Adamsky Law Offices Blog

No news from the Senate on the Estate Tax issue. I guess they will take it up next year and be faced with the problem of people who die after 1/1/10 and before they change the law. Here are some other's opinions: Tax Girl: http://www.taxgirl.com/federal-estate-tax-update/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+taxgirlfeed+%28taxgirl%29&utm_content=Google+Feedfetcher . And from a lawyer on an internet discussion group: "Dear Client, Please don't die in 2010. Congress has apparently taken no action to alter or amend the consequences of the Economic Growth and Tax Relief Reconciliation Act of 2001(EGTRRA). Therefore the estate tax is repealed as to decedents dying after midnight December 31, 2009 and for the year 2010. Modified carry over basis rules, IRS sec. 1022, will now be applicable, rendering reserved life estates not eligible for step up basis adjustments and requiring a return, yet to be developed, under IRS sec. 6018, be filed by an e

Well, the House Passed an Estate Tax measure to deal with the issue of the impending end of the Estate Tax (for one year!). But, the Senate hasn't acted yet, and they only have 15 days left. Some reports said the Senate would attach the issue to a spending bill. Now that appears unlikely. No one really knows what will happen. The IRS isn't ready for this, and everyone's Estate Tax Planning will be up in the air for the foreseeable future! Thanks a lot Members of Congress. Here's a blog entry about it from another Lawyer. Estate Tax - Repeal and Retroactive Reinstatement Now Seem Likely

A durable power of attorney (POA) allows the person creating the document, called the "principal," to name a trusted agent who can act on his behalf. Because of the risk of abuse, many banks will scrutinize a POA carefully before allowing the agent to act on the principal's behalf, and often a bank will refuse to honor a POA. In a recent Florida case, Bank of America rebuffed an agent's request that funds be transferred from the principal's account. The agent fought back in court and just won a $64,000 judgment against the bank. Clarence Smith, Sr., named his son, Clarence Smith, Jr., as his agent under a POA. When his father no longer wanted to manage his own finances, he asked Clarence Jr. to step in as his agent. Clarence Jr. reviewed his father's account activity and became suspicious about some withdrawals from a bank account that Clarence Sr. owned jointly with a friend from his retirement community. Acting as his father's agent under the POA, Clare

Most parents do not want their children fighting after their passing (although some parents seem to do things to incite their children). So, when planning their estates, parents should strive for harmony and use certain techniques to avoid fights. In some families, with lingering animosity from earlier disagreements, it may be impossible to avoid a fight. But for most families, a well laid out plan and perhaps a separate written explanation, can go a long way to avoid misunderstandings. The first key is to provide for open and honest communication. Whatever a parent does with one child, or tells to one child, should be told to the others. The child who doesn’t understand why something happened is often the one who starts a fight. This is especially true when it comes to gifts or loans to children. If you give money to one of your children, you need to make clear whether you intend to be paid back, or whether the gifts should be deducted from that child’s inheritance. If you don’t equal

Who will speak for you if you become unable to speak for yourself or suffer a medical emergency? Have you planned for that unexpected possibility? You hope it won’t happen, but if it does, you must be ready. You must have the tools on hand to take proper care of you and to ensure that your wishes are followed. The first and most important planning tool is a Health Care Directive (a “Health Care Proxy” or a “Power of Attorney for Health Care”). This essential legal tool appoints a chosen and trusted person to communicate your wishes and decisions to medical professionals. If you can speak, then your wishes control, but if you cannot then your Health Care Agent will have full legal authority to speak with your doctor and to consent to treatment. Most importantly your Agent can refuse treatments that you may not want, such as feeding tubes or ventilators. It is vital that you have a discussion with your named Agent, and communicate your

The Federal Centers for Medicare and Medicaid Services (CMS) has announced that there will be no change in the Community Spouse Resource Allowance (CSRA) nor the Maximum Monthly Maintenance Needs Allowance (MaxMMNA) for 2010. These amounts are what a community spouse may keep in assets or is allowed to have as income, when the other spouse is in a nursing home on Medicaid. The figures are tied to inflation and adjusted yearly by CMS. Since the government inflation figures were less than zero for this year, there will be no adjustment for next year. The CSRA for 2010 will be $109,560 The MaxMMNA for 2010 will be $2,739 The Minimum MMNA is adjusted in July each year and it remains $1,821.25 until July 2010.

Jan L. Warner, a nationally syndicated elder law columnist and a founding member of the Carolinas Chapter of the National Academy of Elder Law Attorneys, died of cancer on October 27, 2009, in Columbia, South Carolina. He was 67. Warner was a founding partner of the Columbia and Rock Hill law firm of ElderLaw Services of South Carolina, P.A./Warner, Payne and Black, L.L.P. After launching a column on divorce issues called "Flying Solo" with writer Jan Collins 20 years ago, Warner and Collins teamed up again in the late 1990s to start an elder law column called "Next Steps." Both columns are syndicated by United Media (United Features Syndicate). Warner and Collins also wrote a book called Next Steps (Linden, 2009), which was published in August. "Everything Jan did he did with great zeal," his partner Mitchell Payne said in an article on Warner published in The State , a Columbia newspaper. "He seemed to be able to do everything at once." "

The new rules on Guardianship in Massachusetts are causing some confusion. They were designed to protect people more than the old laws, but that means they are more complex and less easy to follow. It is likely that some changes will occur over time as technical amendments correct any flaws in the new system. There is a website dedicated to the new Probate Code in Massachusetts. The blog there discusses many of the good and bad points of the new law. http://www.massprobatecode.com/

Here is a link to an e-book about Alzheimer's Disease. It is written for children, but is a great read for all. http://www.alzheimershope.com/grandmas-cobwebs/flash_book.html Check out the main website http://www.alzheimershope.com/ for more great information about dealing with the disease that is so hard for so many.

It's official. The Social Security Administration has announced that there will be no increase in 2010 SS checks. The annual Cost of Living Adjustment (COLA) is based on inflation and last year the number was negative (deflation). Checks won't go down, but they won't go up either. It is still not clear what will happen if Medicare Part B costs go up. There is a rule that checks cannot go down, so some adjustment may have to be made. Keep your eyes and ears out for more news.

The Center for Medicare Advocacy is launching a new advocacy and education initiative to eliminate the Medicare "Improvement Standard," which requires that Medicare beneficiaries be able to improve in order to qualify for coverage. The insistence that people must be able to get better unfairly restricts access to Medicare coverage and necessary health care. Although the Improvement Standard conflicts with the law, it has become deeply ingrained in the system and ardently followed by those who provide care and those who make coverage determinations throughout the health care continuum. Beneficiaries are told Medicare coverage is not available if their underlying condition will not improve, if they have "plateaued," are not likely to improve, or if they need "maintenance care only". As a result it keeps people with debilitating, chronic conditions from receiving the care they need. This practice persists although the Medicare Act does not require improve

From the Massachusetts Chapter of the National Academy of Elder Law Attorneys (NAELA) newsletter. Guest commentator Attorney Michael Hooker of Northampton, Massachusetts. Question from Nursing Home Admissions Office: Our lawyers are now telling us that no one who is under Guardianship can be admitted to our nursing home unless the Probate Court has given its permission. What is this about? Answer: In July, 2009, a sweeping new law regarding guardianships in Massachusetts took effect. The changes were made partly because of abuses highlighted in a Boston Globe spotlight article claiming elder’s rights were being trampled in Probate court in Boston. The new law, called the Uniform Probate Code , has rigorous requirements to determine whether an elder is unable to make decisions about care, treatment and living situation, and whether someone else should take control of that decision making power. One section of the new law even requires any Guardian to get special permission from the Pro

At a session that ended at 2:18 a.m. on Friday, October 2, the Senate Finance Committee completed its markup to health reform, the America's Healthy Future Act. The bill contains some recently added amendments that are of great interest to elders. The bill now includes an amendment offered by Sen. John Kerry (D-MA) that "would protect against spousal impoverishment in all Medicaid home and community based services programs by requiring states to apply the same spousal impoverishment rules currently provided to the spouses of nursing home residents in Medicaid. The provision would sunset after five years." The bill also incorporates the provisions of the Elder Justice Act (S. 795), which would establish "Offices of Elder Justice" in the Department of Health and Human Services and in the Justice Department and provide federal resources to support state and community efforts to fight elder abuse. Elder Law Attorneys contributed to the effort to see the Elder Jus

It now appears that no changes will be made to the Estate Tax system this fall. An article in the online magazine covering Washington, The Hill , says that insiders say Congress may pass a one year extension on the current rules and then deal with the problem next year as part of broader tax reform. http://thehill.com/homenews/senate/58665-debate-over-estate-tax-likely-to-wait-until-2010 . The problem is that the Estate Tax expires on 12/31/09. All through the year 2010, there will be no estate tax. But, the law phasing out the estate tax expires itself (“sunsets”) on 12/31/10, so as of 1/1/11 we will be back to the old Estate Tax system that was in existence in 2001 (prior to the phase-out law with the 10 year sunset provision). T hat had a 55% tax rate and a lifetime exemption of only $1 million. If Congress had tried it could not have made a more complex and frustrating situation. No one is sure what the Estate Tax laws will be just a few months from n

Millions of retirees (or those still working but of retirement age) may not see any increase in their Social Security checks next year. In fact, they may see a decrease. This has not happened for over 30 years. The trustees who oversee Social Security are projecting that there won't be a cost of living adjustment (COLA) for the next two years. That hasn't happened since automatic increases were adopted in 1975. Social Security benefits cannot go down, but they only go up automatically if inflation goes up too. With the recent bad economy we have seen "negative inflation" so (based on government numbers) there probably won't be any COLA increase next year and maybe not even the year after that. The problem is that there is still inflation in many areas of the economy, most notably health care. If seniors Medicare Part B and Part D costs rise, and if those seniors have those deducted from their Social Security checks, they may see a net decrease in their ch

The Wall Street Journal reports that plans are afoot in Congress to pass a bill that would temporarily stop the repeal of the Estate Tax which is scheduled for 1/1/10 under current law. Of course, that current law sunsets itself on 1/1/11, but for one year there is no estate tax at all. (Those with a dark sense of humor are wondering if advisors for wealthy but sickly individuals are trying to find medical care to keep them alive until next January - or advising them to try to die in 2009?) It had always been assumed that something would be done prior to 1/1/10 (or at least 1/1/11) to change the law passed in 2001. That law repealed the Federal Estate Tax with a 10 year phase-out. But, because the Republicans did not have a two-thirds majority, the bill itself could not be permanent. It had to include a "sunset" clause that repealed all of the bill's provisions at the end of 10 years. Many things intervened over the next several years, including the war on terror, hu

The Massachusetts appeals court recently held that even though an irrevocable, income-only trust expressly prohibited distributions of principal, other provisions in the trust could conceivably permit the trustees to invade trust assets, and thus the trust is countable for Medicaid purposes. Doherty v. Director of Medicaid (Mass. App. Ct., Essex, No. 08-P-939, June 18, 2009). In 2000, Muriel Doherty amended her existing family trust, declaring the trust irrevocable. She also removed herself as trustee and directed the successor trustees to distribute only the trust's income to her. The trust expressly stated that the trustees could "make no distributions of principal from the Trust, to or on behalf of" Ms. Doherty. After entering a nursing home in December 2005, Ms. Doherty applied for MassHealth/Medicaid benefits. MassHealth denied her application, concluding that, in at least some circumstances, the trust allowed Ms. Doherty's trustees to distribute trust asset

In the next few weeks, the Senate should finalize legislation to reform America's health care system. Although around 48 million Americans don't have medical insurance, more than 250 million have no insurance protection for the costs of long-term-care. This is why advocacy groups representing the elderly and those with special needs are pressing for the inclusion of long-term care services and supports in any legislation. The Senate Finance and Health, Education, Labor and Pensions Committees are scheduled to finalize their legislative proposals for health care reform within the next two to three weeks (mid-May to early June, 2009). The bills are expected to be merged on the Senate floor in June 2009. Three House committees are also developing their own legislation, but are not as far along as the Senate. Advocacy groups, such as the Disability Policy Collaborative and the Autism Society of America , are calling for an end to Medicaid's institutional bias, which denies A

New York, NY – More than two years after it first filed an appeal, the Medicare Rights Center has secured coverage under the Medicare Part D prescription drug benefit for a New York woman’s ovarian cancer treatment. As a result, Judith M. Layzer will obtain coverage from her Part D plan of Cetrotide, a hormone treatment costing upwards of $35,000 per month, which has been shown effective against ovarian cancer, with minimal toxicity, in a study in the journal Gynecologic Oncology. “This decision means I will be able to afford to continue an effective treatment prescribed by my doctor,” Mrs. Layzer said. “I have been energetically pursuing this approval and so has the Medicare Rights Center and we finally won, but it should not be this hard, or take this long, to obtain coverage for medically necessary drugs.” The victory, handed down in an April 20, 2009 decision by the Part D independent review entity, follows passage last summer of the Medicare Improvements for Patients and Providers

A Bill, pending in Congress, would end the two-year waiting period for Medicare benefits for people who qualify for Social Security Disability (SSD) - individuals who have suffered a medical condition that renders them unable to work ("Permanently and Totally Disabled"). Medicare coverage is currently available to individuals who are determined to be eligible for SSD benefits, but not until 29 months after the month in which SSD eligibility is determined. For those without private insurance, who can't afford COBRA, or whose costs exceed the catastrophic limits of their private coverage, the 29 month wait creates serious financial hardship and often leads to impoverishment for those who need to spend down for Medicaid coverage. Some couples must consider divorce to protect the non-disabled spouse. Please ask your Senators and Representative to co-sponsor the Ending the Medicare Disability Waiting Period Act of 2009 (S. 700/H.R. 1708), which will end this two-year waitin

People often place conditions on inheritances -- for example, requiring a grandchild to complete college before she can receive trust proceeds -- but is it legal for someone to dictate who their heirs can and cannot marry? This is a question that the Illinois Supreme Court is now weighing. Max Feinberg established a trust that contained a clause disinheriting any of his grandchildren if they married outside the Jewish faith. Despite this clause, four of his five grandchildren chose to marry spouses who were not Jewish. After both Max and his wife, Erla, had died, one of the grandchildren sued her father and an aunt and uncle -- the co-executors of Max and Erla's estates -- claiming that the three had conspired to evade estate taxes and had misappropriated millions of dollars from the estates. The co-executors countered that the grandchild had no legal standing to sue them because she was no longer a beneficiary of the estate, having married a non-Jew. A trial court ruled that the c

Good News: You are getting $250 and you don't have to do anything to get it. You don't even have to file a 2008 tax return, you just have to be getting the right benefits. As part of the American Recovery and Reinvestment Act of 2009, a one-time payment of $250 will go to adults who receive Social Security Retirement, Disability, Railroad Retirement and Veterans Benefits. Recipients must have received eligible benefit payments in November or December 2008 or January 2009. However those who receive Medicaid in care facilities will not receive the payment. The payment should be made in May. It will be made separately from the usual monthly payments, but will be delivered in the same way as your usual benefit. So, if you usually have your check direct-deposited to your bank account, this check will also be delivered that way. This payment is automatic - no one from the Social Security Administration will be contacting you in order to process your payment. Avoid Fraud! Do

The Lowell Registry of Deeds (Middlesex County, North) has a wonderful website that contains all sorts of great information. Richard Howe, the Register of Deeds, runs a tight ship and the Registry is very efficient and modern. One of the best parts of the Registry website is their blog. It's full of interesting things, some related to the Registry, and others just for fun. Here is a link to the Registry Blog: http://www.lowelldeeds.com/blog/ One of the most asked questions at the Registry is how to take one's late spouse "off the deed." This cannot be done, but it really bothers widows that their late husband's name is still on the deed; they think it needs to be changed. Here is the Registry's answer to that question: "In Massachusetts, married couples almost always own their home as “tenants by the entirety” which is a type of joint ownership that carries with it a right of survivorship. As tenants by the entirety, each spouse owns the entire pro

Knee replacement surgery can improve the quality of life even for very elderly patients, according to a study presented at the 2009 Annual Meeting of the American Academy of Orthopaedic Surgeons (AAOS) . The study found that patients in their 80s can benefit both physically and socially from knee replacement surgery, also called total knee arthroplasty (TKA), once thought too risky for the very elderly. “As patients are living longer, there is an upward trend in the demand for quality of life among the elderly population,” said Edsel Arandia, M.D., lead author of the study and an orthopaedic surgeon at Philippine Orthopaedic Center and a Fellow at Singapore General Hospital. “As patients age, debilitating diseases like arthritis of the knee begin to develop. We conducted this study to determine the viability of TKA in octogenarians and to learn whether their quality of life improves after TKA.” Dr. Arandia and his team reviewed data from 128 patients older than 80 years of age wh

There are several drugs, that are too commonly prescribed, that pose a risk of deadly side effects for older people. Zyprexa, Resperidol and Seroquel, among others, were developed to treat severe psychotic disorders, such as schizophrenia. These drugs all bear the U.S. Food and Drug Administration’s “black box” warning label. This warning label says that they may have life-threatening side effects for older people with dementia. But, doctors and facilities still prescribe these drugs to calm patients down and make the more amenable to care. This is a horrendous situation that needs attention and a solution, but there does not seem to be one yet. For more details, read the article in the Bakersfield Californian at: http://www.bakersfield.com/hourly_news/story/696836.html

The Federal Government each year releases the federal poverty measure . There are actually two slightly different versions: the poverty thresholds, and; the poverty guidelines. The poverty thresholds are the original version of the federal poverty measure. They are updated each year by the Census Bureau. They are used mainly for statistical purposes, such as preparing estimates of the number of Americans in poverty each year. The poverty guidelines are the other version of the federal poverty measure. They are issued each year by the Department of Health and Human Services (DHHS). The guidelines are a simplification of the poverty thresholds for use for administrative purposes, such as determining financial eligibility for certain federal programs. The poverty guidelines are sometimes referred to as the “federal poverty level” (FPL) although that is not an official title. There are three lists issued: one for the 48 contiguous states and DC, and one each for Alaska and Hawaii. T

The FBI is warning consumers to be vigilant when seeking employment online. The Internet Crime Complaint Center (IC3) has receive numerous complaints from individuals who have fallen victim to work-at-home scams. Some unemployed people are desperate and will turn to any sources to earn money. Be sure you know what you are doing online and otherwise. Scams may include hiring people to process payments, transfer funds, or reship products. The victims may be asked to receive and cash checks that are fraudulent, or to transfer funds that have been obtained illegally, or to receive merchandise that is stolen and re-ship it to the criminals running the scam. These "employees" are duped into committing crimes for their "employers." Job scams often provide criminals the opportunity to commit identity theft when victims provide their personal information, sometimes even bank account information, to their potential "employer." The criminal/employer can then

Most people don’t think they need to engage in “Estate Planning.” They may say, “That’s only for the rich.” But, everyone needs to plan for the inevitable. It doesn’t matter if you are rich or poor, you need to plan ahead. Here are ten reasons to plan. 1. Loss of Capacity. What if you become unable to manage your own affairs? Without a plan, a Judge may have to decide what happens to you and your money. With a plan, you pick the person who will handle things for you. 2. Minor children. Who will raise your children if you die? Without a plan, a Judge will decide. With a plan, you get to nominate the guardian of your choice. 3. Dying without a Will. Who will get your assets when you are gone? Without a plan, the law says who gets your stuff. With a plan, you get to choose who gets what, and how and when they may receive their inheritance. 4. Blended Families. What if your family has multiple marriages, children and grandchildren? Without a plan, some will not be treate

Life & Estate Planning is always a complex task. Everyone’s situation is unique and your particular personal and family issues must be considered. Many people have fairly simple circumstances. A married couple with one child, doesn’t have too many complex decisions to make. But, for those with multiple marriages and children from different families, planning decisions can be complex. First of all, you must discuss this with your spouse. If you each have children from prior marriages, and you each have certain assets that you brought to your current marriage, then you have to decide what will happen when one of you dies, and then when the second one dies. Consider how you treat your respective children. Will it be equally, or in some proportional way? Will you blend your assets after the death of one of you, or have you already done that? How will you split them apart later? A divorce agreement may contain terms that compel you to plan your estate in a certain way. You mu

People who have one to two alcoholic drinks a day are often at a lower risk of developing Alzheimer's disease and dementia than their non-drinking peers, researchers concluded after analyzing 44 studies about moderate alcohol intake and its effect on the heart and the brain. More than half of the studies - all published since 1990 and conducted on humans over the age of 60 and animals - found benefits to sipping a regular glass of wine, beer or spirits. Only a handful of the studies, all reviewed in July, 2007, by a consortium of seven American researchers in Chicago, made negative links. Lead author Michael Collins of Loyola University Chicago's school of medicine says the report helps physicians and the public understand that moderate alcohol consumption may benefit not only the heart but the brain as well. "Alcohol in these two different organs is triggering a protective state that uses similar biochemical pathways," he says of findings in the report to be publis

Clifton B. Kruse , Jr., a revered elder law attorney who was admired as much for his kindness and generosity to fellow practitioners as for his grasp of the law, died December 30, 2008, in Colorado Springs, Colorado. He was 74. The cause was complications from Alzheimer's disease. For many in the field, Kruse set the standard for all that an elder law attorney can and should be. One of elder law's founding fathers, he combined a gentlemanly charm, warmth and caring with one of the sharpest and most ethical of legal minds. Wrote Arizona elder law attorney Robert Fleming in a tribute , "In my third of a century of elder law practice I have never met another lawyer who managed to pull together sophistication, heartfelt empathy, intellectual rigor and courtly manner in the same fashion Clifton Kruse projected. He did it, to all appearances, effortlessly. He was a friend and mentor to many in the elder law community (I count myself among those legions)." Kruse was the e