Apr 21, 2017

New Yorkers say farewell to Jimmy Breslin

If you are or were a New Yorker, you know Jimmy Breslin. Chances are you either loved or hated him. The tough-talking, hard-drinking journalist wrote prolifically about the streets and the common people of the city he was born in, lived in, loved. He famously said, "When you leave New York, you ain't going anywhere." Breslin's work brought him numerous kudos, including a Pulitzer Prize, and ample notoriety. He was Norman Mailer's running mate for mayor in 1969, and David Berkowitz, the "Son of Sam" killer, wrote to Breslin in 1977: "I read your column and find it quite informative."

Breslin died this past March at age 88 (in New York, of course). According to papers filed in the surrogate court, his celebrity far exceeded his wealth. He left $99,000 in "copyrights in literary property" in a trust for the benefit of his wife, Ronnie Eldridge, a former member of the City Council. Evidently his publishers own most of his body of work. If anything remains in the trust after Eldridge passes, 70% will be divided among Breslin's four surviving children from his prior marriage, and 30% among Eldridge's six grandchildren from her first marriage. Eldridge also gets the assets the couple owned jointly, which include a condo and some bank accounts.

Breslin's will contained a no-contest clause, so that anyone who challenges the provisions is automatically disinherited. (Florida does not recognize no-contest clauses.)

One thing you can say about Jimmy Breslin: He was never bored. And he was never boring, a quality he described as "a felony." He will be missed.

Apr 14, 2017

When advance directives are ignored

When we discuss end-of-life wishes with clients, some clients say they want everything possible done to keep them alive, regardless of their physical condition or possible outcome. If they can hang on for a while longer, they reason, there might be some medical advance around the corner that restores their health. If that is your inclination, you have every right to direct your health care providers to pull out all the stops.

On the other hand, you also have the right to reject extraordinary medical procedures that could result in what you consider an unacceptable quality of life. In my experience, that attitude is far more common. But disturbingly, according to an April 10, 2017 New York Times article, the right to refuse medical treatment is sometimes not honored, even when patients have made the appropriate legal preparations. The logic of many medical providers seems to be to err on the side of caution: After all, someone who has been resuscitated can be disconnected from life support, but you can't bring someone back from death. 

One instance mentioned in the article is that of Beatrice Weisman. In 2013, at age 83, Weisman was hospitalized after having a severe stroke. A resident of Maryland, she had a Physician's Order for Life Sustaining Treatment, or POLST. (POLST is under development in Florida but not yet available here. In states that do permit them, a seriously ill or frail patient or his/her health care surrogate may establish, in consultation with the individual's doctors, guidelines for the types of treatments the patient should or should not receive. The POLST is different from the advance directives now available in Florida because it is an actual physician's medical order, an official part of the patient's medical record.)

Weisman's POLST indicated she was not to receive CPR in the event of pulmonary or coronary failure. It was located in her medical chart at her bedside. Nonetheless, when hospital staff found her in bed turning blue, they rushed to save her. She was defibrillated and received epinephrine injections. Several of her ribs were broken during the administration of CPR. Weisman survived. After a few years of physical therapy and round-the-clock care - paid for out-of-pocket by her family - she remains bedbound, attached to a feeding tube and catheters, and suffering from dementia. The family has sued the hospital for keeping her alive against her express wishes. Says her son: "I'm happy to see my mother each day, but I'm also seeing her suffer each day."

As we live longer and longer, it is inevitable that more cases of this type will occur. The courts seem inclined to side with plaintiffs. For example, the Georgia Supreme Court recently rejected a hospital's claim of immunity, stating, "It is the will of the patient or her designated agent, and not the will of the health care provider, that controls."

Of course, being revived against one's wishes is not always a function of overeager doctors and hospital staff.  It is all too common for a healthy person to have a valid living will prepared, yet fail to notify his/her family or health care agent that it exists, or where it can be found. Many people just stick it in a file cabinet or lock it up in a bank vault, and forget about it. And once someone becomes cognitively incapacitated, he/she may not be able to tell others that the document even exists. 

Your best bet to ensure your end-of-life wishes are honored is to make sure your physicians, family, friends and health care agent know about your advance directives, where they are located, and how they can be accessed. Some suggest downloading the documents to your mobile phone and to your loved ones' mobile phones, too.

Read about the various types of Florida advance directives here.
Read the original New York Times article on this subject here.
Read about the POLST form, currently in the planning stages in Florida, here.

Apr 9, 2017

Penn Treaty fails:What does this mean for you if you want long-term care coverage?

Thousands of people across the nation hold long-term care policies from Penn Treaty Insurance Company. The company and its American Network Insurance subsidiary have been in dire financial straits since at least 2001. With the company short the $4 billion necessary to cover claims, a Pennsylvania court in March gave the go-ahead for Penn to liquidate. The court reasoned that liquidation provided the best outcome for policyholders in a bad situation. 

What happens to policyholders now? 
State insurance guaranty associations will now pick up the benefits for its policyholders. According to estimates from the Long Term Care Group of the Guaranty Association, Florida is on the hook for about $354 million. However, in most states there is a cap on payouts. In Florida, the limit on individual payouts is $300,000. Some states have higher limits; in Connecticut and California, for example, it is $500,000. Note that to be covered, you must continue to pay your premiums. Read Penn Treaty's information for existing policyholders here

How could this happen? 
The long-term care insurance industry emerged about two decades ago in response to the needs of an aging population. Many companies underestimated the cost of coverage, however. Actuarial projections and premium structures failed to anticipate the number of policyholders who would claim benefits or let policies lapse. Penn Treaty had particularly lax underwriting standards; some of my clients who were turned down by other carriers were often able to secure Penn Treaty policies. A low-interest-rate environment also affected insurance companies' projected return on assets. As profits faltered, several carriers left the market, and those that remained raised premiums. The good news is, the insurers that survived are now doing a better job of underwriting.

Should You Get Long-Term Care Insurance? 
As with any form of insurance, there are no certainties, only  probabilities, risks and rewards to be weighed. Peace of mind should be figured into your calculations, too. In general, I am in favor of it. First, as noted above, traditional policies are now better underwritten and the companies in the market are more solid. Also, as I will explain later, new kinds of policies are also available today that were not available just a few short years ago. 

Here are a few facts and figures to consider: 
  • A 2015 report from The Centers for Medicare and Medicaid Services notes that at least 70% of those over 65 will need long-term care services at some point in their lives. 
  • A 2014 report from the Centers for Disease Control and Prevention finds that the average stay in a long-term care facility is 845 days. 
  • According to a 2015 Genworth Financial report, the average cost for a nursing home in a private room in Florida statewide is $265 per day. Based on an average stay of 845 days, the total cost is $223,925. (In some parts of the state, a private room can cost far more - as much as $505 daily.).
  • Medicare does not cover long-term care. 
  • Medicaid, which has been the saving grace for many of my clients, may continue to be available for those who do the proper planning. Even so, the fate of the Medicaid program is uncertain in the current political climate.
  • In Florida, it is very difficult to get Medicaid assistance for at-home care. The waiting list is near interminable. If one is able to qualify and secure assistance, it is usually only 4 hours per day of home care assistance.
  • Veterans Benefits may be available to certain elderly and aged veterans or their widows, but it is widely expected that the Veterans Administration will tighten its eligibility requirements in the near future.
  • You are more likely to qualify for and get better prices on long-term care insurance if you apply when you are younger and healthier.
  • Many of my clients say they do not want to spend their children's inheritances on long-term care. Understood - but without long-term care insurance, they may end up depleting their nest egg anyway, all the while having deprived themselves and their family of the peace of mind that comes from knowing there is coverage if the worst comes to pass. 

Types of Policies Available
Traditional: As noted above, traditional long-term care policies still are available from certain carriers. You should always investigate the ratings for these companies before you buy. Moodys, Standard & Poors and other organizations rate these companies for financial soundness.

Hybrid policies: There are both life insurance policies and annuities which may be purchased with a long-term care rider. Also, if you have an existing life insurance policy or annuity, you may be able to use the policy to purchase a new policy with a long-term care rider. If you want to cancel the policy or never file a claim, you may be entitled to a return of premium on an annuity policy, or for a life-insurance type policy, to a death benefit.

Here is a chart I originally posted in 2014 that will help you understand the differences between traditional and hybrid policies. If you would like to investigate purchasing long-term care insurance, contact my office and we can put you in touch with someone who can assist you.   
Traditional Policy
Hybrid Policy
You pay the premium annually or in periodic installments.
Annuities and most life insurance policies: you pay a lump sum at the inception of the policy. No additional premiums thereafter. Some life insurance policies may offer annual premiums.
Policy Lapse
Policy will lapse if you fail to keep up with the premiums. No refunds. No benefits from premiums paid to date.
Policy remains in force after initial payment, except life insurance policies with annual premiums, which must be paid.
Premium Increases
Premium increases may occur if company gets approval for increase from State Insurance Commissioner.
No increases.
Filing a Claim
When you file a claim and if your policy has a waiver of premium clause, you will not have to continue to pay premiums.
With a lump sum annuity or life insurance policy, you may owe no additional premiums. With the life insurance policies that have additional premiums, you will have to make payments even after you have filed a claim, unless you have a waiver of premium clause in your policy.
If You Never File a Claim
No return on what you’ve paid in.
On an annuity type policy, you will be entitled to a lump-sum payment when you cash in the policy, or upon your death. With a life insurance policy, you will be entitled to a death benefit as scheduled.

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 had begun 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 is usual, 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 2050 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 Alzheimer's 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 last year with Lou Gehrig's Disease, and lost her life on March 13, 2017. She was just 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 strikes 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 are 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 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 who 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, as noted below.

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 for 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 guardian you have nominated 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 where the potential guardian resides, 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. It's best if the parents name the same successor guardian(s).

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 his/her 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. 

Having limited financial resources currently does not detract from the need for a trustee. If you pass away, there may be life insurance proceeds to be managed, or 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 that requires 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 containing 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 do not keep a ledger to equalize expenditures. For example, one child may require expensive orthodontics and another may not. One child may be a straight A student and another may need tutoring to keep up. One child may get a scholarship for college and another may need parental help for tuition. The trustee of the Common Pot Trust should have the same latitude as you have 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 named is authorized to make your health care decisions. You should also designate 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, you have a Plan B that protects your children now and in the future.
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