RobRoy's blog

Getting Informed About Nursing Homes

I've recently had a number of family and friends face the ordeal of finding a nursing home for their loved one. In some cases, the family member had experienced a fall or a stroke. In other cases, a minor surgery had complications that took more time to heal than was expected, and providing care for them at home wasn't a good option. And in still other cases, the level of care and supervision required due to dementia or other health conditions had caused the family to recognize that it was simply in the best interest of their loved one to have that level of care.

As our population continues to age and our improving medical technology further lengthens our lives, these kinds of decisions will eventually be made by most of us. I wanted to make you aware of two resources that may be very helpful to you when that time arrives for you and your loved ones.

The first is the U.S. Government's Medicare online "Nursing Home Compare" guide. The following paragraph comes from the website's own description of its purpose:

Nursing Home Compare allows consumers to compare information about nursing homes. It contains quality of care information on every Medicare and Medicaid-certified nursing home in the country, including over 17,000 nationwide.

VA Service-Connected Disability Compensation

The Veterans Administration provides an important benefit program for veterans who have service-connected disability. The program is called "Compensation" and is different from the non-service-connected "Pension" program that elder law attorneys often discuss with wartime veteran clients or their surviving spouses. Like the pension program, VA compensation comes in the form of income-tax-free money payments to the veteran, who must have received a discharge other than dishonorable, or certain of their family members. The big difference from the pension program, however, is that VA compensation entirely flows from the linkage between the veteran's disability and his or her military service.

For most veterans, the key issues in accessing VA compensation benefits have been proving service connection for the disability, and then dealing with the disability level rating that the VA assessment system applies to the particular veteran's case. Often veterans who prove service connection are nonetheless frustrated by their disabilities being rated in seemingly unreasonably low percentages, such as 30% disabled rating, with the result that their compensation benefits may not be adequate to sustain them despite the actual disabling effects on their lives.

It is important to be aware that the surviving spouse of a compensation recipient may be eligible for a benefit called DIC, Dependency and Indemnity Compensation. DIC applies to the surviving spouse of a veteran who died of his or her service-connected disability, or who received VA compensation for a period of 10 years prior to death not caused by the service-connected disability. For more information about DIC, see the VA website.

The Presumptive Disease List

As Vietnam War veterans become "elders" in their 60s and 70s, it is increasingly important for professional advisors of all kinds to be aware of a special situation that applies to them. This special situation is the "presumptive disease list."

Big Changes, Critical Decisions: Divorce and Estate Planning.

This week, I was visiting with a client of mine who has been married more than once. The questions that this client had for me centered around whether there was anything that needed to be done in her estate planning after a divorce.

The fact is, there is a great deal that must be considered when a divorce takes place. Getting a divorce decree from the courts is only the beginning. Here are some things that should be dealt with as soon as possible after a divorce that can have a major impact on your estate planning:

1. You should carefully review your guardianship nominations for your minor children in your will or other legal documents and update them if necessary. This ensures that should something happen to you, your children will end up with the caregivers that you would prefer. Often, a divorce drastically changes your previous views on this issue.

2. Update your Health Care decision documents. In Utah, you should execute a new Advance Health Care Directive that helps you to designate whom you would want to make health care decisions for you if you were incapable of doing so. Often, these documents have not been changed after a divorce and in an emergency, and an ex-spouse is contacted about health care decisions by the doctors. This is exactly what happened in the case of Gary Coleman here in Utah. His ex-spouse was still named as the health care agent in his legal documents. Thus, she made decisions about his health care. And even though that may have been what Mr. Coleman would have wanted, it is still unclear if that was the case.

The Top 10 Benefits of a Comprehensive Power of Attorney

The benefits of a highly detailed, comprehensive power of attorney are numerous. Unfortunately, many powers of attorney are more general in nature and can actually cause more problems than they solve, especially for our senior population. This issue of our newsletter is intended to highlight the benefits of a comprehensive, detailed power of attorney. A proper starting point is to emphasize that the proper use of a power of attorney as an estate planning and elder law document depends on the reliability and honesty of the appointed agent.

The agent under a power of attorney has traditionally been called an "attorney-in-fact" or sometimes just "attorney." However, confusion over these terms has encouraged the terminology to change so more recent state statutes tend to use the label "agent" for the person receiving power by the document.

The "law of agency" governs the agent under a power of attorney. The law of agency is the body of statutes and common law court decisions built up over centuries that dictate how and to what degree an agent is authorized to act on behalf of the "principal"--the individual who has appointed the agent to represent him or her. Powers of attorney are a species of agency-creating document. In most states, powers of attorney can be and most often are unilateral contracts--that is, signed only by the principal, but accepted by the agent by the act of performance.

Important Medicare Information and How to Find It

On Monday, I participated in a training on the Social Security and Medicare programs hosted by the Mountainland Aging and Family Services department in Utah County. It is important for me in my profession to keep abreast of the rapid changes taking place with regard to Social Security, Medicare, Medicaid and other government programs that provide such important benefits to the aging population.

On an almost daily basis I run across misinformed statements about these programs and have to help my clients understand what the law really says they are entitled to. However, I have also learned that there are significant efforts being made by both the federal government, and local governments, to provide accurate information about these programs. I wanted to make you aware of at least two of these excellent resources for getting your questions answered on what can, at times, seem to be overwhelmingly complex topics.

Was Winston Churchill a Democrat?

The Republican National Convention has just wrapped up, and the Democratic National Convention is on a roll. If you're like many people, the shrillness of political rhetoric can begin to take a toll after a while. I know that for me, there are times that I think to myself "If I have to listen to one more political pundit mouth off about why so-and-so is wrong on this or that point, I'm going to go crazy!" I admit, it's tempting to just wash my hands of it.

When I catch myself thinking thoughts like these, I look around my office and notice a few things that remind me of why it is so important to stay engaged in the political process. One of these items hangs above my desk. It is a small portrait of Winston Churchill, cigar in hand, with his famous bull-dog like expression (or lack of expression) staring back at me.

Once, when my dad took our family on a research trip to London for a month, we visited the famous Madame Tussaud's Wax Museum. While there, my dad suggested that we each find a wax figure of an individual that we most admired or identified with, and take a photo standing next to them.

Is Your Neighbor a Con Artist?

Affinity fraud is becoming a major problem here in Utah. If you listen to the radio regularly, you've likely heard a number of ads put out by the Securities Division of the State of Utah about consumer fraud. One variety of consumer fraud is called "Affinity Fraud."

The Utah Securities Division website defines this term as follows:

Affinity fraud is when someone abuses membership or association with an identifiable group to convince a potential investor to trust the legitimacy of the investment. Common affinity groups include religion, ethnicity, profession, education, common handicaps, language, age and any other common likeness or shared characteristics that allow investors to trust members of the group.

It has probably happened to all of us at some point, whether or not we recognized it at the time. You know how it goes. A friend or someone you trust approaches you or your spouse about this "amazing" opportunity to invest that has almost no risk whatsoever, but the returns on your investment will be potentially staggering. However, you've got to act fast, because the opportunity to invest won't last long. People are lining up with money in their hands on this one and you're going to miss out if you don't get on the ball.

Don't Like Paying Taxes? Geithner Says Too Bad.

It has been a busy year for us here at Platt Law, and we haven't been as regular with our e-newsletter as we have in the past. For that, I apologize.

There has been a great deal of uncertainty and debate in the wealth management and planning world regarding the future of the tax laws and how they will affect the average American as we try to build wealth for our families and provide for them in the future.

A question I get almost daily from my clients centers on the future of the wealth transfer taxes in this country. If you recall, the current tax laws will lower the estate and gift tax exemption to $1 million per person on January 1, 2013 (less than six months from today). What this means to you is that if your estate (which includes the death benefit value of any life insurance policies you own) is over $1 million, your family could pay up to 55% of each dollar over that amount to the IRS.

Understanding the Importance and Implications of Guardianships and Conservatorships

Often in estate planning, attorneys present the idea of guardianship and/or conservatorship as a bad thing - something to be avoided. In a perfect world, we could move through our lives from cradle to grave without such things as guardianships and conservatorships. But in order to achieve this perfect world, we have to do advance planning to provide for our own care if we become impaired or incapacitated, and we need trustworthy, responsible and financially astute family members who are willing and able to assist us. For some people, these "perfect world" conditions do exist. However, for many others, they do not.

Increasingly, attorneys run into the following situations:

1. Seniors come to us, often brought by their children or children-in-law, when mental incapacity has set in, and although they appear to have willing and able family members who can take care of them, assist with making personal care and living decisions, or manage their finances, the seniors do not have the necessary delegation documents in place to empower these helpers as their agents.

2. Seniors have documents in place, but the people named are dead or no longer available, willing or appropriate to serve.

3. The people who the senior trusted and anticipated would be appropriate have become exploitive and abusive to them.

4. Seniors have been conned into paying for, or agreeing to pay for, fraudulent products and/or services.

Amy Winehouse's House: Not So Orderly After All?

A few months back, I shared a report by Forbes magazine indicating that the late singer, Amy Winehouse, had done a good job of estate planning. It was reported that she had updated her estate planning documents shortly after her divorce to reflect her wishes that he not inherit her wealth were anything to happen to her.

However, Forbes is now reporting that an intestacy proceeding has been filed in court with a majority of her estate being listed as the assets that must pass through probate. What does this mean? It could mean a number of things:

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