Wednesday, August 17, 2011 Eleventh Circuit Court of Appeals court struck down national health insurance requirementThe Atlantic Business News reported on August 13, 2011 that a federal appeals panel's ruling struck down the centerpiece of President Barack Obama's health care overhaul. Briefly, the Judges commented that the U.S. Congress overstepped its authority when they passed the requirement that Americans carry health insurance — or face tax penalties.
While the Justice Department can ask the full court of the 11th Circuit to review the ruling, more likely the Justice Department will bring the question of whether Americans can be required to buy health insurance to the U.S. Supreme Court.
The panel’s decision wasn’t a total surprise. During oral arguments each of the three judges repeatedly raised questions about the health care overhaul and expressed unease with the insurance requirement.
Each judge raised concerns if upholding the landmark law could open the door to Congress to adopt other sweeping economic mandates.
~Jonathan S. Frank
Friday, August 12, 2011 The Importance of an Estate Plan at Any Age
I just read the article below and thought it was interesting and important to share.
Amy Winehouse had many ups and downs during her short life, but it appears the singer/songwriter left behind an up-to-date and ironclad estate plan. Winehouse's tragic death at age 27 illustrates why you are never too young for a will.
Winehouse and Blake Fielder-Civil were married briefly. Under English law, marriage negates any wills made before the marriage, but if a couple divorces and there is no new will, the ex-spouse is the favored beneficiary. Fortunately, Winehouse reportedly updated her will to ensure that Fielder-Civil, who is currently in jail for burglary and possession of an imitation firearm, would not inherit any of her estate. Under Winehouse's will her fortune, estimated at $16 million, will go to her divorced parents and her brother.
In the United States, if you die without a will, the state dictates who will inherit from you. If you are married, most states award one-third to one-half of your estate to your spouse, with the rest divided among your children or, if you don't have children, to other living relatives such as your parents or siblings. If you are single, most states provide that your estate will go to your children or to other living relatives if you don't have children. If you have absolutely no living relatives, then your estate will go to the state.
If you have accumulated some assets (it doesn't have to be Winehouse's millions) or have young children that will need a guardian, then it is time to start thinking about an estate plan. Planning your estate with a will or trust is the best way to ensure your estate is distributed the way you want it to.
Not long ago I was talking to a colleague that had recently become a father. I jokingly said “now that you have a child you need a will and I know people who can put one together for you” The guy looked at me with shock on his face and said “what do you think I’m about to die”. I was amazed that he thought a will was only for the elderly. It’s unfortunate that this is the way many people think about estate planning. I know of several people who died unexpectedly at a young age and it caused their family stress, confusion and a great deal of sadness when they had to make decisions not knowing what their child would have wanted. I say to people all the time that putting together a will, living will and powers of attorney are like a gift to your family and I truly believe that.
Friday, August 05, 2011 The Internal Revenue Service: They may be slow but they are not stupid!
Over the years I have heard of folks "selling" their land to a son or daughter for a $1.00. New real estate deeds were prepared and recorded.
A recent American Bar Journal article recently stated that the Internal Revenue Service is reviewing land-transfer documents across the nation to see if corresponding federal gift tax returns (IRS Form 709) were ever filed evidencing these gift transfers to family members. If the land transfer was valued at more than the annual gift exemption (which has ranged from $3,000 to the current day amount of $13,000), a gift tax return must be filed. The IRS is finding that hundreds of gift tax returns were never filed! While the current lifetime gift exemption, as of this year is $5,000,000, in prior years the exemption was much lower. It is possible these gifts, when discovered, will not only be taxable, but interests and penalties may apply!
Jonathan S. Frank, ESQ Tuesday, June 28, 2011 A Retirement Community Just For You
I just read the following article from the Wall Street Journal about a new trend in retirement communities.
"Whether you're an RV aficionado, a Tai Chi enthusiast or even an avowed nudist (gulp), a growing number of retirement communities are clamoring for your business with so-called niche retirement homes."
I hope this trend is true and will continue to grow. I would like to see more diversity in the communities myself. The baby boomer generation is so diverse retirement communities need to change in order to stay in business.
Still the number one question I keep hearing is how I can afford a retirement communities. My answer is, get your estate plan in order now. Don't wait until you're in a crisis to think about Medicaid Planning, Veterans Benefits and Guardianships. Estate planning is important for anyone at any age. I hope that as our community becomes more educated with Estate Planning and Elder law more seniors will be able to choose where they want to live for what the community has to offer not because it’s what they can afford.
~Carrie
http://online.wsj.com/article_email/SB10001424052702304569504576408241776166346-lMyQjAxMTAxMDIwODEyNDgyWj.html Wednesday, June 22, 2011 Estate Planning Options for Long Term Care
Before I started working for The Law Offices Of Jonathan S. Frank I thought Estate Planning was only for the very wealthy. Now I know Estate Planning should be done by everyone, must importantly by middle class folks. The middle class are the ones who need options for Long Term Care payment. Options such as Medicaid Planning and Veterans Benefit Planning. Almost once a month I sit down with a client who is trying to figure out how to pay for his/her parents care. The parent has too much money to get Medicaid but not enough money to pay for the care they need. Below is a great article on this subject.
Carrie Barto, Client Relations Director
http://largo.patch.com/articles/exploring-affordability-options-for-senior-living Friday, May 13, 2011 Legal Planning for a Loved one with Alzheimer’s Disease
I was recently on the Alzheimer’s Association website (www.alz.org) and came across some great information on the legal issues that need to be taken care of as soon as and individual is diagnosed with Alzheimer’s Disease.
"Once a person is diagnosed with dementia, family and friends should help the person make legal plans. The sooner plans can begin, the more the person with dementia may be able to participate. Legal planning includes:
· Making plans for health care and long-term care coverage
· Making plans for finances and property
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Naming another person to make decisions on behalf of the person with dementia"
Very often I get asked the question, when is it to late to get a power of attorney drawn up. I found the following information about legal capacity on the Alzheimer’s Association website that I thought was very helpful.
"Legal capacity is the level of judgment and decision-making ability needed to sign official documents. In most cases, the person with dementia is able to understand the meaning and importance of a given legal document.
The requirements for legal capacity can vary from one legal document to another. A lawyer can help pinpoint what level legal capacity is required for a person to sign a particular document."
When a person no longer has the capacity to make decisions for themselves it's then time for a guardianship to be put into place. Below is a great description of what a guardianship is. Again I'm quoting from the Alzheimer’s Association website.
A “Guardianship is given by the court when it finds that a person is legally incompetent. In the case of dementia and its effect on the brain, legal incompetence relates to the person's inability to make decisions about his or her care or property. Once a court rules that a person is legally incompetent, a guardian or conservator is appointed for that person. A diagnosis of Alzheimer’s or dementia alone is not an indication of incompetence.”
I hope this is helpful to those of you who have family members with dementia or serve those with this disease. For more information on this topic please visit www.alz.org/living_with_alzheimers_legal_issues.asp
Carrie P. Barto, Client Relations Director Monday, April 25, 2011 Dimentia & Teepa Snow
On Saturday April 16, I attended a conference with dimentia expert Teepa Snow. Park Avenue Adult Day Care hosted the event in Rock Hill, SC (thank you for a great day!!).
If I am being perfectly honest, I did not want to attend anything on a Saturday morning. I am so glad, however, that I forced myself to go!! Teepa is perhaps one of the most outstanding speakers I have ever heard. I also had the opportunity to have lunch with Ms. Snow to discuss with her how I could improve my elder law practice and to ask for her suggestions in my guardianship cases. I would encourage anyone who has any dealings with folks struggling with Alzheimer's or other forms of dimentia to avail yourself of Teepa's expertise. Check out her website: www.teepasnow.com.
As an elder law attorney, I have a lot of interaction with people and families struggling with dimentia. It is, of course, important for me to understand the legal issues associated with long term care planning, guardianship issues, estate planning, etc. It is also important, however, for me to know what is going on in the daily lives and struggles of my clients and their families. Thank you to Teepa Snow for helping me to become a better lawyer.
Ryan W. Monk, elder law attorney, licensed in NC & SC Sunday, February 20, 2011 When to update your estate planning documents?
I often get the question from my clients: when do I need to update my estate planning documents? My general response is that your estate plan may need updating anytime you have a life event. The next question is, of course: what constitutes a life event? Here is a list of some triggering events that should make you pull out your documents and determine whether an update is necessary:
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Change in marital status (married, divorced, or someone in estate plan gets married or divorced)
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Children (you've had a child since completing your estate planning documents, children reach 18 yrs, you've adopted a child)
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Death or Disability (if a family member, close friend or someone named in your estate plan dies or becomes disabled)
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Change in financial status (an increase or decrease in the size of your estate or nature of your assets)
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Change in the law (some changes in the law may have a dramatic impact on your estate plan)
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Relocation to a new state
There are many other events that can have an impact on your estate plan. Outside of the triggering events listed above, a good rule of thumb is to review your estate planning documents with your attorney every 3-5 years.
RYAN W. MONK, licensed in NC & SC
Elder Law, Estate Planning, Asset Protection Sunday, February 13, 2011 Estate Planning: Why your power of attorney is like a spare set of keys.
This is a true story. About five years ago, I was renting a room from my buddy in his Dilworth townhouse. I was about to leave one evening to have dinner with some friends, and my roommate was walking out the door at the same time to walk across the street for a cup of Starbucks coffee. As he walked out the door, he said to me, "Whatever you do, make sure to lock the door" - at least that is what I heard. What he actually said was, "Whatever you do, DON'T lock the door.” The distinction was crucial because my buddy had an exam he was studying for and did not have his keys to get back in the house.
Long story short, I left, locked the door, and did not have my cell phone on. So there my poor roommate sat, outside his own house without his books and without a way to get in. In order to get back into the house, he had to hire a locksmith (not cheap), who had to basically break into the house and make a new key. If only he had a spare key with a trusted friend or family member around (other than his roommate who left him keyless).
This story is a great illustration of why powers of attorney are so important. A power of attorney gives someone access to your ability to make financial or health care decisions on your behalf, just as a spare key gives a trusted person access to your house if you ever get locked out. If you do not have a properly executed power of attorney, then it becomes necessary to go through the guardianship process, which is expensive and time consuming, just like having to hire a locksmith to get into your locked home. If, however, you have taken the time to execute health care and financial powers of attorney, then, if you are ever not able to make decisions for yourself, you can have the peace of mind knowing that a friend or loved will be there to watch over your affairs.
RYAN W. MONK, licensed in NC & SC
ryan.monk@franklegal.com Wednesday, February 09, 2011 Proposed Chinese Law Would Require Adult Children to Visit Elderly Parents Regularly
I just read the following article in our Elder Law newsletter and thought it was interesting. In the past I worked as a social worker in a nursing home and saw the positive effect an attentive family had my residents. When the family was around the resident received better care and lived longer. I believe the family benefited from the visits as well.
~Carrie Barto, Client Relations Director
"Adult children in China would be required to visit their elderly parents on a regular basis under a proposed amendment to the nation's Law on Protection of the Rights and Interests of the Aged.
Wu Ming, an official with the Ministry of Civil Affairs, is reported as saying that the amendment would allow elderly parents ignored by their children to go to court to claim their legal rights to be physically and mentally cared for.
China has 167 million citizens over age 60, half of whom live alone without children and 20 million of whom cannot take care of themselves. In traditional Chinese culture, filial piety -- respect for one's parents and ancestors -- is one of the paramount virtues. But the longstanding tradition of children caring for aged parents is being challenged by history's largest human migration, in which 130 million Chinese have moved to cities in search of jobs, leaving nearly 60 million growing up apart from one or both parents, according to a recent article in the New Yorker. In effect, capitalism appears to be undermining traditional values, and the state's attempted solution is to legislate morality.
Wang Shichuan, a news analyst quoted by the site CriEnglish.com, questioned whether a moral issue is susceptible to a legal solution. Wang noted that many adult children work outside their hometowns and have little opportunity to visit their parents due to all-consuming jobs and few days off.
The Ministry of Civil Affairs is set to submit the proposed amendment to the Legislative Affairs Office of the State Council in the near future, according to the news site Global Times." |