Interactive Legal Blog

The Merging of Estate Planning and Elder Law

by Scott M. Solkoff, Esq.[1]

Two major pressures are moving the practices of Estate Planning and Elder Law together. The dominant pressure is one of demand. For most Americans, the greatest threat to their financial well-being is not taxes. It is the cost of incapacity and long-term care. Addressing these needs with the ethics and skills of an attorney are in high demand. The second pressure is the continuing erosion of value proposition. This second pressure is further broken down twofold: perceived commoditization and the reduced market for tax planning.

Those who routinely deal with high net-worth clients are largely insulated by these pressures. The very wealthy can bear the storm of incapacity and long-term care and they are more apt to understand the value of good lawyering relative to taxes. Given today’s large exemption amounts, however, only one-tenth of one percent of Americans are subject to federal estate, gift and generation-skipping tax exemptions.[2] Most Americans need a different approach, one that blends the Estate Planning and Elder Law toolboxes.[3]

Estate Planning Attorneys are therefore looking to diversify their practices, address prevalent problems and preserve or increase their income streams. Many are wedding Elder Law to their existing practices. Elder Law is among the fastest growing areas of law and has a great level of personal reward. For Estate Planning attorneys, it is also a relatively easy practice area to incorporate since Elder Law and traditional Estate Planning are not-too-distant cousins. This blog post explains the core practice components of an Elder Law practice and how to determine whether Elder Law is right for you.

No One Can Read My Email, (And Other Myths in the Practice of Law Today)

By Michael L. Graham, Esq.

Your law firm email is secure, right? If it were not, you would have issues with your state’s ethical rules requiring you to keep client confidences. As a summary and guide for the multiple state ethical rules, ABA Model Rule of Professional Conduct §1.6(a) provides:

A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).

Carrying this focus further, §1.6(c), provides:

A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.

First, are your laptop and desktop computers password protected, do they have locators on them so that they can be tracked if lost, and do they contain remotely activated erase software so that one can remotely erase the hard drive if someone tries to connect a stolen laptop to the internet? Is this important? ABA Formal Opinion 477R (revised May 22, 2017) tells us:

A lawyer generally may transmit information relating to the representation of a client over the internet without violating the Model Rules of Professional Conduct where the lawyer has undertaken reasonable efforts to prevent inadvertent or unauthorized access.

Are Your Estate Plans Prepared for Digital Assets?

By Lee Poskanzer, CEO of Directive Communication Systems

The time to address digital assets as part of your client’s estate plan may have begun to run out. We’ve all heard about digital assets, cryptocurrency and occasional lawsuits by family members against social media giants like Yahoo! and Facebook. But now the topic of digital assets will necessarily have landed on your desk when you begin the estate planning process for a client.

Are you fully prepared to help your clients plan for this new asset class, and to protect yourself and your practice from doing the wrong thing?

Digital assets are the new frontier for Trust and Estates practitioners. It’s time to get up to speed about this important asset class.

For the purposes of this discussion, we will limit the focus to the most critical area of digital property: the disclosure of an account’s contents. Closing an account, removing the name from a family share plan and other “action” oriented events will be saved for another day.

The 20 Key Performance Indicators of a Successful Law Firm

By Wendy Witt, JD

With only a glance, you have instant access to your car’s dashboard, displaying exactly what you need to know to diagnose a problem and determine what action to take next: fill the gas tank, change the oil, check the engine, or adjust your speed.

Your doctor uses a dashboard where she tracks lab results, examination notes, and your comments. That dashboard empowers her to diagnose and recommend treatment. In addition, successful business owners use dashboards. They track their business’s KPIs (key performance indicators) so they can diagnose problems, identify opportunities, and make good decisions. If you own your law firm, you’re a business owner too and need your own dashboard.

In fact, you’re not just a business owner, you’re a CEO. Tracking your numbers empowers you to make good decisions and know what to do when. For example, wouldn’t it be nice to know what needs to be tweaked to increase cash flow? Or, wouldn’t it be nice to how much you can draw from the firm without worry? Or, wouldn’t it be nice to not throw money at something that’s unnecessary? Dashboarding works in firms of all sizes and even for individual attorneys who want to think entrepreneurially, increase revenue, and build the department or law firm and life they love.

Geriatric Care Management: An Untapped Resource for Elder Law Attorneys

By Jennifer Traglia, Gerontologist

It’s been two weeks since you last spoke to Jack. His mother, your client, has just fallen – again. This time it sounds serious. As far as you know, she is still in the hospital, with a long road of rehab ahead. Naturally, as a trusted family attorney, you feel responsible.

What will happen to the house? Will she move, or will her only son (who lives 900 miles away) set up in-home care? Surely, Jack will need to take more time off work to sort this out. If only there were a resource or professional to handle all of this…

A New Age of Aging

The statistics of our aging population are astounding. Nearly 10,000 baby boomers are turning 65 each day! The “oldest old,” those 85 and above, have more health care needs than any other age group and are proportionately the fasted growing segment of the aging population. The medical community is not the only service segment struggling to keep up with these growing demands. Due to established long-term client relationships some attorneys also see things reaching a boiling point. Estate planning and elder law firms are feeling the effects of the aging population and are increasingly being asked to act as frontline service coordinators.

New VA Regulations for Aid & Attendance (Part 1): Finally! VA Releases Regulations for Needs-Based Benefits

The first article in a series reviewing the Impact of the NEW VA Regulations on Aid & Attendance

By Elizabeth Q. Boehmcke, Esq.

In January 2015, the Department of Veterans Affairs (the "VA") published proposed regulations amending eligibility requirements for its needs-based programs, including the veteran's aid and attendance pension benefit for veterans and their surviving spouses (referred to herein as the "Aid & Attendance pension benefit"). The VA reports that it received over 850 comments to the proposed regulations during the public comment period, which ended in late March 2015. Since then we have been waiting to learn to what extent the VA would make changes to those proposed regulations, unsure whether the final regulations would impact clients' applications that were in process when the final regulations were finally published. The final regulations were published on September 18, and are effective as of October 18, 2018. For professionals who work with veterans, their surviving spouses and families, the final regulations bring significant changes to the considerations that bear on their planning for such individuals.

The final regulations made major changes in three areas that will impact planning for the Aid & Attendance pension benefit: the calculation of net worth, an expansion of the types of expenses which can be taken as unreimbursed medical deductions from income, and the imposition of a three-year look back period for certain transfers, and penalties for such transfers. I will discuss each change in detail over the course of three installments. It should be noted that some changes to the proposed regulations may well be very favorable for claimants notwithstanding the new penalty for certain transfers. This post will concentrate on the new net worth regulations, because the transfer rules really cannot be understood without first comprehending the net worth rules. (Unless otherwise noted, all section references are to 38 C.F.R., Part 3.)

How the Elder Law Attorney Can Help the Personal Injury Attorney

By Joanne Marcus, MSW, and Karen Dunivan Konvicka, Esq., Commonwealth Community Trust



This article was originally published in "NAELA News."  The opinions expressed in this article are those of the authors and are not to be construed as an endorsement by NAELA or InterActive Legal.

When the call comes from the plaintiff’s attorney asking what should be done about the client’s public benefits, be prepared to answer. The case is about to settle, or the verdict is in, and now the client wants to know how will it affect his or her benefits. First, you will likely have to help the personal injury (PI) attorney assess the type or types of benefits the client is receiving and determine if the settlement puts the benefits in jeopardy. How did the client receive these benefits — through means-testing or due to work history? Perhaps the PI attorney has not considered benefits, but understands that the client is incapacitated and will need the assets managed; or perhaps public benefits may be necessary in the future.

Medicaid, the means-tested public benefit for people with disabilities who are also impoverished, will need to be protected. More than $2,000 in resources and the client will lose this valuable benefit; personal injury proceeds are plainly resources. Medicare, the benefit received by workers with disabilities who have earned enough quarters to qualify for disability benefits, may also need to be protected as well. In addition, Supplemental Security Income (SSI) and Social Security Disability Income (SSDI) need to be considered. Both of these benefits provide a monthly income to people with disabilities. SSI is means-tested, just as Medicaid is, but SSDI, like Medicare, is not; therefore, SSI income will need to be considered when planning. 

The Cobbler's Children

By Teresa L. Bush, Esq., Director of Education and Support Services, InterActive Legal

My great-grandfather emigrated to the USA as a teenager from a country that no longer exists, and was a cobbler by trade. I treasure his two iron shoe stands passed down to me, because they are symbols of one man’s hard work that laid the foundation for generations of descendants. But they also bring to mind the old saying about the cobbler’s children having no shoes.

I have no reason to think that my grandmother didn’t have shoes, but I will confess that I, as an estate planner, spent several years without an adequate estate plan of my own. It makes me wonder how many of my colleagues are in the same boat. As estate planners, we should arguably have the most up-to-date and well thought-out estate plans. If the law changes, we should change our own plans first (if necessary), and then we are better equipped to help our clients. Perhaps it’s a bit like putting on your own oxygen mask first, before you help other passengers.

Waivers, Penalty Periods, and the 5 Year Lookback

Letha Sgritta McDowell, CELA, InterActive Legal

On April 17, 2018, the acting director of the Centers for Medicare and Medicaid Services issued a policy clarification to all state Medicaid Directors regarding the imposition of penalty periods for individuals requesting Home and Community Based Services. The reaction to this guidance is mixed. In some states this clarification may be beneficial to many hoping to receive services in their home, while in others, this clarification may result in further delays in obtaining home services.

Individuals requesting Medicaid assistance with the payment of their nursing care expenses must meet certain eligibility criteria, both financial and non-financial, before Medicaid will begin assistance. The non-financial criteria include US Citizenship or lawful permanent resident status, state residency, and a demonstrated need for a certain level of care. The financial criteria include meeting certain income requirements and having minimal countable assets (there is no limit on non-countable assets). In addition, if an applicant or their spouse has made any uncompensated transfers, then Medicaid will impose a penalty based on the asset transfer.

Watch Your Language – Irregardless of Trends

Vanessa L. Kanaga, InterActive Legal

 
If you are like most of my colleagues, the title of this piece had you grinding your teeth.  In the hopes that you might consider me a credible source and continue reading, allow me to state that I know the term "irregardless" is generally considered incorrect, convention saying that the correct term, "regardless," sufficiently conveys the same meaning.  I recently shocked CEO, Mike Graham, by telling him that irregardless is now acceptable.  Well, admittedly, I did not actually say that it is acceptable, but that I had been reading a book, Words on the Move, in which the author, John McWhorter, makes the case (and I am paraphrasing) that the English language is constantly changing, and words like irregardless may eventually make their way into the realm of acceptable speech, even in formal settings.  His point (again, in my words) is that the function of language is to communicate, and the words we use should be judged on their ability to serve that function; if they enable us to understand each other clearly, then we have no other reason to judge any particular word as "good," "bad," "right," or "wrong."  (For a much more in-depth and intelligent discussion of Words on the Move, please see this New York Times review by another writer whose work I greatly appreciate, Lynne Truss).