Orlando Estate & Elder Law

Social Security Part III - How to Apply

When to apply for Social Security benefits is an important decision that requires careful consideration, but it is also important to know how to apply.

It is very easy to find advice about when you should apply for Social Security benefits. Information is available all over the Internet. Some of it is good advice. Some of it is bad and some is terrible.

What often gets lost in that discussion is the process of actually applying for benefits. You need to know where to apply and what you will need in the process.

Recently, My San Antonio provided some of that information in "Can I Apply for Social Security Online?"

You can apply for Social Security by going to your local Social Security office, by calling a representative or by filling in the application yourself online.

Regardless the method of application, you will need to provide information to satisfy the Social Security Administration that you are entitled to benefits. That information does not necessarily have to come in the form of specific documents. However, the Social Security Administration does commonly ask for a copy of your original birth certificate or some other proof of your date of birth.

If your birth certificate does not establish it, then you will need to provide proof of citizenship or other legal status.

It is common to be asked to provide proof of income for the last tax year. You will also need to provide information about your spouse, any dependent children and whether you have previously applied for Social Security benefits.

If you have questions about the application process, you can ask a Social Security Administration representative or contact me for a consultation.

Reference: My San Antonio (March 14, 2016) "Can I Apply for Social Security Online?

The End for 'To Kill a Mockingbird' in Schools?

A controversial decision by author Harper Lee's estate has many people wondering if 'To Kill a Mockingbird' will continue to be assigned reading in school.

Reading Harper Lee's anti-segregation novel To Kill a Mockingbird has become something of an American rite of passage. It is one of the most commonly assigned books in schools. Many people can probably recall the version of the book that a teacher passed to them.

As of April 25 that version will no longer be available, as the Tampa Bay Times reports in "Harper Lee's estate wants readers to pay more for 'Mockingbird'."

Lee's estate has informed the publisher of the paperback edition of the novel that it will no longer have license to print the book. Other, more expensive versions of the book will still be available.

This news comes shortly after a judge controversially agreed to seal Lee's will from the public so the public does not know who the author's heirs are and who is behind the decision to put an end to the paperback version of the book.

Lee's estate is not necessarily in the wrong.

It does have a duty to properly manage the author's assets for any heirs or beneficiaries. Selling To Kill a Mockingbird for a few dollars more could potentially lead to more money for those heirs or beneficiaries.

However, this decision could also backfire.

Many states have cut school funding in recent years and many schools in other states are feeling a pinch as well. Those schools might assign less expensive books instead of Lee's work.

I'll be happy to discuss plans to maximize your estate, no matter the size or contents.

Reference: Tampa Bay Times (March 12, 2016) "Harper Lee's estate wants readers to pay more for 'Mockingbird'."

How Marital Agreements Fit In Estate Planning

Americans are familiar with prenuptial agreements that detail how a couple's property will be divided in the event of a divorce or death. In most states spouses can reach similar agreements after they get married.

The Wall Street Journal reports that the use of postnuptial agreements is increasing in "Why Postnuptial Agreements Are on the Rise." These are agreements married couples enter into that are similar to the more well known prenuptial agreements. The purpose is to enter a contractual arrangement that dictates how assets should be divided in a divorce or if one of the spouses passes away.

The article says that the most common reason for the agreements is to punish a wayward spouse as a condition of continuing the marriage. However, there is another reason couples might consider a postnuptial agreement.

They can be very useful in estate planning.

Every state has a law that gives a widow or widower the option of claiming a certain percentage of a deceased spouse's estate regardless what the estate plan says. This "election" is known as a spousal elective share. These laws are necessary to ensure that a spouse is not left without means of support.

However, in some cases they make estate planning more difficult, especially when both the husband and wife are independently wealthy or if one or both of them have children from a previous relationship.

Postnuptial agreements can be used in those situations to get around the spousal elective share. For example, they can be used to ensure that a family business goes to the owner's children instead of going to a spouse who could turn around and bequeath it to stepchildren or children from a future relationship.

Postnuptial agreements are not allowed in every state and many states that do allow them have strict rules to limit them.

Florida permits postnuptial agreements, with very specific rules.  Please contact my office to discuss how a marital agreement may fit your estate planning needs.

Reference: Wall Street Journal (March 10, 2016) "Why Postnuptial Agreements Are on the Rise."

Hospice Director Charged with Murder

Hospices are supposed to provide humane end of life care. Most do. However, one hospice in Texas shows why we should always be vigilant in protecting against abuse of the elderly.

Monica Patterson was the director of a hospice in Edinburg, Texas. It appears that she viewed the position as a way to unduly enrich herself. How so?

She may have gone so far as hiring someone to murder an elderly patient to get his estate.

Patterson is accused of hiring a man to go with her to the home of a 96-year-old hospice patient. While there she allegedly threatened the man's caretaker, an employee of the hospice. She and the man she hired then allegedly killed the patient.

The hired killer told investigators that Patterson promised him a portion of the victim's estate for his role in the killing.

The two are charged with capital murder. If found guilty, they could be sentenced to life in prison or receive the death penalty. Patterson is also accused of misappropriating more than $100,000 from the hospice for personal use.

The Brownsville Herald reported this story in "Former hospice director pleads not guilty."

Elder abuse is a serious problem in the U.S.

This story illustrates that it can be found almost anywhere and anytime. Sadly, even people entrusted with the care of the elderly are potential sources of abuse.

While there is no sure fire way to prevent elder abuse, it is important for friends and family members of the elderly to be alert to any warning signs.

If something seems suspicious, it should be reported to law enforcement or a trusted elder law attorney.  If you have any concerns or questions, please call my office for a consultation.

Reference: Brownsville Herald (March 10, 2016) "Former hospice director pleads not guilty

New Nursing Home Quality Measurements

The federal government has announced six new measurements for its system of comparing the quality of care patients receive at nursing homes.

Anyone interested in information about the quality of a nursing home can go to Medicare's website and use the Nursing Home Compare system to look up detailed information about the nursing home, including whether it has received any penalties. A five star rating system makes it easy to quickly compare different nursing homes against each other.

Of course, the ratings are only as good as the information that goes into making them.

McKnight's reports that the government will soon be adding six new measurements to the ratings in "6 new quality measures coming to Nursing Home Compare, Five-Star rating system."

The new measurements include:

• Percentage of people staying less than 100 days who had an emergency room visit.
• Percentage of short stays who were sent home and not soon thereafter readmitted to another nursing home or hospital and who did not die within 30 days.
• Percentage of short stays who were hospitalized after admission.
• Percentage of short stays whose physical functioning and locomotion improved.
• Percentage of residents of over 100 days whose independent movement got worse.
• Percentage of long stays who were prescribed hypnotic or anti-anxiety medication.

The first five measurements will be phased into the ratings over the next nine months.

If you have concerns about a family member or friend who might need nursing care, please schedule a consultation to discuss placement, care or finances.

Reference: McKnight's (March 4, 2016) "6 new quality measures coming to Nursing Home Compare, Five-Star rating system."

Japan Debating End of Life Rights

The right to refuse life-extending medical care is well-established in the U.S. Millions of Americans have living wills instructing doctors not to give them certain kinds of treatment. In Japan the idea is a novel one and being hotly debated.

In the United States when you prepare your estate plan, you will be asked if you also would like to get a living will. When you go into the hospital, you also might be asked if you want one.

Living wills allow us to direct doctors not to give medical care that would artificially prolong our lives when we have no hope of recovering. These documents have legal effect and doctors are not liable for following these directives.

Japanese attitudes have traditionally been different than ours. There it is normal for doctors to extend life as long as possible. There is no formal, legal way to order doctors not to.

However, under pressure from a struggling economy and an aging population, the Japanese attitude is beginning to change according to Japan Today in "'Living wills' spur debate on right to die with dignity in Japan."

People in Japan are starting to create their own living wills, but doctors do not have to follow them. In fact many doctors fear getting sued by upset family members if they do follow the living wills. This is sparking a national debate over the issue.

Those in favor of them say they allow people to die with dignity while the opposition fears allowing the living wills could be the first step towards euthanasia.

It will be interesting to see how the debate ends up in Japan.

In the meantime if you do not have a living will and you would like one, please schedule a visit to discuss this and other estate planning concerns.

Reference: Japan Today (March 8, 2016) "'Living wills' spur debate on right to die with dignity in Japan."

Gaddafi's Estate in Limbo Because of State of Libyan State

Muammar Gaddafi's son might have stolen money from the Libyan government and stashed it in a foreign bank. The new Libyan government would like it back, but questions over the legitimacy of the new government make that difficult.

Muammar Gaddafi's son opened a bank account in Malta in 2002 and by the time the son was killed in the Libyan revolution in 2011 the account had grown to €60 million (US$66.9 million).

His mother, Muammar Gaddafi's widow, is attempting to claim the money for herself. She is opposed in that action by the Libyan State Litigation Department, which would like the funds to be returned to the Libyan government. The  failed state status of Libya is creating problems.

The Libyan government official in charge of presenting documentation to prove the validity of the state litigation department has not done so. This appears to be because the official was appointed by Libya's Tobruk government while the litigation department is under the authority of the Minister of Justice in Tripoli.

The Malta Independent reported this story in "Dispute over Gaddafi's €90 million estate held in Malta."

Similar stories have appeared in the past.

Dictators or their families have in the past been accused of stealing money from their countries and stashing it in foreign bank accounts. Under international laws there is a process for successor governments to prove the money was stolen and reclaim it. However, it is not always easy to prove the money was stolen or that the new government is legitimate.

In this case, the government situation in Libya is playing into the widow's hands. She is the nearest relative as a successor to her son. If no one can prove the money was stolen and that it should be given to a legitimate government, then the widow could end up with the money.

Reference: Malta Independent (March 6, 2016) "Dispute over Gaddafi's €90 million estate held in Malta."

Nursing Homes Rejecting Returning Residents

Under federal law if a nursing home patient goes to a hospital and the nursing home subsequently refuses to readmit the resident, the resident is entitled to an administrative hearing conducted by state government. However, even when residents win the hearings it can be difficult to get some states to enforce their own rulings.

Bruce Anderson lived in a California nursing home for four years before he left the nursing home for a hospital due to pneumonia. When the hospital was ready to release him, the nursing home refused to take him back.

Federal law requires states to conduct an administrative hearing in these cases, which California did. Anderson won the hearing. However, as Next Avenue reports in "The Agonizing Limbo of Abandoned Nursing Home Residents" Anderson was not readmitted to the nursing home after winning the administrative hearing.

In California a different agency is supposed to enforce the rules than the agency that holds the hearing. The enforcement agency sometimes disagrees with the results of the hearing and refuses to enforce the decisions.

Anderson is suing the state.

This is an unfortunate situation and it is not uncommon. Nursing homes are often eager to get rid of residents who require a lot of staff attention. The problem, however, is that these elderly people have nowhere else to go to receive care and must remain in hospitals when it is not medically necessary for them to do so.

In many cases it is actually harmful to stay in the hospital. This also creates financial problems for hospitals, too. It can cost more to provide care for these patients than the government is willing to reimburse.

If you are or someone you love is faced with a similar situation, please contact my office for assistance. There may be time limits when decisions can be appealed, so don't wait!

Reference: Next Avenue (March 4, 2016) "The Agonizing Limbo of Abandoned Nursing Home Residents"

Should Dave Ramsey Be Held Accountable?

The Department of Labor's pending regulation concerning financial planners who handle retirement accounts has caused some concern that popular media figures like Dave Ramsey might be censored.

Elder law advocates have long been concerned that people who receive bad or self-interested advice from financial and retirement planners have little practical recourse. If someone follows bad advice about managing an IRA, then that person loses much needed retirement savings.

In an effort to address this concern the Department of Labor has proposed a regulation that would treat advisors as fiduciaries. As the reasoning goes, this would make it easier to hold them responsible for the advice they give.

Recently, talk radio host Dave Ramsey took to Twitter to criticize the regulation as Forbes reports in "How Fiduciary Rule May Censor Financial Broadcasters Like Dave Ramsey."

On his radio program Ramsey takes calls from listeners who give him a brief overview of a financial concern they have. Ramsey then offers advice. Sometimes Ramsey's advice is general, but depending on the question Ramsey's advice is sometimes very specific.

Some people believe the proposed regulation is broad enough that Ramsey and others in the media like him could fall under it. In turn, this regulation would effectively censor the type of advice that could be given without subjecting "Dave Ramseys" and others like him to potential liability.

Opinions are divided regarding whether these media figures should be regulated.

Critics say it will impede the free flow of discussion and ideas about financial matters. Supporters claim that since people rely on and act on the advice given, there should be a duty to give good advice.

Not matter what your opinion on the proposed rule, if you would like referrals to trustworthy financial advisers, please get in touch.

 

Reference: Forbes (March 4, 2016) "How Fiduciary Rule May Censor Financial Broadcasters Like Dave Ramsey."

 

Beware - Inherited IRAs Have Different Withdrawal Requirements

Many people are under a false impression that they do not need to make withdrawals from an IRA they have inherited until they would have to take withdrawals from an IRA they initiated. To avoid penalties it is important to understand the rules.

If you have an IRA of your own or you inherit one from your spouse, then you are not required to withdraw any money from it until you reach the age of 70 ½ . However, that is not the case if you inherit an IRA from anyone other than your spouse. Inheriting from someone else requires you to make withdrawals sooner or pay stiff penalties.

Recently, the News & Observer discussed the withdrawal rules in "Money Matters: Sibling seeks advice after inheriting brother's IRA."

Here are the basic rules:

• You must begin to take required minimum distributions the year after the IRA creator's death. This amount varies depending on the beneficiary's age. You can take more than the minimum amount, but everything withdrawn counts as income for income tax purposes. If you do not take the minimum amount, you will be assessed a 50% penalty and the amount you should have taken out will still count as income for tax purposes.
• There is an exception to the above if the IRA creator passed away before the age of 70 ½. You do not have to take a required minimum distribution as long as you take all the money out of the IRA within five years.
• If you make a mistake and do not take a distribution when you are required to do so, you can fix the error and apply to the IRS for a waiver of the penalties. As this can be complicated you should seek the advice of a professional.

Reference: News & Observer (Feb. 27, 2016) "Money Matters: Sibling seeks advice after inheriting brother's IRA."