The Legal Checkup Blog

I had a frantic call from a client's daughter (Tanya) this morning, stating that she received a call from the IRS to inform her that they are suing her mother for fraud.  My client is elderly and lives in an assisted living facility in the area.  Her daughter lives out of the country.  As Tanya relayed the details of the call to me, it seemed likely that this was a scam.  After doing some quick research, I confirmed it, but the level of sophistication of some of these scammers is cause for alarm.

These scammers frequently prey on the vulnerabilities of elders, and this particular scam frequently seeks targets from other countries, sometimes benefitting from language difficulties or a fear of deportation.  The scammers learn enough personal information through social media and internet resources to lure their victims further into the conversation ... then they use fear and intimidation to make their victims comply with their demands.

While it is difficult to understand how so many people fall prey to such scams, we need to realize that these scammers are very good at what they do.  People from other countries frequently feel like "outsiders" on some level, and a call from the Internal Revenue Service stating that they are suing the person for fraud would be very frightening.  When a quick solution is offered (an immediate wire transfer of, say $5,000, the victim is relieved that the lawsuit, arrest, deportation, etc., can be avoided.  Your natural instinct may be to ask for the person's name and badge number, and some verification of their identity.  Some victims have reported that they asked these same questions, but they were met with anger and more agressive demands by the scammers.  While many people would realize that a real IRS agent would not behave in such a manner, the vulnerabilities of some of these victims prevents them from questioning authority - certainly not the IRS.

Following is an article regarding the most popular IRS scams.  Please spread the word and remind your loved ones not to fall victim to such scams! 

http://www.forbes.com/sites/kellyphillipserb/2014/02/19/irs-reveals-dirty-dozen-scams-for-2014/

I have seen it reported that consumers spent $59.1 BILLION last year on Black Friday.  $59.1 BILLION! 

This number is staggering to me, and even more so when I consider the significant portion of these sales that likely represents well-intentioned, but useless, gifts.  So many items will be returned because they are the wrong size, the wrong style, or just not something the recipient wants or needs.

Even worse, how many of you have received something that you would never wear or use, but you did not return it because you did not want to hurt the giver's feelings?  Perhaps you re-gifted the item the next year, but let's face it - there is a great deal of waste around the holidays, and the true meaning behind the gifting has been stampeded in a rush to get the best prices.

What concerns me even more is that many people take out loans or make these purchases on credit cards, digging themselves deeper into debt in the process.  This is not what the holidays are supposed to be about.  Thanksgiving is a perfect time to reflect as a family, and to take steps to put the meaning back in the holidays.

You may want to consider setting a dollar limit, or having a grab to reduce the number of gifts each person needs to buy.  You might consider implementing a new charitable tradition that the entire family can feel good about, such as making or purchasing items for nursing home residents who may not have family of their own, or for homeless families.  You could conduct a food drive to replenish the food pantries that are always in need, or send items to our troops who are in harm's way to protect our country.  The possibilities are endless, and these gifts are always the perfect fit.

Let me offer another suggestion.  Before you and your family spend hundreds of dollars on things you probably don't need, consider putting the money towards something you should all have in place.  If every member of your family age 18 and older does not have a basic estate plan in place, consider spending on that instead.  At the very least, you should each have a Durable Power of Attorney and a Health Care Proxy with a HIPAA Release, appointing one or more agents to make health and financial decisions for you if you become unable to do so.

You can get additional information on my website about estate planning, long-term care planning, and other services. 

www.TheLegalCheckUp.com 

Whether you will be part of the Black Friday stampede or collecting items for others, I wish you all a wonderful Thanksgiving!

Many of you are aware that I am very involved with the Massachusetts Chapter of the National Academy of Elder Law Attorneys (MassNAELA), and I am currently serving as the Chapter's President-Elect.  MassNAELA has approximately 500 members in the Commonwealth - attorneys who practice in the areas of Elder Law and/or Special Needs Planning.  In addition to the dedicated members of the Board of Directors, MassNAELA  has several Committees comprised of member volunteers who focus on various areas of advocacy and education to protect the rights of seniors and people with special needs in the Commonwealth. 

One of our most important efforts relates to litigation of wrongful denials of MassHealth and Medicare coverage, and several years ago we developed a Litigation Initiative to develop a cohesive approach to defend against the systemic abuses in the application process for public benefits.  One of our leaders and mentors in this effort has been Attorney John Ford and his colleagues at Neighborhood Legal Services.  John was one of the original members of MassNAELA and is a former President of the Chapter, and he has devoted his entire career to legal aid services - over 45 years!  John has brought his decades of experience in litigating issues affecting elders to provide guidance and mentorship to other MassNAELA members whose clients have been faced with wrongful Denials and a lack of Due Process.

However, John and his colleagues at Neighborhood Legal Services, like all Legal Services agencies, have been hit by hard times.  Budgets have been slashed, staff cut, and remaining staff forced to take time off without pay at times to save other positions.

Whether you realize it or not, you or your loved ones in Massachusetts have likely benefitted from the commitment and dedication of John Ford and all of the other attorneys and staff at Neighborhood Legal Services.  And, their advocacy and guidance has been invaluable to MassNAELA's public policy and litigation efforts, helping us to ensure that the rights of seniors and people with special needs are upheld.  Neighborhood Legal Services has been there for people in need, and now they need us to be there for them.

PLEASE join me in making a donation - any amount you can afford - to Neighborhood Legal Services.  They recently moved to a new location in order to cut their rent expense in half, but they had to take out a loan to pay for the up-front costs.  They need our help to pay back the loan so they can focus on what they do best - providing legal services to the poor and advocating for seniors through their Elder Law Project.

Check out their website at www.neighborhoodlaw.org, and please visit their fundraising campaign website at http://igg.me/at/Help-NLS-Move-Office/x/4646373 to make a donation.  Every little bit will help.   Thank you!

Rockland- Aging is BIG business. The key word here is "business." 

With the demographics as they are, people living longer, boomers coming of age, new products and services are introduced each day for seniors and their caregivers. Many of these products and services are fantastic and live up to their promises. Others, however, rely on fancy web sites and literature, celebrity endorsements and microscopic disclaimers to make a sale. These tactics are successful because they play on the vulnerabilities of the target audience, often when they are most overwhelmed and desperate for help. 

Perhaps you are caring for your spouse who is suffering from Alzheimer’s or some other chronic condition. Maybe you are looking for guidance because your parents are no longer safe in their home. Whatever your situation, you need to be an informed consumer. You’ve got to ask some important questions in order to properly assess whether a product or service is right for you or your loved one. 

In this first of a three-part series, we’ll discuss some of the hidden issues and questions that seniors and their caregivers need to consider asking in order to make educated, informed decisions.

Let's start by dispelling the myth that anything in business is "free." Let’s face it - if something was truly free, the provider would be a charity rather than a business. Once you accept that businesses exist to make money, you will want to understand how companies are being paid in order to determine whether the product or service will benefit you. You need to ask questions and demand answers. Below are a few common examples. 

Senior Living Referral Services. Each morning while I am having my coffee and watching the news, I see the commercial with Joan Lunden promoting a “free senior living referral source.” And, each morning, I want to yell at my TV, frustrated that the consumer is not being provided with the full story. Sure, there is likely a disclaimer in print so small that it is illegible, but let’s face it - nobody is reading the fine print, even if it is large enough to see. Viewers trust Joan Lunden because they watched her for years on morning TV. They trust her because she tells about her own struggle to find the right resources for her aging mother, and that is very compelling. I went to the web site for this company to research a bit further and found the following disclaimer – again, in print so tiny and a font so light I had trouble reading it: “Our service is offered at no charge to families as the communities and providers in our network pay (our) fee …” We do not own, operate, recommend, or endorse any of these communities or providers.” 

So, if a senior living referral source such as this does not recommend or endorse any of the communities they refer you to, you need to ask some questions in order to determine if this service will benefit you. Consider asking them the following questions:

1)     If you do not recommend or endorse any of the facilities you will refer me to, what are the criteria that you use? Is it solely that they pay a fee for the referral?

2)     How much will you be paid by a facility if my loved one is placed there?

3)     Are there other facilities in the area that you have not referred us to and, if so, why not? Is it solely that they have not agreed to pay a fee for the referral?

4)     Will you put the criteria you are basing the referral on in writing? 

Web-based senior planning resources.  These sites are multiplying like rabbits on the web, each promising to be the hub of information and a central place to locate quality geriatric care managers, elder law attorneys, assisted living facilities, nursing homes and more. Some of these sites do provide valuable information to seniors and caregivers but, again, you must understand how they are getting paid. Ask the following questions: 

1)     Do the “experts” on your site pay to be designated as experts?

2)     If not, what is the criteria one must meet to qualify as an “expert?”

3)     Do providers (geriatric care managers, elder law attorneys, facilities, etc) pay to be listed on your site, or to be highlighted or listed first in search results?

4)     How do you ensure that the information listed on your site is current and accurate?

5)     Can you guarantee the security of any personal information I provide through the site?  How?

6)     Do you share my information with any other person or entity?

7)     Do I have to register or sign up in order to use the site?

One site that I recently tested asked for far too much personal information. In order to request information from a specific elder law attorney, for example, site users are asked to provide the name of the person they are concerned about and the details of their condition. It is unclear who receives the inquiries submitted online or whether this personal information is protected. This particular site also offers a forum for family members to share information and communicate about their loved one – to list doctor appointments and medications, post estate planning documents, etc. This sounds great in theory, but there is no guarantee that the communications are private or secure. There are a number of other forums where family members can communicate without going through a web-based senior planning site such as this, and I caution you not to provide any personal information on such a site unless your questions are answered to your satisfaction, preferably in writing.

Personally, I believe the best way to contact a professional is directly, with no third-party intermediary.  The best resource to find an elder law attorney is through the Massachusetts Chapter of the National Academy of Elder Law Attorneys, at www.massnaela.com (or www.naela.org in other states).  A qualified geriatric care manager can be found through the National Association of Professional Geriatric Care Managers at www.caremangers.org.  You can research assisted living facilities through www.massalfa.org (Mass Assisted Living Facilities Association), and nursing homes through www.medicare.gov/nursinghomecompare.  Nursing Home Compare provides you with the most recent inspection results for all nursing homes in the state, including any deficiencies you should be aware of. 

There is nothing wrong with companies trying to make a profit by providing products and services that address the needs of seniors and their caregivers. But, it is up to you to look beyond the celebrity endorsements and glitzy marketing. It is up to you to determine if “experts” earn their designation through knowledge and experience, or by paying a fee to be listed as such; whether a referral service will refer you only to facilities that pay a fee to be included. If the fancy marketing and celebrity endorsements give you one impression, but the fine print says something completely different, you need to ask questions and demand answers before proceeding.  Remember, businesses are in business for one reason - to make money.  You must understand how they are being paid in order to truly understand if the product or service offers value to you.

I've been following and periodically providing updates on a class action lawsuit known as "Jimmo v. Sebelius" (Kathleen Sebelius, Secretary of Health and Human Services), which was filed in The United States District Court for the District of Vermont.  Plaintiffs include six individual Medicare beneficiaries and seven national organizations (including the National Committee to Preserve Social Security, Parkinson's Action Network, Paralyzed Veterans of America, American Academy of Physical Medicine and Rehabilitation, Alzheimer's Association, and United Cerebral Palsy).

Plaintiffs alleged that the Secretary has adopted an unlawful and clandestine standard to determine whether Medicare beneficiaries are entitled to coverage, resulting in the wrongful termination, reduction, and denial of Medicare coverage for beneficiearies with medical conditions that are not expected to improve. 

Plaintiffs alleged that this unlawful standard is implemented at the lower levels of Medicare's administrative review process, and denies coverage where the beneficiary needs "maintenance services only," has "plateaued," or is "chronic," "medically stable," or not improving.  This "rule of thumb" or clandestine policy is what plaintiffs refer to as the "Improvement Standard."  If you or a loved one has ever been in a rehabilitation facility, you have probably received such a notice.  This Improvement Standard is contrary to the Medicare Act and federal regulations and precludes coverage for beneficiaries with conditions that are not expected to improve or that have not improved over the course of treatment.

Plaintiffs allege that this standard has been implemented without proper rulemaking procedures against beneficiaries that have little or no understanding of its application and no ability or reasonable opportunity to confront it.

Well, we have GREAT NEWS to report!!

The Center for Medicare Advocacy and the Centers for Medicare and Medicaid Services (CMS) have agreed to settle the "Jimmo" case, also known as the “Improvement Standard” case, and have filed a proposed settlement agreement with the Court.  If the judge approves the proposed agreement, a process that could take several months, the Medicare Benefit Policy Manual will be revised to correct any suggestion that continued coverage is dependent on the beneficiary improving.  CMS will undertake an Educational Campaign to inform providers, contractors, and adjudicators that they can not base coverage on the potential for improvement, but on the need for skilled care.

Bravo to the attorneys from the Center for Medicare Advocacy and Vermont Legal Aid, who have undertaken this cause on behalf of the Plaintiffs.  This unlawful "Improvement Standard" is an issue elder law attorneys and their clients face on a daily basis, so this is fantastic news!  If you are interested in viewing the proposed settlement agreement, you may view it here.   

http://www.medicareadvocacy.org/wp-content/uploads/2012/10/Proposed-Settlement-Agreement.101612.pdf

     Yesterday was such a crisp fall day - a perfect day for a long bike ride.  I set off from my Hingham home, and made my way through Cohasset, Scituate, and Hull.  This course is my favorite as it combines some of the most breathtaking views with the challenges of the road (both the traffic and the hills!).  The ocean views along Jerusalem Road, Cohasset Harbor, and Gunrock Beach always make me forget how hard I'm working.

     The hues of the changing leaves along the way were not yet at peak, but breathtaking nonetheless.  There is one large field along the road from Scituate to Cohasset where I had to stop to take in the beauty of a doe and her two fawns.  They were probably only 20 feet away from the street, which was quite exciting to me as the only other times I have seen deer up close is when they have darted in front of my car!  The fawns were too busy eating to notice, but the doe never took her eyes off me.  She was beautiful and magestic, but she stared me down as if to let me know that those were her "children" and I had better not try to harm them.  The doe was like any other mother - guiding and protecting her young.

     A little farther into my ride I came to a series of long and challenging hills.  Just as I was huffing and puffing and pedaling as hard as I could, I felt someone's hand touch the right side of my back.  I was startled and quickly turned my head around to see who it was.

     There was nobody there.  But, how could that be?  The pressure of the hand on my back was unmistakable...  My mind raced as I tried to explain this to myself.  Could it have been a falling leaf?  A branch?  Did I imagine it? 

     No.  A couple of miles and much self-debate later, I knew in my heart that it was a sign; it was my mother.  Now, you may or may not believe in signs from those who have passed before us, but I am a firm believer.  This is, after all, not the first time that I have had a sign from my parents.  This is, however, definitely the most distinct.  The feeling of that hand on my shoulder, helping me over the hill, was just too distinct to ignore.  Even though my mother has passed, I know that she is still with me, guiding and protecting me like the doe with her fawns.

     So tell me, what is your sign?  Have you had such an experience with a sign from a loved one who has passed?  Please share your experience!

Fraud Schemes Targeted at Senior Citizens

The FBI offers a webpage with a wealth of information and tips on common fraud schemes.  As stated on this wonderful resource page, Senior Citizens should be aware of fraud schemes for the following reasons:

• Senior citizens are most likely to have a “nest egg,” to own their home, and/or to have excellent credit—all of which make them attractive to con artists.

• People who grew up in the 1930s, 1940s, and 1950s were generally raised to be polite and trusting. Con artists exploit these traits, knowing that it is difficult or impossible for these individuals to say “no” or just hang up the telephone.

• Older Americans are less likely to report a fraud because they don’t know who to report it to, are too ashamed at having been scammed, or don’t know they have been scammed. Elderly victims may not report crimes, for example, because they are concerned that relatives may think the victims no longer have the mental capacity to take care of their own financial affairs.

• When an elderly victim does report the crime, they often make poor witnesses. Con artists know the effects of age on memory, and they are counting on elderly victims not being able to supply enough detailed information to investigators. In addition, the victims’ realization that they have been swindled may take weeks—or more likely, months—after contact with the fraudster. This extended time frame makes it even more difficult to remember details from the events.

• Senior citizens are more interested in and susceptible to products promising increased cognitive function, virility, physical conditioning, anti-cancer properties, and so on. In a country where new cures and vaccinations for old diseases have given every American hope for a long and fruitful life, it is not so unbelievable that the con artists’ products can do what they claim. 

• More helpful information can be found on the FBI's website at:  http://www.fbi.gov/scams-safety/fraud/seniors

Note:  Rockland and Mansfield Boot Camps are fully booked!  We are maintaining a wait list and an additional date will be added when filled. 

IT'S BACK BY POPULAR DEMAND AND SURE TO "SELL OUT" QUICKLY ... 

THE LEGAL CHECK UP BOOT CAMP (c)

Families come in all shapes and sizes. Whether you are young, a boomer or a senior, single, married (traditional or same-sex), divorced, have children or not, have a family member with special needs, want to leave your estate to your pets ... whatever your situation, you need a comprehensive assessment and and an Estate Plan that is just right for you. Depending on your goals and your situation, your plan might focus on probate avoidance, tax minimization, asset protection, or special needs planning.

"I don't have enough to worry about" you say?

Well, be aware that whether you are wealthy, barely getting by, or somewhere in the middle -- there are basic documents you need to have in place in the event you become temporarily or permanently unable to act for yourself due to a physical or mental incapacity.

You can't afford not to have these basic documents in place in the event of an emergency.  If you don't have basic disability documents that appoint an agent to act on your behalf in such cases, your loved ones would need to petition the probate court for a guardianship and/or conservatorship to obtain the authority to act on your behalf.  These court processes can cost thousands of dollars.

So, delay no more.    

Come and learn how to protect yourself, your family, and your assets in the event of disability or death.

Not just another boring seminar ... in this free, comprehensive workshop you will learn every thing you need to know about Estate and Long-Term Care Planning.  Part of the workshop will be interactive to allow attendees to discuss particular problems, concerns and situations.

This workshop will cover:

* what estate planning documents you need in the event of disability;

* what estate planning documents you need in order to achieve your goals and objectives;

* how to properly select Agents, Personal Representatives, and Trustees;

* whether you need a Will, a Trust, or both;

* long-term care costs and payment options (Medicare, VA benefits, Long-Term Care Insurance, Private Pay and Medicaid);

* how to protect your home and other assets;

* how to provide for your child with special needs in a way that improves his or her quality of life without disrupting eligibility for public benefits;

Each attendee will receive a workbook and will "graduate" from the Boot Camp with a detailed, comprehensive plan of action.

The Fall workshops will be offered during the day (from 12-3 pm) and in the evening (from 5-8 pm).  Seating is limited to 12 in each session in order to provide individualized guidance to each attendee.  Session dates will be posted soon, but preference will be given to those who pre-register at:

http://www.thelegalcheckup.com/legal-check-up-boot-camp-registration/

Most seniors I speak with feel that they have worked hard their entire lives, and that they should not have to spend all of their hard-earned assets on nursing home care.  They would like to pass some assets on to their children or grandchildren.

The problem with this, however, is that without proper guidance and advocacy, many seniors are often rushed into an Asset Protection plan that “protects the assets from the nursing home" and "protecs the assets for their children or grandchildren" ... and leaves the senior unprotected and vulnerable.  They fall victim to the many misleading ads in print on the radio that make false claims about asset protection, use scare tactics that are simply unconscionable, or offer deep discounts to sign up "today only."  No attorney worth dealing with is going to use any of these tactics to get your business.  Let me explain.

There are THREE FUNDAMENTAL RULES that you must understand about ASSET PROTECTION ...

1) You have not “protected” an asset until you have given it away, either to a person or a trust, with no legal right to change your mind and take the gift back in the future.

2) There is a five-year lookback period, which means that MassHealth can look at all of your financial statements going back five years, and they will impose a penalty for any gifts you made during that five years.  So, the assets are not fully protected until FIVE YEARS after you give them away.

3)  You could unintentionally be forced to a nursing home if you run out of funds to pay for continued care in your home.  If you “protect” assets by giving them away and getting through the five-year lookback period as outlined above, you will have no legal right to get the assets back and you may be left "unprotected" and unable to pay for the care you need to remain in your home.  

Certainly it is not any senior's intent to end up having to move to a nursing home because they "protected" their assets years earlier ... but it happens.  Part of the problem, in my opinion, is the prevalence of misleading ads that serve to scare and confuse seniors.

BEWARE of legal ads that encourage you to “Protect your Assets” while leading you to believe you are protecting yourself in the process … this is one example of an ad that I find to be very misleading, if not absolutely FALSE.

Learn about Asset Protection Trusts that:

      1) allow you to control your assets until death;

      2) allow you to retain all income from your assets

      3) enable you to protect your assets from the nursing home

     4) ensure you qualify for Medicaid in the shortest period of time

Let’s look back at the Fundamental Rules of Asset Protection.

Number 1 is FALSE because, while you may serve as trustee of the asset protection trust, it is not YOUR assets that you are controlling ... you gave the assets to someone else in order to "protect" them!

Number 2 is FALSE because, while you can retain the right to the income generated by the assets in an asset protection trust, the assets in the trust are no longer YOUR assets!  You gave the assets to someone else in order to "protect" them!

Number 3 is TRUE and FALSE - True because after five years the assets will be protected from the cost of your nursing home care, but FALSE because, once again, they are not YOUR assets any more -- you gave them to someone else in order to "protect" them.

Number 4 is FALSE because there is a 5 year lookback.  Assets transferred to an asset protection trust will not be fully protected until 5 years after they are transferred to the trust, and there is no attorney who can make you eligible with this strategy in less than 5 years.  In fact, there may be ways to make you eligible sooner based on your specific situation, but not with an asset protection trust.

Some asset protection strategies may be appropriate for you, but only if you can ensure your own future security in the process.  This is why a comprehensive assessment of your specific family situation, health and care needs, income and assets, and goals is critical to a successful Long-Term Care Plan.  A Legal Check Up will enable you to fully understand the risks and benefits and pros and cons of asset protection strategies, and will enable you to make an informed decision based on your specific situation.  

Remember, if a radio or print ad seems too good to be true, it probably is. And, if an attorney offers a discount on the cost of an asset protection plan, but the price is good "today only ..."  RUN, don't walk, to another elder law attorney.  These pressure and scare tactics are not appropriate and, frankly, offensive to most elder law attorneys. Your future security must be treated with the importance and thoughtful deliberation it deserves, by you and your attorney.

Call us today at 781-681-6638 to schedule a Legal Check Up or to get a schedule of upcoming seminars, or get more information at www.thelegalcheckup.com.

The Massachusetts Bar Association invites you to participate in Court Advocacy Day on Monday, March 19 at the Grand Staircase inside the State House. Beginning at 11 a.m., the event will help reiterate the need for adequate funding to sustain the critical needs of the Massachusetts Court System. The event will open with a brief speaking program, after which attendees will be encouraged to meet with their local legislators.

The event will include speaking remarks from:

•Supreme Judicial Court Chief Justice Roderick L. Ireland;

•Chief Justice for Administration and Management Robert A. Mulligan;

•MBA President Richard P. Campbell; and

•Boston Bar Association President Lisa Goodheart

The MBA would appreciate your signing up in advance at http://www.massbar.org/cle/cle-programs?p=2709

You can sign up in advance to meet with your legislators, or just drop by their offices.  The MBA will provide informational packets at the event that include fact sheets on court funding that you can leave with your legislators.

For your convenience, you can find the list of Senators at:

http://www.malegislature.gov/People/Senate

and the list of Representatives at:

http://www.malegislature.gov/People/House.

Deb Thomson and some members of the MassNAELA Board of Directors will be at the event to offer guidance to MassNAELA members in attendance.  We hope to see many of you there to support funding for the Massachusetts courts!

Follow this link to a video and other resources to learn more about the judicial system's response to the underfunding crisis.   

http://www.massbar.org/about-the-mba/initiatives/court-funding