Apr 18, 2018

Importance of Advance Directives, End-Of-Life Wishes Reflected in Barbara Bush's Passing

Former First Lady Barbara Bush died at her Houston home on April 17, surrounded by family. She had chronic obstructive pulmonary disease, heart failure, and had been hospitalized multiple times in recent weeks. Following an Easter weekend in the hospital, the 92-year-old decided to let nature take its course. She rejected additional life-prolonging measures, which would likely have included being attached to a breathing machine. The family announced her choice for "comfort care" only, and supported her decision. She died with her husband of 73 years, President George Herbert Walker Bush, holding her hand.

The timing of her decision and passing has particular significance given that National Healthcare Decisions Day was April 16. Established in 2008, the purpose of NHDD is to encourage Americans to complete advance directives and talk to their family about their healthcare wishes, including their end-of-life wishes. According to a 2013 survey by the Conversation Project, only 27% of Americans have done so -- even though 90% say it's very important!

Nathan Kottkamp created National Healthcare Decisions Day as a result of his experiences serving on hospital medical ethics boards. He writes on the NHDD website: "Time and time again, families, providers and health care administrators struggle to interpret the wishes of patients who never made their healthcare wishes known (or who failed to create an advance directive to record their states wishes.)" Kottkamp applauds the Bush family for going public with this most personal decision and hopes it will encourage others to create health care documents and to discuss these issues with family. And Ellen Goodman, chair of the Conversation Project, which provides tools for families as they talk about these sensitive issues, said of Bush: "It sounds like this forthright, outspoken woman has made her wishes known and the family is standing by her."

Under Florida law every competent adult has the right to make his/her own health care decisions, and that includes rejecting unwanted medical procedures. You also can name people to make your decisions if you are incapacitated and cannot do so yourself. Creating advance directives for healthcare can give you peace of mind, of course, but it can do the same for your family, too: they can be confident they are doing what you would want, if they are called on to make decisions on your behalf. 

There are several types of advance directives available to clients. Contact us for assistance. 

Remember:  It always seems like it's too early... until it's too late.

Apr 14, 2018

Probate Proceedings Under Way For Estate of Parkland Shooter's Mother

Nicholas Cruz, the gunman who killed 17 people at Parkland’s Marjory Stoneman Douglas High School on February 14, now sits in a Broward County jail. He is being held without bail. He has admitted to the crime and his court-appointed defense attorneys told CNN that he intends to plead guilty if it will allow him to avoid the death penalty. It would seem to be an open-and-shut case.

What’s not open-and-shut is the disposition of his mother's estate. Lynda Cruz, Nicholas’ adoptive mother, passed away in October 2017. His adoptive father, Roger, died in 2014. The details of his mother's estate are murky and the estate is making its way through the Broward County probate court.

According to several sources, Cruz tried to get his hands on his mother’s money prior to the deadly rampage. On December 19, 2017, he hired attorney Audra Simovitch to open the probate estate. Simovitch subsequently said that Lynda’s friend, who had taken in Nicholas and his brother Zachary following her death, was uncooperative. Simovitch is no longer on the case.

Cruz’ current criminal defense team, Broward County Public Defenders, say he may be the beneficiary of as much as $800,000. He is the beneficiary of his mother’s $25,000 life insurance policy, and may be the beneficiary of two annuities. Broward County property records indicate that the Cruz family home was sold for $575,000 in January 2017.

Of course, Nicholas Cruz will never be able to use the money, except for legal fees and damages arising from his crime. The question now is if he is truly indigent - in other words, how any money he's entitled to impacts on his eligibility for legal representation at taxpayer expense. Cruz faces lawsuits, there are claims against the estate, and the courts must yet determine how the assets would be split between the two boys. (By the way, Zachary is also in jail at the moment, on charges of trespassing.)

Cruz's attorneys say he wants any money he would otherwise inherit to help the families of his victims. One of his court-appointed attorneys, Melissa McNeill, recently told the judge that “Mr. Cruz does not want those funds, whatever money that he is entitled to. He would like that money donated to an organization that the victims’ family believes would be able to facilitate healing in our community or an opportunity to educate our community about the issues that have ripened over the last four or five months.”

Judge Elizabeth Scherer will make a decision about whether Cruz is officially indigent by the next court date, April 27.

Apr 7, 2018

Veterans Benefits Delay Agonizing for Two Proud Marines

V.A. Aid and Attendance (officially known as Improved Pension with Aid and Attendance) is a little-know benefit available to elderly and disabled veterans who served during certain wartime periods and who can meet financial and other eligibility criteria. However, "available" does not mean "easy to get approved." With the Veterans Administration under so much criticism these days, it comes as no shock to learn that the lumbering agency moves slowly -- at times, far too slowly -- for elderly people who apply for benefits. Getting approved for Aid and Attendance benefits requires onerous paperwork and endless persistence. Cynical veterans have morbidly referred to the V.A.'s approach to processing benefits requests as Deny, Delay, And Wait Till They Die. 

This is precisely what happened to Arkansas residents Robert and Mary DeCicco, as reported in a May 24, 2018 Boston Globe article. The elderly spouses, married over sixty years, were both Marine veterans. Robert had already survived bladder cancer, had a kidney and lung removed, and undergone a triple bypass. They were cared for by their adult children until the summer of 2017, when it became apparent they needed more intensive help than their kids could furnish. It was decided that moving to a nursing home was the best option. The DiCiccos knew it would be expensive, but their son Stephen had researched veterans aid and attendance and knew his parents qualified for benefits that would defray a portion of the nursing home expenses. They completed the benefits application and, trusting the government they had served would come through for them, the couple moved into a nursing home. Stephen gave his parents the initial $3,000 needed to move in, and the nursing home agreed to wait on the rest of the money  until the V.A. approval came through.

But the approval did not come through. The bills piled up. In January 2018 the DiCiccos had no choice but to sell their modest home, at a loss. Two thirds of the sale proceeds went to cover nursing home bills. Mrs. DiCicco was heartbroken, telling her son, "That money from the house was for you kids."

Ever the proud Marines, neither Mr. or Mrs. DiCicco was about to criticize the Veterans Administration. But Mr. DiCicco was becoming increasingly anxious about the mounting debt. By March 2018, the nursing home bill had climbed to $40,000. Kim Mosley, the facility's director, repeatedly called the V.A. "I told them that these veterans could be homeless if it wasn't for our home taking them in, and that they needed to be approved very soon," she says. She recalls that Mr. DiCicco would listen to these telephone conversations from his wheelchair, disappointed each time there was no resolution - in fact, no updates or any other information at all. "They were such a sweet, loving couple that we just had to help them," she said. "They didn't even have hardly any spending money." Their son Stephen also tried contacting the V.A., but encountered long holds on the phone and staff who could not even locate his parents' files.

Finally, in March, the DiCiccos' benefits came through. Unfortunately, that was six days too late for Mr. DiCicco. He died on March 2, 2018, at age 85, still worried about the unpaid bills. "What makes me the maddest of all is that he didn't die in peace," his son said. "It's amazing how little anyone knows or is willing to help you."  Mrs. DiCicco said, "He died waiting for it. They do everything over there to get him shot at. He paid a debt to his country, and I feel that they owed him something."

So what in the world happened? Claims for those age 85 and older are supposed to get expedited processing. V.A. officials subsequently explained the couples' benefits were delayed because pension claims for two married veterans must be processed simultaneously; complications in validating some of Mrs. DiCicco's information had created the hold-up. "Regrettably, our efforts to establish entitlement resulted in delays," the agency said in response to the incident. "Clearly we could have done better for Mr. and Mrs. DiCicco."

The Karp Law Firm has several V.A. - accredited attorneys on staff. When a veteran (or veteran's widow) who might qualify for aid and attendance hires us for Medicaid planning, we will submit the V.A. application as a courtesy. The V.A. prohibits lawyers for charging for help to prepare applications (although accredited attorneys may charge to handle appeals). The Veterans Administration needs to do better. We will see what happens now that David Shulkin no longer heads the giant agency. Privatizing services has been floated as a solution, but that idea has its critics. One thing all can agree on is that elderly veterans do not have endless months or a year to wait for their applications to be processed. Like Mr. and Mrs. DiCicco, many are in immediate or near-immediate need and must have a quicker response. 

Learn more about V.A. Improved Pension with Aid and Attendance.

Mar 14, 2018

Karp Law Firm Helps Sponsor Tribute to Senior Volunteers

The Karp Law Firm is one of the sponsors of the Area Agency on Aging's 26th annual Prime Time Awards Breakfast. The May 24 event honors seniors in Palm Beach, Martin, St. Lucie, Okeechobee and Indian River counties who have made outstanding contributions in volunteer work. If you know a senior volunteer who deserves to be nominated, you can download the nomination form here. There are a variety of nomination categories - for example, Foster Grandparent, Law Enforcement, etc.

If you wish to attend the breakfast, find more information here. We will be there!

Mar 11, 2018

Prince's Estate Descends Into Chaos

Many music critics put the late rock icon Prince in a class all his own: unimaginably talented and prolific, churning out hit after hit such as "Purple Rain"and "When Doves Cry." But in one respect the Grammy Award-winning musician was just like many Americans: He neglected his estate planning, and died intestate.

Born Prince Rogers Nelson, Prince died at age 57 on April 21, 2016. He was found in an elevator at his Paisley Park mansion and studio in Minnesota. An investigation determined the cause of death was an accidental opioid overdose. Prince had no spouse, no children, and no living parents. A search failed to turn up a will, and his sister indicated that she believed there never was one.  At that time I wrote in this blog: "You can bet we'll be hearing more about Prince's estate over the next weeks, months, and yes, even years." And that's precisely what has unfolded. Prince's family is now locked in legal battle, with massive legal fees draining the estate.

Bremer Trust National Association was appointed temporary manager of the estate. Its parent company had dealings with Prince and therefore Bremer had some familiarity with his business affairs. Carver County Judge Kevin Eide noted that Bremer “...walked into personal and corporate mayhem where the Decedent’s personal and business affairs were in disarray, a criminal investigation was being undertaken, assets and records were voluminous and scattered, and numerous monetary and heirship claims were about to cascade upon them.”

And cascade they did. To date, 45 people have come forward to claim a piece of the estate's millions. One person stated she is Prince’s niece; two others presented themselves as grand-nieces. Others claimed to be Prince’s half-siblings by various men, alleging that John Nelson, Prince’s presumptive father, was not his true biological father. Even Prince’s one-time security guard said he was a relative. In the end, Judge Eide rejected most of the heirship claims (although some appeals are still ongoing), and identified just six rightful heirs: one full sister, and five half-siblings.

From the start, the siblings tangled over the management of the estate. At this point, there are two major camps in opposition: On one side are half-siblings Sharon Nelson, Norrine Nelson and John R. Nelson; and on the other side, half-brothers Omarr Baker and Alfred Jackson, and full sister Tyka Nelson.

In January 2017, Tyka asked the court to replace Bremer as personal representative. The judge awarded the job to Comerica Bank. At the same time, the judge denied the beneficiaries' request to appoint a “co-personal representative” to serve as mediator between them and Comerica. He noted that the siblings had demonstrated little ability to agree on anything. Getting them to unanimously agree on a co-personal representative was unlikely, would exacerbate their conflict, and drain even more money from the estate, he reasoned.

Comerica’s inventory of Prince's assets found $18,719,062 in cash. Prince owned several homes and lots in Minnesota, in addition to the Paisley Park property. He owned numerous automobiles at the time of his death, including a 1997 Lincoln Town Car, 2004 Cadillac, 1992 Thunderbird, 1995 Jeep, and a 2010 Mercedes. Other assets amounting to millions were held in various music companies. Perhaps the most valuable asset of all is a treasure trove of unreleased master tapes. These tapes could translate into 30 albums, and are estimated to be worth $200 million or more.

In October of last year, the three Nelson half-siblings, dissatisfied with Comerica's management of the estate, requested it be replaced as fiduciary. They complained that Comerica had moved their brother's master tapes from Paisley Park to a facility in California, without their authorization. Comerica responded that (1) the beneficiaries were informed of the move; (2) a temperature- and humidity-controlled facility was needed to protect the tapes from further water and mold damage they'd undergone; and (3) since Paisley Park had been converted into a museum and was open to the public, the tapes needed to be in a more secure location. "Building (or repairing) a relationship requires engagement from all parties and, to date, the personal representative has not had willing partners in the Nelsons," Comerica stated.

Most recently, the TMZ celebrity news site has reported that the six heirs have at least one thing they agree on: They are all concerned about the enormous legal and administrative fees draining the estate and diminishing their ultimate inheritance. It reportedly costs about $600,000 per month just to manage the estate. Comerica recently billed out at $125,000 per month. Another law firm that is handling the tax-related issues billed $440,000 in November 2017 alone. Prince's lack of tax planning is going to take a big bite from the estate, too.

Here is the lesson for the rest of us: Even cohesive families can descend into back-biting when a loved one does not leave a road map for how assets are to be distributed. The attorneys at The Karp Law Firm can help you set up an estate plan that encourages family harmony and puts as much money as possible into your family's pockets... not the lawyers'.

Mar 9, 2018

Social Security Underpaying Some Widowed Spouses

In my July 2017 post I addressed why it is important to educate yourself about Social Security benefits, and to not rely solely on advice from the agency. A recent report from the Inspector General provides fresh support for this notion.

If you can delay taking benefits, the rewards can be substantial: According to the Social Social Security Administration, you will get 132% of your monthly benefit if you wait until age age 70 to collect. However, the Inspector General's audit revealed that Social Security staff often fail to inform widowed spouses that they can claim survivor benefits yet still delay taking their own benefits until age 70. As a result, the audit estimates that 82% of widowed spouses who are entitled to receive benefits are being underpaid. 

The report states, in part: “We did not find any evidence SSA had informed claimants of the option to delay their retirement application when they applied for benefits, as required. We also found that SSA did not have systems controls in place to alert its employees when they should inform [widows] of their option to delay their applications for retirement benefits.”

You can read the original report from the Inspector General  here.  

Some helpful resources to learn about Social Security benefits are:

Feb 28, 2018

Harper Lee's Estate Plan Built For Privacy

If you are someone who values privacy – in life and in death – take a page from Harper Lee. The author of the Pulitzer Prize-winning novel “To Kill a Mockingbird,” Lee was a ferociously private individual. And she designed her estate plan to keep things that way. 

In college, Lee was known as a loner. In later life, she used her wealth to donate to philanthropic causes, and tried to keep her donations anonymous. She shunned publicity. Although she accepted the Presidential Medal of Freedom in 2006, she seldom showed up to personally accept other awards. In a rare 2011 interview  Lee said she'd stopped writing because "I wouldn't go through the pressure and publicity I went through with To Kill a Mockingbird for any kind of money."

Lee died in her sleep in February 2011 at the age of 89.  She had signed a will just six days before her death. That will, filed in an Alabama court, was sealed at the request of Lee’s personal representative, Tonja Carter. However, The New York Times successfully petitioned to unseal the document, arguing it is a matter of public record. The court agreed, and this week it was unsealed. The newspaper reported its findings in a February 28, 2018 article.

Her will was a pourover will. This is the kind of will we establish for our clients who establish trusts. The will simply directs Lee's probatable assets to be transferred into a trust she had established earlier in 2011. And the trust, of course, is a private document. Consequently, we still don’t know who will get her assets, nor the exact extent of them. Lee never married or had children. She has one niece and three nephews, but we do not know what, if anything, her trust leaves to them. Nor do we know what institutions might get possession of her letters and other items.

What we do know is that her estate is worth millions. “To Kill a Mockingbird” sells more than a million copies a year and generates $3 million in annual sales. The royalties and copyrights are valuable. Later this year, a “Mockingbird” graphic novel will be released. And a play based on the novel is scheduled to open on Broadway in 2018. We also know Lee spent little of her millions. The New York Times article notes that prior to moving to an assisted living facility, Lee was often seen in her hometown, Monroeville, Alabama, shopping at the dollar store, washing clothes at the laundromat, and ordering  $6 catfish plates at David’s Catfish House. So her estate plan accomplished just what she accomplished in life: it protected her privacy. 

Contact our law firm if you wish to discuss your own estate plan!  

Feb 25, 2018

Holocaust Survivor, Marathoner, Volunteer

Nat Shaffir has seen more than most. A lot more. Born in 1936 in Romania, he later managed to escape Nazi-occupied Europe. He was shot at while serving as a paratrooper in the Israeli army. He made his way to the United States. At the age of 65, Shaffir took up running marathons. He has run 11 so far and hopes to complete another race this year.

As one of the youngest Holocaust survivors, he volunteers at the U.S. Holocaust Museum in Washington, D.C., telling his own story and the story of so many who, unlike him, didn't survive. "I'm their voice," says Shaffir.
Shaffir is a hero and an outstanding volunteer. There are more like him among us. In May, the Karp Law Firm will help sponsor the Palm Beach County Area Agency on Aging's Prime Time Awards, honoring outstanding senior volunteers in our own communities, including Palm Beach, Martin, St. Lucie, Indian River and Okeechobee counties. When nominations open up, we'll share with you how to nominate your own hero volunteers.

For now, check out Nat Shaffir's biography on the U.S. Holocaust Memorial site.

Feb 22, 2018

Fines Reduced for Many Nursing Home Violations: What It May Mean For Your Loved One

In keeping with its goal of reducing bureaucracy and eliminating unnecessary regulations, the Trump Administration has scaled back penalties levied on federally funded nursing homes for violations of certain safety and quality standards.  It has also made it more difficult to deny payments to nursing homes for such violations.

Violations are not rare. A 2017 Kaiser Health News report states that since 2013, 4 out of every 10 nursing homes have been found guilty of at least one serious violation. The most common violations include mistreatment, failure to protect residents from avoidable accidents, neglect, and bedsores. 

Predictably, these new policies from the Centers for Medicare and Medicaid Services (CMS) have been met with opposition or approval from different quarters. One thing is certain: It more important than ever to thoroughly research facilities when placing a loved one, and to keep an eye on the care your loved one receives once placed. At the end of this post I will point you to several resources for evaluating nursing homes. But first, let's discuss the new policies.  

New Policies and Fines
  • Pre-Arbitration Clause Now Permitted. The Obama Administration introduced a new rule prohibiting pre-arbitration clauses in nursing home admissions contracts. The rule - never implemented due to a court challenge - would have guaranteed residents and families the right to sue nursing homes in court for fraud, abuse, neglect, etc. That rule is now officially rescinded and pre-arbitration clauses continue to be permitted in nursing home admission agreements.
  • Daily Fines Not Recommended For Violations Occurring Pre-Inspection. CMS now encourages state authorities to refrain from imposing daily fines for violations that occurred prior to an inspection and instead, levy one-time fines. Industry groups had argued that retroactive daily fines for violations that had already been fixed by the inspection date were pointless. Others argue that the new policy could end up shielding nursing homes from fines for egregious mistakes, above the maximum per-incident fine of  $20,965. The CMS still suggests daily fines for major violations discovered during inspection.
  • Fines Discouraged For One-Time Mistakes. CMS' current policy is that while intentional disregard of patient health and safety justifies fines, one-time errors, even for serious violations, are not necessarily appropriate.
  • 18-Month Exemption for Drug-Related Safety Rules. In November 2017, nursing homes were granted an 18-month exemption from fines for violations related to several new rules designed to reduce the use of various psychotropic drugs.

Advocates and Critics

Advocates for the nursing home industry applaud the changes. Seema Verma, head of the Centers for Medicare and Medicaid Services, notes that reducing paperwork will increase the quality time staff can spend with residents. The American Health Care Association, the industry's main trade organization, claims that prior rules were more focused on catching wrongdoing than helping nursing homes to improve. “It is critical that we have relief,” Mark Parkinson, the group’s president, wrote in a December 2016 letter to the president-elect. 

On the other hand, patient advocates argue that easing of penalties endangers vulnerable residents. Recently Senators Amy Klobuchar and Richard Blumenthal sent a letter to CMS requesting that it reconsider the changes. They write: “It is abundantly clear that when health or safety is compromised, when errors occur, or in the worst cases, when patients are harmed, there must be a wide range of strong enforcement actions available to ensure that these adverse events are not repeated, precious federal dollars are not wasted, and most importantly, lives are not lost.” A senior attorney at the Center for Medicare Advocacy, Toby Edelman, claims that CMS is “not seeing their responsibility as helping to assure the health and welfare of residents. They’re working to please their customers, the nursing homes.”

What You Should Do Now: Research and Monitor!

The relaxed fines make it more important than ever for you to thoroughly research a nursing home in which you are considering placing a loved one, and to continuously monitor your loved one's welfare once he/she is there. 

  • Visit. It is imperative to actually visit the facility, especially on weekends and evenings. Ask questions of nursing staff, administrators, residents and residents' family members. Try the food. Ask about use of restraints, psychotropic drugs, staff ratios, staff turnover. Is there special care for those with dementia? How does the place look and smell? Is the facility within a reasonable distance so that family and friends can visit?  
  • Check Out Nursing Home Compare. Also check out Medicare Nursing Home Compare. While the 5-star ratings will be "frozen" for 12 months to allow criteria to be updated, serious deficiencies will still be reported on the site. 
  • Be Careful About Signing Admissions Agreements. Since pre-arbitration clauses are still legal in admissions contracts, know that signing such a clause means you are giving up your right to sue if your loved one suffers injury or neglect. Make sure you read the paperwork carefully. For guidance on what to look for when you are signing admissions paperwork, see my prior post.
  • More Information. Additional detailed guidelines on how to find a good nursing home can be found here:

Feb 8, 2018

New Medicare Cards Are Coming (And Bringing Along New Scams, Of Course)

Starting in April 2018, new Medicare cards will be mailed to 60 million Medicare beneficiaries. Mandated by the Medicare Access and Chip Reauthorization Act of 2015, the new cards will not display your Social Security number. Instead, your card will display a randomly generated, 11-character beneficiary identification unique to you. It is expected that this new format will reduce identity theft.

Here are some other facts to know about the new card and the rollout:

  • The cards will be mailed out in phases. Sorry, Floridians, you will not be among the first to receive them. The first recipients will be residents of the mid-Atlantic states, along with California, Oregon, Alaska and Hawaii. 
  • Even people living in the same state may not get their cards on the very same date. So if your neighbor receives the new card before you receive yours, don't worry.
  • All your benefits will remain the same. 
  • The roll-out process is expected to be completed in 2019.
  • Beginning Jan. 1, 2020 health care providers will no longer accept the old cards.
  • When you get your new card, destroy the old one by shredding it or otherwise destroying it. Remember, it still has your Social Security number on it!
  • Even though your new card doesn't display your Social Security number, the information on it is private and valuable. Keep the card secure.
  • You do not need to do anything to request the card. It will be sent to you automatically.
  • Not surprisingly, scammers are already seizing on the issuance of new cards as an opportunity to fleece the public. There have been reports of Medicare beneficiaries receiving calls in which they are told they must pay a fee to secure the new card, or provide their Social Security number to the caller. If you get a call like this, hang up and call 1-800-MEDICARE to report it!

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