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This heartbreaking story caught my eye the other day. Not so much due to the circumstances of the woman’s horrific death, but for the fact that it spoke of the critical need to be ever vigilant in watching out for those unable to care for and protect themselves. In fact, I regard it as our duty, as estate planning and elder law attorneys.
The foul play which happened to the 70-year-old woman was not discovered until she was being prepared for embalming at the funeral home. It was assumed that she had died of natural causes in her group home. After all, death among the elderly is hardly a surprising event. However, the embalmer found 10 inches of rope and a candy wrapper stuffed down her throat. Police were called, as this was definitely not death by natural causes. The medical examiner said the rope was like a hoodie drawstring.
The deceased was a special needs individual, but had no family to help her, which meant she required around-the-clock care. An arrest was made of a 50-year-old female, who lived in the same complex as the deceased. She was charged with murder. The relationship, if any, between the deceased and the 50-year-old woman remains unclear. It may have been a caretaker/patient relationship. The motive also remains unclear.
This disturbing story clearly shows the importance of clients choosing the right people to be in trusted positions, such as trustee, agent under a POA, etc. If the woman had someone watching out for her, it is significantly less likely that she would have had her life ended in this awful manner.
Often times, the frailties of old age can take their toll. But, older adults do not need to have their dignity stripped away, as seems to be the case in this horrible case.
Stephen C. Hartnett, J.D., LL.M.
Associate Director of Education
American Academy of Estate Planning Attorneys, Inc.
9444 Balboa Avenue, Suite 300
San Diego, California 92123
Phone: (858) 453-2128
www.aaepa.com
Williamsburg, home of William and Mary… and amazing golf courses. Kings Mill and The Golden Horseshoe courses got the same rave reviews as the Academy Summit did!
When 125 elder law and estate planning law firms get together each Spring, the energy is difficult to describe. With Academy members from all over the country catching up with attorneys they consider close friends – the conversation in the hallway is exciting.
On Thursday, the Summit opened with announcements about new training available for Elder Law. Looking at Elder Law or Medicaid services as a slice of the estate planning that should be discussed with clients – rather than a separate service, was a wonderful conversation.
Friday delivered “Success Stories” from around the country ranging from how Steve Mendel’s firm in Houston went from 49 fans on Facebook to 1,332 fans in the past 6 months all the way to how Brad Anderson’s Reno law firm treats the 550 clients that subscribe to his estate planning maintenance program. We also spent lunch that day with the law firms who submitted their financials for 2011 and discussed the benchmarks and some statistics we see in the areas of marketing expenses, staffing costs and revenue in specific areas across the country. It’s exciting to see the growth of so many firms over the years!
Saturday the Sudden Death or Disability session was a hit along with a number of other substantive topics… ending the day with a wonderful roundtable of about 8 or 9 members discussing how they handle Elder Law cases in their practice. The Sunday sessions featured a guest speaker on the topic of Elder Law Abuse as well as the topic of Do Over – Reforming Trusts: Decanting, Reformation, and Other Ways to Modify the Irrevocable.
The social event was something out of a MOVIE on the beautiful grounds of the Colonial Inn and Lodge (my favorite that evening was the conversation and of course the Virginia ham and pecan pie).
This behind us leaves us happily exhausted and back at the office starting to layout our next big event which is in San Diego on October 4th through the 7th. Feel free to mark your calendars now if you missed this event!
Jennifer Price
Director, Member Services, Marketing & Recruiting
American Academy of Estate Planning Attorneys, Inc.
9444 Balboa Avenue, Suite 300
San Diego, California 92123
Phone: (858) 453-2128
www.aaepa.com
I was the final speaker at the Academy’s Spring Summit event in Williamsburg, VA, which ended a few days ago. The speaker immediately preceding me was Dana Fitzsimons, who gave a great talk on Elder Abuse.
Elder abuse can take many forms:
Whatever form abuse takes, there are a few things we know about it:
- It is prevalent. Elder abuse is underreported, but the U.S. Administration on Aging believes that nearly two million older Americans are abused each year.
- It crosses racial and socioeconomic borders. Wealth, and even fame, does not provide immunity from abuse. Consider the cases of Mickey Rooney and Brooke Astor.
- Most elder abuse is perpetrated by caregivers – often these caregivers are family members.
As estate planning and elder law attorneys, we are in a unique position to be able to identify and help abuse victims. Not only do we encounter aging clients and their families on a regular basis, we’re often privy to sensitive, personal information. So, we need to be prepared in case we suspect an instance of abuse.
The first order of business is to know the signs of elder abuse. Considering our line of work, we should be particularly alert to the signs of financial exploitation. Perhaps the bigger issue, though, is what to do if you suspect abuse.
First, talk to the older person when you are alone with them to gather more information about what is actually going on. Be aware, though, that victims of abuse are rarely eager to identify themselves as victims.
Second, familiarize yourself with your community’s resources, and take steps to get help for the victim:
- Contact your state “Adult Protective Services” (or similar agency), your local police department, and/or another local agency tasked with investigating allegations of abuse.
- Find out how your local courts address elder abuse cases, and whether there are specific programs or services available. Seek a temporary protective order on behalf of the victim.
- Consult the ElderCare Locator (1-800-677-1116) to find out about local counseling, support, and other services.
Have you encountered victims of elder abuse in your practice? If so, what have you done about it?
Stephen C. Hartnett, J.D., LL.M.
Associate Director of Education
American Academy of Estate Planning Attorneys, Inc.
9444 Balboa Avenue, Suite 300
San Diego, California 92123
Phone: (858) 453-2128
www.aaepa.com
As estate planning attorneys, we know that our practice is a complex one. Estate planning is the nexus of various different areas of the law, including Wills & Trusts, Taxation, Asset Protection, Elder Law, Family Law, etc.
Of course, we must master and keep current on the substance of these various areas of the law. But, at least as importantly, we must learn to extract from our clients their true goals.
For example, if asked how they wish to leave their assets, they may say “outright to my children.” However, if asked if they are concerned about their children being party to a divorce, many will divulge that fear.
When the various options are explained to the client, many will opt for a different solution than they originally thought they wanted.
Of course, this is true when dealing with issues that touch on various different substantive areas. For example, maximizing Tax savings may not be the best way to provide for elder law planning.
Let’s look at this situation in greater detail. The client is 70 and in good health, but has a family history of Alzheimer’s with an expected onset at age 80. He owns his own home, has social security, and a pension, which meet his living needs. He wants to qualify for Medicaid, which he could do in 5 years, if he gifts away his liquid assets. However, his daughter is a successful entrepreneur and is in a high income tax bracket. By giving his liquid assets to his daughter, the family will pay more in income taxes, which he does not want to do.
We must remember, we do not create the options for our clients, we just present and explain the pros and cons to them. It is then up to the client to decide which course of action is best for them.
In this situation, the client must decide whether it is better to give the assets to his daughter, enabling him to qualify for Medicaid in 5 years, and have increased income taxation on the assets. Perhaps you could explore middle ground with the client. Gifting the assets to an income only trust may allow the client to qualify for Medicaid, while having the income taxed to him. However, the income may end up going to share of cost if he goes into the nursing home. Of course, much of this depends on how the particular state administers the Medicaid program.
What is important to remember here is that, sometimes, it is not possible for the client to maximize the results in every area of interest. In the above situation, one client may choose to gift the assets outright, while a different client with different preferences and experiences may choose to do the income only trust. The role of the estate planning attorney is to provide the best information possible to the client for them to make the best decision for them.
Stephen C. Hartnett, J.D., LL.M.
Associate Director of Education
American Academy of Estate Planning Attorneys, Inc.
9444 Balboa Avenue, Suite 300
San Diego, California 92123
Phone: (858) 453-2128
www.aaepa.com
I recently blogged about financial elder abuse, citing the statistic that 66 percent of elder abuse perpetrators are family members. Even worse than the idea of one of your clients being victimized by their family members is the thought of one of your clients falling victim to a member of your staff.
Yet that’s exactly what happened in the office of Tuscaloosa, Alabama attorney Zondra Hutto. Hutto served as guardian and conservator for a 79-year-old client suffering from dementia. Hutto’s law clerk stole several thousand dollars from the client and used the money to pay for travel, clothing, and other items. Since Hutto knew about her employee’s actions and did not report him, she has been sentenced to three months in prison. You can read the details of the story here.
The Hutto story is not an isolated incident. We all know that it is unethical to take money from a client. However, there are numerous cases of attorneys being disciplined or disbarred when “borrowing” from a client trust account. It’s not enough to hold yourself to a strict ethical standard; you also need to be especially careful to watch how funds of elderly clients are used in your office. This includes having systems in place for hiring and evaluating staff members so that good ethics will be the inviolate rule for everyone in your firm.
- First and foremost, character counts: hire honest employees.
- A quick tip: during the hiring process, check references and ask former employers if they’d hire the employee again; pay attention to how the question is answered – long pauses and unspoken words can speak volumes.
- After an employee is hired, establish clearly-defined systems for how tasks are to be performed.
- Monitor each employee’s performance.
- Restrict access to your firm’s financial accounts and to your client’s sensitive personal and financial information.
Sometimes, despite our best efforts, an employee causes intentional financial harm to a client. If you are sure an employee – or anyone else – has committed financial elder abuse, report it immediately.
Stephen C. Hartnett, J.D., LL.M. (Tax)
Associate Director of Education
American Academy of Estate Planning Attorneys, Inc.
9444 Balboa Avenue, Suite 300
San Diego, California 92123
Phone: (858) 453-2128
www.aaepa.com
Estate planning attorneys are in a unique position to protect their clients from financial elder abuse.
Like those suffering other kinds of abuse, elders who are being financially victimized are not likely to call attention to the abuse or to be proactive in seeking help. In fact, they may not even realize they are being abused. However, because of the work we do, we get glimpses into areas of our clients’ lives that are often hidden even from those closest to them.
Signs of Abuse
Would you recognize it if your client were a victim of financial abuse? Here are some warning signs, which may (but not necessarily do) indicate possible financial abuse:
- An elderly client (defined as someone age 65 or older) who is accompanied by a friend, relative or caregiver who seems to influence or control the client’s transactions, while the client remains passive
- Changes in an elderly client’s financial account beneficiaries
- Accounts with new authorized signers or joint account holders
- A caregiver offering care in exchange for access to bank accounts or other assets
- A sudden change in an elderly client’s financial status or financial account activity
- Changes to property titles
- New financial arrangements an elderly client seems confused about or unable to explain
- A diminishment in an elderly client’s level of personal care or hygiene, particularly when her financial means would suggest a higher standard of care
Who Are the Abusers?
Financial abuse makes up a significant proportion of all the elder abuse cases reported each year. In a 2004 National Center on Elder Abuse Study, 15 percent of elder abuse cases involved financial exploitation. And while we’d like to think financial abuse of the elderly is committed by sleazy telemarketers or door-to-door salesmen, 66 percent of abusers are family members of the elder.
Your Role
There are plenty of legitimate reasons for elders to transfer their assets, but remember that as an estate planning attorney, you’re in an excellent position to protect clients from illegitimate transactions. Be alert to transactions involving your elderly clients and make sure they understand what they are doing and that they are acting of their own free will. Pay attention to your instincts.
Stephen C. Hartnett, J.D., LL.M. (Tax)
Associate Director of Education
American Academy of Estate Planning Attorneys, Inc.
9444 Balboa Avenue, Suite 300
San Diego, California 92123
Phone: (858) 453-2128
www.aaepa.com
In 2010, estate planning attorneys have been wondering “what will happen to the estate tax?” We have been wondering whether the pre-EGTRRA estate tax applicable exclusion of $1 million will return or if Congress will finally fix the mess it created years ago. Will the exclusion go back to the $3.5 million we had in 2009 under EGTRRA? Will there be restrictions on GRATs? Will there be restrictions on FLPs?
The intricacies of the estate tax may be in the front of our minds. The estate tax and its strategies may even be of importance to many of our clients. But, seldom is estate tax planning the most important thing we do for our clients. Even with the applicable exclusion at $1 million, most people will not have a taxable estate. But, everyone is concerned about taking care of those closest to them.
We advise clients how to leave assets to their beneficiaries, while minimizing the risk that the assets will be squandered or attached by creditors. We advise clients how to leave assets for their child with special needs, without jeopardizing the child’s governmental benefits. Many of us help our clients with elder law matters, helping them keep their home even in the face of health concerns.
As we approach the holiday season, it’s important to recognize how important we are in the lives of our clients. Our planning enables our clients to make it through very difficult times more easily. We help our clients protect those most important to them from the hardships in life, even when they cannot be there themselves.
Do you have a memorable story to share? Has a client shared how you have made a difference? Please share your story!
Stephen C. Hartnett, J.D., LL.M.
Associate Director of Education
American Academy of Estate Planning Attorneys, Inc.
6050 Santo Rd., Ste. 240
San Diego, CA 92124
858-453-2128
www.aaepa.com
Nobody wants to hear that the path to success looks more like an obstacle course than a garden path out of a dreamy painting.
Talking with attorneys about the “systems” that make it possible to be only a counselor and a CEO in their law practice always *sounds* good until you look closer at exactly what it takes to change a habit or system or to create one out of thin air. But a second look at “what it takes” can be helpful – it’s as simple as breaking it down into manageable pieces… starting with a clear look.
In my opinion the top three things you can do to adjust your course or impact the future of your estate planning law practice are:
October/November timeframe each year:
- 1. Review Your Strategic Plan. Pull out the ORIGINAL plan you had when you opened the doors once per year. It allows you to see how much of your vision has come to pass and helps you to focus on the specific goals to put into place for the coming year. It’s also helpful in the sense that you can CHANGE your vision… actually change the document that you’re reviewing. Sometimes your vision needs to be adjusted, for example, if you’ve added an associate with Elder Law experience, Elder Law work may not have been something you saw in your future a year or two ago, your strategic plan and vision for the overall firm needs an adjustment.
Helpful Tip: If you want a 3 or 4 page “form” we use at the Academy to pencil out your own strategic plan just let me know (jennifer@aaepa.com) I’m happy to email it to anyone who wants it.
- 2. Create Next Year’s Marketing Planning Calendar. Setting the goals for revenue in particular categories will allow you to determine how many cases you need in those categories. Say for example that you want $425,000 in Living Trust revenue and your average trust fee is around $3,800 – you want 112 new clients who need that type of solution in the coming year (or 9-10 per month). Knowing this for each category makes the planning easy. The marketing activity that you’ll need to execute to generate 15 potential living trust appointments per month becomes more clear. You’ll know where to find people who need this type of help and you’ll schedule the necessary activity for each month next year before this year is even over.
Helpful Tip: You’ll review this marketing calendar again when last year’s financials are reviewed at the beginning of the new year, making adjustments that you need to make based on the actual numbers you’re wanting to influence. January/February timeframe each year:
- 3. Review Last Year’s Financials. Each year approximatley 60% of the Academy membership submits their P&L from the prior year. I have the immense privilege of being the person here at the Academy who gets to review these numbers with each law firm! We discuss all of the revenue, all of the expenses, and all of the compensation from last year. The next part of the discussion is about which specific numbers the attorney wants to change… followed by the discussion of how to go about changing those exact numbers! Year after year, I get to watch the growth in these individual firms and it is so completely awe-inspiring. (By the way, the law firm names are taken off, and all firm financials are entered onto a spreadsheet so each attorney who submits P&Ls can see other members P&Ls in a private meeting at our Spring Summits… the conversations are really something).
If you’re not a member of the Academy you can still structure that type of review on your own! Once you have the P&L, the analysis takes very little time. After the review of the past, your use the same information to project what you are on target for in the coming year and you have an opportunity to go with what you see or to make some strategic marketing decisions proactively… instead of waiting until you see blank pages in the calendar to spur the marketing into action.
Helpful Tip: Make sure when you review your own financials ensure that your accounting system is set up with the appropriate Revenue Categories. Each category (Living Trusts, Wills, Restatements, Probate, Trust Administration, Medicaid, etc) requires completely different marketing to impact that particular number. Knowing the number of cases and revenue that exists now in one category enables you to implement marketing efforts to change a specific number.
You’re Welcome to Join Us on our Upcoming Call. The founders of the American Academy will be covering these and other systems that you can actually implement right after our free call for non-Academy members next Thursday, February 25 at 2pm PST. Feel free to register and join the call www.7DeadlyLawFirmMistakes.com/sm
Jennifer Price
Director, Member Services
American Academy of Estate Planning Attorneys, Inc.
(858)453-2128
www.aaepa.com
Estate Planning and Elder Law attorneys often face ethical dilemmas. An all too real concern is: What do you do when your client tells you he or she is planning to commit suicide?
Those over age 65 have a higher rate of suicide than any other age group. So, this question is more than an esoteric question for Estate Planning and Elder Law attorneys.
Model Rule of Professional Conduct (MRCP)1.6(a) provides that a lawyer may not reveal client information, unless the disclosure is impliedly authorized to carry out the representation. An example of this would be if you undertake joint representation of a husband and wife. If the husband tells you he is thinking about suicide, you could tell the wife.
A more challenging situation arises when you have a client who has not consented to joint representation, like with a single client. In that case, the attorney would need to rely on the exception provided in MRPC 1.6(b)(1). Under (b)(1) a lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes it necessary to prevent reasonably certain death or substantial bodily harm. However, prior versions of the Model Rules stated the exception somewhat differently and only allowed the information release to prevent a criminal act reasonably likely to result in death or substantial bodily harm. Similarly, under the Model Code of Professional Responsibility DR 4-101(C)(3), the attorney is allowed to release the information when the client has an intention to commit a crime and the release of the information is necessary to prevent the crime. In states where suicide is not illegal, the Model Code and the prior version of the Model Rules do not allow the release of the information.
If you encounter this situation in your practice:
- Check your state’s current professional responsibility rules.
- Consider whether the client consented to joint representation which would allow the disclosure.
- Check whether suicide is a crime in your state.
- Refer the client to the National Suicide Prevention Lifeline www.suicidepreventionlifeline.org (tel.: 1-800-273-TALK)
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