Elder Law Update
North Carolina Edition |
Vol 2 Issue Four
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September 2008
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Upcoming Speaking Engagements
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Savannah Alzheimer's Association - September 25, 2008
Financing Long Term Care
Calvary Baptist Church,
Savannah, GA
- September 28, 2008
Financing Long Term Care
North Carolina Bar, Cary,
North Carolina - October 10, 2008
Powers of Attorney, Basics of Elder Law course (CLE)
VFW Post 9418, Randleman,
North Carolina - October 16, 2008
Veterans Aid & Attendance Benefits
Financial Planners Seminar, Savannah, Georgia
- October 22, 2008
Planning for the Middle Class Elderly (CE)
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PLEASE VISIT MASON LAW
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I WANT TO KNOW
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| If you have an idea or comment that will help me make this a better newsletter please send it to me. Just click! |
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Greetings!
We're a
bit late hitting your inbox this month. My father-in-law died last Thursday,
the funeral was yesterday  (September 1) in Savannah,
and Friday (September 5) Hurricane Hanna is expected in the vicinity of Savannah. So we're making
some preliminary preparations for my mother-in-law, and initial plans are for
her to go towards Columbia
with my brother-in-law.
Meanwhile,
the Masons will be in North Carolina where, if
history is any indication, the storm is just as likely to head after scaring
coastal Georgia
and veering northward.
I mention
all of this because it may be a good idea to review Barbara's Dunn recent
series in the newsletter involving hurricane preparation for the seniors. You
can read Part I, Part II, and Part III by clicking the highlighted links.
Late-In-Life-Second-Marriages
My
feature this month is a reworked article I had written for Coastal Senior several months ago (time has been short for me . . .
please see the first paragraph of this column!). Fortunately, that fine
publication allows me to re-run articles after 90 days from their date of
publication.
Without a
hint of defensiveness I say "It is still a great topic!" I am regularly
bombarded with questions involving these issues and regularly privy to all
sorts of real life stories involving second marriages. I am not saying "don't
do it". I am saying "get your ducks
in a row" before doing it!
Exploitation
We have
addressed financial and physical exploitation of seniors in a number of issues
of Elder Law Update. We do so again in
this issue. It is a serious topic and occurs more often than many imagine.
Penny
Louis, the owner of a seniors "concierge service" in Savannah, weighs in with a great overview of
the topic below. By the way, I call her service a "concierge service" because
she does so much more than balance checkbooks and pay bills.
Penny and
I (as well as occasional contributor Barbara Dunn) are all involved in a
real-life financial exploitation case that is currently up for prosecution of
the private duty caregiver. In fact we were scheduled to testify at the trial
sometime tomorrow through Friday (September 3 through September 5), which would
have allowed me to be here for Hurricane Hanna. Thanks to the Chatham County
Georgia DA's office the case has been continued, so I can put my water wings
away.
The
unfortunate case involved a "privately hired" caregiver. This was not her first
brush with the law. The situation could have been avoided with proper
references and a vetting process. Penny cautions us that if a private duty nurse is hired and you are unable to thoroughly
check the person out, you should go with an agency.
In the
case of my father-in-law we were able to hire a private duty nurse for his last
days who came highly recommended by friends in the medical community. Dorothy
was with us, right up to the front pew at the funeral. We love you, Dorothy!
Finally
Check out
Dr. Shevlin's monthly offering below. This timely article looks at when it
might be the right time to leave the home and consider a communal living
arrangement. I enjoyed the article because it is interesting to see a doctor's
view of a situation I see often as a lawyer.
And of
course, Social Security guru Warren Coble continues his look at Social Security
dependents' coverage. It is a confusing topic. Don't be afraid to email Warren (his email is
posted at the end of every article). He is good at it! It is what he does!
Have a good September.
Bob Mason
Certified Elder Law Attorney
Certified by the
National Elder Law Foundation, recognized by the American Bar Association as
the certifying entity for specialization in Elder Law.
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Tying
the Knot? Or Just Moving In?
A Look at Late Second Marriages - Legal Issues
Bob Mason
I'm going to really
step out and suggest, for terribly unromantic reasons, that you plan carefully
- very carefully - before going into a later-in-life second marriage. The
religious prescription not to enter a marriage "unadvisedly or lightly" applies
in spades to a later marriage.
"Bob," you may ask,
"are you suggesting we see an attorney before the preacher?" And I would
answer: "Yes." Here's why.
Some of the biggest
(and most expensive) messes I have had to clean up have been after the death of
a second spouse when there had been little or no planning. Adult step-siblings
(who may not even know or like each other) can be counted on to be looking out
for whatever it is that they believe their natural parents accumulated for
them.
Most "planning" I have
seen is a simple verbal agreement that "what is your is yours, and what is mine
is mine." That won't cut it. All couples are different, but here is a partial
list of issues that may be important.
Estate plans. The worst plan might
be simple "I love you wills" that leave everything to the surviving spouse with
the understanding that she will "do right". Even with wills that leave
everything to the children of the deceased spouse, there may be problems with
an "elective share" statute.
North Carolina has an
"elective share" statute, as do most other states (Georgia does not). Very generally, the North Carolina statute enables a surviving spouse to "elect" a share of around 1/3 or so of the
deceased spouse's estate if he or she does not like what was left in a will.
In fact, one South Carolina case has
been making waves. The deceased founder of Hooters (you know . . . the
restaurant famous for . . . large burgers and chicken wings) left $1 million a
year for 20 years to his fairly younger surviving spouse. She felt $20 mil
wasn't enough, so she elected for 1/3 of Mr. Hooter's estate. Mr. Hooter's son
(not the widow Hooter's son, by the way) has objected and claims the South Carolina elective
share statute is unconstitutional. Yours truly believes that argument has as
much chance as a Hoot Owl in, well, Horry
County.
My advice: Get a prenuptial (or premarital) agreement.
Those sorts of difficulties can be addressed in such an agreement.
The Family Home. Naturally the
newlyweds do not want to see the bride or groom evicted upon the death of the
other. On the other hand, children can become quite emotional over what may be
perceived as "their home". Chances are putting the house in both spouse's names
is not a good idea. Try a life estate, or maybe a trust.
Social Security
Benefits. Remarriage can affect the Social Security benefits a newlywed had
been receiving under a deceased or divorced spouse's account. If you divorce
after 10 years or more of marriage, you can collect retirement benefits on your
former spouse's Social Security record if you are at least age 62 and if your
former spouse is entitled to or receiving benefits. If you remarry before age
60, however, you generally cannot collect benefits on your former spouse's
record unless your later marriage ends (whether by death, divorce, or
annulment).
Annuities and
Survivors Pension Payments. You might be kissing a hefty survivor's pension
(corporate or military) goodbye when you kiss your new spouse. Check them all
out before heading to the altar.
Income Taxes. There may be some tax
planning advantages to marrying if estate taxes are a concern because many
planning techniques are available to married couples only. Income taxes might
also drop if one spouse is earning significantly more than his or her new
spouse. On the other hand, many income tax breaks phase out for couples at less
than twice the phase-out level for a single person.
Long Term Care
(Nursing Home) Planning. A big consideration for older people considering
remarriage. The state does not care at all what sorts of plans or promises a
couple has made when it comes to Medicaid and nursing home benefits. A
carefully drafted prenuptial agreement is worthless. All Medicaid programs
consider the assets of the couple. While rare, some couples have divorced
within a few years of marriage when one spouse in declining health (usually the
"poorer" spouse) has entered a nursing home.
It may be sad to see,
but many couples are electing to do exactly what they would have DIED seeing a
child of theirs do 30 years ago . . . moving in with a boyfriend or girlfriend!
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Or Is It Time to Move Out?
A Doctor Looks At When To Consider Community Living.
Patricia Shevlin, MD
How does
anybody know when it's time to change living situations? It's easier when we
are younger: we leave home to go to college, to join the military, to get
married. We move into a bigger home when the family gets bigger and downsize
when it gets smaller. When we age, however, there doesn't seem to be a point
when we say "It's time to not live alone anymore."
The
exception is the major medical event such as stroke, fractured hip or other
medical problem requiring hospitalization. At that point the patient, family,
nurse, physician, social worker and therapist all have some input. The specific
reason why someone cannot return home is usually clear. The patient doesn't
always agree, but there are ways to demonstrate to the patient what his
limitations are. Generally, the patient will agree to a change in his level of
care, at least temporarily.
What if
there is no specific event? What if a husband and wife live independently but
each develops significant medical issues? What I usually find among couples in
my practice is that, up to a point, one spouse can compensate for the other's
weaknesses. This ability is usually required for a successful marriage in the
first place so it's no surprise to see it. With age, however, our ability to
compensate for our own changes decreases and this affects our ability to notice
or react to our spouse's needs. One person could easily be jeopardizing his own
health to care for someone else, even without realizing it.
I have
many examples in my practice of couples who think they are doing better than
they really are. One couple includes a husband who has arthritis in his legs
and is also hearing impaired, despite his use of hearing aids. His wife has
excellent hearing and fair mobility, but has significant dementia. She is the
one who answers the telephone and the doorbell. Sometimes she remembers to let
him know but often she forgets, especially if he's out of the room. Anyone
could take advantage of these nice people
because of their health problems. The husband is reluctant to try any
new devices to help him, but his family is trying their best to convince him.
In
another of my cases involving another couple, the wife did not get out of bed
one day. Her husband was not used to being in a caregiver role for her and
assumed she had just over-exerted and needed to rest. He tried to get her to
eat but she wouldn't. On the second day, while he was doing his usual yard
work, he mentioned his wife's situation to a neighbor who immediately called
the family. The patient was diagnosed with a stroke and has done well, although
she is presently doing rehab at a nursing home. The family was shocked that
their father's ability to problem-solve was so poor. He still hopes to be his
wife's only caregiver when she finishes rehab.
I am
afraid for these families. They've lived this long because they always handled
problems as they occurred. They have always been independent. I hate to see
them lose their independence, but I don't want to see them get hurt. For some
people, in-home assistance is an option, but for others the only solution is
assisted living. I've tried to help families by talking to the patients in the
office about the strengths that they have, but I also try to discuss the "What
ifs". It's always better to have some family present for these discussions.
Sometimes we end with an agreement for a home health assessment. Occasionally I
have had to involve adult protective services. It's never easy for anyone
involved.
Will I be
any more prepared to face a time when I can no longer independently? I hope so,
but I have the feeling that the situation comes faster than anyone
imagines.
Patricia Shevlin, MD, is a principal in Asheboro Family Physicians with offices in
Asheboro, North Carolina.
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SOCIAL SECURITY BENEFITS FOR THE FAMILY
-Warren Coble
This
month we'll continue our look at family benefits, discussing divorced spouses
and children.
Divorced
spouse rules are similar to "normal" spouse benefit rules, except the marriage
must have lasted at least 10 years from actual date of marriage to actual date
of divorce. Many people have the mistaken notion that the 10 years is "living
with" time, but that is not correct.
The
computation of the divorced spouse benefit is the same as for a regular spouse.
The ex-spouse qualifies for 50 percent of the worker's benefits at full
retirement age. The spouse's own retirement benefit is paid first, and then any
additional amount payable from the divorced worker is added to the divorced
spouse's own retirement benefit. As in regular spouse benefits, the amount of
benefits paid to the divorced spouse has no effect on the amount of benefits
payable for the retired worker, or the retired worker's current spouse. Further,
the divorced spouse benefit is not considered in the family maximum amount on a
record.
Additionally,
if the worker and ex-spouse have been divorced for at least two years, and both
are at least 62, the divorced spouse can get benefits, even if the worker has
not actually retired.
In
life situations, children and young spouses (caring for children under 16 years
of age) qualify for up to 50% of the retired/disabled worker's Primary
Insurance Amount, or PIA. Children who qualify include those under age 18, age
18-19 attending high school, or disabled adult children who became disabled
before age 22. Benefits for all qualifying family members, except the retired
or disabled worker, are subject to the family maximum provision. For example,
if the worker's PIA is $1000.00 and the family maximum amount is $1600.00, $600.00
is available to divide among eligible family members, up to a maximum of 50% of
the $1000.00 PIA or $500.00 for one eligible family member. If two children are
eligible, the $600.00 family benefit is divided equally, or $300.00 per family
member. Remember that the worker is always paid his or her benefit regardless
of the number of eligible family members.
In
survivor cases, the eligible family members (children and parents caring for
children under 16 years of age) split the family maximum (the deceased worker's
share is added back in), up to an individual maximum of 75% of the PIA per
child or survivor. In the example above of a $1000.00 PIA and $1,800.00 family
maximum, the base rate is 75% or $750.00 per child. Two children would not
exceed the $1,800 family maximum so each would be paid the full benefit of
$750.00. However, three children at $750.00 each would exceed the maximum
benefit by $450.00 ($750.00 x 3 = $2250 less $1800 = $450). Each child's
benefit would be adjusted $150.00 to $600.00 to pay equal shares of the family
maximum of $1800.00.
Next
month, we'll discuss widow's and surviving divorced spouse benefits in more
detail.
In
the meantime, if you're confused, send me an email!
Social Security expert Warren Coble welcomes your
questions regarding Medicare, Social Security and
Senior Life in general! Email Warren by clicking
HERE.
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Elder Abuse and Financial
Exploitation: Who's At Risk and How To Avoid the Pitfalls
- Penny Louis, MPA
Elder
Abuse takes many forms; it can be physical, emotional or financial. There are two basic forms of financial elder
abuse. External abuse comes from outsiders: individuals and businesses
unknown to the elder. Internal abuse comes from insiders: those
known and trusted by the elder.
External Abuse
External
abuse can come from phone calls, mail and e-mail from businesses such as
insurance companies, banks, goods and services vendors, organizations posing as
charitable entities, and sweepstakes or lottery-type sales. This category
usually does not include a business with which the elder has an ongoing
relationship (for example, a bank), and in some cases the business may not be a
legitimate business at all.
They
operate on what I call the "3-part sale".
The first part is subtle
suggestion. An insurance company may suggest the need for additional Medicare
supplemental insurance, life insurance, or death insurance (perhaps for funeral
and cemetery costs). A bank may try to
sell new accounts, credit cards, lines of credit, home equity loans or reverse
mortgages. A vendor selling medical
equipment and supplies may convince the elder of the need for a power chair,
lift chair, bathroom equipment, security or medical alert devices and other
items that may or may not be needed. A
company posing as a charity might elicit a response from vulnerable elders when
asking for money for disaster victims, endangered animals or starving
children. And a sweepstakes or lottery
organization preys on elders with promises of winning money or other prizes
that are often non-existent.
The next
step is mild manipulation. The solicitor
suggests that if the elder doesn't buy the product, order the service, make the
donation, or enter the sweepstakes, he or she will be at a disadvantage, and
may even suffer dire consequences as a result.
The elder may end up underinsured, with insufficient funds, with no credit
cards and equity lines. He or she may be
jeopardizing physical comfort, safety and mobility; he or she may be foregoing an opportunity at
riches, or neglecting the less fortunate.
The final
step is complete coercion. The "sign
on the dotted line", "give me your credit card number", "for a limited time only you are eligible for these
benefits, products, services, chance to win", "Let's sign you up now or you'll
regret it!"
Elders
often experience isolation, depression and dependency. They are susceptible to those who prey on
their loneliness, boredom and fear.
Family members or professionals who may be involved with the elder's
care need to be on the lookout for signs of excessive unexplained spending on
credit cards, checks written to unknown charities, new merchandise that shows up
in the home such as medical equipment and supplies, slick products geared to
the elderly, new insurance policies, credit cards or bank accounts. If family can't monitor the elder's daily
monetary affairs, they should consider hiring someone who can.
Internal Abuse
The
second type of financial abuse is internal - abuse committed by insiders: caregivers, sales people, service providers who
have access to the residence, and even family members.
Hiring
private duty caregivers is a mistake unless you know them and their reputation
extremely well and they have impeccable references. If you cannot properly vet a private duty caregiver, then hire caregivers from an
agency whose employees have had background checks and are bonded and insured.
Next,
never ask personal care assistants to handle your financial affairs. I know of many cases where caregivers were
given responsibility for paying bills, had access to checkbooks, credit cards
and bank accounts and ultimately had carte blanche with the elder's financial
affairs. The elder trusts and is dependent upon this person. And it can end
badly if the caregiver takes advantage of the situation and succumbs to
dishonesty and greed. "Helping
themselves" is all too easy in these situations. Additionally, unscrupulous
service providers, sales and delivery people who come into the home can steal
cash, credit cards and even your identity if care is not taken to make sure
such items are securely put away.
Abuse by
family seems hard to imagine but does unfortunately happen. Once again, Sonny Boy or Cousin Vinny may
feel entitled to "share the wealth" and will also "help themselves" to the
elder's money, jewelry, or other valuables in the home that "they won't miss". It is important to have checks and balances
with other family members, friends, and professional advisors. This lessens the chance that one person can
operate "under the radar."
Be Diligent!
Family
members should be diligent in monitoring their elder's monetary affairs. If
there is not a family member to help, consider hiring a professional money
manager whose business it is to protect the elder's finances, has a fiduciary
duty to the elder, and who has professional liability insurance.
Penny Louis, MPA is the Managing
Partner of Financial Care for Elders, LLC which provides personal business
assistance to clients who have difficulty managing their personal monetary
affairs. She is a member of the American
Association of Daily Money Managers. You may email Penny by clicking HERE.
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The Usual Disclaimer: This newsletter is for general information only. Please do not rely on anything you read in this email as definitive legal advice applicable to you. All situations are different, including yours. Nothing you read in this newsletter is a suitable substitute for professional advice you may receive from your attorney, your accountant, or your tax advisor.
All contents copyrighted 2008 by Mason Law, PC. Contents may be republished with written permission of Mason Law, PC (which permission will usually be given!). |
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