Asset Protection Entities Suffer New Assaults

Reverse Piercing of Corporate Veil Reaches Entity Assets

Generally, business entities such as corporations or limited partnerships are legally separate and distinct from the shareholders and members of such entities. When justice requires, however, courts have ignored the separation of the business and the individual and have allowed a creditor of the business to satisfy the debt from the assets of an individual closely connected to the business. This concept is known as "piercing the corporate veil."

A variation on the idea, called "reverse piercing of the corporate veil," allows someone to reach the assets of the business entity to satisfy a claim or judgment obtained against a corporate insider. In both instances, a court disregards the normal protections given to a business structure in order to prevent abuses of that structure.

National Groups Acknowledge Need for Guardianship Reform

Advocacy Groups Meet To Discuss Reform

 Leading advocacy groups for seniors are meeting this week to continue the process of addressing guardianship reform and implementation. Hundreds of thousands of Americans are under the care of a guardianship system in desperate need of repair, according to a report from Washington’s General Accountability Office (GAO). The National Academy of Elder Law Attorneys (NAELA), along with other national groups, will address the surprising nationwide deficiencies in the guardianship system across the United States.

NAELA, The National College of Probate Judges (NCPJ) and the National Guardianship Association (NGA) are convening a Joint Conference with a Wingspan Guardianship Implementation Session at The Broadmoor in Colorado Springs. The three groups will discuss guardianship issues during the Conference that brings together guardians, elder law attorneys, case managers, social workers, healthcare professionals and state judges from around the country.

We would all like to think that we will be protected by ethical professionals or loving family members if we are ever faced with the need for guardianship as we age. The truth is that in many states across the country little is being done to ensure the necessary funding, training, accountability and monitoring of guardians that could prevent the horrific abuse that continues to occur against our older Americans. This Conference and Session is another step towards a remedy.

Hospice Costs Medicare Less Notwithstanding that Hospice Patients Live Longer

McKnight's reports that patients enrolled in hospice care cost Medicare less, according to the study "Medicare Cost in Matched Hospice and Non-Hospice Cohorts" published in the September 2004 issue of the Journal of Pain and Symptom Management.  Medicare savings ranged from $1,115 for patients diagnosed with rectal cancer to $8,879 for patients with congestive heart failure. 

The study also revealed that the hospice patients on average live longer than similar patients who are not under hospice care. The prolonged life spans ranged from 20 days for those patients with a diagnosis of gallbladder cancer to 69 days for those with breast cancer.

Conducted to identify cost differences between patients who do and do not receive Medicare-paid hospice care, the study examined patients with 16 of the most common terminal diagnoses. The report is significant because hospice care analysis has been debated since the Medicare Hospice Benefit was introduced in 1982, according to PR Newswire. 

Almost 30 percent of Medicare payments go to patients at the end of their lives, said J. Donald Schumacher, president and CEO of the National Hospice and Palliative Care Organization, the organization that commissioned the study.

Most Retirement Accounts Mismanaged by Investors

Consider Death Tax Planning Before Its Too Late!

American Express recently reported the results of a national survey seeking to evaluate the management of retirement accounts by American investors. The survey, completed by Amex’s Global Marketplace Insights unit uncovered some disturbing facts. The survey found that one-third of those surveyed maintained three or more retirement accounts, while one out of every six people owned five or more accounts. The survey discovered bad habits and misperceptions by investors in their management of retirement accounts.

The survey, for example reveals that many investors have a false sense of being well diversified, mistakenly believing that owning different accounts equates to diversification. Of course, management of multiple accounts makes management more difficult for the investor. This difficulty is nowhere more evident than in the shocking statistic that almost one-fourth of Americans spent no time at all reviewing their retirement accounts. Half of the investors surveyed spent less than one hour reviewing their investments.

Report on Abuse by Guardians and the Guardianship Process Released

Senate Select Subcommittee on Aging Reports Dangers

The following is a “nearly” verbatim article from a recent NAELA bulletin:

WASHINGTON (July 22, 2004) - At today's hearing from the Senate Special Committee on Aging's Guardianship Forum, elder law attorney A. Frank Johns testified about ways to improve the current guardianship process, which has allowed some vulnerable seniors to become victims of abuse and neglect. Committee chair Senator Larry Craig (ID), ranking member Senator John Breaux (LA) and representatives from the Government Accountability Office (GAO), along with Johns, past president of the National Academy of Elder Law Attorneys (NAELA), discussed today's results from a significant study on issues related to legal guardians and aging Americans under their care - the first such study GAO has conducted.

This year long study from the GAO began in February 2003, when Senator Craig requested the first ever GAO investigation of the guardianship process after hearing witnesses, including Johns, testify about cases across the nation in which appointed guardians mistreated elders. "When used correctly in very extreme cases, guardianships can be an important tool in securing the physical and financial safety of an incapacitated elderly senior," Chairman Craig said. "At the same time, guardianship can divest an elderly person of all the rights and freedoms we consider important as citizens. For this reason, I asked the GAO to study the accountability of guardians who are charged with managing these funds on behalf of the elderly."

Most guardians do a difficult job very well. The Committee determined that standards between federal and state authorities should be set to ensure the quality of all legal guardian care from coast to coast. Johns, a renowned elder law attorney who counsels seniors and their families on guardianship issues, made an opening statement and then fielded questions. “The wisdom and commitment of Senator Craig was realized when the GAO presented its study and recommendations to this committee in Feb 2003,” said Johns. “The greater benefit is not that another report is being published. The greater benefit is that Senator Craig and his committee will facilitate the connection between federal and state funding sources, and the national guardianship network and its focus to implement these recommendations. With the generous investment of time by these parties, we can add a measure of protection for those Americans of age that need legal guardians in their lives.”

Guardian Convicted of Homicide in Death of Ward

Another Reason For Guardianship Planning: Daughter Convicted of Homicide in Mother's Death

The story is tragic. The lesson clear. An Indiana woman was forced to seek and obtain a guardianship for her mother, who suffered from terminal Parkinson’s disease. Her mother was in consistently poor health, and had been treated for broken hips, dehydration, and bedsores prior to her seeking guardianship. The mother was also a small women, typically thin, and naturally emaciated looking.

The woman cared for her mother for seven years. During that time, she would visit frequently, but relied heavily upon family members to assist in her mother’s care. Further, she retained the services of a home health care agency to visit daily and ensure provision of meals and medication. Her mother was frail, very small, and 83 years old. It probably did not surprise the daughter that her mother took a sudden turn for the worse, was hospitalized and died.

What happened next shocked, surprised, and outraged the whole family. The county prosecutor issued an indictment against the daughter for homicide! The prosecutor charged the daughter with willful neglect and abuse of her mother.

HIPAA

New Laws Require Estate Plan Review and Revision

Change is constant. Several recent changes in the law require you to review and possibly revise your trust or supporting documents. Moreover, although you may choose not to review your trust and supporting documents regularly, changes to Ohio and federal law last year make this year a vitally important year for review and revision.

The most important federal change affecting your estate plan is the adoption of the much touted privacy rules of the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) which took effect on April 14, 2003. Until the recent prescription drug bill, these regulations were considered to be the biggest development in health care legislation since the 1965 enactment of Medicare. The legislation applies directly to virtually every physician, dentist, nurse, pharmacist and health care provider in the nation. The legislation applies indirectly to virtually every industry that in any way obtains, records, reports, maintains, or relies upon health care information, including broker-dealers and insurance companies.

Disability Rising Among Young

Underscores Estate Planning Importance For Parents

According to a report published this month in Health Affairs (Jan/Feb 2004), disability is rising among younger Americans! The report investigates trends in disability in the U.S. population, particularly among people under age fifty. Even as the elderly have become less disabled, reported disability has risen for younger Americans, especially those ages 30–49. There are numerous possible explanations for rising disability levels, such as obesity, technological advances in medicine, and changing disability insurance laws.

Whatever its sources, rising disability among the young is concerning both publicly and privately. From a public policy standpoint, according to the report, rising disability among the young threatens public programs such as disability insurance, Medicare, and Medicaid. Already strained public programs could become overwhelmed by the burden of providing long-term care for such protracted periods of time.

Ohio Ranked One of the Worst States in which to Die

Only Two States Were Ranked Lower

Ohio is one of the states where the dying are less likely to receive the best all-around care and legal protection, according to state-by-state rankings by Forbes magazine. In only Illinois and Washington, D.C., are the dying less likely to receive proper treatment, the Forbes analysis suggests.

Utah is the state where the dying are most likely receive the best treatment, according to the ranking. Rounding out the top five states to die are Oregon, Delaware Colorado, and Hawaii. Following the District of Columbia at the bottom of the Forbes list are, in ascending order, Illinois, Ohio, Louisiana and Mississippi. For the complete list, click here.

To create its rankings of “Best Places To Die,” Forbes looked at five criteria that measure the care and legal protection states provide to the dying, as well as the amount of money heirs may inherit. Here are the criteria, along with the weight Forbes assigned to each:

Nursing Home Resident Dies After Wandering Without Ankle Sensor

According to McKnight's, Charles Klaer, a 72-year-old resident with advanced Alzheimer's disease, walked out of a nursing home where he was a resident, and was struck by a car and killed on a highway a mile-and-a-half away from the facility.  Only a few days before, Mr. Klaer had wandered from Willow Manor Retirement Living and Memory Support Center in Dania Beach, FL, causing officials to call his wife requesting consent for an electronic strap around his ankle.

Klaer was not wearing the ankle monitor when he wandered away. Klaer's family hired a private investigator, Robert Myers, who said he found the monitor next to Klaer's bed in perfect working order, without any damages or cuts. A sheriff's office detective is searching to see if anyone was criminally negligent at Willow Manor.

According to McKnight's, Harold Baldwin, president of Secure Care Products Inc., the company that made the electronic monitoring device, said once the filament strap is wrapped around a person's ankle and snapped shut, it stays on permanently, even in the bath. 

For the full article, go here.