Bielski Law Office, Ltd.

Nursing Home Evictions Increasing

Elder Law advocates claim that nursing homes are increasingly turning to improper evictions to rid themselves of patients they view as undesirable or difficult.

Under federal law nursing homes can only evict residents under limited circumstances. However, elder law advocates claim that increasingly nursing homes are not limiting themselves to those circumstances. Instead, the nursing homes are evicting residents who are difficult to care for because of dementia, residents who have family members that complain about the care and residents who are otherwise difficult.

According to the Seattle Times in "Nursing homes turn to eviction to drop difficult patients" evidence from federal data appears to back the advocates' claims.

In fact, complaints to the Long Term Care Ombudsman Project are up 57% since 2000.

This is a big problem for nursing home residents and their families because most of the time there are few other options for the evicted residents other than staying in a hospital.

While residents have the right to appeal the evictions it is costly to do so. Sometimes, even when the resident wins the appeal, government agencies still do not require the nursing home to take the resident back.

To make matters worse, nursing homes found to have acted improperly are rarely, if ever, punished or fined.

Nursing homes themselves disagree with the advocates.

The American Care Association claims that the evictions are proper, but does agree that a national policy discussion is necessary to come to terms with the increasing number of nursing home residents who are difficult to care for.

Reference: Seattle Times (May 8, 2016) "Nursing homes turn to eviction to drop difficult patients"

Everything Is Not Always Bad for Estates

Most of the news that people hear or read about estate plans, trusts, wills and probate is negative. In reality most of the time outcomes are positive.

Over the years, much has been said and written regarding the tendency of media to focus on negative stories. It is often true in estate planning.

Stories about estates usually only appear because something has gone wrong. If everything works out as intended and an estate has no problems, there is not much to report on. However, this tendency to report on the negative masks the reality that most outcomes from estate planning are positive.

The Wills, Trusts & Estates Prof Blog discussed this recently in "The Importance Of Positive Stories About Beneficiary/Trustee Relationships."

This is a very important point. If you read stories about how trusts have gone bad, for example, it should not prevent you from getting a trust yourself. Most trusts written by estate planning attorneys work as intended.

The negative stories are not presented to scare people away from trusts. They are presented so that people can learn from the mistakes that were made in those few trusts that do not work out.

If you do have concerns about estate planning because of the negative stories that you have read, then the best way to alleviate those concerns is to talk to an estate planning attorney. Let the attorney tell you why the particular plans went wrong and also help you understand how you can create an estate plan that learns from the mistakes.

Reference: Wills, Trusts & Estates Prof Blog (May 9, 2016) "The Importance Of Positive Stories About Beneficiary/Trustee Relationships."

Redstone Case over for Now

The much watched legal battle over the competency of Sumner Redstone has reached a conclusion as a judge has dismissed the case.

Sumner Redstone is the 92 year old who owns a controlling interest in both CBS and Viacom. For that reason, markets and the media paid close attention when his longtime girlfriend sued to have Redstone declared incompetent.

The girlfriend, Manuela Herzer, claimed that she had been cast aside by Redstone, but not of his own free will. Instead, she claimed that Redstone was mentally incompetent and needed her to handle his affairs.

The case has gone on for many months.

Videotaped testimony by Redstone has now convinced the judge in the case that the case should be dismissed. The judge was convinced that Redstone does not want Herzer in his life and that if he needs assistance, it can be provided by his daughter.

NBC News reported on the dismissal in "Sumner Redstone: Judge Tentatively Dismisses Health Care Lawsuit."

It is unknown if Herzer will attempt to appeal this decision. She certainly has a financial incentive to do so.

Previously, Redstone's estate plan would have given her an inheritance worth approximately $70 million. She has since been removed from Redstone's estate plan, which his lawyers say is the reason that she brought the competency case.

One thing is clear: the judge in this case should be applauded for giving great weight to Redstone's wishes.

All too often the wishes of elderly people about who should provide their care are not given enough consideration in competency hearings. Even in cases where a court finds it necessary to appoint a guardian, the feelings of the proposed ward should be considered.

Reference: NBC News (May 9, 2016) "Sumner Redstone: Judge Tentatively Dismisses Health Care Lawsuit."

Unusual Funerals Trending

A man in the U.K. has unveiled his plans for his coffin. They illustrate the trend of people planning unusual ways for loved ones to remember them.

In many places there is a tradition that when someone passes away his friends will have a drink in remembrance. Sometimes, the deceased has provided funds for the event so his or her friends can have a last drink on them.

One man in the U.K. wants to make "have a last drink on me" more literal.

Glen Speak of Tamworth has stated that he plans to design a double–lidded coffin for himself. The first lid will open to reveal a row of whiskey shots. Mourners will then be invited to take a shot.

The Tamworth Herald reported this story in "Specially designed coffin to offer whisky to mourners."

This is but one of many similar stories of people making specific and unusual requests for their funerals and remains. The trend appears to be especially popular in the U.K. For example, in another recent case there, a portion of one man's cremated remains were used to make bait for his friends to use in deep sea fishing.

One thing this shows is that people are increasingly thinking about end of life topics and how they will be remembered. Funeral plans should only be part of the process.

Another way that people will be remembered by loved ones is through their estate plans. The quality of those estate plans can go a long way toward the security of friends and family.

Thus, if you are considering making your own unusual funeral plans, be sure to consider making an estate plan at the same time.

Reference: Tamworth Herald (May 9, 2016) "Specially designed coffin to offer whisky to mourners."

How Prince's Estate Will Fight Paternity Claims

Given the size of Prince's estate and the lack of a will it is expected that numerous paternity claims will be made against the estate. The estate has a plan to handle the claims.

When Prince passed away he apparently did not have any form of estate plan, not even a will. As a result, anyone who can prove that the musician was his or her father would stand to inherit Prince's entire fortune.

No children are known to exist according to Prince's friends and family. Nevertheless, because of the high stakes it is expected that numerous people will attempt to press claims. The group Heir Hunters has said that it is already looking into one such claim.

To deal with these expected claims, Prince's estate has decided to be proactive. The estate asked for and received permission from a judge to use a sample of Prince's blood to conduct DNA testing. Prince's remains were cremated, but the sample was obtained prior to that as part of an autopsy.

The New York Daily News reported on this story in "Prince's estate to fight paternity claims with late rock icon's blood sample."

The existence of the blood sample and the genetic information that will come from the DNA test will make it much easier for the estate to handle any paternity claims that are made. Any claimant will have to prove paternity using his or her own DNA. In fact, if it becomes widely known that Prince's DNA has already been tested, then it is possible fewer claims will be made as any false claims can be quickly dismissed.

Reference: New York Daily News (May 6, 2016) "Prince's estate to fight paternity claims with late rock icon's blood sample."

Prince Estate Moves Forward with Special Administrator

A Minnesota judge appointed a special administrator to oversee the estate of Prince. For now the musician's siblings and half-siblings all appear to be in agreement, but potential problems loom for the estate.

In a short hearing on May 2, 2016, a Minnesota judge appointed the Bremer Trust to oversee the late musician Prince's estate. It looks like the group will have their work cut out for them as the Star Tribune reports in "Judge confirms appointment of special administrator on Prince's estate."

So far it appears that Prince did not make a will, as one has not been found although his family claims to still be searching for one. If one is not found, then the estate would be divided under Minnesota law between Prince's six siblings and half-siblings unless other claims to the estate are found to be valid.

Five of those siblings or half-siblings were present in court when the special administrator was appointed.

During the same hearing one early claim to Prince's estate was dismissed by the judge. A California man claimed that an implied agreement gave him the copyrights to all of Prince's musical works. The family called the claim frivolous and the judge apparently agreed.

Other claims, more potentially threatening to the known siblings and half-siblings, are starting to appear.

An Illinois woman appeared at the hearing though an attorney with a claim that she is a previously unknown half-sibling. If true, she would have a claim to an equal share of the estate as the other siblings and half-siblings. It is also possible that Prince had a previously unknown child who would have a claim to the entire estate.

At least one man has claimed to be such a child.

Reference: Star Tribune (May 3, 2016) "Judge confirms appointment of special administrator on Prince's estate."

Attorney Indicted for Social Security Disability Fraud

A notorious attorney who called himself "Mr. Social Security" has been indicted for fraud. This is good news for families of children with special needs and for seniors.

Kentucky attorney Eric Conn built one of the largest Social Security Disability law practices in the country and marketed himself as "Mr. Social Security." After a thorough investigation by the FBI, however, it appears Conn's practice was built on fraud.

He worked with a team of doctors to falsify his clients' medical records. If one of his client's was denied benefits, he is charged with then bribing an administrative law judge to approve the claim. The FBI investigation has resulted in an indictment.

Conn will face charges for defrauding the government of $600 million as Special Needs Answers reports in "'Mr. Social Security' Indicted for Defrauding Government Out of $600M in Disability Benefits."

This is extremely good news for people with special needs and their families.

The Social Security Disability trust fund is in dire straits and would have run out in 2016 had Congress not acted to save it in late 2015 by reallocating some funds from the Social Security Retirement Trust. Eliminating a large scale fraud helps preserve funds for those who need them.

Reallocating money from the retirement trust fund, which is only slightly better off in the long term, is not optimal. Seniors will benefit from the resulting preservation.

Reference: Special Needs Answers (April 28, 2016) "'Mr. Social Security' Indicted for Defrauding Government Out of $600M in Disability Benefits."

Understanding Alzheimer's Disease

Alzheimer's disease is a frightening thing to think about getting for anyone. Understanding what we know about the disease can help lessen that fear, but one of the most important things to understand about Alzheimer's is what we still do not know about it.

Everyone knows what the end stage of Alzheimer's disease is like. Thinking about getting it can give anyone the chills. What are not as well known are the early stages of the disease and the current state of scientific understanding about them.

Recently, the New York Times attempted to explain that in "What Is Alzheimer's Disease?"

Anyone who has ever lost her car keys and wondered if she was getting Alzheimer's can rest easy. Minor lapses of memory are common and often increase with age. They are not necessarily a sign Alzheimer's is present.

Alzheimer's is diagnosed by assessing memory loss that regularly impedes basic life functions. Beyond that, however, the current scientific knowledge about the disease is somewhat lacking. It is uncertain what causes the disease in the majority of cases.

A genetic marker that has been shown to increase the likelihood of Alzheimer's is only present in a minority of patients. Medications are available to treat Alzheimer's, but they only slow its rate of progress for a little while. There is currently no cure.

Even though there is still a lot to learn about Alzheimer's disease there is something that everyone can do about it. Everyone should get a health care power of attorney and a durable general power of attorney so that if they are unfortunate enough to get Alzheimer's a trusted person can have legal authority to handle their affairs.

Reference: New York Times (April 30, 2016) "What Is Alzheimer's Disease?"

Frank Zappa's Family Argues over Music and Trust

In the first decade after the death of musician Frank Zappa his estate plan appeared to have worked smoothly. More recently, however, issues have arisen that have Zappa's children fighting between themselves.

After Frank Zappa passed away in 1993, control of his music and other intellectual property rights went into his family trust, which was controlled by his widow Gail Zappa. It appeared that the family was getting along. Dweezil Zappa, one of Frank's children, toured under the name Zappa Plays Zappa and faithfully reproduced his father's music for live audiences. However, now that Gail Zappa has passed away Dweezil will no longer be touring under that name and must instead use a different one.

This is because control of the family trust has passed to two of Frank's four children and Dweezil is not one of those in control.

The New York Times reported on this story in "'Zappa Plays Zappa' Pits Zappa vs. Zappa."

The main dispute between the siblings is over what type of copyright license Dweezil should pay the trust for the rights to perform his father's music. Dweezil contends that he only needs the standard license that music venues purchase from rights holding services, such as BMI. For its part, the trust insists that a "grand license" should be obtained, which is typically reserved for the rights to perform theatrical productions.

This copyright dispute has spilled over into other areas including what name Dweezil Zappa tours under.

An important lesson to learn from this is that even when a trust appears to be working well it can be the source of disputes when a trustee passes away. In the case of family trusts that will be controlled by a surviving spouse, it is a good idea to think about possible conflicts between children after the spouse passes away at the time the trust is created.

Contact a qualified attorney to ensure such surprises are eliminated from your estate plan.

Reference: New York Times (April 29, 2016) "'Zappa Plays Zappa' Pits Zappa vs. Zappa."

Happy Birthday to the Federal Estate Tax

The always controversial estate tax is now 100 years old. The debate over it has not changed much in those 100 years.

In 1916, as the U.S. began to increase its military capacity in case the country got dragged into World War I, the federal government needed to raise revenue. As Morningstar reports in "The 100th anniversary of the estate tax," one revenue raising measure was the imposition of a federal estate tax for the first time.

Just like today, the tax did not affect the overwhelming majority of Americans nor did it account for a significant amount of total government revenue. In its first year, the estate tax affected 1% of Americans and accounted for 1% of total federal revenue.

The debate over the estate tax has also not changed very much in the last 100 years. At the time, those opposed to its passage, such as the Wall Street Journal, viewed it as "class discrimination." Supporters of the estate tax thought it a good way to raise revenue and that it was fair to make the wealthy pay a greater share of taxes.

Neither side has changed its positions very much although the rhetoric is couched in slightly different ways today.

The future of the estate tax remains uncertain.

If the Democrats win big in the 2016 Presidential and congressional elections, then the estate tax is likely to stay with us and might even be increased. However, if the Republicans win big, then the estate tax is likely to be reduced or even abolished.

Undoubtedly, when the issue is taken up again in congress no matter which side wins the debate will sound a lot like it did in 1916.

Reference: Morningstar (April 30, 2016) "The 100th anniversary of the estate tax"