Tax Rules Change Treatment of Gains on Sale of Vacation or Second Home

If you have a vacation or second home, there was a change in the federal income tax law as part of the 2008 Housing Act about which you should be aware.   Most homeowners are familiar with the homesale exclusion, a provision of the tax code which excludes from taxable gain as much as $500,000 of gain if they meet certain conditions. The $500,000 exemption is the maximum exclusion for a married couple filing jointly; taxpayers filing individually get an exemption of up to $250,000. To be eligible for the full exclusion, a taxpayer must have owned the home, and lived in it as his or her principal residence-for at least two of the five years prior to the sale. Because of the "principal residence" requirement, vacation or second homes normally don't qualify for the exclusion. However, in what some saw as a loophole, the law permitted taxpayers to convert their second home to their principal residence, live in it for two years, sell it, and take the full $250,000/$500,000 exclusion available for principal residences, even though portions of their gains were attributable to periods when the property was used as a vacation or second home, not a principal residence.   The new law closes that "loophole" by requiring homeowners to pay taxes on gains made from the sale of a second home to reflect the portion of time the home was not used as a principal residence (e.g, vacation or rental property). The amount taxed will be based on the portion of the time during which the taxpayer owned the home that the house was used as a vacation home or rented out. The rest of the gain remains eligible for the up-to-$500,000 exclusion, as long as the two-out-of-five year usage and ownership tests are met. The new law in effect reduces the exclusion based on the ratio of years of use as a principal residence to the total time of ownership. For example, if a taxpayer owned a vacation home for ten years, but lived in it as a principal residence only for the final two years prior to sale, the maximum available exclusion would be reduced by four-fifths. Accordingly, a $400,000 gain on the sale that would be eligible for the full exclusion under pre-Act law would be reduced by four-fifths, to $80,000. The good news for current owners of second homes is that the new law is not retroactive. The tightening applies only to sales after 2008. Plus, any periods of personal or rental use before 2009 are ignored for purposes of the provision. The new law also does not change the rule that allows homeowners to take advantage of the homesale exclusion every two years. Taxpayers can still move from one home to the other with full tax exclusion if they only own one home at a time. Moreover, the taxpayer still qualifies for capital gain treatment on the amount of gain that cannot be excluded. The tax planning opportunity available to you between now and December 31, 2008, is that if you convert your second residence into your primary residence before January 1, 2009, you will completely avoid the rule above.  You would then have up to three years to sell your old primary residence to claim the full home sale exclusion on the old primary residence. Then two years after the sale of the old primary residence you can sell the second home/ now primary residence and again claim the full home sale exclusion. The decision to move your primary residence involves more than just savings taxes on a later sale. Your primary residence has other income, property and estate tax implications, estate planning and asset protection planning implications, and financial implications that should be fully understood prior to making such an important decision.  Consult an elderlaw  attorney and accountant or tax professional as soon as possible, though; one cannot just "flip a switch" to covert a second home to a primary residence.

Ohio Partnership for Long-Term Care Insurance Offers Asset Protection

The new Ohio Partnership for Long-Term Care Insurance is an initiative between the State and private insurance com panies to encourage Ohioans to plan for their long-term care needs. The partnership established "partnership policies" which provide coverage for long-term care needs and also allows Ohioans the ability to obtain "Medicaid Asset Protection" - a benefit not available with traditional pre-existing policies sold in Ohio.

This benefit is only available to those who purchase "qualified partnership policies." Pre-existing policies, meaning those you may have now, do not qualify. Medicaid asset protection simply allows Medicaid applicants to keep more assets and still potentially qualify for Medicaid coverage. Upon application for Medicaid, the total assets a person may keep is the combined total of the Medicaid asset limit and the total amount paid by a partnership policy. In other words, the policy payments serve to protect other assets, such as your family home, even if the insurance benefits do not prove sufficient to pay the full cost of the nursing home care.

Partnership policyholders who need Medicaid to help pay for long-term care can apply at any time. Ohio's Medicaid program can help pay the difference between what the policy covers and what is owed, or provide assistance once the policy is exhausted. In both cases, the benefit of Medicaid asset protection will be provided. The more the partnership policy pays, the higher the asset protection.

A Dramatic Loss of Wealth: Seniors Scramble for Solutions

A recent study suggests that current economic woes affecting the value of real estate will strip most people of wealth, with the hardest hit being those currently poised to retire.

The Center for Economic and Policy Research extrapolated from data from the 2004 Survey of Consumer Finance to project household wealth under three alternative scenarios. The first scenario assumes that real house prices fall no further than their level as of March 2008. The second scenario assumes that real house prices fall an additional 10 percent as a 2009 average. The third scenario assumes that real house prices fall an additional 20 percent for a 2009 average.

The projections show that the vast majority of families between the ages 49-54 will have little or no wealth by 2009 in any of these scenarios and that those persons who just be approaching retirement will have very little to support them-selves in retire-ment other than their Social Security.

The projections also show that a large number of families will have little or no equity in their homes by the end of 2008. Finally, the projections show that the renters within the same wealth categories in 2004 will have more wealth in 2009 than homeowners in all three scenarios.

Bankruptcy Rising Among Elderly

Bankruptcy filings among the elderly are reaching an all-time high according to a story published by Christine Dugas, in USA TODAY. Swamped by debt and rising medical bills, elderly Americans have been seeking bankruptcy-court protection at sharply faster rates than other adults, according to a study to be released. From 1991 to 2007, the rate of personal bankruptcy filings among those ages 65 or older jumped by 150%, according to AARP, which will release the new research from the Consumer Bankruptcy Project. The most startling rise occurred among those ages 75 to 84, whose rate soared 433%.

According to the article, the study does not address the specific reasons behind the trend. But experts say medical bills have played a major role in the debt that has forced many elderly Americans into bankruptcy proceedings. "Health care is a big issue for the elderly," says George Gaberlavage, director of consumer and state affairs at the AARP Public Policy Institute, “and out-of-pocket expenses have been going up,” the article reports. During the same 1991-2007 period, bankruptcy filings by younger Americans actually declined. 

GenWorth Announces Launch of Ohio Partnership Qualified Long Term Care Insurance

Genworth Financial announced its long term care division has launched the newest addition to its portfolio of long term care planning solutions in Ohio -- Partnership Qualified Long Term Care Insurance (Partnership plans). These products, designed to augment individuals' financial security options during retirement, are the result of an alliance between states and insurers to help millions of Americans better prepare for potential long term care needs. What's more, there are no added costs for residents to participate.


"Many Americans mistakenly believe that Medicare or private health insurance will pay for their long term care needs, and that's just not true," stated Beth Ludden, Genworth's senior vice president for long term care insurance product development. "Those purchasing a Partnership plan can be assured that if and when the need for long term care arises, they will have more control over their long term care decisions, and be able to help protect their assets and resources should they ever need to access Medicaid."


Partnership plans provide dollar-for-dollar asset protection for policyholders. For every benefit dollar policyholders receive under a Partnership policy, they receive an equal dollar of asset protection under the state's Medicaid spend-down requirements. As a result, participants are able to retain assets that would otherwise have to be spent down prior to qualifying for Medicaid benefits.


Long term care is an ever-increasing challenge for millions of Americans and their families. According to the U.S. Department of Health and Human Services (HHS) 70 percent of Americans who reach their 65th birthday will have to pay for some kind of long term care services. With the average cost of care for a private nursing home room topping more than $76,460 nationally and rising for the fifth consecutive year according to Genworth's 2008 Cost of Care Survey, Ohio residents are encouraged to plan ahead for long term care events.


Ludden continued, "Genworth applauds the leadership in Ohio for empowering its residents and is proud to have played a significant role in this endeavor. We continue to work closely with state and federal regulators as well as key industry trade groups to further expand Partnership programs across the nation."

Additionally, Ohio has launched an "Own Your Future" long term care awareness and planning campaign in conjunction with the U.S. Department of Health and Human Services. Its primary goal is to educate the public about the need for long term care planning as part of their overall retirement strategy, encouraging them to begin planning for future long term care needs at an early age. As part of its program, the state offers free, in-home long-term care consultation.


Consumers interested in getting additional information about long term care planning can click here.
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Uncovering the Many Secrets of College Financial Aid

The financial aid process is a mystery to most. If you are beginning the process of learning about financial aid, you should first consider the promises and risks in paying for financial aid advice, because you will no doubt be tempted (and solicited) by offers to “cut through the red tape” and “better guarantee your child’s chances for financial aid.” Before proceeding the route of a paid financial aid processor or locator, please review the article entitled, “Promises, Promises” publishes by the Wall Street Journal, which can be found by clicking here.

So, in order to evaluate your options, you will need to have an understanding of the process. The process begins with the Free Application for Federal Student Aid, administered by an office at the U.S. Department of Education.

You must file this form to apply for federal student aid, such as grants and loans, as well as most state and college aid. Everyone, from colleges to the government, recommends that parents get a jump on this task as soon as possible. Schools typically award aid on a rolling basis -- first come, first served.

Even if you don't think your family will qualify for need-based aid, it's worth your time to fill out the form. It may enable you to get federal loans at better rates than you could find in the private market. Besides, your student may qualify for certain grants or scholarships.

Ohio Protects Seniors from Stranger-Originated Life Insurance

The Ohio legislature has given final approval to a landmark bill that will help assure the integrity of the life insurance market and protect seniors from a growing abuse called stranger-originated life insurance (STOLI).

In a STOLI transaction, investors such as hedge funds finance a program that induces senior citizens to obtain insurance for the sole purpose of transferring the death benefits to the investors. The investors hope to profit when the seniors die, and the sooner they die, the higher the profit. Seniors caught up in these schemes can face unexpected taxes, loss of insurance capacity, loss of privacy, potential legal liability and may even render themselves ineligible to participate in government entitlement programs.

The legislation, H.B. 404, targets STOLI by reducing the economic incentive for abusive transactions and giving life insurance companies better tools to detect and deter STOLI deals before they occur.

More Retirees Retain Mortgage Debt

Mortgages Carried Later In Life a Disturbing Trend

By Tim Grant, Pittsburgh Post-Gazette

Owning a home free and clear has been an enduring part of the American dream, but in recent years more people are waking to the reality that they will be retiring still owing money on their mortgages.

“It's a bad trend,” said P.J. DiNuzzo, president of DiNuzzo Investment Advisors in Beaver. “One piece of advice I can give is to pay off your house and then retire.”

Rather than cutting back on debt, people approaching retirement appear to be increasing the amount of debt backed by their primary residence, a complete shift from what retirees in past generations did. The number of families headed by people 55 or older with housing debt has increased steadily from 24 percent in 1992 to 36 percent in 2004, according to the Employee Benefit Research Institute in Washington, D.C.

Income Annuities for Retirement Financial Security

Wharton Study Suggests Lifetime Income Annuities Best Asset Class for Retirement Financial Security

Reprinted from Businesswire.com. August 08, 2007 09:49 Dueling Asset Classes: Wharton Study Demonstrates That Lifetime Income Annuities Are Best Asset Class for Financial Security in Retirement

NEW YORK--(BUSINESS WIRE)--As Americans grapple with the challenge of potentially outliving their retirement savings, a new study, co-sponsored by the Wharton Financial Institutions Center at the University of Pennsylvania and New York Life Insurance Company, identifies lifetime income annuities as the most cost-effective and least risky asset class for generating guaranteed retirement income for life.

The Wharton academic study revealed that:

•Income annuities can provide secure income for one’s entire lifetime for 25-40% less money than it would cost an individual to provide a similar level of secure lifetime income through traditional means, thanks to an insurer’s ability to spread risk across large numbers of people;

Bailing out of Unwanted Annuities

Rising Market in Purchase of Long Term Annuities

A fast-rising secondary market for people looking to cash in annuities for a lump sum settlement is causing consumers concern. Is this the perfect escape hatch for people locked into an annuity they don't want or yet another way for brokers to take advantage of seniors in dire financial straits? Of course, as with all financial tools, there is the possibility for both in each situation.

With an annuity, the buyer pays an insurance company a sum in return for regular payouts over a defined period. With more and more people owning or inheriting annuities, you can bet more and more people find themselves in a situation where they want out. Most annuities charge "surrender" penalties of up to 20% if the owner wants to withdraw the principal before a set period has expired. The penalty generally decreases with time.

Ohio Expands Medicaid Resource Recovery

When the Medicaid estate recovery program was instituted in Ohio in 1995, only the assets in a deceased person's probate estate were subject to recovery. Ohio adopted an "augmented estate" approach to recouping Medicaid expenditures effective July 1, 2005. This approach expands the class of assets available for Medicaid estate recovery.

The law, codified in Ohio Revised Code 5162.21, applies to Ohio Medicaid recipients who died on or after September 20, 2005. For those individuals, the so-called "augmented estate" includes all real and personal property in the probate estate; any real or personal property that would have been part of the decedent's probate estate but for release of administration procedures; AND any other real or personal property in which the deceased had an interest or to which they had legal title immediately prior to death (to the extent of such interest).

The new law changed dramatically the way Ohio property law works.  Prior to the law, title of property sometimes vests automatically at the time of death to a beneficiary or heir.  Generally, once title vests in the ownership of another, the debts and liabilities of the former owner are not enforceable against the property, and the new owner can be assured that the title is free, clear, and unencumbered. The new law provides that title vesting to another is irrelevant, at least when the State of Ohio is the creditor; Ohio may pursue its claims against property after the death of the Medicaid recipient even if Ohio filed no lien, claim, mortgage, or encumbrance prior to the recipient's death.   

Consider the following example: John Smith, Medicaid recipient, owns a home, an annuity, a bank account jointly with his daughter, and a living trust that holds various investments. This example is only to show how estate recovery works with different assets, and is not a realistic depiction of a Medicaid recipient; most Medicaid recipients have no assets. Smith transfers an interest in the home to his adult daughter, and they become joint tenants with right of survivorship. Prior to the establishment of the augmented estate, the home and the joint bank account would have passed automatically to Smith's daughter on his death, and would never have been part of the probate estate. Therefore, they would not have been subject to estate recovery. 

The assets in the living trust don't "transfer", per se, but they are not administered through probate. Smith's successor trustee would distribute the trust assets to the named beneficiaries in the trust, free from resource recovery.  Similarly the annuity pays beneficiaries, outside of probate, free from resource recovery. 

Under the new law, because Smith had a legal interest in all of those assets in the moment before his death, all of the assets are included in his augmented estate for the purposes of Medicaid estate recovery, and are recoverable by the State of Ohio.

Prior to the new law, individuals could preserve assets for  their family simply by removing them from their probate estate. Under the new law, preserving assets is harder. 

The state can only attempt to recover against the estate of a Medicaid recipient after the death of their surviving spouse (if married), and when the Medicaid recipient no longer has any surviving children who are either under the age of 21 or are blind or totally disabled. (Total disability is defined by Medicaid regulations.) However, if you do not have a surviving spouse or children with qualifying disabilities, your adult children or other heirs might find assets they expected to receive claimed instead by Medicaid estate recovery.

If you are concerned about preserving assets for your family in the event that you need Medicaid assistance at some point in your life, you will need to plan to keep assets out of your augmented estate. Certain transfers are permissible to keep assets out of an augmented estate, as are other estate planning tools like supplemental needs trusts for disabled or special needs beneficiaries, and certain irrevocable trusts.  An elderlaw lawyer can help map out strategies to meet your goals and needs.  

The Legal Responsibility of Adult Children to Care for Indigent Parents

A conservative policy group has released an issue brief proposing that states begin enforcing filial responsibility laws in order to reduce long-term care costs. Thirty states, including Ohio, have filial responsibility laws that require adult children to care for their indigent parents. The National Center for Policy Analysis (NCPA) claims that if these statutes are enforced, adult children would have to reimburse the state programs that provided care for their indigent parents.

Filial responsibility laws have traditionally not been enforced, possibly because federal law prohibits state Medicaid programs from looking at the finances of anyone other than the applicant or the applicant's spouse for eligibility purposes.  There is, however, no such restriction in resource recovery, the statutory right of a state to recover assets after the death of a Medicaid beneficiary.

The NCPA, a group whose goal is to develop and promote private alternatives to government regulation and control, cites a 1983 report by the Health Care Financing Administration that says enforcing these statutes would have reduced Medicaid long-term care spending by $25 million, and argues that today the figure would be much higher.

Of course, the implications of enforcement of filial responsibility for seniors and their families are complex, but deserve some consideration in day-to-day estate planning.  One can easily imagine a future in which the states routinely sue children in order to recover amounts paid for their parent's long-term care, with children then being forced to apportion these costs among themselves, sometimes through legal action between and among them.  Whether these collections will and must involve the probate court, and whether avoiding probate in the first instance will discourage or prevent these actions remains to be seen.  Regardless, asset protection planning finds one more threat among those justifying and supporting such planning.  

To read the full brief, click here.

Higher Intensity Physical Therapy Improves Outcomes, Reduces SNF Stay Lengths

McKnight's recently reported the results of a study finding that physical therapy of a higher intensity results in better patient outcomes and shorter lengths of stay for some nursing home patients.

According to the article:

Researchers found that for all three types of conditions studied, residents provided with 1 to 1.5 hours of therapy a day had shorter lengths of stay than residents getting less than 1 hour per day over a seven-day period. Researchers studied nearly 5,000 patients with strokes, orthopedic and cardiovascular/pulmonary conditions in 70 different skilled-nursing facilities nationwide.  The study helps establish the minimal therapy required for optimal results at 1.75 hours per day for a 5-day model and 1.5 hours of therapy for a six-day therapy model, said the study's authors.

The findings offer caregivers and skilled-nursing providers guidelines on therapy utilization to improved patient outcomes in functional independence and reduced lengths of stay, the authors say, writing in the March issue of Archives of Physical Medicine and Rehabilitation.

Patients receiving therapy account for more than seventy percent ( 70% of total skilled costs, according to the report.

Account Management Complicated By New Banking Rules

Every Account Holder Should Be Aware of Changes

Americans write about 40 billion paper checks each year. In addition, for the first time that number recently was eclipsed by the annual number of automated transactions involving checking accounts. Checking account transactions are such a widespread part of our lives that consumers of banking services are well advised to become acquainted with major changes affecting banking laws. Federal legislation called the Check Clearing for the 21st Century Act, or "Check 21" for short, went into effect on October 28, 2004.

Check 21 will allow financial institutions to process "substitute" checks--high-quality paper reproductions created from electronic images of both sides of an original check. In time, check processing will be faster, and this is where there will be ramifications for check writers and depositors.

While it has always been prudent to have enough money in your account to cover a check the moment you write it, who has not used the lag time in check processing to make a necessary deposit? That will soon become a riskier strategy as electronic check processing becomes more prevalent. It will also be more important than ever to keep checkbooks up to date, especially bearing in mind deductions for ATM withdrawals, bank fees, and debit-card purchases.

The risk is merely financial if you unintentionally "bounce" a check from time to time. But, if you have come to rely upon the float, and particularly if you use the float from two different accounts, you may find your problem is criminal in nature. The increased speed with which banks process checks may mean more charges of check "kiting." Check kiting is among the most common, and most dangerous, forms of check fraud foisted upon financial institutions. A kite is a form of shell game using at least two accounts at separate financial institutions. The common practice of allowing depositors to have immediate use of uncollected funds facilitates the scheme. Indeed, Regulation CC mandates early access to deposited funds. In the typical scheme, an NSF check is written by on one account and then deposited into an account at another institution. A check drawn on the second account is then used to cover the resulting overdraft on the first account. Taking advantage of the float caused by normal delays in the collection system, the wrongdoer creates fictional balances in each account and uses these balances to obtain cash advances.

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.