Joint State's Amazing Record and Report

On August 1, 2013, the Pennsylvania Joint State Government Commission posted a Report, dated August, 2013 (PDF, 4.7 MB), entitled The Probate, Estates and Fiduciaries Code and Orphans' Court Matters: Legislation Recommended by the Advisory Committee on Decedents' Estates Laws, which encapsulates -- in 291 pages of history, descriptions, summaries, lists, and tables -- the amazing impact of that organization upon probate, estate, fiduciary, and related statutes, and upon Orphans' Court matters generally, since 1945 in this Commonwealth.

The Joint State Government Commission itself was established on July 1, 1937, to serve as "the primary and central non-partisan, bicameral research and policy development agency for the General Assembly of Pennsylvania."  

Its first appointed advisory committee -- the Advisory Committee on Decedents Estates Laws. (ACDEL) -- was established in 1945.  Since then, the "Advisory Committee has generated more than 40 reports that have served as the basis for legislation introduced during numerous legislative sessions of the General Assembly", which have improved Pennsylvania law in Title 20 of the Pennsylvania Consolidated Statutes (the Probate, Estates and Fiduciaries Code -- "PEF Code") and related statutes.  

The Report provides not only a history of ACDEL, but also a compiled reference of its work products, developed by various JSGC ad hoc study groups, legislative resolution task forces, and the standing ACDEL.  Such groups have analyzed, drafted, reviewed, revised, and recommended statutory law in the Commonwealth for the past sixty-eight years.

This report first recounts the purpose of 1945 Senate Resolution No. 46, which authorized the Joint State Government Commission to form a legislative task force and advisory committee to review decedents’ estates laws.

This is the Report's Summary of its contents:

The section titled The Task Force and Advisory Committee on Decedents’ Estates Laws also discusses the membership and leadership of the Task Force and Advisory Committee and outlines the process used to develop statutory recommendations.  Finally, that section summarizes the projects of the Advisory Committee from 1945 to 1972, the codification of the PEF Code (including the original chapter organization of the PEF Code), and proposed legislation since 1972.

The next section, Advisory Committee Reports, lists all 43 published reports of the Advisory Committee since its creation.  Numerous reports published after the 1972 codification contain proposed omnibus amendments to the PEF Code and, in some instances, to other titles of the Pennsylvania Consolidated Statutes.  Other reports focus on one particular topic, such as guardianships, powers of attorney, or trusts.

The list of Advisory Committee reports is followed by Proposed Legislation Organized by Advisory Committee Report.  This section details the contents of each report and provides the specific section and subsection that is the subject of the proposed amendment or repeal or that is newly proposed.  The reports are listed in reverse chronological order.

The next section, Proposed Legislation Organized by Statutory Section, comprehensively lists each specific section and subsection to which the Advisory Committee has made a recommendation.  It then summarizes the nature of the recommendation (proposed amendment, repeal or addition) and the report containing the recommendation.  Of note is that, in a number of instances, the Advisory Committee has revisited the same provision over the years, and several reports capture the multiple or recurring recommendations.

The section that then follows is Proposed Legislation Organized by Legislative Session.  Listed here are each bill introduced that is based on the recommendations of the Advisory Committee, along with the relevant provisions included in the bill and a summary of the disposition of the bill.  If the bill was enacted, the act number and enactment date is provided.  In two instances, a bill containing the Advisory Committee’s recommendations was vetoed by the Governor, despite having passed both chambers of the General Assembly unanimously.

The next section of this report provides a detailed table of contents for the PEF Code, as it was enacted in 1972.

Finally, this report contains a list of the Advisory Committee Chairs and Advisory Committee members, with dates of service and county of practice.

The Report itself is impressive in its sweep and detail.  But the story of passion and perseverance that it implies -- if you can read between the lines (because this is not pulp fiction) -- is even more impressive.

Consider that, since 1945, only 110 volunteer experts spread over 68 years -- many devoted until only death ceased their efforts -- donated their time, expertise, experiences, intellect, skills, and visions to suggest statutory frameworks that still evolve today.  Presently, the ACDEL has 34 members appointed by the Legislature, in roles either as lawyers or judges, serving pro bono.

Their work addressed the most difficult issues in human experience and the most fundamental laws affecting everyone -- disability, incapacity, death, reproductive technology, surrogate health care management, fiduciary administrations, and end-of-life decisions.

The most recent JSGC-ACDEL comprehensive report was issued in October, 2012, regarding reform of Pennsylvania guardianship law, contained in Chapter 55 of the PEF Code. See: Guardianship Law: Proposed Amendments to the Probate, Estates and Fiduciaries Code, which presently is embodied in Senate Bill 117 of the 2012-13 Session, as reviewed in a Legislative Analysis, dated February 12, 2013.

If that is not enough to impress you, check out the companion report also posted on August 1st -- Domestic Relations Law: Legislation Recommended by the Advisory Committee on Domestic Relations Law 1993-2010 (PDF, 218 pages).

The current supervising Legislative members of JSGC are listed.  All volunteer members of the ACDEL since 1945 were named.  The current supporting staff are listed, but past staff are not.  All were devoted to their craft.

JSGC-ACDEL produces studies and makes recommendations that are non-political, independent, expert, comprehensive, and reliable, in a cost-effective process. In this time of reduced funding and personnel, this organization is beyond special -- it is amazing.

The Joint State Government Commission is a one-of-a-kind blessing to this Commonwealth that, hopefully, will continue its work long into the future.

PBA RPPT Section Newsletter, Winter 2013

The Winter, 2013 Newsletter (Issue No. 72) of the Real Property, Probate & Trust Law Section, of the Pennsylvania Bar Association, was published on February 28, 2013, and will be mailed to members in printed form.  It will be available to the public in PDF format for a limited two-week period through a link to the PBA's website.

A recent email from the PBA to members noted the availability of this Newsletter (24 pages), among a few other section newsletters recently published:

PBA Real Property, Probate and Trust Law Section: Newsletter, Winter 2013 – Includes "Estate and Trust Tax Changes for 2013," "Inheritance Tax Return Correction Procedures Clarified," "New Law for Disposing of Abandoned Personal Property Left by the Tenant at the Leased Premises"

This is the index to the Newsletter:

Both "dirt" (Real Property Law Division) and "death" (Probate & Trust Law Division) lawyers in Pennsylvania can benefit by reading the articles in this issue.

A vibrant and committed new team of editors, drawn from both Divisions, worked on this issue.

Two key PBA staff members continue to oversee publication efforts at the PBA.  Amy Kenn, who worked on the Newsletter years ago and who recently resumed involvement following the birth of her daughter, and Michael Shatto, who remains the RPPT Section's liaison after so many years, assure smooth functioning in its production.

My good friend and fellow Section volunteer, Mark B. Hammond, Esq., of Chambersburg, PA, officially "retired" as an editor from production of the Newsletter last year.  Both the Section's leadership in the Chair's Report, and me personally here, thank Mark for his years of services on many issues of the Newsletter.  

After continuous involvement in the Newsletter since 1978, I transitioned into a new role as "Editor at Large", with intention of further contributions as I can be helpful.

After thirty-five years, the Newsletter, to me, is like my grown child, not needing me as much, but still a source of tremendous joy and pride in the fulfillment of its dual purposes:  Disseminating information and facilitating connections for lawyers who are involved in these two areas of law practice in Pennsylvania.

Lawyer's "Own Story" -- Caring for an Aged Parent

Attorney Mark Mateya, of Carlisle (Cumberland County), PA, writes a simple personal blog, hosted on Blogger, entitled Taking Care of Your Parents: My Own Story.

I've known Mark probably for fifteen years.  I respect him as a lawyer.  I did not know, however, that last year in May, he stepped out of that professional role and began posting his personal experiences on a blog about his family, and, specifically, about his elderly mother living alone.  

He invited readers:  "Please follow our journey as my family and I make plans for my aging mother."

His very first entry, on May 11, 2011, set the situation and noted challenges:

We just celebrated mother’s day in our country. Taking care of Mom this year, while she is still at home, is made a little easier by the loving support she enjoys. Mom is in her eighties, and her three sons, of whom I am the baby, give her as much support as possible. Two of us are farther afield, so we each take a little of the financial burden on us to try to compensate for the distance we feel from her. * * *

Five days later, he clarified his blog's purpose:

In this blog, I hope to explore my own adventure, not as much as an estate planning attorney, but more as a professional who is dealing with these considerations on a personal level. * * *

Mark posted about twenty entries during the past year on his Blog.  His entries read like a personal diary.  I admire his openness, conviction, humor, and emotion.  He writes about medical ailments, risks in a home, reduced self-care, prideful forgetfulness, limited mobility, confused communications, role reversals, financial accountability, potentials for abuse, and other concerns that arise naturally in the still-mutual lives of his widowed mid-eighties mother, and of himself as her devoted son.

I recall similar concerns in our family circumstances twenty years ago, which had extended for years before.  Those circumstances defined what I did and who I was, then; and those experiences formed what I do and who I am, now.

So I know that we read less of a travelogue, and more of a personal development memoir.  Mark may not yet recognize that yet. Also, he has not yet encountered the most turbulent times, including severe decline, death, mourning, and recovery.  Those events may be too difficult to relate when arising later.  Whether publicly or privately, I encourage Mark to write his thoughts during those times too.

Mark hopes that others will read his accounts, and find support in their own situations.  He is trained and disciplined, and maintains a good heart.  He faces family challenges not easily quantified or solved during a loved one's aging and decline.  Thus, he is not too different from me, or from so many of us.

On the professional side, Mark also posts onto a law firm blog simply entitled Mateya Law Firm.  There, he focuses upon powers of attorney in Pennsylvania.  He understands that abuse that can, and often does, occur under a power of attorney.  Where motives are not pure and selfless, where thinking is not clear or actions not accountable, where advocacy refutes cooperation and consensus, and where change is fought not planned, a POA can become a weapon of destruction.

How I wish that all individual holders of a power of attorney for an elderly parent would have the character and caring displayed in Mark's blog. 

Pick just such a family member when you execute your power of attorney.

PBA RPPT Summer, 2011 Newsletter Issued

Last week, the Real Property, Probate & Trust Law Section of the Pennsylvania Bar Association published and mailed to each Section member the Summer, 2011 issue (No. 69) of its Newsletter.  It is available publicly, free, online in PDF format "for a limited time" at the link at the end of this posting; but, after that short time expires, it will be available only to members.

The Newsletter is 60 pages long, and contains well-written, timely articles and updates.

This is the table of contents:

• Report of the Section Chair, by Bridget M. Whitley

• Report of the Probate and Trust Law Division, by Bridget M. Whitley

• Article, The Endangered Species List now includes Pa. Private Road Act: Follow up on In Re: O'Reilly (II), by Ronald M. Friedman

• Article, Collaborative law:  Will it Work in Your Practice?, by Lea Anderson & Paula Hopkins

• Article, Litigating a "No-Contest" Clause, by Adam T. Gusdorff

• Article, Dealing with Property Left at the Leased Premises at the End of a Lease Term: A Practical Approach, by Ronald M. Friedman

• Article, Pa. Enacts Legislation Prohibiting Private Transfer Fees, by Arnold B. Kogan

• Article, Using Mediation to Resolve Disputes in your Community Association while Improving its Bottom Line, by James A. Rosenstein & Gary A. Krimstock

• Article, The Year in Review: 2010 Real Property Case Law, by Frank Kosir, Jr.

• Article, Pa. Dept. of Revenue -- Revised Safe Deposit Box Entry, by Neil E. Hendershot

• Article, Update to Probate Petition in Pennsylvania, by Neil E. Hendershot

• Article, Powers of Attorney and Third Party Liability, by Bridget M. Whitley

• Article, Bibliography of Articles, Attorneys-General Opinions, Etc. in the Fiduciary Reporter 1st & 2d Series (1952-2010), by Joel Fishman & Cynthia D. Buckholt

• Article, Recent Developments: Probate and Trust Law, by Cythia K. Rarig

• Update, Summer 2011 Legislative Update, by Steven B. Loux

• Update, Real Property, Probate & Trust Law Section Leadership

I serve as the Executive Editor of the PBA RPPT Section's Newsletter.  The Summer 2011 issue is as good as any in the 33 years that I have edited it.

Kudos and thanks go out to each contributor, and also to Mark B. Hammond, of Chambersburg, PA, as the Editorial Assistant who worked diligently to assemble it, and to Amy Kenn, as the Staff Editor at the Pennsylvania Bar Association who framed and sent it for publication.

For that "limited time", find this issue online here.  After that offer expires, please consider joining the Section if you are already a PBA member.

"Conquer Catastrophe" Course on June 10, 2011

On Friday, June 10, 2011, from 9:00 AM to 4:30 PM, the Pennsylvania Bar Institute will present a course entitled "Conquer Catastrophe: Reviving Professionally and Healing Personally".  I am a course planner and a presenter.  The subject?  Recovery by lawyers from a personal catastrophe.

The PBI's website lists the course description through a Table of Contents of the course manual.  It is priced very reasonably, since this presentation is a service to the Bar.

I constructed a separate website for the course, also entitled "Conquer Catastrophe", which offers information and resources on the subject matter, but not the written materials for the course.

As a course planner, I submitted a course explanation to be included in the materials, which I reproduce below. 

This course is very unusual and highly personal, but relevant.  The presenters' backgrounds are deep and varied.  We will all learn from each other.

The course will be presented just one-time, live in the Harrisburg area, broadcast simultaneously to ten other locations in Pennsylvania, on Friday, June 10, 2011, from 9:00 AM until 4:30 PM. Of the six hours of continuing legal education, one hour will qualify for the ethics requirements.

Afterwards, the course will become available from PBI in audio format, with the printed materials; and it could be ordered online.  The companion website will remain available publicly, free.

Conquer Catastrophe:

Course Overview through Twenty Questions

By Neil E. Hendershot, Esq.

"I am not concerned that you have fallen.

I am concerned that you arise."

-- Abraham Lincoln (Lawyer & 16th US President)

          “So You're Going to Present . . .”, published in 2004 by the Association for Continuing Legal Education, is a booklet that guides legal course planners and speakers in preparing a "high quality learning-focused presentation."

          For the construction of this unusual and quite customized PBI course, I answered that booklet’s questions (Chapter 2, pp. 8-9), which reflect the purpose and setting of the course, and suggest what participants might learn:

1.  What are the issues that have given rise to dealing with this topic?

          My personal experiences and past searches for resources highlighted a lack of concentrated information targeted towards lawyers who are affected by a personal catastrophic event.  I sought guidance for such a “patient-professional” (my term for a lawyer whacked by a sudden debilitating illness, accident, or event) to revive professionally and heal personally for a continued productive life.  This course is our attempt to assemble such information.

2.  Is there a specific event or series of events that precipitated the concern about this topic?

          My personal experiences in 1999 with a burst appendix and life-saving internal surgery, and again in 2009 with a broken neck and reconstructive spinal surgery, together with recoveries from those unforeseen, catastrophic events, were my primary motivation to plan this course.  However, current national events, including the increasing number of brain and spinal injuries suffered by our troops serving in Iraq and Afghanistan, and also the shooting of Representative Gifford in Arizona, highlight the need for rehabilitation and retraining for productive lives.

3.  Are there new changes?  e.g., new legislation, regulations, or case law?

          Pennsylvania state laws regarding disability have not changed significantly, recently.  However, there are pending reports to the Legislature regarding both Powers of Attorney (Chapter 56 of the Probate, Estates & Fiduciaries Code) and Guardianship (Chapter 55).  The proposed improvements mainly affect procedures and formalities, not substantive rights.  These evolving financial and personal management arrangements will be referenced.

          Furthermore, the existing federal laws and systems providing benefits to disabled persons likely will be changing due to long-term fiscal constraints, but that is a political process only now gaining momentum.  We will reference the Social Security, Medicare, and Medicaid systems.

          On the other hand, the Veterans Administration and the armed services are more receptive towards long-term treatment of brain injuries for injured military personnel.

4.  What are the new issues related to these changes that need to be addressed?

          For the patient-professional, applicable legal areas include disability insurance coverage, medical insurance coverage, government benefits, increasing accountability as a professional under malpractice insurance and ethical rules, and tort reform. 

          Also, the business and legal environments have constricted economically so that responding to recovering patient-professionals can be more difficult.

5.  How do these issues affect practice?

          A lawyer struck with an injury, illness, or traumatic event must develop a personal approach to maintain a position or a practice, even while reduced in capability.  This is a complex, demanding process.  It can be conducted successfully if the patient-professional tenaciously pursues a vision of recovery and resumption -- or at least reorientation into productive activity.

6.  Given these issues, what possible content could be focused on?

          Those topics are set forth in the course agenda.

7.  What are the areas of content that may need to be addressed through continuing education?  Are the issues being addressed in other ways as well?

          This course is distinctive and wide-ranging.  These topics are addressed by other disciplines s and in other settings than those involving lawyers.  For example, the University of Maryland’s Shock & Trauma Center and many major medical centers, hold educational seminars. Its Trauma Survivors Network provides information and support to members and their families.

          Some health care insurers offer case management and wellness programs.

          Specific causes of personal catastrophe are addressed by non-profit organizations, such as the American Heart Association (for heart and stroke), the Christopher Reeves Foundation (for spinal injuries), the American Cancer Society (for all forms of cancer), and the American Lung Association (for breathing diseases), among thousands that educate and advocate.

          Social networking collects people of similar interests, commitments, or experiences, who share resources and offer encouragement.

8.  If this is a part of several presentations, how does this presentation fit with what else is being presented?

          This is a one-time course.  However, I hope that other professions, such as accountants and physicians, might develop similar informational resources.

9.  How do other lawyers see this issue? What do they think they need to learn?  How open are they to learning and changing in this area of practice?

          This is the point of the suggested opening exercise for the audience and their sharing of stories.

10.  What is the likely range of perspectives about this issue?

          Lawyers are a hardy, highly intelligent, ego-driven, self-reliant, competitive group.  Lawyers may find the threat of disability or reduced capability difficult to consider. 

          Also, lawyers are driven by thought processes involving time management, rationality, advocacy, and judgment. These characteristics and expectations could be at odds with admissions of performance disability, lack of control, uncertainty as to outcome, extended recuperation, and dependency upon others.

          As to the views of individuals affected by a personal catastrophe, a few speakers will relay their experiences, and others’ stories can be accessed online on the website of the University of Maryland’s Shock & Trauma Center.

11.  What does this audience assume to be true about this issue?  Are these assumptions valid?

          I will ask questions about audience assumptions at the beginning of the course.  The presentations will test whether those assumptions are valid.

12.  What are the hot concerns?  Why?

          The "hottest" concerns would be lawyer performance, fulfillment of ethical obligations, and practice maintenance.  Those are survival issues.  Other issues may seem less immediate, but must be addressed long-term for resumption of a legal practice and emotional stability.  However, all elements are intertwined.

13.  What is the nature of the skill or knowledge gap for this audience in relation to this aspect of the law or legal practice?

          The knowledge and skills required to address recovery from a personal catastrophe are not taught in law school and are not developed in professional work except by observation.  Lawyers are trained in problem-solving and in advocacy instead.  These abilities can be applied to personal situations and challenges.  Lawyers can acquire the skills and knowledge to accomplish a revived work role and healthy personal life.  Much knowledge, however, derives from other fields, such as healthcare systems, psychology/psychiatry, neuroscience and other medical specialties, physical therapy, and even religion/spirituality.  This is the knowledge gap we address in this course.

14.  What is the cause of the gap?

          Limited personal experience, specialization in the law, unpredictability as to a particular future situation, avoidance of negative thinking, focus on day-to-day demands, and a presumption that “it will not happen to me”.

15.  What is the impact of the gap in knowledge or skill on individual practitioners and their clients?

          The gap in knowledge, together with the imposition of disability or debilitation, can result in failure by an attorney to fulfill basic professional and office requirements.  Such insufficiencies can result in lost clients, missed deadlines, insufficient efforts, minimal revenue, personal hopelessness, long-term depression, altered reputation, and possible malpractice, even disbarment.

16.  What are the likely similarities and differences between me and this audience in relation to my view of the topic, my knowledge, skill, and experience?

          My view evolved through two experiences.  I faced challenges to “conquer catastrophe” by being injured by illness in 1999 and by accident in 2009.  I worked through recoveries, with mixed effectiveness.  Those in the audience may not have experienced such catastrophes, or may have coped better or worse than me.  Some may face debilitating illnesses that may prevent return to prior functioning, and some may face degenerative diseases that constantly redefine functioning at a lower level. My views developed in conjunction with the reactions of family, co-workers, and friends.

17.  Will this topic likely appeal to general practitioners, or to lawyers who specialize in this practice area?

          This is not a course for lawyers to develop a proficiency in professional catastrophe remediation -- that field already is known as "personal injury" or “medical malpractice” law.  Instead, this course is intended to inform and guide a lawyer, or that lawyer's family, co-workers, or friends, in constructively and progressively addressing a personal catastrophic event, so that the lawyer can revive a legal practice/position, and heal personally.

18.  What will the audience be doing before and after my presentation?

          Likely, go right back into their current circumstances – normal work, personal recovery, interpersonal support of another, or provider services.  I hope that each participant will be more knowledgeable and positive about the processes and adjustments following a personal catastrophe.

19.  How large is this audience likely to be?

          As large as it needs to be, for those who have been affected.  Others, who now are oblivious to the offering of this course, will access it in the future when a personal catastrophe occurs.

20.  What is the facility like?  What limitations does it have in relation to my being seen and heard by the audience?  What audio and visual equipment is available?

           This is a live presentation at PBI’s headquarters in the Harrisburg area.  This course will be conducted one-time, simultaneously broadcast by audio/video to remote locations in Pennsylvania, and recorded for future audio replay, perhaps over the Internet.

New Book: "The Law of Financial Abuse and Exploitation"

In January, 2011, Katherine C. Pearson and Trisha E. Cowart, both associated with Penn State's Dickinson School of Law, released their new book entitled The Law of Financial Abuse and Exploitation, published by Bisel, Inc.

This 382-page softcover book is described on the website of its publisher (located in Philadelphia, PA), as follows:

"An ounce of prevention is better than a pound of cure."

As the state with the third highest percentage of older adults, Pennsylvania is often the arena for financial abuse or exploitation. This timely new book presents the legal consequences of financial exploitation, both in criminal and civil terms.

By focusing on the law of exploitation, this essential guide will give those who assist older adults and dependent persons, including attorneys, courts, financial advisors, banks, social workers and families, clear guidelines for prevention of financial exploitation.

The step-by-step analysis of alternative remedies will be useful to legal advisors, whether in or outside of the Commonwealth, especially when pursuing a timely, full recovery.

Katherine provided a more personal synopsis in a letter that I received from her today, in reply to my inquiry about the new book.

While this is more than of a law book than a consumer book (and therefore has a state-specific format in our first edition), because of the regular questions that co-author Trisha and I receive about financial abuse, particularly in the context of older adults, we've tried to broaden the appeal.

We try to use "plain language" throughout the book, to make it more accessible than the traditional legal guide, while still being useful to practitioners and courts.

This is a summary of its chapters:

1. The Public and Private Challenges of Financial Abuse
2. The Role of Protective Service Authorities
3. Criminal Causes of Action
4. Civil Causes of Action 
5. Unfair Trade Practices and Consumer Protection Laws 
6. The Role of Filial Support Laws In Cases of Suspected Financial Abuse
7. Reporting Suspected Financial Abuse: Mandatory Versus Voluntary Obligations
8. The Importance of Attorneys As Counselors 
9. The Importance of The Courts

The book also includes practice forms (like complaint forms and model court pleadings) in its Appendices, a Table of Cases cited within the book, and an index to its covered subjects.

The Law of Financial Abuse and Exploitation presents a reliable, organized, and straightforward explanation -- with practical guidance born of clinical experience -- of an evolving subset of elder law in Pennsylvania.  Those who would regulate elder abuse under existing laws, those who would seek remedy in the Orphans' Court Division for financial exploitation of a elderly person by a fiduciary, or those who strive to expand or reform laws on financial exploitation of the elderly, should read this book.

PA Inheritance Tax as Law Review Subject

The Pennsylvania Inheritance Tax rarely is the subject of law review articles. But the most recent issue of the Penn State Law Review (Volume 114, Issue 3), published by The Dickinson School of Law of Penn State University, contains an excellent article (known as as a "Comment") on the subject.

Timothy J. Witt (J.D. 2010, Penn State) published Individuals and Inheritance Taxes: A Praxeological Examination of Pennsylvania’s Inheritance Tax, 114 Penn St. L. Rev. 1105 (2010) [PDF, pages 1105-1139], on April 19, 2010, as noted on that Law Review's website.

The author's introduction defines his subject and its treatment:

Much has been written regarding the economic effects of the federal estate tax, but relatively little has been published about state inheritance taxes and their economic consequences.
Additionally, what has been written has not been addressed primarily to a legal audience. The legal literature discussing the Pennsylvania inheritance tax, one of the eleven effective state inheritance or estate taxes found across the country, is no exception to this observation; beyond practice guides, few legal resources have discussed the tax, and virtually none have substantively and systematically examined its economic effects.

Furthermore, Pennsylvania's inheritance tax, like those of other states that have such taxes, has never been specifically analyzed in a legal context from the unique perspective of praxeology, an economic framework rooted in the study of individual human action.

This praxeological approach, with its recognition of “the market” as the aggregation of the actions and exchanges of individual persons, provides several significant and relevant insights into the nature of Pennsylvania’s inheritance tax. * * *

The article first provides a "brief introduction of both the history of Pennsylvania’s inheritance tax and praxeology," and then examines the Pennsylvania inheritance tax:

1. in its current statutory form,
2. as it would have been affected by a recent bill in the General Assembly, and
   
3. in the extreme forms possibly permitted by the case law of both Pennsylvania and the United States Supreme Court.

In Part IV, this Comment outlines the economic effects of each of these three expressions of Pennsylvania’s inheritance tax in four praxeologically-significant categories:

• ante-mortem capital accumulation,
  
• ante-mortem capital flight,
  
• post-mortem capital consumption, and
  
• state revenue. [Reparagrphing applied.]

Consistent with his approach, the author notes that the "Comment advocates neither for nor against the Pennsylvania inheritance tax on the level of public policy."

The Comment analyzes one House member's attempt to phase out Pennsylvania's inheritance tax completely by 2012. House Bill 377 was introduced in November, 2007, by Representative Scott Perry (R) of the 92nd Legislative District.

That legislation failed, as did subsequent attempts to terminate the Pennsylvania Inheritance Tax. See: PA EE&F Law Blog posting, New Attempts to Abolish PA Inheritance Tax (03/02/09).

Given the fiscal shortfall currently for the Commonwealth, and projected burdens on state taxpayers deriving from liberal retirement benefits promised to state workers, I believe that such legislation will continue to fail, as a matter of politics.

The author instead approaches the issue of repeal from an academic approach; and in this analysis, the practicing lawyer may fall away. However, the author's discussion offers a researched and rational approach to a difficult issue -- taxation of interests transferring upon death of an individual.

He concludes, generally:

With regard to Pennsylvania's inheritance tax, praxeology supports the conclusion that high inheritance tax rates would cause significant economic decline by fostering both capital consumption and capital flight, with a secondary effect being a decline in state revenue.

Likewise, under a praxeological examination, the Commonwealth's current inheritance tax causes some capital consumption and capital flight, albeit at levels insufficient to have presently created economic decline in Pennsylvania.

Repealing Pennsylvania's inheritance tax would foster additional economic growth through the increase of capital accumulation and a decrease in capital flight, which could have the contingent potential of increasing state revenue in the long term.

In terms of the debate over the Pennsylvania inheritance tax, the key praxeological insight is that the tax does not encourage economic growth. Rather, Pennsylvania's inheritance tax is something of a hindrance to economic expansion. * * * [Reparagrphing applied.]

Just how difficult an issue state taxation remains is demonstrated in another article that appears in the same law review issue. Jaime S. Bumbarger (J.D. 2010, Penn State) published Pennsylvania's Taxpayer Relief Act: Big Gamble Pays Off for Some, But Most Lose Their Shirt, 114 Penn St. L. Rev. 1004 (2010) [PDF, pages 1004-1018], which examines taxation of real estate in the Commonwealth.

For its case law citations on the topic alone, the law review's Comment about Pennsylvania Inheritance Tax is valuable. But it also adds a fresh analysis that could be considered by elected representatives who determine taxation upon decedents in the Commonwealth.

PA Bar Association's "Senior Guide" Reissued

In September, 2009, the Pennsylvania Bar Association issued its 2009 Guide to Legal Issues for PA Senior Citizens, available free in PDF format on its website and by request in printed form.

This annually-revised guide, developed by the Senior Lawyers Committee of the PBA, provides information about legal issues faced by Pennsylvania's older residents and their caregivers. The information provided helps seniors make appropriate choices so they can maximize personal autonomy, minimize costs, navigate through the maze of government benefits, and protect themselves against predators who want to deceive, exploit or defraud.

The Foreword to the revised publication explains the objective of the publication:

This guide is designed to provide information about legal issues faced by Pennsylvania’s older residents and their caregivers. Its authors and publishers intend to help seniors make appropriate choices so they can maximize personal autonomy, minimize costs, navigate through the maze of government benefits, and protect themselves against predators who want to deceive, exploit or defraud.

Senior citizens within Pennsylvania require timely and reliable access to legal information. The Senior Lawyers Committee of the Pennsylvania Bar Association has determined that it can best serve the needs of the legal community by serving the needs of the citizens of Pennsylvania.

Its concentration on the creation of this statewide Guide for Senior Citizens is complimented by other programs such as a mentoring project, a pro bono project and the sponsorship of continuing legal education (CLE) programs, all designed to aid the legal community by offering the expertise of older, more experienced attorneys to all Pennsylvania practitioners. This in turn helps to bring the best possible representation to the clients of Pennsylvania Lawyers.

This publication, in its 94 pages, is like a textbook for consumers on issues in the areas of Elder Law. I last noted such free, quality publications offered by bar associations in a posting entitled Online PA "Elder Law" References (01/26/07).

These areas of the law are noted in the publication's Table of Contents:

Elder Law

• Attorney-Client Relations

• Continuing Legal Education

• Pennsylvania Lawyers Fund For Client Security

• Choosing an Attorney

• Pennsylvania Local Lawyer Referral Services

Older Americans Act

• Area Agencies on Aging

• Services Provided

• Attendant Care

• Senior Adult Activities Center (SAAC)

• Resources

Financial Planning

• Income Tax Planning

• Tax Preparation

• Standard Deduction at Age 65

• Income Tax Credit Age 65 or Older

• Medical Expense Deductions

• Sale of Residence; Exclusion of Gain from Income

• Tax Basis; Special Rules for Surviving Spouses

• Reverse Mortgages (Home Equity Conversion)

• Basic Requirements

• Types of Reverse Mortgages

• Impact of Reverse Mortgages

• Property Tax and Rent Rebates

• Amount of Rebates

Estate Planning

• The Will

• Trusts

• Revocable Living Trusts

• Non-Probate Property

• Inheritance, Estate and Gift Taxes

• Pennsylvania Inheritance Tax

• Federal Estate and Gift Taxes

• Planning for Gifts

• Meeting with your Lawyer

Power of Attorney

• Revoking a Power of Attorney

• Special Powers of Attorney

• Failure to Act
  

• Fraud

• Health Care Provisions in a Power of Attorney

• Health Care Powers of Attorney and Living Wills

HIPPA

• Out of Hospital Do Not Resuscitate (DNR) Orders

Guardianships

• Hearing Before the Court

Social Security

• Applying for Benefits From the Social Security Office

• Deadlines

• Toll-Free Social Security Number

• Website

• Written Explanation for Denial of Benefits

• Correcting Records with Social Security

• Legal Assistance

• Social Security Benefits

• Retirement Benefits

• Social Security Disability Insurance Benefits (SSDIB)

• Supplemental Security Income Benefits (SSI)

• Survivor Benefits

• Benefits for a Divorced Spouse

• Benefits for a Divorced Widow(er)s

• Income Tax on Social Security Benefits

• Considerations and Issues to be Aware of if you Already Receive Some Benefits

• Resources

• Social Security Fact Sheet

Medicare

• Part A – Hospital Insurance.

• Part B – Medical Insurance

• Additional Insurance

• Medigap Medicare Supplement Insurance Policies

• Medicare Advantage

• Medicare Savings Program

• Notice Questions and Appeals

• Appeals
  

• Part D Assistance for Persons with Low Income

Medicaid

• Eligibility

• Disqualification

• Estate Recovery

• Medicaid Planning

Apprise

Pennsylvania Low Income Home Energy Assistance Program (LIHEAP)

Public Benefits

• Railroad Retirement Benefits

• Disability Benefits

Veterans’ Benefits

• Federal Benefits for Veterans and Dependants

• Veterans’ Health Care Benefits

• The Veterans’ Uniform Benefits Package Medicare

• Additional Prescription Benefits for Members of the Uniformed Services

• Legal Counseling for Veteran’s Benefits

Public Benefits for Non-Citizens

Low Cost Legal Services

Long Term Care Facilities

• Nursing Homes

• Resident’s Rights

• Assisted Living Facilities

• Questions

• Resident’s Rights

• Continuing Care Retirement Communities (CCRC)
  

Housing Options

• Services for Individuals who Remain in Their Homes

• Independent Housing Options

• Housing Options for Individuals Who May Require Assistance or Supervision

• National Housing Locator for Seniors

• The National Family Caregiver Support Program

• Geriatric Care Managers

• Nursing Home Licenses

• Resources

Long Term Care Insurance

• Long Term Care Costs

• Services Covered

• Coverage Needed

• Factors Affecting Costs

• Benefit Triggers

• Newest Developments

• Consumer Tips

• Independent Advice

• Resources

Elder Abuse and Neglect

• Signs of Abuse or Neglect

• If you Observe Abuse or Neglect
  

• If you are Abused

• Protection From Abuse Orders (PFAs)

• Zero Tolerance of Abuse

Americans with Disabilities Act (ADA)

• Disability Defined

• Accommodations

• Reassignment

Age Discrimination in Employment Act (ADEA)

• Protection from Discrimination Against Caregivers

• Special Agencies

Consumer Protection

• Pennsylvania Consumer Protection Bureau

• Suggestions for Resolving Complaints.

• Avoiding Scams

• Charitable Organizations

• Mail Fraud or Identity Theft

• Telemarketing

• Do Not Call Lists

• On-line Scams

• Resources

Grandparents’ Custody and Visitation Rights

Mediation Services

• Benefits of Mediation

Drivers’ Licenses

Identification Cards

Handicapped Parking

Personal Records

• A Checklist for Your Personal Filing System

Index

Dedicated lawyers, working pro bono, initiated, revised, and updated this Guide to Legal Issues for PA Senior Citizens.

It is reliable, current, and useful, and, therefore, is highly recommended as a resource.

"Growing Old in America" Report by Pew

On July 7, 2009, the SmartTalk radio discussion program, offered by Public Broadcasting System affiliate WITF-FM (Harrisburg, PA), presented the topic "The New Generation Gap" with guest Kim Parker, a Senior Researcher at Pew Social & Demographic Trends, of the Pew Research Center.

The generation gap. It sounds like a relic of the 1960s when young Americans rebelled against the traditions and lifestyles of their parents and anyone older than 30.

Since then, much has changed. Today, children are closer to and more open with their parents. But what has emerged recently though is a divide in attitudes, especially toward social issues, between the generations.

A recent study by the Pew Research Center finds a new generation gap when it comes to issues like gay marriage. What are the issues younger and older people differ on the most? * * *

The basis for the program was a report issued June 29, 2009, by the Pew Research Center, entitled "Growing Old in America: Expectations vs. Reality" regarding its research conducted between February 23 and March 23, 2009, through focus groups convened in Baltimore, Maryland.

This is the "executive summary":

Getting old isn't nearly as bad as people think it will be. Nor is it quite as good.

On aspects of everyday life ranging from mental acuity to physical dexterity to sexual activity to financial security, a new Pew Research Center Social & Demographic Trends survey on aging among a nationally representative sample of 2,969 adults finds a sizable gap between the expectations that young and middle-aged adults have about old age and the actual experiences reported by older Americans themselves. * * *

AARP noted the study in its posting of an Associated Press article entitled "Study: Generation gap in US largest since 1960s" by Hope Yen (06/29/09). The article contrasted views of younger versus older people, as revealed in the Report, on such key beliefs as morality, religion, and politics:

Almost eight in 10 people believe there is a major difference in the point of view of younger people and older people today, according to the independent public opinion research group. That is the highest spread since 1969, when about 74 percent reported major differences in an era of generational conflicts over the Vietnam War and civil and women's rights. In contrast, just 60 percent in 1979 saw a generation gap.

Asked to identify where older and younger people differ most, 47 percent said social values and morality. People age 18 to 29 were more likely to report disagreements over lifestyle, views on family, relationships and dating, while older people cited differences in a sense of entitlement. Those in the middle-age groups also often pointed to a difference in manners.

Religion is a far bigger part of the lives of older adults. About two-thirds of people 65 and older said religion is very important to them, compared with just over half of those 30 to 49 and 44 percent of people 18 to 29. * * *

As to the characteristics of the newest "generation gap," it was noted by Paul Taylor, Director of the Pew Social and Demographic Trends Project, that "[t]oday, it's more of a general outlook, a different point of view, a general set of moral values."

For prior surveys and reports by the Pew organization on the topics of demographics and population aging, see: "Reports on Generations."

The guest on the recent SmartTalk program, Senior Researcher Kim Parker, led the full Social & Demographic Trends staff in preparing the survey questionnaire and then in analyzing the findings. She also wrote Sections I, II and III of the Report. So she was a knowledgeable guest -- and a good speaker, too.

Wisconsin Public Radio had featured Kim Parker in an earlier discussion program about the same topic, broadcast on July 2, 2009; but to listen now, you must be a member.

Graciously, WITF-FM made its thought-provoking, one-hour, July 7th audio broadcast available free for the clicking on its website, here.

"There was no respect for youth when I was young,
and now that I am old, there is no respect for age --
I missed it coming and going."

~J.B. Priestly
English novelist, playwright and broadcaster (1894-1984)
(per QuoteGarden)

"Creativity" in Elder Law Promoted

The Elder Law & Consumer Protection Clinic at Penn State/Dickinson Law School issued the Summer, 2009 issue of its newsletter, Adventures in Law and Aging (PDF, 4 pages), with the theme of "creativity" in addressing elder law issues in Pennsylvania.

This is the Table of Contents of the Summer 2009 Newsletter:

• GUARDIANSHIP REFORM: The Need for Creative Approaches to Fiduciary Support, by Professor Katherine C. Pearson, Director, Elder Law & Consumer Protection Clinic (p. 1)

• ALUMNI SPOTLIGHT: CREATIVITY IN PRACTICE: The Blogging Attorney, by Brian W. Mains, Certified Legal Intern (p. 1)

• CREATIVE SOLUTIONS: Designing a Progressive and Innovative Older Adult Transportation Alternative, by Tatyana Chigirinsky, Certified Legal Intern (p. 2)

• A NEW CLINICAL EXPERIENCE: AARP’S Legal Services, by Abby Warren & Christina Bonne-Anne, Certified Legal Interns (p. 3)

• Hot Summer Events in Law & Aging (p. 4)

The second article is about blogging by a lawyer -- specifically about this PA Elder, Estate & Fiduciary Law Blog and its Dickinson School of Law (Class of 1976!) alumni blog author (me).

I had talked on the telephone for over an hour with third-year law student Brian Mains, in March, 2009, but heard little until Katherine Pearson sent an email with a PDF of the newsletter containing his published article.

Brian translated and organized my comments well. He captured the spirit of what I tried to convey to him, just as I try to convey it to students in my elder law classes: The practice of elder law requires passion and compassion, as well as solid legal skills, advocacy, and creativity.

But the article, which focused on this Blog, also jolted me. Lately I have not written postings as I should, despite so many developments affecting the senior population.

So, I'll stoke up my passion again, and post more. 'Nuff said.

PBA Elder Law Newsletter (Spring, 2009) Available

In May, 2009, the Elder Law Section of the Pennsylvania Bar Association issued its semi-annual Newsletter, Vol. 8, No. 1 (PDF, 31 pages), containing fifteen articles or notices, to its members.

For a limited time, that issue is available publicly on the PBA's website here, in PDF format for viewing or download.

The contents of the Spring, 2009 PBA Elder Law Section Newsletter are set forth on its first page:

• Pennsylvania Proposes Expansion of Medical Assistance Estate Recovery (p. 1) by Katherine C. Pearson, Section Chair

• Section Leadership List (p. 2)

• 12th Annual Elder Law Institute Takes Place in Hbg. in July (p. 2), by Sally Schoffstall
  

• Pa. Legislature May Adopt “Suitability Standard for Sale of Annuities” (p. 3), by Dana M. Breslin
  

• PBA Recommendation and Report: Proposed Expansion of Medical Assistance Estate Recovery Program (p. 4), submitted by Katherine C. Pearson as Chair, Elder Law Section
  

• Elder Law Numbers Quick Reference (p. 6), by Robert C. Gerhard, III
  

• Medicare 101 for Attorneys (p. 7), by Kathleen M. Martin
  

• Binding Arbitration Agreements: A Hidden Minefield in Powers of Attorney (p. 9), by Martin S. Kardon
  

• Elder Law Section Web Site is New and Improved (p. 10), by Robert DeLong, Jr.
  

• Help with Your PBA Elder Law Section Listserv (p. 12), by Traci Raho
  

• The Curious Case of the Persistent Step-Up (p. 13), by John Payne
  

• Advance Care Planning After Act 169 (p. 18), by Jeffrey A. Marshall
  

• Elder Law Case Updates (p. 21), by Robert C. Gerhard, III

• Legislative Report (p. 24), by Steven Loux
  

• Contact the Editors (p. 31), by Robert C. Gerhard, III (Editor), and Ellen Wase & Julian Gray (Co-Editors)

This issue of the Section's Newsletter will be available only for a limited time.

Get it now. It is a blockbuster issue.

"Blogging" Article in PA Lawyer Magazine

Pennsylvania attorney (& blogger) Kelly Phillips Erb, Esq., of Philadelphia, PA, wrote an article, entitled "Law 2.0: A Legal Blogging Primer," published in the May-June, 2009 issue of The Pennsylvania Lawyer, for the membership of the Pennsylvania Bar Association.

I know Kelly as the author of the popular Tax Girl blog, listed in the American Bar Association's Top 100 Blogs of 2009, and as a frequent contributor to the "Probate & Trust" listserv of the PBA's Real Property, Probate & Trust Law Section.

She certainly is qualified, both as a lawyer and a blogger, to instruct on the basics of legal blogging, where the fields of law, writing, and technology intersect.

These were the topics within her article:

• The Basics: What's a Blog?
• Finding Your Niche: What Should You Blog About?
• Promoting Your Blog: How Do You Get the Word Out?
• Dipping Your Toes In: How Do You Get Started?
• Looking Like a Pro: Does Appearance Matter?
• Returning the Favor: How Do You Get Linked on Other Blogs?
• The Bottom Line: Is It Worth It?

From my experience in writing this Blog and in practicing law, I agree with just about every point Kelly wrote in her article.

I would have added a few more topics, however, like:

• Keeping Out of Trouble: Know the Copyright Laws!
• Staying Alive: Know When to Hold 'Em, Know When to Fold 'Em, and Know When to Walk Away (from Blogging about a Topic)
• Refreshing Yourself: Update Prior Commentaries and Correct Misstatements
• Representing Clients First: Follow the Rules of Professional Conduct While Blogging
  
• Citing Sources: Know the Character of Links You Reference or List
  
• Being Grateful (Never Gratuitous): Share and Celebrate Contributions by Others
• Blogging for the Right Reasons: Follow Your Professional Passion
  

I was pleased to read that this Blog was included among three cited by Kelly as representative of "focused" blog writing.

I highly recommend the article to any lawyer now involved in writing a blog, or contemplating that long-term pursuit.