that is subject to the Commonwealth's lien.

HB 1351 also has provisions that affect calculations of eligibility for Medical Assistance because of payment of prior or "other" medical expenses, and that create new definitions.

This bill is likely to come to the floor of both houses very soon as part of the Governor's Omnibus Budget proposal, and will certainly be voted on before the end of the session, June 30.

* * *

Footnote 1:

This is the language of Sections 1412 and 1417 of the bill (HB 1351):

Section 1412. Repayment from Estates.—

(a) Notwithstanding any other provision of this act or any other law, the department shall establish and implement an estate recovery program to recover medical assistance paid with respect to individuals who were fifty-five years of age or older at the time that assistance was received. Under this program, the department shall recover from the estate of an individual the amount of medical assistance paid for all services provided to the individual. For purposes of this section, an individual's estate shall include all of the following:

(1) All real and personal property and other assets subject to inclusion within the deceased individual's estate under 20 Pa.C.S. (relating to decedents, estates and fiduciaries).

(2) Any other real and personal property and other assets in which the deceased individual had any legal title or interest at the time of death, to the extent of such interest, including such assets conveyed to a survivor, heir, or assign, of the deceased individual through joint tenancy, tenancy by the entireties, tenancy in common, survivorship, life estate, living trust or other arrangement.

(a.1) Liability for debt shall be as follows:

(1) If property subject to the department's claim is transferred without the department's claim being satisfied, then the executor or administrator transferring such property, if there is one, shall become liable to pay the department's claim.

(2) If property subject to the department's claim is transferred to the extent that the transfer is made without valuable and adequate consideration in money or something worth money at the time of the transfer and without the department's claim being satisfied, then the executor or administrator transferring such property, if there is one, and the person receiving such property shall become liable to pay the department's claim.

(3) If property subject to the department's claim is held by a person, including a cotenant, remainderman, or trustee, then the person holding such property is liable to pay the department's claim.

(b) The executor or administrator of the estate of a decedent who attained fifty-five years of age shall ascertain whether the decedent received medical assistance during the five years preceding death and, if so, shall give notice to the department to secure from the department a statement of the department's claim for medical assistance consistent with 20 Pa.C.S. § 3392(3) and (6) (relating to classification and order of payment). The department must submit its claim to the executor or administrator within forty-five days of receipt of notice or the claim shall be forfeited.

(c) This section shall apply notwithstanding the provisions of section 447.

(d) The department may administratively assess liability under this section. Any final order of the department determining liability under this section:

(1) Shall be a lien on the real and personal property of the individual in the manner provided by section 1401 of the act of April 9, 1929 (P.L.343, No.176), known as "The Fiscal Code."

(2) May be entered by the department in the manner provided by section 1404 of "The Fiscal Code."

(3) Shall continue and retain priority in the manner provided in section 1404.1 of "The Fiscal Code."

Note that the legislation places personal liability on any person, including a trustee, holding any interest that the Department of Welfare determines is subject to estate recovery. “If property subject to the department's claim is held by a person, including a cotenant, remainderman, or trustee, then the person holding such property is liable to pay the department's claim.” Under the legislation this liability is set by the Department of Public Welfare administratively rather than by a court. This could allow the Department to effectively limit the payment of personal representative, trustee, and attorneys fees payable from a decedent’s estate or trust.

Another section of the Bill also attempts to limit attorneys fees.

Section 1417. Limit on claim reduction.

In any action, claim, or settlement where the department is required to reduce its claim, on account of attorney fees incurred by a recipient in obtaining a recovery of cash or medical assistance for the department, the reduction shall not exceed twenty-five percent of the department's recovery.

What is a "Gun Trust"?

Joshua G. Prince authored an article entitled The New Trust on the Block -- the "Gun Trust." I am pleased to post his simplified explanation of a concept foreign to many professionals and consumers.

Josh is now a third-year law student at Widener University School of Law (Harrisburg Campus). He was the author of three prior articles, which I edited and posted on this Blog in 2007 about the handling, transferring, and holding of weapons.

Based upon those article, he was a co-presenter with me in 2008 at three sessions for lawyers about "Guns in Estates & Trusts" held at the bar associations of Cumberland County, Dauphin County, and Berks County, PA. See: PA EE&F Law Blog posts DCBA Gun Session with a Heller of a Difference (07/07/08), and "Guns in Estates & Trusts" Seminar (04/25/08), and the many links included.

Josh can be reached at: joshua@princelaw.com. Feel free to contact him with any questions.

The New Trust on the Block -- the "Gun Trust"

Copyright © 2009 by Joshua G. Prince

As if estate planning was not already complex and all-encompassing, there is a new craze sweeping firearm enthusiasts throughout Pennsylvania and the rest of the United States. It is the Gun Trust. However, most attorneys are bewildered by this new trust and are asking: What is it? What is its purpose? What benefit does it give?

What is a "Gun Trust"?

In essence, a Gun Trust is a language specific trust that only holds Machineguns, Suppressors, Short-Barreled Rifles, Short-Barreled Shotguns, Destructive Devices, and/or Any Other Weapons (referred to as Title II weapons under the National Firearms Act¹) for the benefit of a beneficiary, while giving possessory and use rights to the trustee(s).

What is the Purpose of a "Gun Trust"?

To understand the purpose of a Gun Trust, one must understand the National Firearms Act (NFA of 1934)², the Gun Control Act (GCA of 1968)³, and the Firearms Owners Protection Act (FOPA of 1986).⁴ Specifically, under these laws, an individual must register any Machinegun, Suppressors, Short-Barreled Rifle (SBR), Short-Barreled Shotgun (SBS), Destructive Device (DD), or Any Other Weapon (AOW).

The Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE) currently allows the registration of NFA firearms, by an “individual”, which is defined as: “A partnership, company, association, trust, estate, or corporation, as well as a natural person.”⁵

An individual looking to transfer/register a NFA firearm needs to file an application (BATFE Form 1 for making a NFA firearm, and BATFE Form 4 for transferring a NFA firearm⁶), in duplicate, provide a registration tax⁷, two sets of fingerprints, and two photographs.⁸ Furthermore, the individual must obtain the signature of a Chief Law Enforcement Officer (CLEO). While the application requires that the individual person obtain a CLEO signature, nothing mandates that a CLEO must sign an application for a NFA firearm, even if the applicant would pass the BATFE's rigorous background check.⁹

With many CLEOs refusing to sign for NFA firearms, even though both federal and state law allows for ownership, firearm enthusiasts sought different ways to acquire NFA firearms. In looking to the BATFE regulations, many saw corporations and trusts as viable alternatives, since they do not require a CLEO signature.¹⁰ With corporations requiring hefty startup costs, annual tax returns, and a lack of privacy, many began to investigate the trust alternative.¹¹

And so was born the Gun Trust. For a trust, the application must be submitted in duplicate, with the appropriate tax fee¹², but the trust is not required to submit fingerprints or photographs.¹³ More importantly, as stated above, a trust does not require a CLEO signature.

What benefit does a "Gun Trust" Offer?¹⁴

One of the highlights of a Gun Trust is the ability to acquire NFA firearms without a CLEO signature. However, there are numerous other benefits that flow from a gun trust. For instance, with a properly drafted gun trust, the trustee(s) will have the ability to possess and use the firearms, without violating their obligations as trustees and fiduciaries.

Another reason that many families opt for a Gun Trust is the ability for multiple people to use a weapon. When an NFA firearm is transferred or registered to an individual, only that individual may possess and use that NFA firearm. However, with a gun trust, any trustee may possess the firearm. Of course, for trustees to able to use the firearm, the trust must be properly drafted. Hence, where a family sets up a gun trust, all family members over the age of 18 could be designated trustees; thus enabling them to have possession of the firearm.

Another reason for a gun trust is the ability to draft it such that the trust will continue to hold the firearms until the beneficiary comes of age¹⁵ or until the trustee determines that the beneficiary is of such maturity that he/she can assume the responsibilities of ownership.

Also, in Pennsylvania, there is the possibility of a perpetual trust, since the Rule Against Perpetuities has been abolished. Thus, an individual who is concerned about future statutory changes, can form a gun trust that will provide these NFA firearms to generations to come without future transfers.

In states that have not done away with the rule against perpetuities or for short-term gun trusts, the BATFE allows a tax-free transfer, upon the death of the settlor/grantor, to the beneficiary, so long as, the beneficiary is a familial relation to the settlor/grantor.

Conclusion

These are but a few of the reasons that firearm enthusiasts are opting for gun trusts. However, a gun trust should not be drafted without sufficient knowledge of the NFA and BATFE's rapidly changing (sometimes daily) decisions regarding trust applications. While it is likely that the BATFE will institute a tighter regulations regarding gun trusts and gun corporations in the future, a gun trust could continue to provide substantial benefits over personal transfer/registration.

Maybe it will even be referenced in a law school textbook someday.¹⁶

* * *

Footnotes:

1 Title I weapons under the National Firearms Act, as amended, are the typical firearms that the public is accustom to seeing at the range or while hunting. These include handguns, bolt action rifles, and semi-automatic rifles.

2 26 U.S.C. § 5801 et seq.; 73 P. L. No. 474; 48 Stat. 1236.

3 90 P. L. No. 618; 82 Stat. 1213. (amending the National Firearms Act).

4 18 U.S.C. § 921 et seq.; 99 P. L. No. 308; 100 Stat. 449. (amending the National Firearms Act). FOPA prohibits the making or registering of any new machineguns. The author has posted online a copy of the entire NFA with amendments (PDF).

5 27 C.F.R. 479.11 (2003)

6 Electronic versions of these forms are posted online. Click on the desired form, and the page will change to a new page where you can input information. When submitted using the button in the lower left-hand corner, the form will be automatically filled in with that information. To see what a blank form looks like, just scroll to the bottom and hit "submit".

7 The registration tax will either be $5 (for Any Other Weapons) or $200 for all other NFA firearms.

8 26 U.S.C. § 5811; 26 U.S.C. § 5812.

9 Lomont v. O'Neill, 285 F.3d 9, 15 (D.C. Cir. 2002). Although a CLEO is not required to sign, further litigation is expected. See, Stephen P. Halbrook, Firearms Law Deskbook, 537-541 (Thomson/West, 2007).

10 BATFE, ATF National Firearms Act Handbook, 59 (June 2007) [See graphic above].

11 Another detriment to using a corporation is that many states require annual fees or levy stock assessments. Pennsylvania is not currently among those states. The author previously posted a further comparison of different entity options for NFA firearm ownership.

12 The registration tax will either be $5 (for Any Other Weapons) or $200 for all other NFA firearms.

13 26 U.S.C. § 5812.

14 The author previously posted a full discussion of gun trust issues and considerations.

15 To own or possess a NFA firearm, the individual must be at least 18 years of age.

16 Editors Note: Maybe, Josh; but "gun trusts" likely will not be promoted in the ATF's National Firearms Act Handbook.

Executing versus Engaging a HCD

At year's end, I noted many articles recommending execution of a health care directive or a "living will", as an important aspect of personal planning.

Engaging surrogate medical decisions in an end-of-life setting is more difficult than executing a document authorizing it.

The ramifications of a surrogate's medical decision, resulting in a patient's death, can last long and feel lonely.

In "Gwen was very lucky to have a friend like you" published in The Morning Call (Allentown, PA) on January 3, 2009, residual guilt was the subject. Such powerful feelings persisted in a questioner, despite a rational determination and a loving approach, which released a suffering friend consistent with her prior directions.

With permission granted by the columnist, Marc Gellman, I repost the question posed to him by a health care agent who fulfilled her role, but who still suffers anguish.

Gwen was very lucky to have a friend like you

Q: For 15 years, I held medical power of attorney for my best friend, whom I loved and respected. She was very sick for a long time and well aware that her time on earth was short. She even planned her own funeral and had a do not resuscitate order (DNR) in effect.

Many times, my friend stated that she didn't want to be tied to tubes. On one very horrible day, she choked and was taken to the emergency room, where the staff contacted me. When I arrived, the doctor informed me that they had worked on her for a while but couldn't keep her brain functioning and that it would be humane to let her go. I granted permission, and shortly after, she passed away into the arms of God.

Now, for my question ... I've always tried to live a life where you do not hurt another, much less agree that someone should die. For so many years, I fought to keep my friend strong and healthy, and I never gave up on her. Now, my soul is so heavy. I know I respected my friend's wishes, but my heart says I let her down and watched her die -- in essence, I killed her by not doing anything to save her.

Does God see me now as a murderer? How do I balance having medical power of attorney and honoring my friend's wishes with the torment my soul is going through? Most of all, how can I ask God to forgive me for letting her die?

-- Gwen's friend, via e-mail

The columnist's answer relies both on rational arguments and also on religious faith:

A: First, try to remind yourself that for 15 years you kept your friend alive. You helped her achieve a quality of life she would have never been able to achieve without you. At the end of her life, it was simply time for her to go.

It's important for you to understand that your friend was not dying when you received that phone call; she was already gone. Brain death is death, according to all medical and medical ethics guidelines.

Although you may feel like the catalyst to her death, it was God who took your friend, not you. Please let go of the burden on your soul. No one could have had a better friend than you.

The burden you feel now is not a sign of guilt, but rather a sign of love.

The column, entitled The God Squad, is syndicated through Tribune Media Services, 2225 Kenmore Ave., Suite 114, Buffalo, NY 14207. The columnist can be reached at godsquadquestion@aol.com.

Acting as a health care agent is challenging and fulfilling, but also painful for the sensitive person.

Capability to make decisions is one criteria for selection of an agent. Reliability to implement choices based on a patient's personal preferences is another criteria. Ability to accept the consequences of decisions made is a painful final criteria.

Elder Law Attorney as Family Counselor

On December 3, 2008, a Pennsylvania elder law attorney, Laurel Hartshorn, of Saxonburg, related a story on the PA Elder Law Section's listserv that highlighted the good work of elder law attorneys with aged clients and their families.

I post Laurel's account (as edited by me) with her permission.

Had a wonderful call today. A client's daughter called to thank me.

The daughter and her brother met with me two weeks ago to talk about their mother. Mom was failing quickly and they needed some advice.

One of the issues we discussed was medications.

At the Elder Law seminar in July, I attended the lecture by a blind geriatric doctor. He stressed how medications could get mixed up or have bad combinations. He also said that the changes might occur rapidly.

Since that seminar, I have paid particular attention to what caregivers and clients say about rapid changes in health or behavior. So I suggested that daughter talk to mom's pharmacist first and then the doctor.

The daughter went the next day and talked to the pharmacist. Lo and behold, there had been a substitution by the pharmacy in mom's medicines. The pharmacist told the daughter that she though it would be okay, since the drugs were in the same prescription family.

Apparently, however, mom could not tolerate the new drug, and the family did not know about the change.

Mom is back on the correct medication. She is doing much better and is regaining strength.

The family is so happy. They said they could not believe that such a great result could come from a conference with an attorney.

Funny how sometimes I give personal advice. It is just something that I do -- relate information that I had acquired. I might not realize how important non-legal suggestions may become until a client or a family benefits.

I want to thank the organizers of the July conference for bringing in the doctor to speak. At least in my practice, for those clients, his session may have had a life saving effect.

Such stories can be told by most elder law attorneys, who daily offer advice and counseling in the model of the old-style, small town "family lawyer" or "counselor-at-Law," with one objective: Help the aged client.

In an excellent article entitled "The Lawyer as Counselor Representing the Impaired Client" published in the American Bar Association's General Practice & Solo Magazine (10-11/2004), attorney Timothy David Edwards considered the lawyer's role as a "Counselor-at-Law" in the setting of an addiction affecting a client and creating a disability.

After his detailed analysis of situational factors, scientific developments, and attorney ethical principles, he concluded:

As lawyers, we are in a position to help people who trust us and seek us out for advice.

If we come to understand our client, the nature of addiction, and the appropriate sources of treatment, we are in a better position to provide useful guidance that the client is more likely to accept. By staying involved and providing a compassionate, critical mirror, we can truly make a difference.

This is a daunting responsibility, but it can provide lasting benefits to the impaired client.

This point was reinforced in a message once posted by Thomas J. Ryan, Esq., as President of the State Bar of Michigan, entitled "Attorney and Counselor at Law." He noted:

It is not an overstatement to say that in this way, as counselor, we use our skill in an effort to heal — not just the immediate problem presented to us, but the person as well.

In a very real sense, society benefits as well from this counselor approach. And we should not underestimate the professional fulfillment we derive from our privilege to serve in this capacity. * * *

An elder law lawyer functions daily as a "counselor-at-law" -- a role that is personally gratifying and professionally beneficial.

James Ruling Impacts Annuities in Medicaid Planning

On November 12, 2008, the United States Third Circuit Court of Appeals issued its decision in James v. Richman (PDF, 15 pages), No. 06-5092, 547 F.3d 214 (3rd Cir., Nov 12, 2008), 2008 U.S. App. LEXIS 23530, aff'd, James v. Richman, 465 F.Supp.2d 395 (M.D. Pa., Nov 21, 2006), which upheld the purchase of a long-term annuity by a "community spouse" that converted excess assets of a couple into a stream of protected income in a pre-DRA setting.

Such federal appellate court decisions on a Medicaid issue are rare. This decision relates to a device previously often used to protect remaining assets of a couple when one spouse faced long-term institutionalized care.

In considering the effect of this case, it should be noted that the Deficit Reduction Act of 2005 (DRA) changed the federal Medicaid law rules regarding annuities. For a case that remains pending regarding a post-DRA situation, see: Weatherbee v. Richman, 1:2007-cv-00134 (US DC PA, 05/30/07). [See also: Comments by Jeff Marshall, Esq. below in an Update.]

For background regarding the changes wrought by the DRA, see: PA EE&F Law Blog postings: "PA DPW's New Policies under DRA" (04/04/07); "DRA to be Effective in PA on Feb 1st ... no ... Mar 1st, 2007" (01/03/07); and "Pre-DRA Annuities in PA" (11/27/06).

Based upon holdings in the James case, the use of annuities in Medicaid planning may find increased flexibility until the annuity matures.

With permission granted by Attorney Jeff Marshall, I repost his article about the ruling and opinion in the James case, edited somewhat by me (including links).

Federal Third Circuit Upholds Use of Annuity
to Protect Community Spouse

Copyright © by Jeffrey A. Marshall, CELA [1]

In a notable decision, the Federal Third Circuit Court of Appeals, in the case of James v. Richman, issued November 12, 2008, upheld the purchase of an annuity by a community spouse that converts excess resources into protected income.

When her husband entered a nursing home in August 2005, Josephine James purchased a $250,000 single premium immediate irrevocable annuity. The actuarially sound annuity included an endorsement that “[t]his Contract may not be surrendered, transferred, collaterally assigned, or returned for a return of the premium paid. This Contract is irrevocable and has no cash surrender value. An Owner may not amend this Contract or change any designation under this Contract.”

The purchase of the annuity, combined with the purchase of an automobile, reduced the couples’ resources to within Medicaid resource eligibility limits. But, when Mr. James subsequently applied for Medicaid his application was denied.

The Pennsylvania Department of Public Welfare (DPW) took the position that Mrs. James $250,000 annuity was an available resource which put the couple over the resource limits. In the Department’s view, the annuity had a value of $185,000. In support of its position, DPW eventually produced a declaration from a finance company which expressed interest in purchasing the payments from Mrs. James’ annuity for $185,000.

The Third Circuit’s opinion was written by Senior Judge Jane Roth and joined by Chief Judge Anthony Scirica.[2] The central issue of the case is whether a state Medicaid agency can treat a non-revocable, non-transferable annuity as an available resource for purposes of calculating Medicaid eligibility. Or, in the alternative, can the state agency treat the steam of payments which the community spouse will ultimately receive from the annuity as an available resource.

Could DPW treat the annuity as a resource?

The Court relied on Medicaid law and SSI (Supplemental Security Income) Program regulations to find that DPW could not treat Mrs. James annuity as an available resource. It held that in determining whether an annuity may be treated as a resource a state cannot use a methodology that is more restrictive than that used by SSI. Under 42 U.S.C. § 1396a(a)(10)(C)(i)(III) “the Department can not treat as available resources any assets that the SSI regulations would not treat as available resources.” [Opinion, page 10].

Judge Roth noted that the SSI regulations provide that “if an individual has the right, authority or power to liquidate the property, or his or her share of the property, it is considered a[n] (available) resource.” 20 C.F.R. § 416.1201(a)(1). The SSI Program Operations Manual System (POMS) makes it clear that the “power to liquidate” referred to by the regulation is not simply the de facto ability to accomplish a change in ownership of an asset, but must also include the power to do so without incurring legal liability. See, POMS SI 01110.115. Since, Mrs. James lacks the legal power to change ownership in her annuity without breaching the annuity contract the annuity cannot be treated as an available resource.

Could DPW treat the payments to be received from the annuity as a resource of the community spouse?

DPW’s somewhat novel argument in James was that Mrs. James right to receive income from the annuity could be sold by her and thus could be treated as an available resource. In rejecting this theory Judge Roth noted that “[t]here is no statutory basis for such a theory and, indeed, adopting it would tend to undermine the MCCA rule that ‘no income of the community spouse shall be deemed available to the institutionalized spouse.’ 42 U.S.C. §1396r-5(b)(1). Under such a theory, there is no clear limit on the hypothetical transaction proceeds that could be treated as assets, whether based on the sale of a future stream of payments tied to a fixed income retirement account, social security, or even a regular paycheck.” [Opinion, pages 11-12].

It should be noted that the James annuity was purchased prior to the Deficit Reduction Act (DRA).[3] In a post-DRA case, Weatherbee v. Richman, US DC Western District of Pennsylvania, No1:07-cv-00134, DPW has taken the position that a provision in the DRA has given states the authority to effectively void the spousal income protections of 42 U.S.C. §1396r-5(b)(1) as applied to annuities.[4]

This reading of the section seems strained and appears to be at odds with CMS’s interpretation of this section.[5] Given the Court’s opinion in James, it seems increasingly unlikely that DPW will prevail in Weatherbee. In any event, post DRA spousal annuities do have to comply with the DRA transfer and remainder beneficiary rules set out in 42 U.S.C. § 1396p(c)(1)(G) and 42 U.S.C. § 1396p(c)(1)(F).

Judge Roth also rejected DPW’s argument that the court should look to the underlying purpose of Medicaid rather than relying merely on the words of the federal statute. The courts “do not create rules based on our own sense of the ultimate purpose of the law being interpreted, but rather seek to implement the purpose of Congress as expressed in the text of the statutes it passed. [A]n irrevocable, non-alienable annuity does not fit the statutory definition of an available resource.” [Opinion, page 12]

Footnotes:

1. Certified as an Elder Law Attorney by the National Elder Law Foundation. Attorney of the Marshall, Parker & Associates. Jeff practices law in the same firm as Matthew J. Parker, Esq., who represented the community spouse in the case under discussion. Both are principals of Marshall, Parker & Associates, LLC, a Pennsylvania elder law firm with offices in Williamsport, Wilkes-Barre, Scranton, and Jersey Shore.
2. The third member of the panel, Judge Michael Fisher, would have Court for further fact-finding relevant to the annuity’s marketability.
3. Deficit Reduction Act of 2005 (DRA) (Pub.L.109-171).
4. Section 6012(a) of the DRA added a new section 1917(e) to the Social Security Act. Section 1917(e)(1), codified at 42 U.S.C. § 1396p(e)(4), states that ‘[n]othing in this subsection shall be construed as preventing a State from denying eligibility for medical assistance for an individual based on the income or resources derived from an annuity described in paragraph (1).” Paragraph 1 is the DRA section that requires disclosure on an application for Medical Assistance of a description of any interest the individual or community spouse has in an annuity.
5. Contrary to DPW’s interpretation, CMS appears to interpret § 1396p(e)(4) to mean that the transfer of asset provisions of the DRA do not change the resource and income aspects of an annuity. “The State may take into consideration the income or resources derived from an annuity when determining eligibility for medical assistance or the extent of the State’s obligations for such assistance. This means that even though an annuity is not penalized as a transfer for less than fair market value (see II. Evaluation and Treatment of Purchases of Annuities and Certain Transactions On or After February 8, 2006 below for further information about treating the purchase of an annuity as a transfer of assets), it must still be considered in determining eligibility, including spousal income and resources, and in the post-eligibility calculation, as appropriate. In other words, even if an annuity is not subject to penalty under the provisions of the DRA, this does not mean that it is excluded as income or resource.” CMS State Medicaid Director Letter, SMDL # 06-018, July 27, 2006.

For other information about the decision in the case, see: "James v. Richman -- Decision of Federal Third Circuit Court of Appeals" (11/12/08), posted on the website of Marshall, Parker & Associates, LLC.

Update: 11/17/08 @ 5:30 pm:

After my posting, Jeff Marshall sent me an email message with clarification and further thoughts regarding the effect of the James decision upon the pending Weatherbee case, as follows:

Weatherbee did not find to the contrary. In fact, Weatherbee has not been decided. It is under submission. We think that the Judge for the Weatherbee case has been waiting for the ruling in James to issue his decision.

In my opinion, it is more likely than not that the Court in Weatherbee will rely on James and also find against DPW. DPW basically made the James case arguments in Weatherbee and added a very weak additional argument that a provision in the DRA saying it doesn’t change the income and resource rules therefore gives it the ability to ignore the income and resource rules when an annuity is involved.

It’s hard to imagine that the Weatherbee court will rule in favor of DPW given the very clear ruling in James.

Update: 12/08/08:

The Times-Leader (Scranton, PA) published an article on December 8, 2008, regarding the James decision, entitled "Annuity ruling sets standard" by Terrie Morgan-Besecker, who noted that the "recent decision reaffirms other rulings that [an] annuity can’t be seen as asset in determining nursing home assistance."

The article notes that the effects of the ruling are viewed differently by those seeking to protect Medicaid benefits, versus those funding such benefits in the state budget.

The ruling by the Third Circuit Court of Appeals is the latest in a series of court cases brought by welfare officials in Pennsylvania and other states. The cases challenge a loophole in the Medicaid law that officials say has allowed affluent couples to use annuities to shelter assets that otherwise would be available to pay for an institutionalized spouse’s care.

The decision, issued last month in the case of Josephine James, is significant because it reaffirms prior court rulings, said James’s attorney, Matthew Parker of Williamsport. It will affect all residents in the states covered by the Third Circuit – New Jersey, Pennsylvania and Delaware.

But Jason Manne, chief deputy counsel for DPW, said the court’s ruling is fact-specific to the James case. Even though the department lost, Manne contends the legal reasoning the court employed will help DPW challenge the use of annuities in calculating Medicaid benefits.

The ruling is being closely monitored by attorneys on both sides of the issue as the stakes are huge. The average annual cost of nursing home care for one person is $60,000, according to DPW. Last year, Pennsylvania’s Medicaid fund paid out more than $3 billion to nursing homes.

While providing health care coverage to all persons is a laudable goal, DPW says, it has an obligation to ensure that Medicaid is utilized for those who truly need it. * * *

The article also notes that applicable rules may be changed by federal legislation. I think that this is likely, just as the rules were changed in 2006 (as noted in my prior postings).

For a different view as to the key holding of the James case, see "3d Cir.: A favorable Medicaid annuity decision under § 1983" posted by the National Senior Citizens Law Center, which focused more on litigant standing and review rights, rather than upon the substantive issues regarding the effect of an annuity purchase upon eligibility for Medicaid.

Post-Election, What Does the Future Hold?

Janet Colliton, Esq., of West Chester, PA, wrote an article published on November 10, 2008, in The Daily Local News (West Chester, PA), entitled “The Presidential Election Is History – What Does the Future Hold?”

She told me that crafting her predictions "took a fair amount of time and research." I find her "predictions" fascinating, and sufficiently detailed to be credible.

With her permission, I reprint her article here (edited slightly by me, and annotated with some Internet links).

At the conclusion of her article, I'll make two predictions of my own.

The Presidential Election Is History –
What Does the Future Hold?
Copyright © by Janet Colliton, Esq.

On November 4, the Presidential campaign season finally came to a halt with the election of Barack Obama as 44th U.S. President. While first on the new President Elect’s agenda are measures to restore the economy, other matters will likely soon follow.

Having hauled my figurative crystal ball from storage, I will venture some predictions on the policy winners and losers for the next four years.

Social Security and Medicare

The Social Security prediction is easy and one I share with others. See, for instance Mark Miller’s “Retiring on Obama’s Watch: What To Expect From 44.” Mark’s expression was “First things first: privatization of Social Security is dead as a doornail.”

Readers will remember the plan introduced by the Bush Administration in 2005 to allow younger workers to invest at least a portion of their Social Security contributions in private accounts. Since these investments would include equities (stocks), probably more of us today would recognize the risk involved in the plan.

On a subject that I covered extensively in previous columns, Medicare was also edging its way toward privatization with Medicare Advantage Private Fee For Service (PFFS) plans, which still exist but without the prior heavy federal government subsidization. PFFS plans can charge to offer worse coverage than can be received under plain Medicare without a premium. The aggressive marketing of PFFS plans will likely at least slow over the next four years.

Health Insurance

If the idea of taxing employer subsidized health insurance benefits was a serious notion, it is dead too.

During the campaign, Senator McCain introduced the idea of taxing employees on their employer health insurance benefits in exchange for a tax credit. The plan was to level the field for individuals who purchase their own health insurance since they also would receive a similar credit. The move was based on the premise that each of us can bargain individually with health insurance carriers for the best coverage. With overwhelming leverage resting with health insurers, this perception could be questioned.

Greed Is Out. Is Community In?

The stock and mortgage market downturns have highlighted greed in our society. To blame greed as a cause, however, would be oversimplifying.

What is fairly obvious is that the creativity of businesses in packaging and selling debt products that no one understands seriously contributed to today’s problems and, when coupled with ostentatious displays of wealth by high level executives, evoked anger.

If greed is out, does this mean that community in? It is too soon to say but it does seem there is a sense of common purpose to solve financial problems.

Personal Responsibility is here to stay

One rallying cry of the early 21st century has been the mantra of “personal responsibility.” I predict that personal responsibility is with us indefinitely which, if softened by common sense, is not a bad thing.

In broadest terms, personal responsibility means that we do not expect another person or society in general to provide for us where we have the ability actually or potentially to do so on our own.

Where the idea goes awry is when it is interpreted to mean every person for himself regardless of the circumstances. Despite our idealization of the rugged individual, I do not believe we ever were a country that believed personal responsibility eliminates concern for the elderly, youth, sick and disabled.

Legislation that may remain

Some of the legislation that dramatically altered the landscape over the past few years is likely to remain although there could be some consumer friendly revisions over time.

The federal Deficit Reduction Act that radically tightened requirements for the Medicaid program went into effect February 8, 2006. It has no immediate replacements on the horizon.

The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, widely understood as being sponsored by the credit card industry to prevent consumers from getting out from under credit card debt has no apparent challengers at this time.

Relief on the Way

Look soon for passage of these measures, among others, proposed by the new administration to help individuals through the financial downturn.

• Unemployment benefits will be extended.
  
• Required minimum distributions (RMD) from retirement accounts will temporarily not be required and withdrawals, if made up to the RMD amount will temporarily be exempt from federal tax.
• IRA and 401(k) owners who have not retired will temporarily be permitted hardship withdrawals up to $10,000 or 15% of the account without penalty but subject to regular income tax.

* * *

Under an additional heading of "New Legislation," I now make my two predictions:

First, Congress -- finally, after continuous past introductions of bills on this subject into Congressional Sessions since 2002 -- will refine and adopt an "Elder Justice Act". It will be signed into law by the new President within the first two years of the new administration. For background on the matters that could be covered by such federal legislation and the wide-base of national proponents for it, see: PA EE&F Law Blog posting "Federal "Elder Justice" Acts Appear Elusive" (09/12/08).

Part of my belief for passage of a federal elder justice law derives from the family connection of the new, incoming Vice-President, to the current Attorney General of Delaware, who already is very committed to elder justice issues in that state.

In the October 2008 issue (PDF version, or text version) of the newsletter of the National Center on Elder Abuse, this update appeared under the heading Delaware: Senior Protection Initiative:

State Attorney General Joseph R. “Beau” Biden, III recently announced new measures to enhance the prevention of senior victimization and to enhance the prosecution of crimes committed against older Delaware residents.

“Through the Senior Protection Initiative, the Delaware Department of Justice is redoubling its efforts to prosecute those who have committed senior abuse, encourage victims to come forward and bring together state agencies, law enforcement and advocates to tackle these issues,” said Biden. * * *

In addition to the newly created multidisciplinary team, the initiative will include public outreach efforts and increased training in detecting abuse for local law enforcement. [Link added.]

Second, I predict that Congress will adopt remedial Federal Estate, Gift, & Generation-Skipping Tax legislation by July, 2009, consistent with Senator Obama's campaign proposal, for implementation on January 1, 2010:

Sen. Obama wants to freeze the 2009 estate-tax structure, which taxes roughly 0.3% of estates -- those valued above $3.5 million per person -- at a top rate of 45%. According to Deloitte Tax, a $5 million estate would pay a tax of $675,000 under this plan. * * *

See: PA EE&F Law Blog posting "Presidential Candidates on the Issues" (11/03/08).

Hey, my guess is as good as anyone's, right?

I thank my friend and respected practitioner, Janet Colliton, Esq., for her contribution, again, to this Blog as a guest author. She practices through Colliton Law Associates, P.C. (790 East Market St, Suite 250, West Chester, PA 19382; Ofc: 610-436-6674; E-mail: colliton@collitonlaw.com) on matters limited to elder law, Medicare, Medicaid, life care, special needs, retirement planning, and estates & trust administration.