The Time to Update Your Estate Plan Is Now

Gene L. Osofsky, of the law firm Osofsky & Osofsky, asserts that the "when" to update your estate plan is now – especially if you're a procrastinator.

You thought you were clever when you created an estate plan in the mid-1990s, and you were, for the time being. But now your estate plan documents are contained in a bank's safety deposit box, gathering dust until they're needed. Nothing has changed since 1994, right? Right, if you inhabit a vacuum and your family has not grown or changed in any way, and if suspended animation has become your form of existence. According to Gene L. Osofsky, such an existence is more likely in the genres of fantasy and science fiction, but seldom in real life. "If you are living as most people do, changes occur whether you want them or not. There are several reasons to update your estate plan – even if it seemed perfectly fine at one time."

The passage of time: "This is actually the most common reason people update their estate plans," Osofsky explains, "You are entitled to change your mind if a more sensible idea comes to mind. If you named your parents as trustees when your children were minors, you might wish to name your now 37-year-old son instead, especially if that much time has elapsed. No disrespect intended to your mom and dad, bless their souls, but now they're in their early 90s! In addition, certain documents should be re-executed to avoid being perceived as stale."

The birth or death of a beneficiary or fiduciary: "If you have new children or grandchildren, or a parent or sibling has passed on, it's time to update," Osofsky says.

Your own marriage or divorce, or the marriage or divorce of one of your beneficiaries: Says Osofsky, "It's time."

Moving to a new state: "Tax, health care, and estate planning laws vary from state to state. If you don't take this into account, you or your descendants might be in for some rude surprises," Osofsky insists.

A significant change in your financial status, or in the status of your business: "Your estate plan reflects the size and nature of your assets when you created your original documents. Different strategies might be more effective as the configuration of your estate changes," says Osofsky.

Changes in tax law: "Back in the 1990s, A-B trust splits were in common use on the first death in order to minimize estate tax. With increasing exemptions, those trust splits may no longer be necessary for the estates of most couples," Osofsky asserts.

But if none of the above has happened to you, you may be one of the few for whom updating your estate plan is no longer necessary because your procrastination has entered the realm of suspended animation.

To learn more about East Bay elder law lawyers, East Bay elder law attorney, Medi-Cal planning, Medi-Cal planning lawyers and The Law Offices of Osofsky & Osofsky, visit Lawyerforseniors.com.

Setting Up a Trust for a Child You Love

Gene L. Osofsky, of the law firm Osofsky and Osofsky, can help you establish a trust for your non-adult beloved child.

There are advantages and disadvantages to establishing a so-called "kid's trust." Gene L. Osofsky, of the Law Firm Osofsky & Osofsky, is a great person to help you figure out the pros and cons. Advises Osofsky, “It may be worthwhile to prepare a trust for a minor child even if you believe your estate is relatively small and your significant assets are few." Often, just being the beneficiary on an insurance policy may warrant a trust for a child. According to some experts, every parent should consider a trust for their non-adult child, or children.

It's often overlooked that children who are minors cannot legally inherit large sums of money directly or as indirect tangibles such as a vehicle or proceeds of an insurance policy. If a parent dies and attempts to leave a large sum directly to a child not yet of age, the court will intervene and appoint a guardian to manage the inheritance for the minor child. "This guardian may not be the trusted friend or relative whom you might have preferred," Osofsky says, "But if you engage an attorney during your lifetime to help you establish a trust; your child may be spared from having to grow up with an additional layer of bureaucracy impeding them as they mature into adulthood. Without a court-appointed guardianship to worry about, in effect you gain control over how your gift of money is controlled and spent – even if you are no longer physically around."

According to Osofsky, other benefits of creating a trust for your minor child may also come into play. "Your trust may make arrangements to pay for said child's education, delay the age when your child has outright access to the money, or even reduce applicable taxes," he explains. But choosing the appropriate trustee is also crucial. "You need someone reliable, detail-oriented, and great at handling money," Osofsky says. If that combination seems daunting, perhaps consulting with a specialist in Elder Law matters (like Osofsky) may help you decide.

To learn more about East Bay elder law lawyers, East Bay elder law attorney, Medi-Cal planning, Medi-Cal planning lawyers and The Law Offices of Osofsky & Osofsky, visit Lawyerforseniors.com.

Home Sweet Nursing Facility

Removing your loved one from the familiar environs of home and moving them into a nursing 'home' or facility can be a gut-wrenching experience. It doesn't have to be.

When you or a loved one are forced by age or circumstance to move from "sweet home" into "sweet nursing facility, " it can be a most agonizing decision. But there may be ways to make those decisions seem less daunting.

It is understandable for a family to experience a degree of apprehension when the comforts and familiar nuances of home are exchanged for the unknown, where your loved one is suddenly dependent upon others for their daily needs after a lifetime of relative independence. The most well-meaning nursing home staff is, when you get right down to it, comprised of strangers. Imagine how you would feel suddenly placed in a nursing home full of strangers especially if your next generation of friends and family are living too far away to easily visit. This predicament is a reality faced by many elders.

To ease the transition, and to monitor an elder's care as they're placed in a nursing facility, an attractive option for many families is hiring a Geriatric Care Manager. So-called GCMs can be a valued resource for elders and their families – an insider who knows the ins and outs of the system and can navigate effectively, matching the best care and services to each individual's situation. But some families are asking their GCMs to stay in the picture even after gramp-pa is settled and acclimated to the nursing home, so that he continues to receive the best possible care. GCMs sometimes recommend the hiring of professional caregivers to check in with your loved one periodically, perhaps weekly or even daily, as required.

An excellent resource for finding a Geriatric Care Manager in your area is the National Association of Professional Geriatric Care Managers, which can be Googled. If the time is fast approaching but it's not here yet, a call to your resourceful Elder Law attorney might be in order. Ask him to include a mention of the GCM preference in your estate planning documents or other relevant instructions.

Gene Osofsky is an East Bay elder law attorney in California. Gene Osofsky specializes in Medi-Cal planning, wills, probate, trusts, nursing home issues, special needs planning, and disability planning. To learn more about East Bay elder law lawyers, East Bay elder law attorney, Medi-Cal planning, Medi-Cal planning lawyers and The Law Offices of Osofsky & Osofsky, visit Lawyerforseniors.com.

Hospital Privacy Rules Can Be Exasperating

Being confronted with hospital privacy rules while you or a loved one are hospitalized can drive one to distraction, but a little planning may help ease your exasperation.

Recently a friend of mine was hospitalized for a gallbladder procedure. Going to visit her to lift her spirits sounded like a good idea initially, but when I somehow ran afoul of the hospital's stringent regulations regarding visitors, my best laid plans went awry. After several attempts, I gave up. My grievous error was mentioning her by name to the "wrong" nurse, and in so doing I'd violated my friend's privacy. The hospital perceived me as a threat, simply because I have a rather loud voice. Later when my friend wondered why I hadn't gone to visit her, I explained, but my excuse seemed inadequate to say the least.

If you or someone you care about has been hospitalized recently, you've discovered that strict rules regarding patient privacy exist at most hospitals. Sometimes bordering on the Kafka-esque, these arbitrary regulations can seem like bureaucracy run amok, and in worst case scenarios, can shut out patients from visitors entirely. Hospital staffers are prohibited from dispensing information about patients to extended family members and friends, if not also to closer relations who may not possess proper identification. A frustrating trap of "Catch-22" can dramatically increase anxiety levels as information about people you care about is kept "confidential," sometimes for no apparent logical reason except for the hospital's self-centered liability concerns based upon strict laws regarding privacy.

Getting around strict privacy laws, however, is a doable proposition if you enlist the aid of an Elder Law attorney. A reputable Elder Law firm can suggest options that work and are perfectly legal. A comprehensive Health Care Directive and a signed HIPAA Authorization might be considered admission tickets to visiting your loved one or else a viable way to ensure cooperation of hospital staffers when you need it most. But creating these documents must be accomplished with planning and a bit of finesse, a fait accompli prior to you or your loved one ending up in a hospital.

An estate plan created by an Elder Law attorney would likely include not only financial documents, but also the precise documents needed to honor your wishes pertaining to medical care. If you wait until the hospitalization is upon you, however, your procrastination can leave you at the mercy of hospital staffers who may be sticklers for adhering to the letter of the rules regarding privacy.

Gene Osofsky is an East Bay elder law attorney in California. Gene Osofsky specializes in Medi-Cal planning, wills, probate, trusts, nursing home issues, special needs planning, and disability planning. To learn more about East Bay elder law lawyers, East Bay elder law attorney, Medi-Cal planning, Medi-Cal planning lawyers and The Law Offices of Osofsky & Osofsky, visit Lawyerforseniors.com.

Elder Law Expert Weighs in on U. S. Healthcare Crisis

Gene L. Osofsky of the law firm Osofsky and Osofsky asserts that U.S. medical care has become a "mountain of cost."

Elder Law attorney Gene L. Osofsky, like many Americans, recently read a feature article in the April 27, 2009, issue of The Nation that gave him pause. The article, entitled "A System from Hell" by Kate Michelman, detailed the tragedy of a family that, despite possessing adequate insurance coverage, has nevertheless been pushed to the brink of destruction." Her young adult daughter was paralyzed when a horse fell on her; her husband, who had been diagnosed with Parkinson's Disease, was then crippled and lost any hope of independence in the twilight of his life, after shattering his hip; and now the mounting medical bills keep on exacting a terrible toll – all this happens to a responsible couple who had seemingly prepared for health-related contingencies. How could this happen in America?" Osofsky asks. Michelman's husband was placed in assisted living after surgeries and hospitalizations for his fractured hip. Ironically, the couple had thought to purchase private long-term care insurance years before their crisis, but although their insurance plan nominally covered long-term care, it did little to address her husband's long-term care in respect to its actual costs. "How does one plan for a situation such as this? Kate Michelman certainly thought she and her husband had planned for every eventuality – she is a well-known and well-to-do public figure, he was a tenured college professor, they had excellent medical insurance, even long-term care insurance, and still it wasn't enough," Osofsky says, "They still found themselves on the brink of losing everything."

According to Osofsky, Michelman's story is frightening "precisely because it could happen, and is happening, to any of us." The unfortunate truth about medical insurance, long-term care insurance, and Medicare/Medi-Cal for those who qualify, is that they often cover "most of the cost" of medical treatment and rehabilitative care. Asserts Osofsky, "Most is woefully lacking when we must face the awful reality of how high the costs actually are. Deductibles, co-payments, share of costs, and uncovered services have become a huge personal obligation, a black hole of debt where accumulated life savings can disappear in a heartbeat." Is there a solution? The key is to enlist the help of committed experts who know how to navigate the convoluted worlds of the medical industry, insurance industry, and government benefit programs. Osofsky suggests "finding professionals who can help you build a plan to make the best use of those systems and what they offer." But even that's not a complete solution. Something needs to change. Concludes Osofsky, "Medical care in the United States has become a mountain of cost that even the young and the healthy ignore at their own risk."

To learn more about East Bay elder law lawyers, East Bay elder law attorney, Medi-Cal planning, Medi-Cal planning lawyers and The Law Offices of Osofsky & Osofsky, visit Lawyerforseniors.com.

2006 California Case Disqualifies "Care Custodians"

Gene L. Osofsky, of the law firm Osofsky & Osofsky, explains how being regarded as a "care custodian" may disqualify a person from being a beneficiary of a testamentary distribution.

"It might seem counterintuitive," says Elder Law specialist Osofsky, "but according to a 2006 case decided by the California Supreme Court, being designated as a 'care custodian' of a dependent adult, may actually disqualify such persons from receiving testamentary bequests." Adds Osofsky, "Only if the person making the testamentary bequest engaged a separate attorney to conduct an Independent Review and affirm that the testator was of sound mind and knew what he was doing, could the bequest be upheld." The law seeks to protect dependent adults from coercive beneficiary disbursements made under duress or as the product of overreaching or undue influence. In certain care settings, California law presumes the naming of a care custodian as a beneficiary of one's Will or Trust to be coercive actions assumptive of an unscrupulous care custodian and therefore void.

The case of BERNARD V. FOLEY (decision handed down August 21, 2006) found that unrelated friends providing ongoing health services to a dependent adult were "care custodians" under the relevant state statute and were therefore disqualified from receiving a testamentary distribution. James Foley and Ann Erman were longtime friends with Carmel Bosco. Ms. Bosco lived with them for two months prior to her death. Foley and Erman assisted her with her daily needs, including preparing her meals, helping her bathe, changing her diapers, and administering oral medications. Three days before she died, Ms. Bosco altered her living trust to make Mr. Foley and Ms. Erman each 50 percent beneficiaries. They had not previously been beneficiaries of the trust.

But Ms. Bosco's relatives protested. Petitioning the court to invalidate the amendment, they argued that Mr. Foley and Ms. Erman were disqualified from receiving a testamentary distribution because they were "care custodians." "Under California law, there is a presumption that donative transfers to care custodians are procured by undue influence," explains Osofsky, "The state Supreme Court merely affirmed that a 'caregiver' under the statute could even be a friend who renders care to a dependent adult without compensation." According to the Court's decision, the definition of custodial care includes uncompensated or nonprofessional care and there is no evidence the legislature intended to make an exception for preexisting personal friends who provide health care services. Concludes Osofsky, "Elders have to be protected from people who would provide them with unprofessional care simply as a pretense to inheriting their assets. The very fact that they require such care puts them in an extremely vulnerable position." But even this can be less than ironclad. "Sometimes persons have legitimate reasons for wanting to make bequests to their non-family member caregivers. In California, this essentially requires two attorneys to be involved, one to perform the Will or Trust and a second to conduct the Independent Review. Is this a trap for the well-intended?"

To learn more about East Bay elder law lawyers, East Bay elder law attorney, Medi-Cal planning, Medi-Cal planning lawyers and The Law Offices of Osofsky & Osofsky, visit Lawyerforseniors.com.

Pros and Cons of Joint Accounts

Probate can be a difficult process. But using joint accounts to avoid it may not always be a good idea.

If you are thinking that joint accounts are a foolproof way to escape probate and funnel dollars to loved ones as a sort of "poor man's estate plan," think again. Circumstances exist when a joint account is an excellent option. But the instrument has its pitfalls as well, and if misused or entered into without caution, joint accounts can pose serious risks. Adding a loved one to a bank account may seem like a prudent action, but such actions can impact Medicaid planning or even make your account "fair game" for your loved one's creditors.

Applications for Medicaid long-term care coverage can be tricky. States are obliged to examine the applicant's assets to determine eligibility. Although a joint account may include two or more names, states tend to make the assumption that the applicant is the owner and entirely responsible for the total funds in the account, irregardless of who might have contributed to the account. Imagine your name is on a joint account. You enter a nursing home. The state is still likely to assume that the account's assets are yours – especially without proof otherwise. Realize also that proving anything is a lot more difficult from inside a nursing home, or even an assisted living facility, when you might not have ready access to your papers and files as you did within your home sweet home back when you were well and able.

It can get worse. What if you or the other joint owner of the account decides to take monies out of an account that is already under state scrutiny? This can be perceived as "improper transfer of assets" for Medicaid purposes, which may have an adverse effect upon your eligibility. You or the other joint owner could become ineligible for Medicaid for a period of months or perhaps years. In fact, if a joint owner is removed from an account, it can appear suspicious to investigators. Example: Your parent enters a nursing home. You decide to remove your parent's name from the joint bank account. Again, this simple action, prudent on its face, can be construed as an improper transfer of assets.

Remember that an account remains exposed to all the account owners' creditors. If your son is added to the account and falls behind (or worse, defaults) on his credit card debt and gets sued, guess who is on the hook? Under laws currently in effect, a credit card company can confiscate the money in your account to pay off your son's debt. Another pertinent question revolves around trust. Can you completely trust the person you are adding?

Viable alternatives to joint accounts do exist. A consultation with your attorney specializing in Elder Law may suggest a durable power of attorney or else a well-considered trust instrument. Seek out a qualified Elder Law attorney near you.

Gene Osofsky is an East Bay elder law attorney in California. Gene Osofsky specializes in Medi-Cal planning, wills, probate, trusts, nursing home issues, special needs planning, and disability planning. To learn more about East Bay elder law lawyers, East Bay elder law attorney, Medi-Cal planning, Medi-Cal planning lawyers and The Law Offices of Osofsky & Osofsky, visit Lawyerforseniors.com.