A Grave Issue of Parenting – Writing Wills and Choosing Guardians

The following article, which appeared in the Orange County Register, features an interview with fellow Personal Family Lawyer Darlynn Morgan of The Morgan Law Group in Newport Beach, California.

Tips for making sure your children are cared for in the event of your death.

"Mommy, what happens after you die?"

It's a question most kids ask at some point – and we may quickly paint a picture of fluffy clouds, golden roads, rainbows and go about our day.

It's a question parents rarely want to truly consider. But ask yourself – what would happen to your kids if you died? Who would take care of them?

"A will may not be enough," says attorney Darlynn Morgan of The Morgan Law Group in Newport Beach. Morgan, a personal family lawyer, offers estate planning tips and advice to parenting and moms' groups, with a particular focus on children.

Here are her tips for ensuring your children's future in the event of your death:

•If both parents can't agree on a suitable guardian for the children, don't give up. Find a mediator who can help you to come to a mutual agreement for the benefit of the kids.

•When you name a couple to act as guardians, be sure to indicate what should happen if the couple broke up or one of the partners in the couple died. You want to ensure your children don't end up in the care of someone you wouldn't really want.

Name several alternate guardians if your first choice can not serve.

•It isn't necessary to take into account the financial resources of potential guardians when deciding who should raise your children. Your guardians are the people who will be in charge of your kids' emotional, spiritual and physical well-being, not necessarily their money.

It's your responsibility to leave enough money behind to take care of your kids either through savings or life insurance, and someone to manage that money if the guardians are not good money managers.

It's also a good idea to provide someone to manage your children's money so a lump sum doesn't go to your children at age 18 – without adult supervision.

•Be sure to name short-term guardians as well as long-term guardians. Short-term guardians will offer immediate care of your kids if you were in an accident. Otherwise, your kids could be taken out of your home and into the arms of strangers (child protective services) until the authorities figure out what to do.

•Be sure to specially name anyone you want excluded as guardians – those who might challenge your decisions or who you would never want raising your kids. (A grandparent or aunt or uncle, for example, who may fight the guardians for custody).

For a list of Morgan's upcoming speaking events, visit Morgan Law Group.

SOURCE: Orange County Register in an article written by CYNTHIA RUPE

Keep Your Memory Sharp With A Social Life

A recent Harvard School of Public Health (HSPH) study found that people with the highest level of social integration had the slowest rate of memory loss, with the most active experiencing memory loss at less than half the rate of the least integrated people.

So there you have it! The perfect excuse to keep up that weekly golf, bridge, church or other activity!

Couples Face Pitfalls When Estate Planning In A Second Marriage

Attorney Stephen M. Worrall writes the following in his Georgia Wills, Trusts and Estate Planning Blog. This centers upon an issue that is constantly overlooked, creating drastic and unfortunate impact upon the estates of many people! Don't overlook the importance of planning in second marriage situations.

Our greatest challenge is planning the estate for second marriage clients. The blended family carries with it a number of competing concerns as we prepare wills and trusts to meet their needs.

If the couple is financially sound with adult children from their former marriages and have a prenuptial agreement, our task becomes fairly easy. The challenge comes with the scenario wherein the surviving spouse would need the assets from the first to die, yet the first to die would ultimately want for his or her children to inherit once the surviving spouse passes.

The problem with leaving all of the assets to the spouse is that the spouse is under no legal duty whatsoever to include the children of the deceased spouse in his or her will or trust. The children of the first to die become disgruntled when their relationship with their step-parent begins to fade for fear they will never inherit anything from their parent. Invariably they feel that their parent would never have intended the inevitable result.

By way of illustration, let's assume that Tom has two children from his previous marriage, Terri and Tim. His wife, Julie, has two children from her previous marriage, Jack and Jennifer. Should Tom's will leave his assets to Julie? What about Terri and Tim? What should Julie's will say? In such a scenario, there are several options.

We explain the options to our clients as spectrum ranging from complete control of the assets from the grave to little or no control. The first-to-die spouse can control the assets by giving the surviving spouse lifetime rights over the assets, but when the survivor dies, the remaining assets must pass to the children of the first to die. This can work well for those children, but the surviving spouse often is uncomfortable with the feeling of being controlled .

The other end of the spectrum would be to simply leave the assets to the surviving spouse and trust that the survivor would provide for the deceased spouse's children in his or her trust in the future. While this latter option sounds nice, often the relationship between the stepchildren and step-parent fades as years go by and the stepchildren are typically disinherited in the end.

We like to see a hybrid approach taken. First, using our example, we recommend that Tom's estate plan provides that Terri and Tim first be left some amount outright and then provide the remaining assets to Julie - some restricted and some not restricted. The assets typically not to restrict would be the marital residence and retirement assets.

Life insurance proceeds and other investment liquid assets could pass to a "QTIP" trust whereby Julie could withdraw funds from this trust for the rest of her lifetime, but at Julie's subsequent death, the remaining QTIP trust assets revert back to Terri and Tim. "QTIP" stands for Qualified Terminable Interest Property and was created by Congress in early 1980s.

Each and every case is different but perhaps some combination of the above should be considered when the difficult challenge of planning the estates of the blended marriage is encountered.

SOURCE: Naperville Sun in an article by Richard W. Kuhn

Tips on Selling Your Senior's House

Many seniors are faced with the task of selling their home after they decide to move into a senior-living community. At that point, the question becomes "how can I make this as easy as possible"?

Colleen Krupp, Health Services marketing director for First Community Village in Upper Arlington, Ohio, relayed the the following tips from relocation expert Joe Evans Realty Group:

1) Pack up your personal items so they're out of sight. The people who are considering buying your home are trying to visualize themselves living there. Your personal photos and other items will only distract them.

2) Update your house. If you haven't modernized your home in the last 10 years, it probably won't be received well on the market. Consider eliminating wallpaper, laminate flooring and old bathroom fixtures, to start.

3) Evaluate the market. Take a look at the other similar homes, and take a close look at which ones are selling - and copy that as much as possible.

4) Find the pricepoint. In this down market, you might consider pricing to sell rather than holding on and let months go by without a look.

5) Get an inspection. By showing potential buyers an inspection, you'll move to the top of the heap and buyers will be more comfortable.

6) Be ready to go. If you're flexible as to when the buyers can move in, you'll only make your home more attractive.

Planning ahead is key, and will take a lot of stress out of this process.

Heath Ledger's Will Fails His Family

This morning I saw that the newest Batman movie, "The Dark Knight" had earned about 1/8th of the total summer box office. I began wondering how much money Heath Ledger, starring as the Joker, earned from this blockbuster.

I didn't find a current estimate of his take, but whatever it was, it's the center of a heated debate. Heath Ledger joins the list of wealthy celebrities that died without a proper estate plan. As you can see in this article from several months ago, Mr. Ledger's will was outdated (I'm shocked he even had one) and did not leave a penny to his child!

Remember - estate planning isn't a one time event. To ensure you and your loved ones are protected, it takes regular review to make sure your wishes are fulfilled.

Home Instead Senior Care

Home Instead Senior Care is a company that serves around 200 Central Ohio senior citizens that live in their homes. They suggest that adult children will speak to their parents who are in their 70's about various issues to ensure the senior's needs are met.

Their "40-70" program is organized nationwide through the Home Instead Senior Care franchise,, and it offers various resources at 4070talk.com. These materials include a "conversation starter guide", an "online communications assessment", and a "communications guide". A booklet can be ordered online or by calling (614) 849-0200.

They emphasize talking early about aging issues so that there is less of a communication barrier when issues pop up later.

Eons.com - An Online Community for 50+ Americans

This website follows in the footsteps of popular websites such as MySpace.com and Facebook.com. These websites are an "online gathering place" which are very popular with teens and young adults.

Eons.com is similar, but specifically made for the 50+ crowd. It includes networking tools, information on "body", "money", "love" and "fun", as well as a search engine designed to find items related to the users stage in life.

Give Eons.com a try and leave a comment as to whether you find it useful!

What is The New Medicaid Lookback period?

What is the appropriate Medicaid Look-Back period under the DRA?

This is an important question for anyone making a Medicaid application in that the local office will request financial records for the time period of the Look-Back. I find it can be very difficult to gather 3 years of records for a senior who now requires Medicaid to pay for his or her long term care, and 5 years is an even greater burden.

So what is the Look-Back Period? I had been going with 60 months, as until recently all the States that had created the DRA enacting legislation had used that timeframe.

However, in Most States Fudging DRA Look-Back Change from Elderlawanswers.com, there is an excellent analysis that the states may have the changes to the Look-Back Period wrong.

In New York's enacting legislation, they have taken note of the fact that that DRA did NOT in fact changes the Look-Back Period from 36 months to 60 months. Instead, it said that IF there had been a transfer in the 60 months after enactment, THEN there was a 60 month Look-Back for the transfers.

New York then has taken a staggered approach to the Look-Back Period, since 60 months obviously have not expired since the DRA was enacted. For the first 36 months, the Look-Back Period remains 36 months (since any transfers would be before the DRA was enacted). The Look-Back Period then extends to 37 months in the 37th month after the DRA to capture any transfer in that month, until it finally reaches 60 months.

This approach appears to resolve the issue of the 60 month Look-Back for transfers after 2.8.06 with the 36 month Look-Back period in the Code not being changed by the DRA.

One would hope that in creating its enacting legislation to the DRA that New Jersey would take such a measured approach as well.

Most States Fudging DRA Look-Back Change - Elder Law Answers Articles:

"Since 1993, the look-back date on a Medicaid application for long-term care coverage has been 36 months, 42 U.S.C. S. 1396p(c)(1)(B), and this figure was not erased by Congress in the amendments to the statute it made through the DRA. Instead, the 36-month figure was preserved and a 60-month look-back date was added to the statute but made applicable only to transfers that occurred after the DRA effective date.

The last time Congress made any modification to the look-back date was in the Omnibus Budget Reconciliation Act of 1993, P.L 103-66 (OBRA-93), when it simply deleted '30' from the statute and replaced it with '36,' and thereby left little doubt that it intended to increase the look-back period on all prospective applications to 36 months. But Congress chose not to make the change in the same manner in its DRA amendments. In keeping the 36-month figure in the statute, Congress was clearly indicating that a 36-month look-back date is still applicable in some fashion. By attaching the 60-month look-back date to transfers made after the DRA enactment date, as opposed to applications filed after that date (a la OBRA-93), the design was obviously to at least phase in the extended look-back date over time. Based on the language Congress used in the DRA, the look-back period cannot be greater than 36 months until at least February 2009, because that will be the first point at which an
individual will have possibly made a transfer that occurred more than 36 months after the DRA enactment.

Agreeing with this reading of the DRA statute, New York keeps the look-back period at 36 months (60 months for trusts) until February 1, 2009. Beginning on that date, Medicaid offices will require resource documentation for the past 37 months (60 months for trusts). "

This is a confusing issue. Before you rely on "the grapevine", consult an elder law attorney who can help you sort through the convoluted laws of Medcaid.

Social Security E-mail Scam

Beware e-mails that look to be sent from the government regarding Social Security, as they are a scam to obtain your personal information.

These messages have a subject line of "Cost-of-Living for 2007 update" and have a bit of information about a benefit increase for 2007. The email states:

NOTE: We now need you to update your personal information. If this is not completed by November 11, 2006, we will be forced to suspend your account indefinitely.

The reader is linked to a fraudulent website where the user is asked to enter their personal information to avoid losing the Social Security benefits.

Remember: The Social Security Administration (SSA) will not request your personal information online. In fact, SSA Inspector General O’Carroll recommends people always take precautions when giving out personal information. She says:

You should never provide your Social Security number or other personal information over the Internet or by telephone unless you are extremely confident of the source to whom you are providing the information.

If you have received this scam email, call 1-800-269-0271 (TTY: 1-866-501-2101) to report it.

Advancing Excellence in America's Nursing Homes

On September 29, 2006 the National Nursing Home Quality Summit was held in Washington, D.C.

The Advancing Excellence in America's Nursing Homes website describes their work as follows:

Advancing Excellence in America's Nursing Homes is a new coalition based, two-year campaign that launched in September 2006. The campaign is reinvigorating efforts to improve the quality of care and quality of life for those living or recuperating in America's nursing homes.

The campaign's unprecedented coalition includes long-term care providers, caregivers, medical and quality improvement experts, government agencies, consumers and others. Together, we are building on the success of other quality initiatives, including Quality First, the Nursing Home Quality Initiative (NHQI), the culture change movement, and other quality initiatives.

Learn more about the campaign and its goals.

To learn about how you can help by registering as a Nursing Home consumer, visit this link.