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Happy New Year!
Wishing you every happiness this Holiday Season and prosperity in the New Year.
We are pleased to bring you the December issue of The Elder Law Update, a monthly e-newsletter full of the latest legal developments and other trends of vital interest to seniors and their advocates. This month we bring you articles about Medicare's open enrollment period, what to do if you must contest a will, trusts for pets and much more.
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| Insurance Agent Is Guilty of Grand Theft for Sale of Policies to Elderly
 A Florida appeals court finds that an insurance agent is guilty of grand theft for selling elderly individuals insurance policies that they did not want or need. McKernan v. State (Fla. Ct. App., 4th Dist., No. 4D06-4392, Oct. 10, 2007).
William McKernan tricked elderly individuals into buying life insurance policies by claiming that the individuals were purchasing health insurance policies. Mr. McKernan was arrested, and the buyers were able to obtain refunds of their policy premiums. Mr. McKernan was charged with grand theft and pleaded no contest.
Mr. McKernan argued that the grand theft charge should have been dismissed because insurance premiums cannot be the subject of a taking. The trial court denied his claim and he appealed.
The Florida Court of Appeals affirms, holding that Mr. McKernan was guilty of grand theft because he intentionally deprived the victims of the money they paid for the policies so that he could get the commissions. According to the court, the fact that the victims were reimbursed does not absolve him.
To download the full text of this decision in PDF format, click here.
(If you do not have the free PDF reader installed on your computer, download it here.) |
Medicare Open Enrollment Season Has Begun
 It is that time of year again--time to reassess whether your Medicare drug or managed care plan is working for you, or to enroll in one. Medicare's open enrollment period began November 15 and continues until December 31. Here are some factors to consider and links to more information.
If you currently have a Medicare prescription drug plan, you should look carefully at your plan because premiums are expected to rise on most drug plans. According to the Kaiser Family Foundation, three-quarters of Medicare beneficiaries enrolled in stand-alone drug plans could face premium increases in 2008 and the average monthly premiums will increase 17 percent if enrollees do not switch plans.
At www.medicare.gov/MPDPF you can evaluate drug plans. The Web site allows you to enter the list of medications you currently take to determine the amount that each prescription drug plan charges for premiums, copayments, and deductibles. It also allows you to compare Medicare prescription drug plans based on customer service and other areas. In addition, you can compare Medicare Advantage and Original Medicare plans at www.medicare.gov/MPPF/.
Some factors to look at when evaluating your drug plan include:
- What is the monthly premium?
- Does the plan continue to cover necessary drugs?
- Does the plan provide coverage for drugs in the "Doughnut Hole" or coverage gap?
- What pharmacies are covered under the plan?
Some factors to look at when comparing Medicare Advantage plans include:
- What is the monthly premium?
- What is the cost sharing for doctor visits?
- Which doctors and hospitals are covered?
- Are any extra benefits included?
For more information from the Center for Medicare Advocacy on what to look for when evaluating Part D and Medicare Advantage plans, click here.
For ElderLawAnswers' checklist, "10 Factors to Consider When Choosing a Medicare Drug Plan," which includes a link to a Drug Plan Comparison Worksheet to help you compare drug plans side by side, click here.
For more information on Medicare, click here. | |
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How to Contest a Will
 You had a loving relationship with your mother and she always said she would leave everything to you and your siblings, but after she died, you discover she had recently written a new will, leaving everything to her housekeeper. Is there anything you can do? If you believe a loved one's will is not valid, you may be able to contest it. But proving a will is invalid is difficult and this process should be undertaken only if you are sure there is something wrong.
Only certain people can contest a will. For example, you can't contest your friend's will just because you believe she shouldn't have left her estate to her niece. You must be an interested party. This means you would have inherited from your loved one if there was no will or you are a beneficiary of the will.
In addition, you cannot contest a will solely because you think the distribution is unfair. A will can be contested only in certain circumstances; there must be evidence that something is wrong with the will. The following are the situations in which a will may be contested:
- Mental incapacity. You may contest a will if you believe your loved one did not have the mental capacity to write the will. The best way to prove this is with a statement from a doctor who examined your loved one around the time he or she wrote the will. You may also use medical records and other witnesses who were around your loved one at the time.
- Undue Influence. If you believe another person exerted undue influence over your loved one and induced your loved one to change the distribution under his or her will, you may contest the will based on undue influence. Generally, the person contesting the will is required to prove the person exerted undue influence. However, if the person had a fiduciary relationship with your loved one, that person may have to prove that there was no undue influence. People who might have a fiduciary relationship include a child, a spouse, or someone with a power of attorney.
- Fraud. Arguing your loved one was fraudulently induced into signing his or her will is another way to contest a will. Fraud occurred if your loved one signed a will without realizing it was a will. It could also happen if someone gave your loved one misinformation that caused him or her to change the distribution in the will.
- Not Executed Properly. Finally, a will may be invalid if it was not executed properly. Each state has laws dictating what makes a will valid. Usually, the signing of the will must be witnessed by independent witnesses. If the document was not witnessed properly, it may be invalid.
If you want to contest a will, you should contact an attorney immediately because you will need to file a claim with the court. If you are an interested party, you should receive notice from the court that the will is being probated.
If you are successful in invalidating a will, the court may reinstate your loved one's prior will. If there is no earlier will, the estate may pass under the state's intestate succession laws. Another alternative is for the court to invalidate just the portion of the will that is invalid, leaving the rest intact. |
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Book Review Unplugged: Reclaiming Our Right to Die in America
 William H. Colby. Unplugged: Reclaiming Our Right to Die in America. AMACOM Division American Management Association. 2006. 272 pages.
$17.95 Click on book to order.
Unplugged: Reclaiming Our Right to Die in America by Bill Colby, Senior Fellow with the National Hospice and Palliative Care Organization in Washington, D.C. was released in paperback December 1st.
In 2005, the Terri Schiavo case galvanized millions to think about end-of-life decision making and question when life ends and how to define a good death. Colby, who is the lawyer who represented the family of Nancy Cruzan in their family's right-to-die case, the first such case heard by the U.S. Supreme Court, writes elegantly about these issues. He reminds us that the right to die is a new subject because the technology that allows us to keep patients alive is recent.
Colby discusses briefly the major issues in three high-profile right-to-die cases - Cruzan, Schiavo and the first, that of Karen Ann Quinlan in 1976 - to highlight the difficult medical and legal questions surrounding the end of life, including the advantages and disadvantages of a living will, appointing a legal guardian and "do not resuscitate" orders. He takes no ethical position regarding the removal of feeding tubes or respirators but urges us to talk to our families about our wishes in this regard. Although many other books have covered these topics, few possess Colby's engaging style and judicious insights.
Colby has been interviewed on Larry King Live, CNN, MSNBC, Hardball, FoxNews, Good Morning America, NPR, Today, CBS This Morning, and similar programs, and speaks across the country on the issues we face at the end of life. He has been published in many national newspapers including USA Today, which published his op ed on the Schiavo case. |
Providing for Your Pet with a Trust
 A pet can be a member of the family, but what happens to your pet after you are gone? How can you ensure your pet will be cared for? One option is to create a pet trust. While you can give directions in your will to leave your pet to a caretaker, there is no guarantee that the caretaker will continue to care for your pet. A pet trust can provide a little more security for your pet because a third party -- the trustee -- is obligated to ensure your pet is cared for.
A trust is a legal arrangement through which one person (or an institution, such as a bank or law firm), called a "trustee," holds legal title to property for another person, called a "beneficiary." With a pet trust, the trustee makes payments on a regular basis to your pet's caregiver and pays for your pet's needs as they come up.
The federal tax code does not recognize a pet as a beneficiary of a trust. However, 37 states and the District of Columbia have laws allowing pet trusts. Even if your state doesn't recognize a pet trust, you may be able to set up the trust in New York as long as the trustee is located there. Another option is to set up a traditional trust and place the pet in the trust along with the funds. The pet's caregiver can be named the beneficiary.
The first step is to contact an attorney with experience drafting trusts. Regardless of what type of trust you use, the following are some elements the trust should include:
- Caretaker. The trust will need to name a caretaker who will be willing and able to care for your pet. The caretaker should be someone who is comfortable with your animal.
- Care Instructions. The trust should include specific instructions on all aspects of the pet's care, including the brand of food, activities the pet enjoys, and the preferred veterinarian.
- Funds. The amount of money necessary to fund the trust depends on the individual animal. Typically, you can leave the money to the trust in your will. Be warned that under most pet trust laws, the court can reduce the amount of caretaking funds to what it deems is reasonable for the care of the pet. (See, for example, "Queen of Mean' Rules From the Grave, But $12 Million to Dog May Be Trouble.")
For more on making a pet a part of an estate plan, click here. |
Why Do Married Men Claim Social Security Benefits So Early?
 Most married men claim Social Security benefits at age 62 or 63, well short of Social Security's Full Retirement Age or the age at which they would get the most value from their benefits. The economic sacrifice isn't great for the men -- their benefit is less than 4 percent less than what it could optimally be if they waited to collect Social Security -- but for their widows, the impact is much more severe. The survivor benefit is on average nearly 20 percent less than its value would have been had the men waited to collect.
Very low incomes among elderly widows are already a major problem. If married men continue to claim as early as they do now, the problem could worsen as Social Security's Full Retirement Age rises, warns the Center for Retirement Research at Boston College.
Why do married men claim so early and can the trend be reversed? Are men ignorant of the consequences or don't they care?
A new Working Paper by the Center reports on research to answer these questions. The researchers found no evidence of a "caddishness" factor" -- that is, men didn't seem to be claiming early just because they could. But the researchers did find a significant association between college education and later claiming, suggesting that the more financial awareness men have, the less likely they will be to claim their benefits early.
Although this finding could be an argument for an educational campaign to raise the claiming ages of married men, the researchers note that "financial education has not been especially effective in changing behavior."
Instead, they recommend that policymakers consider other initiatives to persuade married men to claim later and give their survivors a more comfortable retirement. "Such initiatives," the researchers write, "include raising the Earliest Eligibility Age, requiring spousal consent for claiming prior to the Full Retirement Age, and preserving the survivor benefit at its Full Retirement Age value and allowing the higher-earning spouse to access only a portion of his (or her) Primary Insured Amount prior to the Full Retirement Age."
To read and abstract or the full Working Paper, click here. |
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Elder Law Associates PA is a boutique elder law firm that practices exclusively in Medicaidand long term care planning including long term care insurance, Medicaid applications, home and community-based Medicaid waiver services, diversion program benefits, nursing home benefits, spousal refusal applications, and Medicaid fair hearings and appeals; nursing home and assisted living facility residents' rights litigation; asset preservation planning with a special focus on planning in light of the Deficit Reduction Act of 2005, including personal service agreements, the purchase of life estates, income producing real estate and spenddown planning; disability planning, including special needs trusts and guardianship; estate planning, including wills and trusts and advance directives; and probate, which encompasses estate and trust administration as well as specialized litigation.
We assist clients in planning for the possibility of disability, incapacity, home health care, assisted living and/or nursing home placement. Our firm enables clients to avoid impoverishment caused by the escalating cost of long term care, to maintain their right to make health care decisions and to avoid unnecessary medical treatment.
We hope you have enjoyed The Elder Law Update. If you have questions about something you read, elder law matters or issues concerning persons with disabilities, we would be delighted to hear from you. We serve as an elder law resource to many professionals and organizations and want to become your elder law resource as well. You can reach us at Info@ElderLawAssociates.com.
Warm regards,
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Ellen S. Morris, Esq. & Howard S. Krooks, Esq., CELA
Elder Law Associates PA
phone: (561) 750-3850 / (800) 353-3752
fax: (561) 750-4069
This publication is intended for general information purposes only. It is not intended to constitute individual legal advice to any specific client. |
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