How To Discuss Money With Mom & Dad

Do your mom & dad have enough money to last through retirement? Many children are worried that due to market losses over the past few years, their parents may not have enough to live comfortably through their "golden years".  Does this mean that son's & daughters will need to pitch in to keep them afloat? How do you have the "money talk" with mom & dad?

Be On the Lookout for Financial Fraud of the Elderly

It seems that calls to my office that paint a picture of financial fraud of the elderly are increasing. Apparently, the statistics show that 1/5th of Americans older than 65 have been the victim of some sort of financial swindle.  That's 7.3 million seniors!

Elder financial abuse is becoming the crime of the 21st century as the growing senior population is increasingly targeted. - Fred Joseph, President of the North American Securities Administrators Association

Caregiver of 38 Years Loses Home to Medicaid Nursing Home Costs

Will Medicaid take my home if I need to go to a nursing home?  How can I protect my house? These are two of the most common questions I hear as an elder law attorney.

On Monday, Rita Price of The Columbus Dispatch published a related story entitled "Thanks to Medicaid, Caregiver Faces Eviction - Forced Sale of Home".

Murrell Lewis cared for owner Alma O'Brien, 94, for 38 years

Price tells the tale of Murrell Lewis, a single man in 1973 with a doctorate in physics that needed a place to live, and Alma Ruth O'Brien, a widow that opened her home to Mr. Murrell.

Beware of Nursing Home Arbitration Agreements

Nursing Home Arbitration Agreements are something to pay close attention to when entering a nursing home or assisted living facility.  Many residents sign these without a second thought, but some  commentators characterize these contracts as an "incredible disservice" to nursing home residents and their families.

Why are these considered a "disservice"? Well, some would say these arbitration clauses are often "buried" within 20, 30, or even 40 pages of legalese text, not unlike that which might be seen when buying a car. You might say that this can make it difficult to understand the full terms of the contract.

In a 2009 case, Hayes v. Oakridge Home, the Hayes family alleged that Mrs. Hayes was a victim of negligence, as she suffered serious injuries when she fell from a wheelchair while at a nursing home.  The nursing home produced the arbitration agreement indicating that Mrs. Hayes had agreed to forego a lawsuit in favor of binding arbitration.

The family felt that they should not be held to the arbitration clause because:

Hayes lacked any business or contract experience; no one explained the terms of the agreement to Hayes, including the fact that she could alter the agreement; the rescission clause was buried among a myriad of terms, and she was required to fill out numerous other forms at the same time; and there were no alternative sources of supply because finding a quality nursing home is difficult.

Regardless, the court found the clause to be enforceable and the Hayes family did not have the option of following through with the lawsuit in court.

Before you or a loved one signs anything, make sure to read it closely.  If you are not comfortable with agreeing to take any complaints or disputes to arbitration rather than court, ask them to strike the arbitration agreement clause, or speak to an elder law attorney before signing.

Steps To Take When A Loved One Dies

My clients know that if they lose a family member or friend, they can simply call me for help as a Probate and Trust Administration Attorney. Unfortunately, many folks don't even have a will in place, so their family members don't have any written guidance to refer to, and may not even know an attorney that will help them with their questions.

Recently, Portland Oregon Estate Planning Attorney Candice Aiston compiled this helpful list of things to do (edited slightly for Ohio estate planning purposes), which I hope you find helpful,though I don't pretend that it is a complete list.

1. Notify doctor, coroner, and/or police officer (depends on whether death occurs at home or hospital).
2. Contact family and friends. Hopefully, the deceased has compiled a list of people to notify in his or her estate plan.
3. Funeral arrangements. If they're not prepaid, they can be paid from the estate of the deceased. This is also something that the deceased may have expressed wishes about in his or her estate plan. Determine whether the deceased will have military or police officer honors.
4. Prepare obituary. Again, the deceased should have helped you with this in his or her estate plan.
5. Contact an Estate Planning Attorney as soon as possible. If there is a Will, it may need to be filed with the Probate Court by a certain date, and the Federal Estate Tax return is due 9 months after the date of death. You may have a state estate tax return as well; the existence and rules vary state to state. You also only have 9 months to decide on the use of disclaimers to save on estate taxes. Without a Will in place, probate may need to be opened depending on the size of the estate. If there is a Trust in place, there will probably be a lot of paperwork that needs to be completed, and this is best handled by an attorney. Also, many states require that estates notify creditors publicly, and the estate must remain open during the statutory time period, so it's a good idea to contact an attorney early on so that the clock can begin.
6. Use a team of advisors (attorney, CPA, financial advisor). There will be many legal, financial, and tax issues that come up and it's best to have the advice of professionals in those fields.
7. Locate estate planning documents and asset information. Hopefully, the deceased has communicated his or her plan with you prior to death, and hopefully, the documents aren't in a super secret safety deposit box. Having an attorney to turn to at this point is invaluable.
8. Arrange care for surviving family and pets. Guardians for minor children must petition the court to have guardianship approved.
9. Obtain the death certificate. It's best to get several copies, because many of the institutions you'll be dealing with will need a copy.
10. Secure real and personal property and make an inventory of all personal property.
11. DO NOT immediately accept benefits (retirement, annuities, investments). Contact your Estate Planning Attorney and inquire about the use of disclaimers. There may be tax savings in doing so.
12. Create inventory of assets (real property, valuable personal property, bank accounts, stocks, retirement accounts, life insurance, etc.). If the deceased has done thorough planning, a spreadsheet of these assets should be with his or her estate planning materials.
13. Contact IRS for new Tax ID number for estate or trust.
14. Compile list of creditors.
15. Notification for benefits and insurance. Provide employee benefits, insurance, Social Security, and Medicare offices with: Decedent's name, Social Security number, date of death, whether death was due to illness or accident, your name and address.
16. Other notification: Veterans Pension or Survivor benefits, club and credit memberships, disability insurers, utility companies, homeowners, landlord, anyone providing home maintenance.
17. If the decedent was a business owner,there are obviously additional items to consider. One is whether the decedent had a Buy-Sell Agreement or other type of business succession plan.

With Identity Theft of Deceased becoming a common problem, Ms. Aiston also provides some tips to avoid identity theft.

1. Request the deceased's credit reports from the three credit bureaus.
2. Request that the credit bureaus suppress the deceased's credit file.
3. Send a copy of the death certificate to all creditors.
4. Immediately notify Social Security of the deceased's death.
5. Cancel all of the deceased's ID cards.
6. Safeguard documents that have the deceased's Social Security number.
7. Avoid giving too many details in the death announcement (like mother's maiden name, etc.).

As you can see, the amount of work to be done when someone you love passes away can quickly become overwhelming - especially during a time of severe grief.  To help ease the burden of those you love, get a will or trust estate plan done.

Make sure that all relevant documents are in one conveniently accessed location.  I use a will or trust portfolio (binder) that has tabs for all the legal documents, life insurance policies, retirement plans, memorial instructions, etc.  Don't make your family members dig through boxes in the basement to try to construct your financial picture.  Give them the gift of having your estate plan completed and your affairs organized.

To get started on the most important planning you'll ever do for your family, call Golowin Legal at (614) 453-5208 to get started.

Combat Veterans Have January 2011 VA Health Care Deadline

If you are a combat veteran (or know someone who was) that was on active duty between 11/11/1989 and 1/28/2003, sign up online for VA veterans health care. By getting it done before the deadline, you'll get in without having to prove you have a "service connected" disability or health problem. Remember, "once in, always in" - get it done now if you qualify.

 Rick Maze of MilitaryTimes.com writes that:

Time is running out for about 180,000 combat veterans, most of whom served in Iraq or Afghanistan, to take advantage of streamlined enrollment into the Veterans Affairs Department health care system.

Mr. Maze quotes Philip Mastkovsky of the Veterans Health Administration as saying that even if veterans do not have health problems right now, there is good reason to enroll in the Veterans Affairs (VA) health plan now.  This plan "charges no premiums and requires modest co-payments only when treating veterans for clearly non service-connected reasons."

The biggest reason of all for enrolling when you are not currently facing health problems is that once you're in, you're always in. Maze writes:

The 180,000 affected veterans are among a class of veterans offered no-questions-asked health care from VA following their release from active duty. Initially, they were provided two years of care, but in 2008, when Congress decided to provide five years of post-service VA care to Iraq and Afghanistan veterans, those discharged in the early years of the Iraq and Afghanistan wars were given extra time.

Don't wait! After January 27, 2011, veterans may only enroll in the system if they meet the regular eligibility rules, where you must prove having a a service connected disability or low income. Only 16,000-17,000 of eligible veterans have enrolled so far!After Jan. 27, these veterans can enroll in the VA health system only if they meet regular eligibility rules, such as having a service-connected disability or low income.

You may enroll entirely online right here. If you have questions, call the VA at 877-222-VETS (877-222-8387).

Thank you for your service. For a free guide on Ohio Veteran's Pension Aid and Attendance Benefits, visit www.OhioVeteranPension.com.

Elimination of Ohio Estate Tax?

Yesterday Ohio House Bill 1 was unveiled, putting the Ohio Estate Tax on the chopping block. Currently, the Ohio Estate Tax is imposed at a rate between 6-7% on estates valued at more than $338,333 when a person dies.

Jim Siegel of Dispatch.com writes that "House Bill 1 [is] usually designated for leadership's top priority" and later mentions that "[t]he estate tax brings in about $245 million a year to local governments and about $60 million a year to the state."

Those opposed to the tax such as Rep. Cheryl Grossman, R-Grove City argue

that the estate tax is unfair, bad for farmers and small businesses and drives wealthier retirees out of the state. Ohio is one of 20 states with an estate or inheritance tax, and its threshold is the lowest in the nation.

Rep. Ron Amstutz calls the estate tax "legalized theft", possibly viewing the tax as 'double taxation' of dollars that already faced the income tax and/or corporate tax.

On the other hand, those in favor of the tax such as Rep. Mike Foley D-Cleveland argue that "local governments rely on the money" and it is "a benefit to society, as it only applies to the wealthiest among us, and helps to slow down the growing wealth inequality."

For years estate planning attorneys have been helping clients to eliminate or minimize the amount of estate tax they must pay on death by using living trusts and inserting tax planning clauses into wills.  If the Ohio Estate Tax is eliminated, much of this work may become unnecessary.  However, at what cost would this come?  Would local governments or the State be harmed drastically?  Would the impact only be minimal?

What is your view on eliminating the Ohio Estate Tax? Yea or Nay?

Men From The Forgotten War

Mike Harden, retired columnist for the Columbus Dispatch, wrote of a gathering of Korean War veterans at the American Legion post entitled "Men from 'forgotten war' recall fateful night". An excerpt follows:

Hunkered over fried bologna sandwiches and Bud Lites, the last men standing from an old Columbus-based Korean War company of Marines assembled on April Fool's Day to discuss a mutual throb in the molar of memory.

The noon drinkers who were bellied up to the bar of the American Legion post on Demorest Road paid scant attention to the assemblage of gray-hairs, who had come together to honor the 60th anniversary of the most harrowing months of their lives.

(To read the remainder of the article, click the link above)

Reading Mr. Harden's article reminded me not only of the "forgotten war", but of how underutilized VA non-service connected pension benefits are. If you have significant medical expenses such as in-home, assisted living or nursing home care and are a wartime veteran (which includes the Korean War), or if you are the widow of a wartime veteran, you could be missing out on up to $23,000 in benefits per year that could help you pay for your medical expenses that are ripping through your savings.

If you know someone that needs more information on VA Pension, have them give me a call or visit OhioVeteranPension.com for a free guide. No veteran or their widow should let this benefit to slip by.

Protect Your "Virtual Assets"

USA Weekend highlighted a commonly overlooked piece of estate planning in "Create A Plan Now For Your Virtual Assets". Jill Golden asked:

Millions of Americans use e-mail, blogs and social networking sites to stay connected with friends and relatives. But what happens to your accounts after you die?

It seems that we all have online banking & brokerage accounts, Yahoo or Gmail, EBay, PayPal, Facebook, Twitter, and more. When we die, the material stored in these accounts can become unreachable or dissapear unless we ensure our loved ones have access through our login information.

I heard a story of a U.S. Marine who was killed in action while serving in Iraq, and his family was not granted access to his Yahoo! email account due to privacy reasons. This ended up being very traumatic for the Marine's family because they wanted to remember him in his words, and his writings were lost forever when the account was deleted.

The author of this article introduced several companies that will forward user names, passwords and personal instructions to a person of your choosing after your death, which include LegacyLocker.com, AssetLock.net, and MyWebWill.com.

Whether you use one of these web services, or just create a handwritten list of user names and passwords and leave it in a safe-deposit box, make sure that losing access to these "virtual assets" does not cause stress or heartache for those you leave behind.

Minor Settlements In Probate Court

When a minor is injured and someone else is liable, what happens? How is that child reimbursed for their injuries? Because the child is not old enough to legally settle the claim, the county probate court is going to be involved.

The probate court has the authority to approve the settlement of minor's injury claims, and will decide how the settlement funds are distributed.

The guardian of that minor (or of the minor's estate if they passed away) must file an Application to Settle a Minor's Claim in the child's county probate court. Parents who do not have custody of the child get notice of this application, which must contain the following:

1. A current statement from a physician that describes the injuries, including their permanency and extent of recovery,
2. A statment that descibes the circumstances of the injury or damage, as well as treatment program, and
3. prospective or actuctual settlements from similar incidents (for minors or adults).

The minor child must attend the hearing, and within 30 days after the settlement, there will be an Entry Approving Settlement of a Minors Claim and Distribution and Entry of Minor's Claim to prove the proper distribution of the settlement funds.

If a guardian was appointed, the case remains open until the guardian submits an inventory within three months of their appointment. For settlements over $10,000, a guardian must be appointed. A guardian is not needed for settlements under $10,000.

In the end, the court will chose to do one of the following with the remaining funds:

1. Release funds to the natural guardian or the minor,
2. Order the funds placed in a secured account and released to the minor when he or she becomes an adult, or
3. Place the funds in an annuity that will provide a future source of steady income to the minor.

Thanks to Lora Lynne Stalnaker, who wrote an article that was the basis for this post.