Sensible Solutions

Living Wills

"Do you do living wills?" Of course, we prepare them quite often. However, it is also a common misconception that a "living will" is all one needs in order to take care of medical decision making in the event of a disability or emergency. What we usually call a "living will" is simply one kind of document included under the term "advance directives." Others are Do Not Resuscitate (DNR) orders and powers of attorney for health care decisions.

Strictly speaking, neither Kansas nor Missouri law use the term "living will." What is commonly called a living will is referred to in the law as a "Declaration" to the effect that if the declarant has an incurable injury, disease or illness that is a terminal condition and that death will occur whether or not life sustaining procedures are utilized, it is the direction of the declarant that such procedures not be used or be withdrawn. Some forms continue and list optional medical procedures.

However popular the "living will" may be, a much more versatile and important document is a power of attorney for health care decisions. Often called a "medical" power of attorney, and unlike the "living will," this document specifically appoints one or more persons to exercise authority over the entire range of health care needs. This range may include such routine care decisions as consenting to a change of physician or reviewing medical records.

Recently Congress passed the Health Insurance Privacy and Portability Act (HIPAA). It imposes much greater restrictions on the release of personal medical information than had previously existed. Some health care providers and legal scholars are of the opinion that, unless a medical power of attorney contains specific authority to release information under HIPAA, the new law will prevent access to that information. Berger Law Firm has prepared a new version of the medical power of attorney that spells out the agent's authority with specific reference to the new federal law.

A health care crisis is not the time to argue with your physician or the emergency room about your legal authority to review records and consult with your loved one's health care providers. If you have not already done so, contact us for a review of your medical care directives.

Power of Attorney Abuse

Honesty is a characteristic to keep in mind when selecting someone to fulfill the obligations under the power of attorney for your estate. Also, if you agree to accept the power of attorney for someone's estate, be aware you must act in that person's best interest.

Power of attorney is a legal document that lets you designate another person, called the attorney in fact, to act on your behalf. It's important to select someone who will look out for you. Take this case for example.

A Michigan woman had given her son power of attorney over her estate. After the son transferred a large portion of his mother's assets into his own name, the conservator of the estate sued the son on behalf of the mother. The conservator won the case, but the son appealed. The Michigan Court of Appeals ruled in favor of the conservator, affirming that a person with power of attorney has a fiduciary duty to act in the principal's best interest, even if the power of attorney document does not state such a duty. (Estate of Susser, Michigan Court of Appeals, 12/3/02)

Power of attorney documents can give a lot of power to someone regarding your affairs. Choose this person carefully. Your estate depends on it.

If you have any concerns about the use or abuse of a power of attorney, contact us for an appointment to get a legal opinion.

Real Estate and Probate

Have you ever made a mistake doing something "routine"? Spilling the soup can be irritating, but consider the consequences of a professional making a mistake on something "routine." Landings and take-offs are routine for experienced pilots, but one mistake can be fatal. Making a mistake on a routine legal matter can have serious consequences as well.

Mr. and Mrs. L purchased their home in 1965. The realtor prepared the deed so that Mr. and Mrs. L's names were followed by "husband and wife." Mr. L died in 1985 and in 2001 Mrs. L decided to sell the home. The title company then told her that she only owned a one-half interest in the house! You see, in Kansas, if a deed says only "husband and wife" and does not say that the owners are joint tenants, they each own only half of the property. This is different in Missouri, which has a "tenancy by the entirety" law!

Mrs. L came to us very upset because she had a closing in six weeks. We contacted her buyer and the title company and immediately filed a court proceeding to have the court declare Mrs. L was the sole owner of the property and allow her to close the sale. We were able to publish legal notices, set a hearing and get a court order that allowed Mrs. L to close on the house on the promised date. A mistake on a routine matter many years ago cost Mrs. L unnecessary anguish and expense, but Berger Law Firm, P.A. was able to quickly and professionally address the problem.

The recent refinancing boom and the involvement of out of state title companies has increased the frequency of this error.

Contact us for a review of your legal documents, including deeds, so that the "routine" is also right.

Credit Card Claims

After death, credit card firms are not your friends, in fact, they are regularly, down right dishonest! A prime purpose of the Probate process, is to insure that creditors are paid before assets are distributed from an estate. By avoiding probate, it is also possible to avoid creditor claims. The law says that if creditor claims are not filed as part of a probate proceeding within a period of time after death, the claims are forever barred. This non-claim period is six (6) months in Kansas and one (1) year in Missouri. To make a claim, a creditor must not only make a filing with the court, but actually open a probate proceeding. Typically, if a client has a trust and a pour over will, we will file the will of record with the court, but not open a probate case. If the creditor does not open a probate case, after the non-claim period is expired, the creditor's claim is barred. But, the law does not stop the credit card companies. Cases we have handled include the following:

A husband died with a $10,000 balance on his credit card. The credit card company immediately transferred the balance to the surviving spouse and badgered her to make payments on the debt. After repeated calls and correspondence, we discovered that the husband had opened the account by telephone, and it was in his name alone. It was not the surviving spouse's debt! The home and all bank accounts were held jointly with the surviving spouse and became hers, 100%, by operation of law, at his death. No probate estate was ever opened. The credit card company could not collect on the debt.

A grandmother had over $50,000 in credit card bills at the time of her death. All of her other assets were held in her trust. We filed her will of record with the court, for safe keeping. This was necessary, as there was a possible medical malpractice claim associated with her death. To pursue this claim, a probate estate would have to be opened to enable the executor to act on her behalf. As it turns out, this claim was not pursued. More than one year has passed since her death. The credit card claims are now barred. The assets in the trust were distributed to her children, including a scholarship fund for the grandchildren. The credit card company attorneys kept calling until notified that the non-claim period had expired. No assets in the probate estate, no recovery for the credit card company.

In another case, where the credit card bills were caused by grandma's gambling debts, we were able to work with the bank to suspend mortgage payments, until after the claims period had expired. This avoided the debt and saved the family home.

Knowing the probate laws has enabled us to save many thousands of dollars for our clients and their families.

Nursing Home Quality of Care

Families now will know how many nurses are on duty when they visit a loved one in a nursing home. Effective January 1, 2003, all U.S. nursing homes must publicly post the number of licensed and unlicensed nursing staff on duty for each shift.

This posting requirement is a provision of the Medicare, Medicaid and SCHIP Benefits Improvement Protection Act of 2000.

According to Tom Scully, administrator of the U.S. Centers for Medicare & Medicaid Services (CMS), families can use this staffing information to help them select the right nursing home for their loved one.

The Nursing Home Quality Initiative was begun by the Department of Health and Human Services in November to improve the quality of care provided by nursing facilities. You may have seen the ads published by the department in November 2002 comparing nursing homes in the metropolitan area.

For more information on the Nursing Home Quality Initiative, and other Medicare and Medicaid news, go to the CMS web site at http://cms.hhs.gov.

If you or a loved one has received "substandard care" from a nursing home, contact us. The nursing home may be held liable for damages.

Medicaid Planning

Mr. and Mrs. K were elderly and both faced the prospect of entering a nursing home in the near future. They owned a home and had about $100,000 in the bank, but did not have long term care insurance to pay for the nursing home. They had five adult children, one of whom was moderately disabled but who had always held a job and had lived with them her whole life. Mr. and Mrs. K and their children were terrified at the possible costs of the nursing home and desperately wanted to maintain the home for the disabled child and, if possible, also wanted to set aside as much as possible for their children.

Berger Law Firm listened to the family's concerns, reviewed their financial situation and developed a long term care plan for Mr. and Mrs. K. The plan protected the home for the disabled daughter and it will pass to the other children upon her death, used funds to pre-pay funeral plans for both Mr. and Mrs. K, made improvements to the home and began a program of transferring some of their money each month to their children. By the time Mr. K and Mrs. K entered the nursing home six months later, they had managed to provide a safe, comfortable home for their disabled daughter, ensure that their children would not have to pay for their funerals, managed to transfer almost $20,000.00 to their children and were able to qualify Mr. & Mrs. K for Medicaid to pay the nursing home.

Contact us if you or a parent is concerned about how to meet the costs of long term care. We can prepare a long term care plan while maximizing the use of legal tools which protect your assets.