170 Million Pages Why You Should Avoid Probate

"You can learn a lot about people from their wills.

You can see who was happily married and who was disappointed in their families. You can see who prized brevity and who parceled out every item as if handled by a loquacious auctioneer with lambskin gloves. 

Death may come for us all, but it doesn't necessarily still our voices." 

So begins an excellent article by Todd Leopold, writer for CNN, entitled, "Paul Revere, J.P Morgan wills among millions now online." 

The article continues:

"There's always emotion involved when someone's writing a will," said Jennifer Utley, senior manager of research at Ancestry, the genealogy company. "People make really interesting statements on how much they left people."

Ancestry has now made it much easier to research old wills, whether they're from your family or someone of historical import. The company's website, Ancestry.com, has more than 170 million pages of wills and probate records available, legal records that until recently had been accessible only offline.

Historically significant, no doubt.  These records, culled from probate courts and legal archives serve as an important object lesson; your Will is a public record.  Once filed with a probate court, it is available to anyone, and with the movement to online public records, will one day be online. If you value the privacy of your most intimate thoughts, desires, and emotions, plan your estate to avoid probate.

 

Even In Ohio, A Medicare Recipient's 'Family' Includes a Spouse

The State of Ohio Department of Medicaid has a unique arrogance interpreting federal law without regard to its meaning or intent. As a result, the Sixth Circuit Court of Appeals was recently forced to hold that a state's definition of family when determining whether a Medicare recipient is eligible for Medicaid benefits to assist with premiums must include the Medicare recipient's spouse. Wheaton v. McCarthy (6^th Cir., No. 14-4023, Sept. 1, 2015).  Yes, the State of Ohio actually refused to consider a spouse a member of an applicant's family in order to deny the applicant benefits.

Joe Turner is a married Medicare beneficiary whose monthly income is around $1,300. Mr. Turner applied for extra assistance from Medicaid to help pay his Medicare premiums. Under federal law, the state compares the beneficiary's income to the federal poverty line for a family of the size involved to determine whether a beneficiary is eligible for assistance. The larger the size of the "family involved," the greater the income a beneficiary can earn and still be eligible for assistance. The Ohio Department of Medicaid did not count Mr. Turner's spouse as part of his family and denied him benefits.

Mr. Turner sued the state, arguing the state should have included his spouse in the definition of family and that, if it had, he would have been eligible to receive Medicaid benefits. The district court rejected Mr. Turner's claim, holding that because federal Medicaid law did not define "family," the state was free to define the term as it wanted. Mr. Turner appealed.

The United States Court of Appeals for the Sixth Circuit reversed, holding that the state's definition of family should include the beneficiary's spouse. The court looked at the ordinary definition of family and noted that "to ask whether the ordinary meaning of 'family' includes a person’s resident spouse, one might say, is like asking whether our solar system includes the planet Venus."  Fortunately, the reliability and predictability of the science of astronomy doesn't rely upon the State of Ohio to interpret and implement.  The court concluded that federal law requires the state to use a family-need standard, not an individual-need standard, when considering the Mr. Turner's application for Medicaid benefits, as federal law, plainly reads and intends.

For the full text of this decision, go here.

New Controversial Sign-Off Rule Increases Burdens On Skilled Nursing Facilities- Threatens Transfer To Hospitals

Kerry Young, a reporter for Congressional Quarterly Roll Call, penned an article,"Hospital Transfer Review in CMS Nursing Home Rule Draws Flack, that exposes a controversial new rule with far reaching implications for those who hope to return seniors to health, and ultimately to their homes or non-institutional community care.  

The proposed rule, in effect, would prevent the transfer of a nursing home resident from the  nursing home to a hospital in all but emergency life threatening situations, despite the fact that the staff at the nursing home and/or  the resident's family believes transfer is in the best interest of the resident, unless and until a physician personally examines the resident and approves the transfer.  Although the industry is complaining about the burden and additional cost of the regulation, consumers should appreciate that new rule is a new roadblock to transferring a patient out of an institution.  The rule is little comfort to seniors and their families who complain that skilled nursing facilities all too often "feel" like prisons, with too few available alternatives for their beloved residents.  The government asks us to trust skilled nursing facilities with our loved ones, and then prohibits these same institutions from making decisions that they believe are in our loved ones' best interest.  The true villain in the institutional care and treatment of our elderly is revealed (hence the choice of thumbnail artwork for this article).  

To understand and appreciate the risks of institutional care, go here. You can find additional discussion of the risk of institutional care for residents suffering from COPD here, and of the risk of infections here.

 

Mr. Young writes: 

A plan to require a medical signoff before moving nursing home residents to hospitals for routine care has been heavily criticized, making it one of the most controversial items in a proposed sweeping overhaul of federal rules for long-term care organizations.

The Centers for Medicare and Medicaid Services (CMS) intends to mandate an in-person visit by doctors or other specified staff before people residing in nursing homes and similar centers are sent to hospitals, with emergency cases to be exempted from the requirement. Critics say medical evaluations would be costly and impractical.

Many executives and staff workers from nursing homes argue that they will not be able to find doctors and other qualified medical personnel to carry out the requirement due to staffing shortages. They also noted that the required review could prevent staff at nursing homes from honoring the wishes of residents and their families regarding hospital transfers. Veronnica Smith, executive director of a skilled-nursing facility in rural South Dakota, said the CMS plan was not realistic in her region.

"We do not have the luxury of a physician in our community 24/7, let alone physicians that would be willing to come to the facility to assess a resident before a transfer," Smith wrote. "Further, in the event of an emergent need, the time it would take a physician to get to the facility to approve the transfer would be too late."

Stephen Hamlin, a New York-based nursing home administrator, called the proposal "impracticable and likely counterproductive."

"I do not believe that it is appropriate for a resident experiencing an acute episode to have to wait for the arrival of a physician or physician extender before receiving emergency hospital care nor it is reasonable to expect a caregiver to determine whether a resident is at risk or not," he told CMS in a comment.

CMS is accepting public feedback on the long-term care regulation through Sept. 14. CMS has received dozens of comments addressing the mandate, with more than 30 of them referring specifically to the section of a proposed long-term care rule that would create the requirement. Dozens of other people raised objections without citing the provision specifically.

Unveiled in July, CMS' long-term care proposal marks the first attempt at a comprehensive update of the regulations since 1991, the agency said. Many organizations already have said that the expenses for carrying out the new regulations for long-term care would be burdensome. By CMS' estimate, the national cost for implementation of the proposal could be $729 million in the first year, or about $46,491 for each site providing long-term or specialized nursing care. In the second year, the estimated cost would drop to about $40,685.

CMS has worked for some time to prevent unnecessary transfers of residents of nursing homes, which can be "expensive, disruptive, and disorienting for seniors and people with disabilities," the agency says on its website. People transferred from nursing homes may be especially vulnerable to risks of hospital stays, including errors with medication and infections. [blogger's note: Of course, these same arguments by advocates against the transfer of seniors from "expensive" hospitals to "less expensive" skilled nursing facilities have not slowed the pace with which the government has required reliance upon skilled nursing facilities for  care and treatment of the elderly]. 

Current rules already require doctors to document the cause for a transfer when a nursing home or other long-term care center can't meet a person's needs, CMS said in the proposal. Requiring an evaluation by a doctor, physicians assistant, nurse practitioner, or nursing specialist before such a transfer may prevent some unneeded moves from occurring and give information to hospitals in cases when patients are moved, according to the agency.

"The idea is that this would be an opportunity to identify options that would allow the resident to be treated in house, if appropriate," said Sheila Blackstock, a CMS official who is helping create the new regulation, on an Aug. 11 call with nursing home officials. "There is an emergency exemption, and it is intended to prevent this provision from delaying a necessary transfer or putting the resident at increased risk."

For a legal guide regarding a lifetime planning trust used to implement a legal strategy for Aging-in-Place, and to help avoid institutionalization, go here. 

For a comprehensive side-by-side comparison of CMS Proposed and Current Federal Nursing Home Regulations courtesy of the National Consumer Voice for Quality Long Term Care go here.

 

Medicaid Applicant Bears Burden of Proof to Rebut Presumption that Joint Account Is Available Resource

Attorneys so often counsel clients not to maintain and hold joint accounts for convenience with persons other than a spouse.  In another object lesson why joint accounts can create legal problems, a Pennsylvania trial court has ruled that a Medicaid applicant has the burden of proving that money in a joint account was not an available resource. Toney v. Dept. of Human Services (Pa. Commw. Ct., No. 2343 C.D. 2014, June 19, 2015).

The applicant, Samuel Toney, had a joint bank account with his son with $41,510.18 in the account. Mr. Toney entered a nursing home and applied for Medicaid.  The state determined that half of the amount in the joint bank account belonged to Mr. Toney, and on that basis,  denied his application due to excess resources.

Mr. Toney appealed the decision, arguing that the amount in the account belonged to his son; the son claimed that the proceeds in the account came from the sale of the son's house ten years prior. The administrative law judge nonetheless denied the appeal, and Mr. Toney appealed to court.

The Pennsylvania Commonwealth Court affirmed the state's decision, holding that the burden of proof is on the applicant to prove to whom the assets in the account belong. According to the court, "no credible evidence was presented to rebut the presumption that Toney’s share is presumed available to him for purposes of determining the availability of resources for his partial or total support."

In one sense, the applicant's loss in this case might be considered a victory.  In support of the court's decision, the court cited the federal Medicaid regulations at 20 CFR Section 416.1208(c), which provides that "[i]f there is only one [applicant] account holder on a jointly held account, we presume that all of the funds in the account belong to that individual.  In other words, the state could have just as easily presumed that "all of the funds" in the joint account were a resource of the Medicaid applicant.  Hopefully, the object lesson learned, seniors will implement plans for their long-term care, asset management, and estate distribution, thereby avoiding the obvious risks associated with joint accounts for convenience.  

For the full text of this decision, click here.

Appellate Court Rule Approves Short Term Annuities Not Countable Resources For Medicaid

The Third Circuit Court of Appeals has ruled that a Medicaid applicants' short-term annuities are not resources even though the terms of the annuities were less than the annuitants' life expectancies. Zahner v. Secretary Pennsylvania Dept. of Human Services (3^rd Cir., Nos. 14-1328, 14-1406, Sept. 2, 2015).  

In three separate cases, Pennsylvania denied Medicaid applications on the grounds that annuity purchases were unlawful transfers.  Donna Claypoole's husband transferred money to their children and purchased a five-year annuity and a 14-month annuity before applying for Medicaid on Mrs. Claypoole's behalf. Medicaid applicant Connie Sanner also transferred money and purchased a 12-month annuity.  The original plaintiff Anabel Zahner deceased during the case, and was no longer a party  on appeal.

The three applicants filed a case in federal court, arguing that the annuities met the requirements of federal Medicaid law and should not have been considered transfers. All parties asked for summary judgment. The U.S. district court granted the plaintiffs summary judgment with regard to the five-year annuities, but denied summary judgment with regard to the shorter annuities, holding that the term of the annuity had to "bear a reasonable relatedness to the beneficiary's life-expectancy." The court also held that a Pennsylvania statute that purported to make all annuities assignable was preempted by the federal Medicaid law.

The U.S. Court of Appeals for the Third Circuit, affirmed the district court decision that federal law preempts Pennsylvania's law making all annuities assignable, but reversed the decision that the short-term annuities are resources. The court decided that "any attempt to fashion a rule that would create some minimum ratio between duration of an annuity and life expectancy would constitute an improper judicial amendment of the applicable statutes and regulations." The court further held that an annuitant's motive in purchasing an annuity is not dispositive of whether it is a resource.  

The decisions, which are expansive of consumer options in planning for Medicaid eligibility, will likely invite comparison and contrast with the recent Ohio Supreme Court decisions restricting consumer options.  

For the full text of this decision, click here.

Ohio High Court Rules That Transfer of Home Between Spouses Prior to Medicaid Eligibility Is Improper

A narrowly divided Ohio Supreme Court has ruled that the transfer of a home between spouses prior to Medicaid eligibility is an improper transfer and is subject to the community spouse resource allowance (CSRA) cap.  Estate of Atkinson v. Ohio Department of Job and Family Services (Ohio, No. 2013–1773, Aug. 26, 2015).  One year and six days after hearing oral argument in the case, the majority ruled that "federal and state Medicaid law do not permit unlimited transfers of assets from an institutional spouse to a community spouse after the CSRA (Community Spouse Resource Allowance) has been set."  The court distinguished, and did not overturn,  the 2013 federal appellate court ruling in Hughes v. McCarthy, that permitted use of spousal transfers using "annuities."

In 2000 Marcella Atkinson and her husband transferred their home into a revocable living trust. In April 2011, Mrs. Atkinson entered a nursing home and soon applied for Medicaid benefits. In August 2011, following Medicaid’s “snapshot” of the couple’s assets, the home was removed from the trust and placed in Mrs. Atkinson's name. The next day, Mrs. Atkinson transferred the house to her husband. The state determined an improper transfer had occurred and imposed a penalty period.  Mrs. Atkinson passed away, and her estate appealed to court, arguing that under federal and state statutes a spouse is not ineligible for Medicaid for transferring a home to the other spouse and that an institutionalized spouse may transfer unlimited assets to the community spouse between the date the spouse is institutionalized and the date that the spouse's Medicaid eligibility is determined. The estate lost at both the trial court and the Ohio Court of Appeals, and the estate appealed.  

In a 4-3 decision, the Supreme Court of Ohio rules that transfers between spouses are not unlimited after the snapshot date and before Medicaid eligibility and that such transfers are proper only up to the amount that fully funds the CSRA. The court rejected the estate’s reliance on the Sixth Circuit Court of Appeals’ holding in Hughes v. McCarthy (6th Cir., No. 12-3765, Oct. 25, 2013) that an annuity purchased by a community spouse before a Medicaid eligibility determination is not an improper transfer, finding that the purchase of annuities are subject to special rules and “not applicable under these facts.”  The court, however, remands the case for review of the penalty imposed because the Medicaid agency may have applied the wrong statute.  “Neither federal nor state law,” the court wrote, “supports the agency's confiscation, after the CSRA has been set, of the entire amount of transferred assets, some or all of which may have already been allocated to the community spouse on the snapshot date.”

A dissent joined by three justices states that “[w]hat this family did is and was permitted by state and federal law. . .  the home is explicitly excluded from the definition of 'resources' for purposes of establishing the CSRA.” (emphasis in original).  But, the majority rejected various "exempt asset" and "timing" arguments, in effect, interpreting state and federal law in the manner that would permit  sheltering the minimum possible assets after the ill spouse's admission to the nursing home.

For the full text of this decision, click here.

Home-Care Workers Win Right to Overtime Pay and Minimum Wage

Home-care workers won the right to overtime pay and the minimum wage after a U.S. court Friday upheld a Labor Department rule that was challenged by business groups.

The Obama administration said the decision by the U.S. Court of Appeals for the District of Columbia covers almost 2 million workers “whose demanding work merits these fundamental wage guarantees.”

The rule helps ensure a “stable and professional workforce” for recipients of the services, according to a statement Friday from the Labor Department.

“We are thrilled that this historic ruling will remedy an injustice millions of dedicated, hardworking caregivers have had to tolerate for far too long,” said Christine Owens, executive director of the National Employment Law Project.

A lower court had ruled that the Labor Department exceeded its authority in extending the wage protections. The rule was opposed by the Washington-based U.S. Chamber of Commerce, which has said it would make home-health care too expensive for some.

Congress extended benefits to domestic workers when it amended the Fair Labor Standards Act in 1974. The measure included a narrow exemption for babysitters and workers who provide “companionship” services that the Labor Department later interpreted to include direct-care workers.

Where Are Our Family Photos?!? Planning for a Digital Legacy

Attorneys Sasha A. Klein, and Mark R. Parthemer have written an excellent article, published in GPSolo, a publication of the American Bar Association,  explaining how current law does not provide adequate protection of digital assets upon death of an owner of these assets. After explaining the dificiencies and difficulties presented, they posited some sage advice for the planning necessary to protect these all-to-common and valuable assets: 

What can we do now? Plan! Fiduciaries face many obstacles with respect to digital assets that do not apply to traditional assets, including password protection and encryption. Therefore, proactive planning for these assets is necessary. Clients should take two critical steps.

First, identify and create an inventory of all digital assets, which should be updated regularly. Many applications exist to help clients plan for their digital assets. For clients who change their password frequently or use many different passwords, applications such as 1Password, LastPass, and Dashlane store all passwords with access to the list through only one main password. Several third-party digital asset storage providers also act as “electronic safe deposit boxes” that release information only on the user’s death or incapacity. These allow clients to easily update information during life and grant their executor or guardian immediate access on death or incapacity. Privacy concerns exist, however, because these storage providers are targets for identity theft. In addition, this is a relatively new industry, and there are no guarantees these companies will still be in business at a client’s passing.

Second, provide the fiduciary access to the digital assets. During life, a client may wish to grant an individual the ability to have immediate access by creating an account with multiple users or appointing an agent through a durable power of attorney. If using a durable power of attorney, a provision granting access to digital assets (which could be specific to certain types of digital assets or broadly apply to all digital assets) should be explicitly included. The power should also expressly provide consent to access such accounts. Currently no states have modified their power of attorney statutes to include digital assets. In addition, a review of the TOS agreement is essential because it may trump any lifetime planning. Your client also may wish to create backup files of his tangible media through DVDs, CDs, flash drives, external hard drives, or a cloud service.

After death, a last will and testament or revocable trust can give a fiduciary access to a decedent’s digital assets. The will or trust can specifically devise digital assets and appoint a fiduciary (such as a “digital executor” or “digital trustee”) to administer the digital assets. Another option is to draft a separate letter of instruction for digital assets and incorporate it by reference into a will or trust (to the extent allowed under state law). Consider including a definition of digital assets in the will or trust (you may want to use your state’s definition if one exists or the UFADAA’s definition). Your client’s will and trust should specifically provide which digital assets are under the fiduciary’s control and where and how to dispose of them after death. Explicit directions are more likely to convince the service providers to grant the fiduciary access.

Our clients have one additional tool to solve these problems: LegalVault.^®   LegalVault^® is an advanced document storage system which allows you to:

• access healthcare directives such as a living wills and healthcare powers of attorney at anytime and any location;

• provide critical information to caregivers such as emergency contacts, allergies, medications and primary care provider details;

• store other documents such as trusts, wills, deeds, contracts, oil and gas leases, installment contracts and the like;

• store digital asset information, such as pictures, movies, songs, a list of professional advisers, and site passwords. 

Go here for more information regarding LegalVault.^®

Go here to read the full article.


    

Ohio Guardian and Ex-Probate Judge Admits to Stealing from Wards

The Youngstown Vindicator, in reporting upon an on-going investigation into county corruption, discovered that  ex-county Probate Court Judge Mark Belinky, convicted last year of tampering with government records, admitted to "stealing money from people that he was a guardian over."   He also admitted to altering probate court documents to further such theft, by, for example, using a Mahoning County probate computer to create false probate court records. The admissions were gleaned from previously sealed affidavits in an ongoing case investigating political corruption. The now unsealed affidavits recount the financial fraud visited upon Mahoning County wards at the hands of the person appointed by the court to protect their interests.  

For more, go here.

Happy Birthday Social Security!

August 14 marked the 80th anniversary of the Social Security Act. Acting Commissioner Carolyn W. Colvin announced the launch of the agency's event-filled celebration, with many activities leading up to this date.

President Franklin D. Roosevelt signed the Social Security Act in 1935, providing economic security for workers when they retired. Today, Social Security provides benefits to more than 56 million retirees, disabled workers, and their families.

Read more: http://www.benzinga.com/pressreleases/15/08/p5767355/social-security-act-celebrates-80th-anniversary#ixzz3jmlVhY00