Tuesday, October 17, 2017

Elder Abuse Target of New Federal Law

[The following article was written by Matthew Parker, attorney with my Pennsylvania law firm Marshall, Parker and Weber]
 Elder abuse is one of the most under reported crimes in our country. Even the reported cases are difficult to prosecute. Older adults are financially exploited through telemarketing, e-mail scams and by those who are supposed to look after the senior’s affairs, such as court appointed guardians. 
 A court appointed guardian is named by a judge in the court of common pleas where the incapacitated person resides. The guardian is often a family member who agrees to represent an incapacitated person who can no longer make decisions about their personal and financial affairs. After a court hearing, the court appointed guardian is given considerable control over the finances and personal decisions of the incapacitated person. The oversight of the guardian is limited to annual reports that generally report the status of the finances and physical condition of the incapacitated person.
 There are many honorable guardians who faithfully carry out their duties and act in the best interest of the person they are appointed to represent. Unfortunately, of the estimated 1.3 million guardians in our country, there are unscrupulous guardians who are financially exploiting the elderly. There are stories of abuse involving close family members, such as the case of decorated World War II Veteran Robert Matava, whose own son financially exploited him. Part of the new legislation mentioned below is named after the late Robert Matava. 
 Under the bi-partisan “Elder Abuse Prevention & Protection Act” that has passed the House and the Senate (Senate Bill S. 178), the Department of Justice would assign an Assistant United States Attorney to each federal judicial district to investigate reports of wrongdoing by guardians. These attorneys would be empowered to bring in specially trained FBI agents to help investigate the complaints. There would also be a system of information sharing between federal prosecutors in each state, facilitated by the Department of Justice. 
While the legislation does not change the current system of guardianship in Pennsylvania, it does expand Federal involvement in prosecution of guardians. The legislation also requires the Department of Justice to publish best practices for improving state guardianship proceedings, specifically as it relates to elder abuse.  This may lead to changes in the oversight of guardians in Pennsylvania. 
 Additional provisions in the Act target telemarketing and e-mail marketing to seniors by increasing criminal penalties for related marketing crimes committed against those over age 55. Those enhanced penalties also apply to health care fraud.
As of October 17, 2017 the bill was on the President’s desk to be signed into law.

Monday, October 9, 2017

Update Your Will if your Spouse needs Long Term Care

You should consider updating your will if your spouse is receiving long term care either at home or in a facility. Here is why:
Many married couples have simple "I love you wills” that leave everything outright to the surviving spouse. This is logical for a healthy couple whose primary goal is to provide for each other for the remainder of their lives. But a problem arises if one of the spouses needs long term care.
Few couples have long term care insurance. Instead they initially rely on private funds to pay for care. If they deplete their funds, the government Medicaid program can be there to help pay the bills. Most individuals who receive nursing home care are on Medicaid. And Medicaid can help pay for care at home as well. But to qualify for Medicaid you have to have limited available resources. And protections that exist for married couples will no longer apply if one spouse dies.
By leaving everything to your spouse, you may make it very difficult for them to qualify (or continue to qualify) for Medicaid
Suppose your wife needs long term care. To qualify for Medicaid government benefits she can own only very limited funds. Virtually all the financial resources have to be held in your (the healthy spouse's) sole ownership. Once your wife meets the Medicaid qualification requirements the government program will help pay for her care. Let's assume she is now on Medicaid and that under Medicaid’s spousal protection rules, you (the “community spouse”) have been allowed to keep $100,000 in savings. You are using those savings to provide not only for yourself but to get your wife things she needs that are not covered by Medicaid.
If you die with a simple "I love you will” the entire $100,000 will go to your wife and cause her to lose her Medicaid benefits. She will have to spend down those funds before she will qualify again for Medicaid. Tens of thousands of dollars can be lost to pay for care which could have otherwise been covered by Medicaid.
If you want to avoid this result you could update your will to limit the amount of resources your wife will receive outright if you predecease her. For example, you might sign an “elective share will” that leaves your wife the minimum amount required by law (typically 1/3rd) outright, and places the rest of the inheritance in a protected trust. The funds held in trust won’t disqualify her from Medicaid and can be used to supplement your wife’s needs during her remaining lifetime. Anything left at her death can pass to your children or other heirs.

Bottom line: by updating your will if your spouse needs long term care, you can better ensure that money will always be available to supplement your spouse's care. Talk to an experienced elder law attorney to get your will, beneficiary designations and other planning updated.

Monday, September 25, 2017

Don't Forget to Name Your Contingent Beneficiaries

[The following article was written by Patti Jo Tuner, who has been a paralegal case manager with my law firm Marshall, Parker and Weber since 1998]
It has been said that a good estate plan is like a puzzle, with all the different pieces fitting together to make the picture you want.  The most easily identified piece of the estate puzzle is your Will.  Tucked neatly next to your Will are your Power of Attorney and Health Care Directive.  And perhaps you have a trust. Most people think these are enough pieces to complete their estate planning picture - but an important part is still missing.
Beneficiary designations are an often forgotten part of estate planning.  Beneficiary designations appear on life insurance policies, annuities, and retirement plans.  It is typical for married couples to name each other as their primary beneficiary. That's fine, but it is not enough.  It's also important to look at the contingent (or secondary) beneficiary.  In other words... Who gets the asset if your spouse pre-deceases you? 
If you fail to name a contingent (or secondary) beneficiary, the benefit may pay to your estate and be distributed according to the provisions in your Will.  This may have many negative implications for your beneficiaries, especially if retirement plan benefits are involved.
If you have named your children as contingent beneficiaries, good for you!    But have you considered what will happen to your daughter's share if she predeceases you?  You may want her share to go to her brothers and sisters, or maybe to her children.  The default language in the contract will make that decision for you if you don't spell it out.  Default provisions will usually pay a deceased child's benefit to the other named children, leaving out grandchildren. Your deceased daughter's children will get nothing. Is that what you want? 
There is an additional reason to pay close attention to the beneficiaries on your tax deferred retirement plans.  Benefits that pass to named beneficiaries can usually be stretched out over the lifetime of that beneficiary, which means income taxes can be deferred.
Gather your paperwork and call your financial planner or agent to check that your beneficiaries are up to date.  Ask what happens if one of your beneficiaries dies before you.  Ask how to go about making changes, if necessary.   With those answers, you will have "enough" pieces to declare your puzzle complete.  

Patti can be contacted at webmail@paelderlaw.com or at 1-800-401-4552  

Wednesday, September 13, 2017

Junk It

How to Cut Junk Mail and Phone Calls Down to Size
Older Adults are juicy targets for marketers. Most marketing offers you get by mail are legitimate and are just “junk” to you. It seems that more and more of the unsolicited phone calls seniors receive are outright fraudulent. 
You can get rid of a lot of the junk mail and phone calls you receive by acting as described in this article. But fraudulent solicitations, especially phone calls and e-mails, will probably keep coming Don’t be polite when solicited by phone. Just say no and hang up.
Here is how to reduce the volume of unsolicited offers you receive.
Credit Card Offers
"You're Pre-approved!" Lucky you.
Do you get unsolicited credit card offers? Are you sick of having to put those offers through a shredder due to fear that an identify thief could take out credit in your name? What can you do to stop getting them?  
Actually, you can put a stop to them. The major credit reporting companies sell your information to the credit card issuers who then send you their pre-screened offers. But the reporting companies also allow you to remove yourself from receiving such offers.
To opt out for a period of five years you can call toll-free 1-888-5-OPT-OUT (1-888-567-8688) or visit www.optoutprescreen.com  The phone number and website are operated by the major consumer credit  reporting companies.
You will need to provide personal information, including your home telephone number, name, Social Security number, and date of birth. But the information you provide is confidential and will be used only to process your request to opt out.
You also have the ability to opt our permanently but it takes more work. To remove yourself permanently from pre-screened credit card offers, visit the website www.optoutprescreen.com and follow the instructions.
Removing your name from pre-screened offers will not have any effect on your credit score or your ability to apply for or obtain credit in the future.
Do Not Call Lists Limit Unwanted Tele-Marketing Calls
Both the federal government and the Commonwealth of Pennsylvania maintain
"do-not-call” lists that allow consumers to limit unwanted telemarketing sales calls. Note that these do-not-call registries prohibit sales calls, But you still may receive political calls, charitable calls, debt collection calls, information calls and surveys. 
Registrations are free and permanent with no need to renew.   
The following information is provided by the Pennsylvania Office of Consumer Advocate
1. National Do Not Call Registry
Most telemarketers cannot call your telephone number if it is in the National Do Not Call Registry. You can register your home and mobile phone numbers for free. You can register for the federal no call registry online at www.donotcall.gov or by calling toll-free 1-888-382-1222.
2. Pennsylvania Do Not Call List
You can register for the Pennsylvania Do Not Call List by calling 1-888-777-3406 or visiting https://www.attorneygeneral.gov/Consumers/Do_Not_Call_List/ to fill out an enrollment form. The PA Office of Attorney General has contracted with a nonprofit organization that is responsible for maintaining a list of consumers who want to avoid telemarketing calls. The list administrator is responsible for updating the list and providing that list to telemarketers on a quarterly basis. Every telemarketer that calls consumers in Pennsylvania is required to purchase the list from the list administrator. The telemarketer must then remove every name on the "Do Not Call" list from their calling lists within 30 days. A violation of the law carries a civil penalty of up to $1,000, or $3,000 if the person contacted is age 60 or older.
Since the Pennsylvania do-not-call registry law has separate procedures and includes a separate civil penalty, it may make sense for older adults to register on both the federal and Pennsylvania lists. Both are free.
Catalogs and Emails
Older Adults can get several thick catalogs in a day’s mail. These can be heavy and quickly fill up the trash. Maybe you enjoy looking through catalogs. But if you want to get fewer of them you can.
The Direct Marketing Association (DMA) allows consumers to limit the number of catalogs they receive. You can include email solicitations and utilize a telephone preference service if you reside in Pennsylvania or Wyoming. The DMA service is not free, but it only costs $2. Visit the website here for further information.
In general, I never click on any kind of email solicitation. Just clicking a link can expose your computer and you to serious risks. I agree with the advice given on the PACE University website as follows:
Protect yourself
i.               Ignore/delete unsolicited emails and do not click on any attachments, links, and forms in them, especially when sent by unknown senders.  If you know the sender, but have any doubt, verify separately with them whether they sent the email in question and whether it is safe to click the link, attachment, or form.  For emails that ask you to click a link to go to the “company’s Website” to log in and/or confirm information, open up a separate browser window instead and type the legitimate Website address yourself.  Check on the Website for any announcements about phishing attacks.  In some cases, you may need to call the customer service number or a company directly to verify the validity of the suspicious email. . . . 

Do not provide your personal information via email.  Reputable companies, including Pace University, will never ask for your personal information via email.  Lastly, don’t visit untrustworthy Websites or download unevaluated freeware or shareware.