A fiduciary is someone who acts for another pursuant to legal authority to do so. A fiduciary can act for a living individual. The most common sources of legal authority for a fiduciary to act for a living individual are: a power of attorney, a guardianship, and a trust. But when that living individual dies, the fiduciary’s legal authority dies, too. At that point, a new source of legal authority – whether an estate or trust – dictates who the fiduciary is, what his/her duties are, and to whom he/she owes the duties. Many don’t understand this. A child serving as agent under a financial power ..read more

A U.S. District Court in Alabama declared the Corporate Transparency Act (CTA) unconstitutional, in the battle between privacy rights and organized crime. In National Small Business Association v. Yellen (Case No. 5:22-cv-01448) the issue is the CTA's authority over small businesses to disclose the so-called beneficial owners to the government through the Financial Crimes Enforcement Network (FinCEN). The Yellen court ruled the CTA "transcends the limits imposed by the Constitution on the legislative branch and lacks a strong connection to any enumerated power to serve as a necessary or approp ..read more

Assisted Living has been in the news for at least the past year, both locally and nationally. For our clients this is a prime issue. Assisted Living is Different Assisted living facilities are a different kind of long-term care entity. The main reason is that most assisted living facilities are private pay only: they do not accept Medicaid. Only a 1/5 of assisted living facilities nationwide accept Medicaid. This is a key difference. Assisted Living Is Less Regulated Than Skilled Nursing Facilities In the most basic of terms, because the federal government is not giving money to a private-pay ..read more

Thanks to Professor Katherine Pearson of Dickinson Law School for bringing this case to our attention. On May 1, 2023, an appellate court in Ohio found that the daughter's role as agent acting under a power of attorney prevented her from becoming personally liable for her mother's costs of care.  The daughter appears to have properly cooperated or assisted in the original Medicaid application.  The daughter gave authority to the nursing home to debit the bank account where her mother's Social Security checks were deposited every month, in order to pay itself the "patient pay" of her ..read more

A recent article compared all 51 states and D.C. for reporting, investigating and acting upon abuse of the elderly. That article is found below. Several experts provide insight on Elder Abuse and reporting. Where does Delaware stand? Forty-six out of the fifty-one. At the bottom? California, which recently made all its residents eligible for Medicaid without regard to the amount of resources one might have. https://wallethub.com/edu/states-with-best-elder-abuse-protection/28754 ..read more

Ask anyone the first word that comes to mind when they hear the term “estate plan.” The answer is likely “Will.” But your estate plan is much more than your Will. Your assets dictate what your estate plan documents are or should be. Trusts and powers of attorney are vital parts of our estate plans. But don’t forget, your beneficiary-designated assets – and the beneficiary designation forms that control them - are also part of your estate plan and need review and updating. So too with joint property and other types of property. Consider, for example: 401(k)/IRA: Ask anyone what most of their li ..read more

Prior gifts harm Medicaid applicants by delaying when Medicaid starts. The delay is directly linked to the total gift value over a five-year period. This delay significantly harms persons needing care now. We see this time and again. Below we explain the basic rules on how Medicaid penalizes gifts. How Do Gifts Arise? A parent gives money to her child. The gift might be large or small, one time or repeated. Medicaid counts even gifts of a few hundred dollars. A parent might have thought Medicaid permitted a gift because the gift had tax benefits. Not so. Tax planning is different than Medicaid ..read more

Source: CBS News This week on 60 Minutes, correspondent Anderson Cooper reports on what happens when Social Security overpays people who receive benefits. Beneficiaries may find out years later that they owe tens of thousands of dollars—even if it was not their fault During the 2021 fiscal year alone, the agency estimates it made approximately $6 billion in overpayments, according to a report by the Social Security Administration's inspector general. While researching the story, the 60 Minutes team, including producer Andy Court and associate producer Annabelle Hanflig, asked experienced profe ..read more

The Social Security Administration (SSA) is trying to reclaim billions of dollars from many of the nation’s poorest and most vulnerable — payments it sent them but now says they never should have received. During the 2022 fiscal year, the agency clawed back $4.7 billion of overpayments, while another $21.6 billion remained outstanding, according to a report by SSA’s inspector general. One consequence is a costly collection effort for the government and a potentially devastating ordeal for the beneficiary. “We have an overpayment crisis on our hands,” said Rebecca Vallas, a senior fellow at the ..read more

One of our core missions is to provide legal services to persons with disabilities and their families in estate and long-term care planning. A great many of our clients have special needs or have a loved one who does. The Washington Post recently reported a big win for disability advocates who succeeded in having the National Institute of Health (the “NIH”) include persons with disabilities in their list of “health disparity populations” who have barriers to health care. A “health disparity population” is a term used to describe a disadvantaged group that experiences preventable differences in ..read more