Mar 21, 2017

Six years post diagnosis, Glen Campbell's wife reports on the Rhinestone Cowboy



As I reported in my post in 2013, acclaimed country music singer-songwriter Glen Campbell was diagnosed with Alzheimer's Disease in 2011. This was not entirely a shock to his fans, who had noticed the Rhinestone Cowboy forgetting lyrics during performances. At home, he began getting lost while driving well-known routes he'd traveled for years.

Campbell, his wife Kim and children never hid the diagnosis. On the contrary, they leveraged Campbell's high profile to bring attention to the disease.  In 2013 the Grammy Award-winning musician and his daughter testified in front of a U.S. Senate Subcommittee, explaining how the disease was impacting them and urging legislators to support research.

Kim, Cambell's wife of 34 years, cared for her husband at home until she found her strength rapidly decreasing and her worries about his safety increasing. She was always on alert to make sure he didn't fall down the stairs in their home. Eventually, he would no longer allow himself to be bathed. So, in 2014, the family decided that Campbell would be better cared for at long-term care facility in Nashville.

Now, six years after diagnosis, Kim has provided USA Today with an update on both of them. Unsurprisingly, Kim suffers from depression, but tries to remain socially and physically active. She writes a blog that provides information and support for caregivers. She visits Campbell, now 80 years old, nearly every day. He has declined significantly and is in the last phase of the disease. (The average life span after an Alzheimer's diagnosis is 2 to 8 years.) He is no longer able to play the guitar or sing. He is aphasic and can only utter a few words. When his daughter Ashley visits, she plays the guitar and sings for him. "You Are My Sunshine" seems to be one of his favorites. Kim credits her husband's musical mind for holding off the worst of his symptoms for a longer time than in most people, since music "sparks the brain." 

According to the Alzheimer's Association's 2017 report, Alzheimer's is the most expensive disease in America. Our Florida elder law attorneys meet regularly with families struggling to stay afloat financially while shouldering the cost of a loved one's long-term nursing care. According to the Alzheimer's Association, spending on Alzheimer's and other dementias will be $259 billion this year, and $1.1 trillion by 2010 if no cure or treatment is found. Every 66 seconds, someone in America develops the disease. If we had a treatment that could delay the onset by just five years - not cure it, just delay it - Medicare spending could be reduced by almost half in 2050.

The Campbell family's journey is especially timely now, as funding for the research they championed may be in the crosshairs. The National Institutes of Health (NIH), responsible for conducting and coordinating Alzheimer's research with other organizations, is facing a $5.8 billion cut under the White House's proposed budget, America First: A Budget Blueprint to Make America Great Again. While there was bipartisan support for a 2017 congressional appropriations bill to increase funds for research, there is no guarantee that this area of research will be insulated from the proposed cuts. Any cuts could certainly slow progress toward the goal of having a cure or treatment by 2025, says Bruce Lamb of the Indiana School of Medicine. And the organization USAgainstAlzheimer's notes that starving Alzheimer's research could spell disaster for America's fiscal future. If you support robust funding to find a cure or treatment, be sure to let your representatives and senators know!

If you have a loved one with Alzheimer’s, consult our lawyers about how you may be able to tap into Medicaid and/or VA benefits before you lose everything to a nursing home. Even if you are healthy now, we can help you prepare in case disability strikes in the future.
Let's all keep working toward a world without Alzheimer's!

Mar 20, 2017

Parents of Minor Children - Make These Plans for Your Peace of Mind

Sara Hankins made sad headlines recently. The Illinois mother of four was diagnosed in 2016 with Lou Gehrig's Disease, and lost her life on March 13 this year at age 36. Her primary concern during her last months was not herself, but her children. Who would care for them?

If you have young children, planning for your death or incapacity is probably the last thing on your mind. You are busy thinking about the good things ahead, carpooling, helping with homework, coaching soccer. But as Sara Hankins' story shows us, life can be unpredictable. And while she had several months to plan for her children's future, tragedy sometimes strike without warning, on the highway or as a result of some medical catastrophe. As a loving parent of a minor, it is important to make plans so that your child is protected, no matter what the future holds. 

Many parents with minor children are short on financial resources. However, you need not be wealthy to put a plan in place, nor does it need to be overly complicated. Here the key elements of a basic plan to protect your minor children. 



Create a Health Care Surrogate for Your Child

Even when you are alive and well, your child may become ill when you are not available to talk with his/her doctors and decide on treatment. You could be out of town for work, for example. Or you might be ill or incapacitated. Florida Statute 765.2035 permits you to create a "Designation of a Health Care Surrogate of a Minor" authorizing someone you know and trust to make those decisions in your absence. You should name a back-up surrogate in the event your first choice cannot serve. 

Frequently clients may name several surrogates, giving any one of them the authorization to act. For example, your child may have two sets of grandparents or perhaps a number of other relatives watch your child, and you would want any one of them to be able to make your child's decisions if you are not available. 

You should also be sure that your surrogate form contains a HIPAA release. This gives permission to your child's medical providers to release confidential information to your authorized surrogates. 

If there are two parents, both parents should execute the same instrument. 



Your Last Will and Testament

Your will must conform to Florida law and be properly drafted and executed with all the formalities required by the state. I caution anyone against using pre-printed forms or online resources. These resources come with a warning denying liability for mistakes. See a competent estate planning attorney to make sure it's done right. Your will should have certain elements that provide protections for your child.



Name a "Guardian of the Person" for Your Child

If you pass away, The Florida Probate Court will choose a guardian for your child, based on what it decides is in your child's best interest. But you can let the court know your preference of guardian by naming a "Guardian of the Person." You can do this only one way: through a provision in your will. Your will must be properly drafted and executed according to Florida law.  The Probate Court will generally honor your wishes, unless the nominated guardian appears grossly unfit or is unable to serve at that point in time.

There are many issues to consider when deciding on a guardian. Although grandparents may seem the logical choice, their age and ability to handle the physical and mental challenges of raising children must be considered. A prospective guardian's moral and religious views may be important to you, as well as the person's location, in order to minimize any further disruption to your child's life. Find out if the person you wish to name actually wants the job, and be sure to name backup guardians in the event your first choice cannot serve.

If there are two parents, each should have his or her own will, obviously naming the other as guardian. Each parent should also include back-up guardians in his/her will, in the event both parents are deceased. Each parent should name backup guardians, and obviously, it's best if the backups are the same. 



Name a "Trustee of the Property" for Your Child
 

Your will should also have a provision naming a "Trustee of the Property" for your child. The trustee will manage your child's inheritance for your child's benefit, until the age at which you authorize your child to receive the funds. 

If you fail to designate a trustee, the Probate Court will appoint a Guardian of the Child's Property. Then the child will receive money upon reaching majority age. Most parents do not want their children to receive their inheritance at 18 or 21, preferring instead a somewhat later age, when the child may be more fiscally responsible. Naming a trustee allows you to achieve that goal.  

You should name backups in the event your designated trustee cannot serve.  The trustee of the property may be the same individual you have named as guardian of the person, but need not be. 

The fact that you may have limited financial resources currently does not detract from the need for a trustee. If you pass away, there may life insurance proceeds to be managed. Also, a lawsuit related to your death or incapacity may cause a large sum to flow into your estate.
 

More Then One Child? Create a Common Pot Trust 

If you have more than one child, we usually recommend adding a clause in your will requiring the creation of a Common Pot Trust upon the death of the parents. 

If there are two parents, each should have his/her own will with this clause. The will usually indicates that the parents leave everything to each other, but if they both die, the estate will pass to the Common Pot Trust.

The Common Pot Trust will hold your children's money. All the children will be beneficiaries, with your trustee having discretion over how the funds will be used based on each child's unfolding needs. This is what we do as parents: we strive to give each child what he/she needs, and we do not keep a ledger so that the expenditures are equal. For example, one child may require expensive orthodontics and another not. One child may be a straight A student and another may need tutoring to get by in school. One child may get a scholarship for college and another need parental help for tuition. The trustee of the common pot trust should have the same latitude as you would to use the funds as he/she sees fit, without having to make things "equal."

Usually, the trust will contain language directing the trustee to terminate the trust when the youngest child attains a given age. At that time, the trustee will divide any remaining funds equally among your children.  


Review Your Beneficiary Designations

When you have children, it's time to review your beneficiary designations. If you are married, your spouse may be the death beneficiary. If not, it will probably be your children, or they will be the contingent beneficiaries if your spouse predeceases you. Items to look at include your IRA/401K, bank account, brokerage accounts, and of course, life insurance policies. 

If your children are minors, do not name them as beneficiaries. If you do, the court will create a guardianship for them and select a guardian to hold the money they have inherited. By law, your child will receive the funds when he reaches majority age, and many children are too immature at that point to prudently handle a lump sum of money. It is preferable to require any money your child receives through a beneficiary designation to be managed by the Trustee of the Property you have named in your will.



And for You, the Parents

Who will handle YOUR affairs if you become incapacitated? Who will continue to pay your bills, or make your medical decisions? Every adult, parent or not, should have:  
  • A Durable Power of Attorney: This allows you to name someone who can handle your finances should you be unable to do so yourself. You should also name backups.
  • A Health Care Surrogate: This is like the Durable Power of Attorney, but the person nameed is authorized to make your health care decisions. Name backups in case your named surrogate cannot serve. Also be sure that the document contains a HIPAA release so that your surrogate can get confidential information from your medical providers, pharmacies, health insurance company, etc.

Parents can derive great peace of mind by putting these plans in order. You will know that if life takes an unwelcome turn, your have a Plan B that will protect your children now and in the future.

Mar 15, 2017

Services a Florida Elder Law Attorney provide you and your family



Just what does an elder law attorney do? What are our services? Why would you want to consult with an elder law attorney? Are our services different from what an estate planning lawyer provides? You may not know the answers to the above, because elder law is a relatively new field of law. Let me clarify some of the areas in which we can help you and your family.

Elder law focuses on the legal issues of greatest concern to people as they age. And today in America, there’s a lot of concern! According to the census bureau, 40.3 million Americans were age 65 or older in 2010. That number is expected to rise to 89 million by 2050.


One issue of concern to older people is making sure their loved ones inherit their assets as efficiently, inexpensively, and stress-free as possible. This is estate planning, and it’s one of the services I provide. I help clients set up wills and trusts and determine how to best structure these plans. Many clients want to keep their estates out of Florida probate. Others with taxable estates seek my help to minimize or eliminate the tax bite. 


Some of our clients have additional planning concerns. For example, he/she may have children who do not get along and cannot serve as co-trustees or co-beneficiaries. Or a child may have a disability, making a special needs trust and additional legal and financial planning advisable. A parent may be estranged from a child and wish to disinherit him/her, or include him/her in an estate plan in a way that does not jeopardize the other beneficiaries. Or a client may be so concerned about a child’s reckless spending habits that it is prudent to install certain controls in the plan. Retirement plans like IRA's and 401K's often require special treatment in one's estate planning, too.


Blended families, so common these days, can present particularly thorny estate planning challenges. A person in a second marriage who has children from a prior marriage often wants to ensure the spouse is taken care of, while still protecting his/her own children’s inheritance. The couple may have their own children together, too. It can get complicated!


Of course, when someone dies, my law firm helps the family with the probate or the trust administration.


As you can see, elder law attorneys do what estate planning attorneys do. But they do more - because elder law is not just about death. It’s also about life. We help clients remain in control of their medical destiny and their financial affairs while they are alive. Today's longer life spans mean we have a greater risk of becoming incapacitated at some point. If you are like most people, you will want to authorize someone you know to handle your health decisions and finances, not a court-appointed guardian who may not know your values or priorities. To make this happen, we will help you create a durable power of attorney, and a health care surrogate. We will also help you fashion a living will to ensure that your wishes are honored at the end of life. Of course, all of these “life plans” need to be consistent with your “estate plans.”


Even younger people need our services, making the term “elder law” unrealistically restrictive. For example, my clients include many first-time parents who recognize that they need to set up a will in to name a guardian for their children. If they have a special needs child who will likely never be self-sufficient, they need to start planning accordingly. Younger couples comes to us to ensure that the spouse is protected should one of them become ill or pass away. We even prepare health care powers of attorney and durable powers of attorney for young adults going off to college, since once a child achieves majority, parents are no longer able to automatically make decisions for the child.


Another area of practice unique to elder law is long-term care planning. The incidence of incapacity is growing dramatically, especially diseases like Alzheimer’s. Alzheimer’s and other dementias are very expensive diseases. If a loved one needs a nursing home on a long-term basis, the vast majority of families will go broke in short order. A significant part of our practice is devoted to helping families get access to government benefits like VA benefits or Medicaid, allowing the family to preserve some portion of its assets. This is a particularly urgent issue when the patient has a well spouse whose nest egg is threatened by nursing home costs. 

As you can see, we elder law attorneys have a lot on our plate. If any of these issues I've mentioned concern you, we look forward to assisting you!

Feb 27, 2017

David Cassidy, 1970s teen hearthrob, suffering from dementia

Fans knew something was wrong when he could not remember the lyrics to songs he'd sung for decades. But for David Cassidy, it was a long-held fear come to fruition.

The 1970s teen heartthrob who gained fame on the Partridge Family television show, David Cassidy announced last month that he is suffering from dementia. He is no stranger to the disease. His grandfather had dementia. His mother, actress Rachel Ward, was diagnosed with Alzheimer's Disease in 2002, passing away ten years later at age 89. In recent years the musician has become an advocate for Alzheimer's research; in 2012, he auctioned off some of his old costumes to benefit the Alzheimer's Association.

Cassidy is not shying away from discussing his diagnosis. "People don't really want to talk about it, but we need to, which is why I'm going to be speaking publicly about it," Cassidy told the Daily Mail. He will appear on the Dr. Phil show on March 1, and the March 6 issue of People will feature an interview, "My Battle with Dementia." Cassidy's last concert, capping off 49 years of touring, is scheduled for March 4 at BB Kings in New York.

Nearly 80% of dementia cases are caused by Alzheimer's Disease, but other diseases may also trigger it. For example, vascular dementia is caused by damage to the brain's blood vessels. Lewy Body dementia, which afflicted Robin Williams and radio personality Casey Kasem, is brought on by  abnormal protein deposits in the brain. Those with a family history of dementia appear to be at greater risk. It occurs mainly in older people; a 2016 study in the Journal of the American Medical Association found that only 3% of people between ages 65 and 74 have dementia. Although the disease is degenerative and progressive, certain habits, such as a healthy diet and exercise, may forestall the diagnosis or slow progression.

It's a modern-day catch 22: Thanks to medical advancements, we are living longer. But because we're living longer, we are more likely to experience chronic disease. And it's not only a medical problem: Increasing numbers of families now struggle with the cost of a loved one's long-term care. Although there is no cure yet for dementia, there may be a solution to the financial dilemma it can create. You may be able to tap into Medicaid benefits without "spending down" and losing your nest egg to nursing home costs. And if you are a veteran or the widow of a veteran, you may under certain circumstances qualify for VA Improved Pension with Aid and AttendanceContact our firm for assistance from our Florida Bar Certified Elder Law Attorneys. 

Feb 23, 2017

The perils of outdated beneficiary designations

"But I just want a simple will!" "I'm not rich!" That's how some new clients respond when our attorneys ask to see a list of their assets and how they are owned (titled). We make the same request when we meet with clients for their periodic estate planning reviews. 

We are no more fond of  unnecessary paperwork than you are, so we understand resistance to filling out forms. Nonetheless, an accurate, complete and up-to-date asset list is essential if we are to ensure that your estate plan is, and remains, effective. Here's why: Assets for which you have named co-owners and/or death beneficiaries will not be distributed according to the provisions of your will. These assets will pass "outside" your will, by operation of law. This is not necessarily a bad thing; well-considered beneficiary designations may have a useful role in your estate plan. However, if your beneficiary designations do not reflect your true intent, or if you mistakenly believe your will supersedes the designations, you could be creating chaos for your family.

Here's a recent case that illustrates the point: Pennsylvania resident Gary Vassil worked for the federal government in 1997. At that time, he named his wife, Denise, as an 83% beneficiary of his Federal Employees Group Life Insurance Policy. The remaining 17% was to be divided among three other named beneficiaries: Megan Vassil, Melanie Vassil and Rhonda Ludwig. 

Gary and Denise divorced six years later. In April 2016, Gary died. Upon his death, the insurance proceeds were distributed as Vassil had requested back in 1997, with 83% earmarked for his ex-wife. As you can imagine, this did not sit well with Megan, Melanie and Rhonda. When they asked Denise to waive her rights to the policy and she refused, they took their case to court. But they did not get the outcome they wanted from the court, either: While Pennsylvania law denies an ex-spouse the benefit, federal law governing the policy prevailed in this case. Under the federal law covering the federal employees insurance policy, the death benefit must go to the named beneficiary (or beneficiaries) - unless the owner has changed the beneficiary, or the divorce decree indicates the ex-spouse is not entitled to it.

The court wrote:  "It may well be that Gary Vassil did not realize that if he wanted to change the distribution of his life insurance benefits following his divorce, he needed to submit a new beneficiary designation form or some other proof of his intent to alter his beneficiaries as required by §8705(e). If so, the payment of benefits to Denise Vassil would be contrary to the genuine wishes of Gary Vassil, and that is unfortunate. However under the applicable federal statute the Court does not have the power to remedy such a mistake." (You can read the text of the case here.)

Keep in mind that divorce is only one of life's many twists and turns that can impact on your beneficiary designations and therefore, on your estate plan. Our attorneys occasionally meet with people who have forgotten about an asset that names a now-deceased person as beneficiary. Sometimes we discover that a spouse who is in a nursing home and receiving Medicaid benefits is still listed as a death beneficiary for an asset and thus, if the well spouse were to die first, that inheritance could terminate the beneficiary's Medicaid benefits.

Insurance companies, brokerages and banks are bound by the law. They cannot ascertain what an asset owner's true intention might have been, or make moral judgments about which beneficiaries are really entitled to what. Therefore, it is up to you to make sure your beneficiary designations truly reflect your current situation and your current intent. Our Florida estate planning attorneys will review your asset list when we meet, and will help you determine if any of your beneficiary designations needs fine tuning. Note that if you want to change beneficiaries, it cannot be done through your will. You must notify your insurance company, banks, brokerages, etc., and submit the appropriate forms. It is always a good idea to request written confirmation of the change, and save the confirmation for your records.

Feb 18, 2017

Medicare staff still using improvement standard to deny claims

Medicare beneficiaries must be covered for skilled rehabilitation services if the services help the beneficiary maintain his/her level of functioning and prevent disease progression. Medical improvement is not necessary for coverage. This was made clear in the Jimmo v. Sibelius case, which I told you about in a prior post. That ruling  is of particular importance to those with chronic conditions such as arthritis, cardiac disease, Parkinsons, etc.


Unfortunately, even now, seniors are often wrongly denied Medicare coverage based on the old improvement standard.  The problem has been fairly widespread, and led to a considerable outcry from Medicare advocates.


In response to a lawsuit brought by several Medicare advocacy organizations, a federal judge ruled on Feb. 2 that Medicare must better inform employees that otherwise eligible beneficiaries are covered for skilled rehabilitation so long as it prevents further deterioration. Among the required corrective actions included in the ruling: Medicare must maintain a web page devoted to the Jimmo v. Sibelius case, clearly explaining how claims should be handled. In addition, the agency must provide appeals judges, claims processors and other relevant staff with new training. You can read the judge's ruling here.  Medicare has until September 4 to comply. 


So what does this all mean for you if you are a Medicare beneficiary or caring for one? First, be sure to discuss care and coverage with your medical providers, bearing in mind that the only criterion is whether skilled rehabilitation services are necessary, not if they produce improvement. If you have been denied coverage on the basis of not meeting the improvement standard, your appeal will now have greater weight. (Information on Medicare appeals here.)
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