Thursday, February 24, 2011

Lawyer Specialization: Selecting a Certified Elder Law Attorney

What is Lawyer Certification

Maybe you have never needed the services of an attorney before; but now you do. Obviously, you want to find a lawyer who is an expert in the area of law relating to your legal needs and can best handle your particular legal situation.

To help you find such a lawyer, the Pennsylvania Supreme Court has established rules for the certification of lawyers who are proven experts in a particular area of law. Certification is designed to help the public make informed decisions when selecting a lawyer. It can help you make a smart choice when you chose a lawyer to represent you. 

At the present time Pennsylvania lawyers can be certified in the following areas of law: Civil Trial Advocacy, Criminal Trial Advocacy, Family Law Trial Advocacy, Elder Law, Business Bankruptcy, Consumer Bankruptcy, and Creditors’ Rights. Certification is recognition by the Pennsylvania Supreme Court of the competency and experience of attorneys who have been certified in those areas of law. Consumers who need expert help in one of these legal areas can look for a lawyer who has proven his or her skill by attaining certification. 

How can you Find a Certified Elder Law Attorney

Let’s say that your wife or mother needs nursing home care and your family needs help with the complicated issues that arise in that situation. This is an area where you could use the legal guidance of a certified elder law attorney. How do you find one?  
  
Trying to find a certified specialist in elder law is not all that easy. First, you need to understand that all lawyers are allowed to advertise that they practice in any legal area. A lawyer who does mostly real estate work can advertise that they handle criminal cases.  An attorney who is not certified can nevertheless advertise that they practice “elder law.” No experience or special skill is needed. 

This means the consumer has to recognize the keys words that are evidence of certification. Only lawyers who have met the Supreme Court’s requirements for certification are allowed to identify themselves as “Certified” or as a “Specialist” in an area of law. Certified Elder Law Attorneys usually use the abbreviation “CELA” (for Certified Elder Law Attorney) to signify their certified status.  So, in seeking out a certified specialist in elder law you need to look for one of these three key words: Certified or Specialist or CELA. Only a lawyer who has met all of the high standards set by the Supreme Court can say that they are Certified or a Specialist or a CELA. 

Marshall, Parker & Associates has 5 CELAs working at its four office locations in Williamsport, Jersey Shore, Wilkes-Barre and Scranton, Pennsylvania. You can contact any one of these offices to set up an appointment with a Certified Elder Law Attorney. If you are located out of these geographic areas, the National Elder Law Foundation maintains a list of all of the Certified Elder Law Attorneys in Pennsylvania (as well as other states).  To find one in your geographic area you can visit the Foundation’s website at www.nelf.org.

What are the Criteria for Certification as an Elder Law Attorney

Lawyers who are certified in elder law typically deal with issues such as: protecting assets from the cost of long term care whether at home or in a nursing facility; Medicare and Medicaid; wills, trusts and estate planning; representation of trustees and executors; health and personal care planning; tax planning for seniors; financial and health care power of attorney; special needs trusts; Veterans pension benefits; guardianship; public benefits programs and insurance; probate and winding up the affairs of someone who has died; protecting the rights of residents of long-term care facilities; retirement matters; reducing income, estate, inheritance and gift taxes; and claims against nursing homes. 

A lawyer must demonstrate expert knowledge in the areas of elder law by passing a tough full-day certification examination. (This examination is failed by a majority of the lawyers who take it). The lawyer must receive positive peer reviews from at least five attorneys who are familiar with their competence and qualifications in elder law. In addition, the lawyer must have had substantial experience in dealing with elder law matters and they must have participated in at least 45 hours of continuing legal education in elder law during the preceding three years. The above requirements are difficult to meet. 

A lawyer must prove that they have enhanced knowledge, skills, experience, and proficiency to be identified to the public as a Certified Elder Law Attorney. As a result, informed consumers who understand the significance of certification in the legal profession can use this information to help assure that they get high qualify legal services when they hire a lawyer. Why take a chance? When you need an elder law attorney it is just good common sense to choose a certified lawyer to represent you.  


Monday, February 21, 2011

IRS Answers Estate, Gift and Generation-Skipping Transfer Tax Questions

The IRS has posted answers to frequently asked questions (FAQs) about estate tax issues for decedents dying in 2010.   

The 2010 Tax Relief Act reinstated the estate tax for decedents dying after December 31, 2009. However, the applicable exclusion amount is increased to $5 million (up from $3.5 million for decedents dying 2009) and the maximum tax rate is reduced to 35 percent.  Also, the 2010 Tax Relief Act allows executors of the estates of decedents dying 2010 to elect out of the estate tax system and use the carryover basis rules that were enacted under the Economic Growth and Tax Relief Reconciliation Act of 2001.

The FAQ answers include the following:

Was the generation-skipping transfer (GST) tax retroactively reinstated in 2010?
The 2010 Tax Relief Act retroactively reinstates the GST tax for transfers made in 2010; however, the applicable exclusion amount is increased to $5 million (up from $3.5 million for 2009 transfers) and the tax rate for 2010 is zero.

How do I elect out of the estate tax and elect to apply new carryover basis rules?
The executor will make the election on a timely filed, yet to be released, Form 8939, which is the form that will be used to report the basis of the assets acquired from a decedent.

Should I file Form 706 for a decedent who died in 2010?
Yes, unless the executor elects out of the estate tax and elects to apply the new carryover basis rules enacted under the Economic Growth and Tax Relief Reconciliation Act of 2001.  The IRS will publish Form 706 for estates of decedents dying in 2010 in the next several months.

What is the due date for Form 706 for a decedent dying in 2010?
The due date for Form 706 for 2010 decedent’s estates is the later of September 19, 2011 or nine months after the date of death.

Can I get an extension for filing Form 706 for a decedent dying 2010?
Yes, the executor may request an extension of time to file.

Should I file Form 709 for gifts I made in 2010?
Yes, if you made gifts that are subject to the gift tax. For more information, please contact your tax adviser.

What will happen to the estate, gift and generation-skipping transfer taxes after 2012?
The provisions of the 2010 Tax Relief Act sunset December 31, 2012.  Therefore, under current law, the applicable exclusion amount will return to $1 million and the maximum tax rate will return to 55 percent.

What are the filing requirements for a decedent who died in 2010?
Current legislation requires the executor of an estate to file the following tax returns:
  • The final income tax return (Form 1040) for the decedent;
  • Fiduciary income tax returns (Form 1041) for the estate during administration; and
  • Estate Tax Return (Form 706), if the fair market value of the assets of the estate exceed $5 million, or Form 8939, if the executor elects out of the estate tax and elects to apply the new carryover basis rules.
In addition, if the executor files Form 8939, then no later than 30 days after the filing of Form 8939, the executor must send a written statement to each recipient of property that contains the information on Form 8939. For more information, you should consult your tax adviser.


Thanks to my colleague Robert Clofine, CELA for alerting me to these recent IRS postings.

Saturday, February 12, 2011

Pennsylvania needs to update Caregiver Support Law

An important bill to improve Pennsylvania’s Family Caregiver Support program was recently introduced in the Legislature as House Bill 210. This bill deserves to be enacted into law.

For years Pennsylvania has sought to rebalance our long term care delivery system away from its institutional bias in favor of care delivered in home and community settings. Care delivered at home is generally less expensive to the Government and more desirable to the recipient. It is less expensive and more desirable largely because much of the care needs of a recipient residing at home can be provided by unpaid family caregivers rather than paid professionals. 

With the nomination of Gary Alexander to be Secretary of the Department of Public Welfare, Governor Corbett’s administration has signaled its intent to emphasize this rebalancing through a implementation of a paradigm shift along the lines of the Rhode Island Global Waiver. A fundamental goal of the Rhode Island Waiver is to reduce state government expenditures by moving the setting for long term care out of institutions and into the home. This is a goal Pennsylvania has also been trying to achieve with only limited success.

Keeping people at home, with the caregiving support of unpaid family and friends, is fiscally responsible for taxpayers. According to the Pennsylvania Department of Aging, on average, services provided in a nursing facility cost 2.5 times as much as those provided in home and community settings. 

But, if we want to successfully increase the utilization of unpaid caregivers, we must be sure that we provide those caregivers with the support they need to fill that role. Effective support of caregivers is the foundation upon which the rebalancing of long term care delivery can be built.  

Pennsylvania’s Family Caregiver Support Program has long offered limited support for caregivers who have accepted responsibility for providing at home care for functionally dependent older adults and victims of chronic dementia like Alzheimer’s disease. However, the law desperately needs to be updated. Reimbursement levels have not changed since the program was initiated in 1990. And current law excludes support of caregivers who do not reside with or are not family related to the person receiving care. These limitations have prevented the Department of Aging from targeting funding in a manner that allows the most care dependent seniors to remain in their home. The ultimate result may be otherwise avoidable institutionalization.  

Each year a bill is introduced in the Pennsylvania General Assembly to modernize the Caregiver Support Program by expanding the definition of “primary caregiver” to include non-relatives, remove the requirement that the caregiver reside with the care receiver, and to adjust the amounts available to a qualified primary caregiver from the levels established in 1990. In the last session, the bill to update the caregiver support law passed the House (unanimously) but languished in the Senate. This is a typical pattern that has been repeated for years.

This year’s iteration of the update to our antiquated family support law has now been introduced as House Bill 210. If HB 210 is enacted, maximum expense reimbursement will increase from $200 per month to $500 per month and from $2,000 to $6,000 for home modifications or assistive devices for the entire duration of the case.  

Under HB 210, caregiver support will only available to caregivers who do not receive financial compensation for the care provided. And support will only be provided to caregivers who qualify under low income guidelines. 

Enactment of HB 210 will not involve any new funding nor create any new entitlements.  Services are made available only to the extent of the availability and level of appropriations made by the General Assembly. To the extent the Department of Aging is authorized to more effectively target funding, the Commonwealth is actually likely to achieve financial savings as seniors remain in their homes rather than institutions.   

Previous year's editions of HB 210 have been supported by numerous organizations including: The Pennsylvania Association of Elder Law Attorneys, AARP of Pennsylvania, Pennsylvania Association of Area Agencies on Aging, Pennsylvania Bar Association, Pennsylvania Alzheimer’s Association, The Center for Advocacy for the Rights and Interests of the Elderly, Pennsylvania Adult Day Services Association, Pennsylvania Association of Senior Centers, Pennsylvania Council on Aging, Pennsylvania Homecare Association, Pennsylvania State Nurses Association, and the National Association of Social Workers (NASW), Pennsylvania Chapter. 

HB 210 will likely pass the House again in the next few months. This year it is time for the Senate to join in the fiscally responsible action of passing this important legislation and sending it on to Governor Corbett.

Monday, February 7, 2011

Insurance Department Revokes License of Rogue Agent who targeted Senior Citizens

The Pennsylvania Insurance Department has revoked the license of an insurance agent who preyed upon senior citizens.  Jay Cohen, formerly of Bryn Mawr, was found to have duped older Pennsylvanians by offering services described in promotional materials as “non-legal, financial and estate-planning services” and claimed he was an accredited “certified senior advisor.” 

Once payment was received, Cohen failed to disclose that he collected commissions and fees from these insurance transactions, some of which were obtained even though agreements existed prohibiting the collection of such fees.
The Department also imposed a $10,000 penalty on Mr. Cohen and ordered him to pay than $13,000 in restitution for conduct unbecoming an insurance producer. 

The adjudication and order found that Mr. Cohen
·       Failed to disclose that he was receiving commissions under the guise of financial planning;
·       Operated a business entity that was not licensed with either the departments of Insurance or State;
·       Failed to comply with insurance laws;
·       Misappropriated funds belonging to his clients and inappropriately charged fees;
·       Demonstrated conduct that was fraudulent, dishonest, coercive and unfit for licensure

Acting Insurance Commissioner Michael F. Consedine stated that “An insurance producer who deliberately undermines his clients and inflicts financial harm is incapable of the trust necessary in the insurance profession,” Consedine concluded. “The department will pursue actions against anyone who uses a dubious title or accreditation to mislead consumers about their abilities or the scope of services being performed.”  [emphasis added].

The above information is drawn from a Pennsylvania Insurance Department Press Release, issued February 4, 2011.

It is notable that Acting Commissioner Consedine indicates that the Department will pursue agents who use dubious titles and accreditations to market financial products. These practices are widespread in Pennsylvania. Insurance agents may wish to reconsider whether to use designations that may be considered misleading. 

Federal Law (The Dodd-Frank Wall Street Reform and Consumer Protection Act) provides grants to states to develop initiatives designed to protect senior investors by stopping the use of misleading designations in marketing financial products.  For more information on this provision of Dodd-Frank see Attorney Robert Clofine's article New Senior Investor Protections, which appeared in the September October 2010 issue of the York Area Agency on Aging New Horizons Newsletter.     

Consumers with questions about an insurance producer or any insurance policy may call the department’s toll-free, automated consumer hotline at (877) 881-6388, or any of the department’s Bureau of Consumer Services’ regional offices: Harrisburg at (717) 787-2317; or Philadelphia at (215) 560-2630. Consumers may also verify the licensing status of an individual or a company at www.insurance.pa.gov.