December 20, 2010 in Elder Law, Legal News by jferris

The Law Offices of Osofsky and Osofsky Offers Tips on Contesting the Will

Contesting a will is not easy, but may sometimes be necessary to preserve the proper distribution of an estate.

A person may be able to contest their loved one’s will if the person has good reason to believe that it is invalid. Contesting a will is a process that is based on a person’s firm belief that something is wrong with his or her loved one’s will or in the manner in which it was signed or procured.

A person should not contest a will simply because he or she thinks the loved one made a distribution of which he or she does not approve. Rather, one must have valid grounds to make the contest. To begin with, a will is presumed valid if it appears valid on its face, i.e. contains the signature of the loved one and the requisite signatures of disinterested witnesses in accordance with state law. In order to challenge a will, the challenger has the burden of coming forward with legally valid evidence that would justify a court of law in setting the will aside. There are only certain circumstances that would warrant a court doing so:

If the person can prove that the person making the will (also known as the testator) was suffering from mental incapacity to the degree that he did not know that he was making a will and/or did not know the nature or extent of his assets, nor the identity of his family, one may be able to establish that he lacked the requisite mental capacity to make a will. Evidence in this regard may include medical records, witnesses who had interaction with the testator and, possibly, the opinion of a forensic psychiatrist.

If a person believes that another person applied undue pressure upon the testator to change the distribution made in a prior will and/or to disinherit someone who would be the natural object of his bounty, that circumstance may perhaps show undue influence, which is often another basis to challenge a will.

Fraud is another basis to contest the will. For example, if a person can prove that the testator signed the will document without knowing or realizing that it was actually a will, or that he was given misinformation that caused him to sign the will in its present form or to change the distribution plan of a prior will, one may be able to establish that he was fraudulently influenced.

Further, if a person can show that the will was not properly executed according to state law, this may furnish another basis to contest a will. Example: the testator did not sign in the presence of the required number of disinterested witnesses, or that the actual signing was not properly witnessed.

“If you believe that your situation is similar to any of the above circumstances, you may wish to contact an attorney immediately to help you file a claim to ensure the proper distribution of your loved one’s estate,” said Gene L Osofsky, an elder law and estate planning attorney with the Law Offices of Osofsky Osofsky, with experience in trust administration and estate planning. “Also, be mindful of time limits. Usually a will contest must be filed before the will is admitted to probate. Speed may therefore be essential.”

To learn more about elder law and The Law Offices of Osofsky & Osofsky, visit http://www.lawyerforseniors.com/.

December 17, 2010 in Elder Law, Legal Articles by jferris

Making Loving Gifts to Grandchildren to Ensure Their Future Security

Grandparents sometimes consider lifetime gifts to grandchildren when planning for their financial future. Not only will the gifts give the grandchildren a good start in life and perhaps a brighter future, but by such gifts may have an added benefit to your estate: by gifting to your descendents you can reduce the size of your estate and, possibly, reduce estate taxes payable upon your passing.

The simplest form of gift is to make an outright gift, providing that your grandchild is of an age to be considered an adult. In California, that age is 18. As long as that the gift is not more than $13,000 per year per grandchild, no gift tax report is required. Married couples can double their gift. By way of example, if you and your spouse have four grandchildren, by doubling your gift, you could give away up to $104,000 per year without incurring any gift tax and without any need to file a gift tax return. Gifts that do not exceed this amount per year are called “Annual Exclusion Gifts”.

You can also make direct payments to your grandchild’s school or college for tuition and tuition related costs, as well as for his health care expenses. These payments can be made on top of the $13,000 per year, providing that you pay the school and/or medical provider directly. These gifts are sometimes referred to as the “Educational or Medical Payment Exclusion”.

If your grandchild is still a minor, you may make a gift into a custodial account managed by someone you designate. While the account can be managed by a parent if you so designate, there may be tax reasons to nominate another person to manage these accounts for the grandchild, such as an uncle or aunt. These custodial accounts are sometimes known as “UGMA” or “UTMA” accounts, and most banks and stock brokerage firms have the relevant forms to assist you in setting them up

You may also consider making gifts by funding “529 Accounts”, which are accounts set up to help pay for your grandchild’s education. There are of course other gifting vehicles, including U.S. savings bonds. It is best to check with your tax advisor or estate planning attorney regarding your planned gifting program, especially if you are contemplating gifts of appreciated property.

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 elder law and The Law Offices of Osofsky & Osofsky, visit Lawyerforseniors.com.

November 30, 2010 in Elder Law, Legal News by jferris

California’s Nursing Home Law Reaffirms Requirement of Proper Staffing Ratios in Nursing Care Facilities

Recent Legislation Will Help Ensure Better Quality Care for Patients and Law Offices of Osofsky and Osofsky Gives Tips on How to Evaluate a Nursing Home

There are new changes in state law regarding California’s skilled nursing homes.

Nursing homes will now face fines if they do not maintain state-mandated staffing requirements under the reauthorization of AB 1629 signed by Gov. Arnold Schwarzenegger on Oct. 19. The state will now have new tools to enforce the existing staffing requirement of 3.2 nursing hours per patient per day, required of all nursing homes licensed in California that receive Medi-Cal or Medicare payments.

These changes were established for accountability’s sake to ensure that all nursing homes meet state requirements. They were designed to reinforce the Long Term Care Reimbursement Act of 2004, which increased funding for nursing homes to help them meet these staffing requirements. Until now, the 2004 act had not fully met its goal of improving patient care.

The new law will also increase the number of auditors investigating the nursing homes. It will also establish fines for those who are non-compliant.

“The reason for this legislation was to provide better enforcement of the required staffing ratios in nursing homes, in order to improve the quality of patient care,” said Gene Osofsky of the Law Offices of Osofsky and Osofsky, which specializes in elder law, estate planning and trust administration.

Skilled nursing homes and care facilities will face penalties and fines if they do not meet the staffing requirements as required by law. Although some nursing homes already staff at the state’s requirement, others will now be forced to comply through imposition of fines and penalties. “We hope that the new law will provide better enforcement of the required staffing and improve the quality of care for patients,” Osofsky said.

Gene Osofsky also gives tips on how to choose and evaluate a proper nursing care facility. Gene Osofsky is a lawyer who also deals with nursing care issues.

“What’s more important than a nice looking facility is the quality of care. One must look at how the residents in the nursing home are being attended to and how well they are being treated and respected. Try to visit a facility at a time that hasn’t been prearranged in order to get an unrehearsed version of how the place operates,” Osofsky said.

To learn more about elder law and The Law Offices of Osofsky & Osofsky, visit http://www.lawyerforseniors.com/.

November 17, 2010 in Elder Law, Legal Articles by jferris

The Cultural Changes in VA Healthcare System: Serving Female Veterans—the Invisible Minority

U.S. military veterans are getting older and have been actively seeking services from the Veterans Affairs healthcare system – from veterans who served in WWII, Korea and Vietnam to the most recent theatres, Iraq and Afghanistan. However, there has been an invisible, less talked about sector that is growing – female veterans.

The VA just recently created services for female veterans, and they are now being treated in veteran’s hospitals throughout the nation. Even female veterans coming out of military service are surprised to find that there are now services geared especially for them.

Today, only a third of all U.S. Veteran Affairs hospitals and clinics offer a women’s clinic for female veterans, but the VA plans to expand women’s clinics across the board. There is a surge of women joining the services, meaning more women in the military will be seeking services when they get out and when they get older.

According to the Department of Veteran affairs, women today account for 15 percent of active-duty roles, compared to only 3 percent of the military during the Vietnam era.

Since there is no real delineating line between men and women on the front lines during combat, more and more women are being killed and subjected to combat injuries and trauma. This in turn will affect their family and support systems and ultimately the VA healthcare system.

Gender-specific treatment is the ultimate goal of the VA healthcare system for women who have served in the military, some of whom are suffering from things like combat related injuries, PTSD and sexual trauma. NPR stated that there are more than 2,000 women who fought in Iraq or Afghanistan and, since treatment had historically been geared for men and war stories were about men, the plight of injured female soldiers faded into the background.

Now, the women getting out of the military are being acknowledged in the VA healthcare system and the VA is actively trying to get the word out to the general public, as well as to female military members themselves. When these women get older, they will be fitting into the categories of their male counterparts in regard to their need for long-term medical treatment, health-care services and VA prescription drug benefits.

For more information on veteran’s medical benefits and how you can qualify, go to http://www.LawyerForSeniors.com/.

September 12, 2010 in Elder Law, Legal Articles by jferris

N2Care’s MedCottage a portable dwelling for elder relatives

Gene L. Osofsky, of the law firm Osofsky & Osofsky, offers some pertinent commentary about a biometric shelter that now has a working prototype.

Caring for aging family members now has a new wrinkle. Last month, a small Salem, Virginia-based firm called N2Care trotted out its first prototype of a portable, high-tech dwelling intended to provide temporary shelter for a sick or elderly relative in their family’s backyard. Filled with biometric technology, the 12-by-24-foot prototype would allow a family or health-care providers to monitor the condition of an aging or disabled relative while foregoing costlier options such as confinement in a long term care facility. The brainchild of a Methodist minister, the MedCottage contains air-filtration systems, video links, devices that allow the remote monitoring of a patient’s vital signs and sensors that could detect an occupant’s fall.

“It’s new, but it’s intriguing,” says Gene L. Osofsky of Osofsky & Osofsky, a California-based firm geared to the practices of estate planning and the intricacies of elder law. The concept inherent in the MedCottage has already been endorsed by the Virginia General Assembly via HB1307, which would supersede local zoning laws and allow families to install such a dwelling on their property with a physician’s order.

But will the concept catch on beyond Virginia? It has also received a cautious endorsement from AARP; the lobbying group for Americans aged 50+, which has said that local zoning laws pose one of the bigger obstacles to making such dwellings a practical solution to caring for aging family members in what it calls “accessory dwelling units.”

Osofsky has a wait and see attitude about the MedCottage, and notes objections harbored by the temporary shelter’s naysayers. “Detractors have taken to calling the innovation the ‘granny pod’ and predicted that accessory dwelling units could create conflicts between neighbors who find the dwellings unsightly,” Osofsky says. “And some critics also worry that the setup could foster instances of neglect involving the persons placed in the dwellings.”

But as upwards of 80 million baby boomers edge toward retirement age, so-called “granny pods” might prove to be a viable alternative to nursing homes. “It’s a lot like a modular hospital room that one might find in an aid mission,” Osofsky says. “And there’s also a comfort factor involved for the occupant of such dwellings – their loved ones are only a few steps away.”

To learn more about elder law and The Law Offices of Osofsky & Osofsky, visit http://www.lawyerforseniors.com/.

September 12, 2010 in Elder Law, Legal Articles by jferris

HHS Secretary Sebelius Announces Pre-existing condition insurance plan

The Affordable Care Act Program will provide temporary coverage for Americans who lack insurance due to pre-existing conditions now through 2014, when the new insurance exchanges are established.

The U.S. Department of Health and Human Services (HHS) announced earlier this summer the establishment of a new Pre-existing Condition Insurance Plan (PCIP) that will offer coverage to uninsured Americans who have been unable to obtain health coverage because of pre-existing health conditions.

The Pre-Existing Condition Insurance Plan, which will be administered either by individual states or by the Department of Health and Human Services, will provide a new health coverage option for Americans who have been uninsured for at least six months, have been unable to get health coverage because of a health condition, and are a U.S. citizen or are legally residing in the United States.

Created under the Affordable Care Act, the Pre-Existing Condition Insurance Plan is a transitional program until 2014, when insurers will be banned from discriminating against adults with pre-existing conditions, and individuals and small businesses will have access to more affordable private insurance choices through new competitive Exchanges. In 2014, members of Congress will also purchase their insurance through Exchanges.

“For too long, Americans with pre-existing conditions have been locked out of our health insurance market,” said Secretary Kathleen Sibelius. “Today, the Pre-Existing Condition Insurance Plan gives them a new option – the same insurance coverage as a healthy individual if they’ve been uninsured for at least six months because of a medical condition. This program will provide people the help they need as the nation transitions to a more competitive and fair marketplace in 2014.”

The Affordable Care Act provides $5 billion in federal funding to support Pre-Existing Condition Insurance Plans in every state. Some states have requested that the U.S. Department of Health and Human Services run their Pre-Existing Insurance Plan. Other states have requested that they run the program themselves. For more information about how the plan is being administered where you live, please visit HHS’ new consumer website, www.HealthCare.gov.

“Health coverage for Americans with pre-existing conditions has historically been unobtainable or failed to cover the very conditions for which they need medical care,” said Jay Angoff, Director of the Office of Consumer Information and Insurance Oversight (OCIIO), which is overseeing the program. “The Pre-Existing Condition Insurance Plan is designed to address these challenges by offering comprehensive coverage at a reasonable cost.”

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 elder law and The Law Offices of Osofsky & Osofsky, visit Lawyerforseniors.com.

August 12, 2010 in Elder Law, Legal Articles by jferris

Sensors at Home Can Make Your Elders Safer

Gene L. Osofsky of the law firm Osofsky & Osofsky weighs in about some helpful sensors.

For a lot of our elders, living alone isn’t what it used to be, especially in the sense of devices and technologically-advanced sensors placed in the home for safety reasons.

When Malcolm McGill, 94, slipped on a wet floor in his Bayonne, New Jersey home without wearing his emergency alert pendant, and could not phone for help, he felt desperation.

Fortunately, a tiny wireless sensor beneath Mr. McGill’s bed detected that the nonagenarian had gotten up. Motion detectors in his bedroom and bathroom registered that he had not left the area in his typical pattern and relayed that information to a central monitoring system, prompting a call to his telephone to ask if he was okay. When he did not answer, more calls were triggered – to a neighbor, to the building manager, and finally to 911, which dispatched firefighters to break through his door. He’d been on the floor less than 30 minutes when help arrived – courtesy of a system known as eNeighbor.

“It’s amazing some of the technology that’s available even for isolated elders living alone,” asserts Gene L. Osofsky of the law firm Osofsky & Osofsky, “That man might have died in similar circumstances a generation ago.”

Technologies such as eNeighbor offer a surprisingly high standard of care – and are backed by corporate giants such as Intel and General Electric – the latter a household word for most elders. But the devices can be expensive, remain largely untested, and are seldom covered by the government or private insurance plans. Doctors are not trained to treat patients using remote data and no mechanism exists for them to receive compensation for doing so. In fact, many such devices – including motion sensors, pill compliance detectors and wireless devices that transmit data on blood pressure, weight, oxygen and glucose levels – can have unintended or even adverse consequences.

“It’s difficult to substitute electronic measurements for face-to-face contact with doctors, nurses, and family members,” Osofsky explains.

Mr. McGill, who has congestive heart disease and suffered a broken hip five years ago, said he could not live on his own without the system that probably saved his life, built and distributed by a Minnesota company called Healthsense.

“Despite their limitations in 2010, in a few years I predict a lot of these sensors will become more practical and pervasive,” Osofsky concludes.

To learn more about elder law and The Law Offices of Osofsky & Osofsky, visit http://www.lawyerforseniors.com/.

August 12, 2010 in Elder Law, Legal Articles by jferris

Let the Bank Do It?

Should you allow a large bank to help care for your elderly parents?

Baby Boomers are aging fast, their parents even more so if they’re still around. Caring for an elderly parent can be a big responsibility. Boomers might even be realizing the pitter-patter of their own quickening years.

Large banks are realizing this trend too. Some are betting on enriching their client base – and adding to their receivables while they’re at it – by providing financial elder-care services. Can a bank be effective at helping you care for the elders you cherish?

Sources such as the Wall Street Journal, in a recent article, assert that the larger banks have received positive initial reviews when it comes to such everyday necessities as sorting out medical bills, hiring in-home care, or perhaps administering the sale of a home. Flush with such successes, banks are beginning to delve into more in-depth services such as estate planning; establishing power of attorney subsequent to a crisis (the proverbial “break a leg” comes to mind, or more aptly a hip); health and home care assessments; selecting Medicare coverage and claims management – even scouting long-term living options like retirement communities and assisted living facilities.

Is rushing down to your nearest apparently elder-friendly bank getting you psyched? Advice might be similar as for riding a spirited steed when you’ve never sat in a saddle – Whoa! Treat a bank like you would any other attorney or professional advisor. While a horse might be guileless, a bank probably isn’t. By targeting the elderly population and their family caregivers, from a bank’s perspective seeing their asset management annual fees jingle out of their clients’ pockets might be reason enough for their foray into elder-care services –no matter how convenient their plans might sound.

Even if a particular bank does offer in-depth options worth trying when it comes to elders and their care and also financial legacies, careful investigation and research – as well as asking all the key questions – is essential before choosing any advocate for your beloved elder – be it a bank or otherwise. The person or institution to hire should truly know their stuff, especially the ins and outs of the law and the care-giving industry. A mere dabbler you don’t want. In fact, seeking out the advice of an Elder Law attorney before and not after you make a decision may help you choose the best bank – if that’s truly a direction you still want to go.

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 elder law and The Law Offices of Osofsky & Osofsky, visit Lawyerforseniors.com.

July 11, 2010 in Elder Law, Legal Articles by jferris

Limited-Duration Long-Term Care Insurance

It seems attractive on the surface. But elder law attorney Gene L. Osofsky of Osofsky & Osofsky advises that buying a limited-duration long-term care insurance policy entails inherent risks.

Consumers are increasingly buying shorter-duration insurance policies as a remedy for making long-term care insurance an option. 2009 highlights the trend nicely. That year 32% of individual consumers purchasing a long-term care policy opted for a three-year benefit window, according to a report published by the American Association for Long-term Care Insurance. Will such purchases ensure sufficient coverage to the policyholder or allow benefit dollars to keep on keeping on?

“Actually, the risk of running out of benefits on a three-year policy is quite modest,” asserts Gene L. Osofsky, an elder law attorney with the firm of Osofsky & Osofsky, “particularly for men.”

Osofsky’s perspective is supported by empirical evidence. According to a consumer’s guide published by the industry trade association, the risk of “running on empty” as far as benefits are concerned is small, especially for men. For those purchasing policies longer than three years who made a claim for long-term care, only 13.1% required that care for 3+ years. As the insurance window grew longer, only 7.6% of those with a policy that paid out 4+ years actually required care longer than four years and a mere 4.5% of those buying policies with a payout window of 5+years needed care beyond that threshold.

Osofsky is also accurate when gender is considered. Men with a three-year policy who begin a long-term care claim at age 82 (a prevalent indicator) have a 12.4% probability of exhausting their benefits, compared to almost twice that number (23.5%) for women.

“The research is showing that the cost savings is substantial too,” adds Osofsky, “less and less people are buying unlimited long-term care policies nowadays.”

There is, however, a caveat. “If you do happen to be one of those individuals whose claim extends beyond the actual number of years stated in your policy, you can expect to need care for several additional years,” advises Osofsky, “Even a year of actually needing long-term care but facing such a necessity without coverage in place can be devastating to both lives and legacies. Prior to buying this type of insurance, consumers should be informed of the real risks involved.”

To learn more about elder law and The Law Offices of Osofsky & Osofsky, visit http://www.lawyerforseniors.com/.  

July 11, 2010 in Elder Law, Legal Articles by jferris

Living Overseas on Social Security

Many elders would love to spend their retirement traveling, or even living overseas. But can you get your social security check sent to Timbuktu?

You’re retired, reasonably healthy, and love to travel. Can you still get your Social Security benefits in a place like Andorra? The short answer is yes. While you aren’t eligible to receive Medicare when you leave the country, Social Security benefits are available to retirees in other countries. If you leave the United States for another country, and have been outside U.S. borders for 30 days consecutively, a retiree is considered “outside the United States” and the rules for collecting benefits apply as if you were still in Bayonne, or even Akron.

There are some exceptions. The Social Security Administration (SSA) is not allowed to send checks to Cuba, or North Korea, for instance. Even in a forbidden place, however, you’re not entirely out of luck. If you’re living in Cuba, or North Korea, you can still receive any withheld checks if you go to a country where paychecks can be sent, to pick them up. Also, for your information, the SSA doesn’t typically send checks to Cambodia, Vietnam, or areas of the former Soviet Union (other than Armenia, Estonia, Latvia, Lithuania, or Russia), but eligible retirees may be able to apply for an exception – which are occasionally granted. In these instances, retirees may have to agree to certain conditions. Appearing in person at the U.S. Embassy each month to receive benefits may suddenly become very do-able if it’s the only way to receive your Social Security benefits.

If you are a retiree, and also a U.S. citizen, you are entitled to continue receiving benefits for as long as you’re living abroad. That said, citizens of other countries who receive Social Security may have restrictions placed upon their eligibility regarding the length of time they can continue to receive monthly benefits. In these cases, the rules can become quite complicated and a relevant Social Security publication Your Payments While You Are Outside the United States should be obtained. The SSA website also makes available to beneficiaries a payment screening tool that lets them know about their eligibility status if they remain outside the U.S. for longer than six months.

If there is any doubt, a more hassle-free option is for a retiree to use direct deposit into a U.S. bank account. Direct deposit is also available in certain countries and has the additional advantage of avoiding check-cashing and currency-conversion fees.

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 elder law and The Law Offices of Osofsky & Osofsky, visit Lawyerforseniors.com.