New Study Reveals How Well Seniors Adapt to Disability

Apr 18, 2014  /  By: Barton P. Levine, Esq.  /  Category: Uncategorized

Most of us worry about our parents and their wishes and efforts of living independently. Most of us can also relate to sitting at the office and wondering if Mom is sitting in her favorite recliner watching reruns of Gunsmoke or The Andy Griffith Show or if she’s attempting to reach that top shelf that houses her secret stash of chocolate. It’s about that time we pick up the phone to call her again…for the fifth time that day. And so our days go, a balance of wondering if our elderly parents are safe and sound and making sure the quarterly numbers match the report that’s on its way to our boss.

A new study published by the American Journal of Public Health provides interesting insight and statistics on just how successful our older loved ones are when it comes to adapting to living independently and especially if they’re disabled in some way.

Disability is defined for these purposes and by the Journal as a reduced ability to perform activities such as bathing, using the toilet, getting around, cooking or shopping because of deteriorating strength, mobility, pain or other physical or cognitive challenges.

The study focused on Medicare enrollees, 38 million of them, who were placed into five distinct categories:

  • Those live alone and with no assistance
  • Those who have disabilities but who are able to incorporate assistive technology
  • Those who have reduced their physical activities but aren’t likely to admit to it
  • Those who say there are daily difficulties in living independently, but are able to do so despite that; and
  • Those who rely on some form of daily assistance, either from friends, family and/or neighbors

The study itself was conducted by researchers with Johns Hopkins University, the Urban Institute, the University of Michigan and other institutes that contributed to some degree.

What their combined efforts found were that 12 million elderly are “fully able” to manage daily living on their own with no help. This equates to 31 percent of Medicare recipients. Another 25 percent of Medicare recipients, or 9 million, have found a way to adapt successfully to their disability while 6 percent, or 2.1 million, have reduced their activities without necessarily admitting it and 7 million are finding it increasingly difficult to function on their own.

Around 7.7 million received assistance at least once a month, and that includes those living in nursing homes.

What’s so enlightening about this report is that it’s the first of its kind and really focuses less on categories of “disabled” or “independent” and instead stresses their day to day lives that may or may not have assistance, even in a minimal way. It suggests that even if we lose some of our ability to function as easy as we used to, we’re not losing our independence.

This plays a big role, both now and in the future, of those preparing for retirement and wondering what that looks like. For too long, many assumed they would find themselves facing nursing homes or other living facilities versus remaining at home. It also provides insight as more of us move towards putting those important powers of attorney into place, such as who will be making our medical and financial decisions at some point. In other words, just because we lose the ability to climb that stepladder to retrieve the chocolate we “hid” from ourselves, we don’t lose our ability to rethink that decision and hide it a bit closer on a shelf we can reach without the aid of a stool.

Even if you’re already living independently, it’s a good time to give your estate plan a check-up. Review those powers of attorney, update your will, be sure you’ve included any changes you’ve been considering. Give us a call today to learn more so that you can get back to the business of those Andy Griffith reruns

The Law Offices of Barton P. Levine is a member of the American Academy of Estate Planning Attorneys.

Elder Abuse Laws Gain Traction

Apr 17, 2014  /  By: Barton P. Levine, Esq.  /  Category: Elder Law, Uncategorized

Tennessee’s version of an elderly abuse law is gaining traction as it cleared the Senate this week, courtesy of Sen. Rusty Crowe (R). The goal is to put in place stronger safety mechanisms that will better protect the elderly and other adults with disabilities against abuse. If Senate Bill 1852 makes it over the remaining political hurdles, the punishments will be increased for those who abuse, exploit or neglect the disabled or elderly.

This will empower district attorneys’ efforts in prosecuting those crimes. It removes some of the challenging hurdles that have traditionally required extraordinary evidence, partly because the victims are often unable to testify on their own behalf due to dementia, Alzheimer’s or other disabilities.

Elder Abuse Statistics & Reporting

One big problem every state faces is the realization that many don’t report the abuse. The statistics reveal only one in 24 cases of elder abuse are even reported. This, according to the New York Elder Abuse Network, truly highlights the tragedy and much needed overhaul to every state’s laws.

New York’s laws have been on the books since 1995. The Elderly Abuse Education and Outreach Program was founded to provide resources, including education and outreach, for the public, but specifically to the state’s elderly and their caregivers. Recently, New York lawmakers laid aside $945,000 in order to keep the program available.

Because the elderly are at a higher risk of death, injury and illness, they’re far more likely to be victimized. In New York, more than 14 percent of seniors have experienced some type of elder abuse since turning 60.

While the changes to the various laws in Tennessee will help prosecutors, this state took it a step further with a statewide database, “Adult Abuse Registry”. This will require cities and counties to report those people who have been convicted of elder abuse and those in the healthcare sector are required to check the database prior to hiring an employee.

Every state has some form of reporting elder abuse, though typically, the mandatory aspect of those reports usually fall to medical providers, government agencies and mental health counselors.

Legal Protections

For many families, guardianships provide an additional level of security for their loved ones so that they’re less likely to be taken advantage of, especially from a financial perspective (elderly financial abuse is on the rise, as well). A guardianship can be used for health decisions, which means there are no legalities that prevent meeting with loved one’s doctor with the patient. This open line of communication is crucial as a physician can often spot signs of elder abuse that others miss. When guardianships or powers of attorney are in place, there’s no break in communication and loved ones are less vulnerable

One of the biggest problems, regardless of which state it is, are the startling statistics on who commits elder abuse. In New York financial abuse cases, more than one-third of the criminals are family members. It can be difficult for families to learn an elderly loved one has been abused, but it’s worse when they learn it’s their own family member. With legal protections in place, it can help ensure this type of abuse never occurs.

Need legal guidance for an elderly loved one? Our office can help put into place powers of attorney, guardianships and much more. Give us a call today for a free consultation.

The Law Offices of Barton P. Levine is a member of the American Academy of Estate Planning Attorneys.

Can You Probate Your Will Before You Die?

Apr 09, 2014  /  By: Barton P. Levine, Esq.  /  Category: Estate Planning, Probate, Wills

Probating your Will before your death often makes practical sense. By pre-probating your Will, you can avoid confusion about your Will, including whether it is your most recent Will and if you actually died with a written Will. You do not have to keep track of your Will and do not have to provide multiple sets of instructions to your loved ones about where they should keep your Will. If you can probate your Will before your death, your county clerk’s office or county recorder can index and record it for public retrieval. Not all county recorders, probate courts, or circuit courts (names for courts vary by jurisdiction) can probate your Will before you die. If your local rules allow you to pre-probate or register your will before your death, you may want to ask your probate attorney to do so or speak with he or she as to whether it is a good idea. If you draft a will, but your relatives or executor cannot locate it, you may be subject to your state’s intestacy statute. This means that the heirs to your estate are not established by your will. Instead, the succession laws applicable in your state establish them.

Even if you can probate your Will before you die, you should let your heirs know so that your Will directs or controls your testamentary intent, instead of the state intestacy statute.

The Law Offices of Barton P. Levine is a member of the American Academy of Estate Planning Attorneys.

Why You Need to Avoid Ambiguity in a Last Will and Testament

Apr 08, 2014  /  By: Barton P. Levine, Esq.  /  Category: Estate Planning

An estate plan can be an elaborate set of legal documents or it can be as simple as a Last Will and Testament. In all estate plans, however, a Will is where it all starts. Your Will provides the basic framework and guidance for the way in which you want your estate handled upon your death. For this reason, you must be certain that you have not included any ambiguous terms in your Will that will cause your entire estate plan to become the subject of a long, drawn out estate battle. Not only will this hold up all of your estate assets for months, even years, but it will costs your estate a considerable amount of money in legal fees. Ambiguous terms in a Will can be found in almost any part of the Will, including the following:

  • Specific bequests – failing to describe the item with specificity so that a court is clear on what you are gifting. For example, using “my grandmother’s lamp” when no one is certain which lamp belonged to your grandmother
  • Specific bequests – failing to identify the person to whom you wish to make the gift with specificity. For example, using “my grandson” when you have more than one.
  • Residual clause – This is where the remainder of your estate is handled after specific bequests have been honored. Failing to name the beneficiaries with clarity can cause a problem. For example, saying “my heirs” may not be sufficient.
  • Residual clause – Failing to be clear about how much of the estate will go to each beneficiary.

Avoiding ambiguity is simple when you consult with an estate planning attorney. Although using a generic form may seem like a great money saver, in the long run it may cost your estate and your beneficiaries considerably more money than you saved.

The Law Offices of Barton P. Levine is a member of the American Academy of Estate Planning Attorneys.

Beware of Offshore Accounts

Apr 05, 2014  /  By: Barton P. Levine, Esq.  /  Category: Estate Planning

Years ago, sheltering money from taxes, creditors and even spouses by placing it in off shore accounts was a common practice for United States citizens. Times have changed though, and the U.S. government has really cracked down on loopholes that were used to avoid the payment of debts and taxes, including the offshore account tactic.

Despite changes in the laws relating to banking and taxes that all but make offshore accounts the thing of the past, unscrupulous companies continue to try and lure investors into transferring money into offshore accounts. This is one of those situations that falls into the “if it sounds too good to be true, then it probably is”. Advertisements abound by planners that claim they can set up accounts or trusts that will shelter money from U.S. taxes, creditors and even from current spouses or ex-spouses in the event of a divorce. While this sounds attractive, the asset protection an investor is looking for could actually land him or her in jail. At a bare minimum, the funds placed in those accounts will likely still be accessible by the U.S government and most courts. In some cases, the investor could be accused of outright fraud.

Before you become a victim, or worse a criminal, sit down and talk to your estate planning attorney. If there is a legal way to protect your assets from taxes or creditors, your estate planning attorney can help you do it without the risks involved in trusting a planner you don’t know.

The Law Offices of Barton P. Levine is a member of the American Academy of Estate Planning Attorneys.

Charitable Giving – Steps to Choosing and Including the Right Charities in Your Estate Plan

Apr 05, 2014  /  By: Barton P. Levine, Esq.  /  Category: Estate Planning

For many people, charitable giving is an important part of an estate plan. Choosing which charities to include in your estate plan, how to include them, and how much to give though can be a difficult process. According to the National Center for Charitable Statistics, there are over one million public charitable organizations in the United States alone.

If you already support a local charity, then you are ahead of the game. If you are still trying to decide which charities interest you, you may be able to narrow down your search by searching websites like charitywatch.org. Once you have chosen some possible candidates, make sure that the IRS recognizes the charities to ensure that your gifts will be tax deductible. You can check for IRS recognition using the Exempt Organization Select Check. Finally, you will likely want to look into how your gift will be used. What percentage of your gift actually goes to help your charity and how much is spent on administrative costs? Is your charity financially stable? Questions like these can be answered by looking up the charity on Charity Navigator.

Once you have decided on a charity or charities, sit down with your estate planning attorney and decide how you want to include your chosen charity in your estate plan. You may opt for a direct gift in your Last Will and Testament or you may want to create a trust that will provide continued giving long after you are gone.

The Law Offices of Barton P. Levine is a member of the American Academy of Estate Planning Attorneys.

Estate Planning for the Blended Family

Apr 04, 2014  /  By: Barton P. Levine, Esq.  /  Category: Estate Planning

A second or subsequent marriage often means that two families now become one. The period of adjustment that often accompanies a new marriage can leave both spouses a bit exhausted. Be sure that in the midst of all the other issues and concerns that you must address that you don’t forget some important estate planning considerations such as:

Obligations to a former spouse – a previous divorce decree may require you or your new spouse to pay child support. Alimony as well as could require maintenance of a life insurance policy. Failing to fulfill these obligations could give a former spouse a claim on the estate.

Beneficiary designations –people often forget that they made a former spouse a beneficiary on an old life insurance policy or retirement account. Now is the time to dig those out and change them.

Fiduciaries – You, or your new spouse, may also have made a former spouse, an executor, trustee, or agent in a power of attorney—designations that should be changed. If you designated an adult child in one of these roles, you may also wish to change that to a neutral third party now that you are part of a blended family.

Last Will and Testament – people often make the mistake of using a do-it-yourself Will and simply gifting everything to a spouse, and if the spouse is not alive to the children. Now that you are re-married though, this could mean that everything goes to your new spouse and then you have to count on he or she to leave assets to your children from a previous marriage upon death.

The Law Offices of Barton P. Levine is a member of the American Academy of Estate Planning Attorneys.

Have A Pet? Make Provisions In Advance

Apr 03, 2014  /  By: Barton P. Levine, Esq.  /  Category: Pet Planning

Loneliness can be a problem when you reach an advanced age, and this takes place when you perhaps lose your spouse and your children are busy with their own lives. There is no replacing those that you love, but you can try to remain positive and seek companionship through pet ownership.

Owning a pet as a senior citizen can be rewarding on a number of different levels. For one thing, as we all know the dog is man’s best friend and having a loyal buddy around the house can certainly perk up your spirits. And cats may be a bit more independent but they can be good companions as well.

In addition to this, owning a dog or cat can provide you with a renewed sense of purpose as you once again have a little dependent in the home who needs you. Plus, owning a pet can be good for your health because you may find yourself getting more exercise as you take your pet outside for walks.

You do have to make sure that your pet will be provided for if you predecease the animal. The first step will be to identify someone who will take care of the pet if it becomes necessary. The second step is to provide for the caretaker financially.

This can be done through the creation of a pet trust, and these trusts are becoming more and more popular every day.

If you are interested in learning more about how to include your pet in your estate plan, don’t hesitate to pick up the phone to arrange for a consultation with a good estate planning attorney.

The Law Offices of Barton P. Levine is a member of the American Academy of Estate Planning Attorneys.

Why an Independent Trustee May Be a Better Choice

Apr 02, 2014  /  By: Barton P. Levine, Esq.  /  Category: Estate Planning

When it comes time to create an estate plan, many people choose to include much more than a simple Last Will and Testament. One common additional beyond a simple Will is a trust. One benefit to a trust is that it can be as simple, or as complex, as you need it to be. Regardless of how detailed your trust is, however, you will need to appoint a trustee. Although it may not be your fist thought, you should think about appointing a neutral, independent trustee.

Most people immediately think of appointing a spouse, parent, or adult child as the trustee of their trust. Appointing a family member may seem like the obvious choice; however, it can create more problems than it solves in the long run. People tend to choose a family member because they want to keep control of assets in the family or because they feel a family member can better understand family dynamics. While these may be valid points, there are other things to consider as well.

Being the trustee of a trust is typically a complicated and time consuming job. It usually requires a significant amount of experience and knowledge of both financial and legal matters – knowledge that a family member may not have. If your trustee makes even a simple, inadvertent mistake, he or she could be personally liable and trust assets could be forever lost. Furthermore, other family members may resent the appointment and the perceived control the trustee has over them if they are beneficiaries. In the end, it often makes more sense to appoint an independent trustee who has the requisite experience and knowledge to carry out the job well. Ask your estate planning attorney for recommendations for independent, professional trustees in your area.

The Law Offices of Barton P. Levine is a member of the American Academy of Estate Planning Attorneys.

Is It Time for a Family Meeting about Estate Planning?

Apr 01, 2014  /  By: Barton P. Levine, Esq.  /  Category: Estate Planning

Estate planning is one of those things that people often put off. There are numerous reasons why people procrastinate; however, it frequently boils down to the simple fact that people don’t want to think about their own death. If you are one of the minority who has actually taken the time to create a comprehensive estate plan then you are to be congratulated – but don’t stop there. Isn’t it time to sit down for a family meeting and discuss your plan?

From a legal standpoint, a well-drafted estate plan should take care of important end of life issues such as long term care, medical decisions, and divisions of assets after death. What happens though, if you never share your estate plan with your loved ones? From an emotional standpoint, what often happens is that you add another layer of stress or confusion to an already emotional time for your loved ones. If you get sick, how does your family know who is supposed to be in charge of your financial matters, much less you if they have no idea what your estate plan says?

The point here is that once you have taken the time to create an estate plan, consider sitting down with your spouse, children, or both and discuss the plan. You may wish to do so with your estate planning attorney in case there are legal questions that arise. By doing this, everyone knows what to expect, where documents are located, and what your wishes are when the time comes.

The Law Offices of Barton P. Levine is a member of the American Academy of Estate Planning Attorneys.