January 24th, 2017
What to Expect From the First 100 Days of the Trump Presidency
By Valerie Peterson, J.D.
Repeal of the Affordable Care Act
Prior to being elected, Donald Trump published a contract with voters
outlining what he would do during his first 100 days. One promise Trump made that has been getting a lot of attention lately and that could have significant impact on seniors and persons with disabilities is the repeal and replacement of the Affordable Care Act (“Obamacare”).
In fact, the first executive order
signed by President Trump following his inauguration addressed the Affordable Care Act. In the order, relevant federal agencies to waive or defer provisions that “impose a fiscal burden on any State or a cost, fee, tax, penalty, or regulatory burden on individuals, families, healthcare providers, health insurers, patients, recipients of healthcare services, purchasers of health insurance, or makers of medical devices, products, or medications.”
In the explanation in his contract with voters, Trump states he will work with Congress to fully appeal Obamacare and replace it with Health Savings Accounts, the ability to purchase health insurance across state lines and let states manage Medicaid funds. Letting states manage Medicaid funds means either a Medicaid block grant, or per capita spending on Medicaid.
Medicaid Block Grants or Per Capita Caps
The per capita model would not account for changes in the costs per enrollee beyond the growth limit, which would be set below the projected rates of growth under current law. Under a block grant, states would be given a set amount of Medicaid funding based in part on the state’s current Medicaid spending, rather than setting a per enrollee cost.
While the cap could control federal spending on Medicaid and give states additional flexibility, it will also provide states with an incentive to reduce Medicaid payment rates and restrict benefits. Enrollee with high costs could be prevented from qualifying or saddled with high premiums or cost sharing that is unaffordable.
Currently, Medicaid matches what a state pays out for Medicaid benefits. A Medicaid beneficiary does have a share of cost, but it is limited to their income, less certain exclusions (and can vary with the Medicaid program that person is enrolled in). The per capita cap could allow states to charge much higher costs and in effect restrict enrollees from receiving benefits who need it the most.
The Urban Institute, which has analyzed Medicaid block grants and per capita proposals, notes in an article published by Forbes.com
that such policies would reduce states’ authority to make policy decisions over their own programs while threatening benefits that low-income people often need but can’t afford. In addition, block grants would favor states with higher incomes since they spend more on Medicaid and would therefore get more money allotted by way of a larger block grant.
While per capita caps or block grants will save the federal government money, several negative consequences could occur: 1) Millions of current Medicaid enrollees will lose their benefits. 2) Millions of Medicaid applicants will be denied eligibility and will have no way to pay for care or to obtain insurance. 3) States will have increased expenses to make up the difference from funding they would have received from the federal government.
Medicaid block grants are nothing new. They have been proposed several times over the past 20+ years but never implemented. While not likely to be implemented in the first 100 days, this is an issue to watch as alternatives to Obamacare are explored and negotiated by Republican Congressional leaders and President Trump.
Confusion over Repeal of Obamacare
Media reports the last week have focused on what appears to be disparity between what President-elect Trump says about repealing Obamacare and how it will be replaced, and what Republican leaders are saying publicly. A New York Times article
highlighted a recent Congressional Budget Office report that concluded 18 million could lose their health insurance within a year if Obamacare is repealed.
Trump has stated that he is working on a replacement plan. Republican leaders have stated they are working on a replacement plan. No one has published a plan yet, and it is unlikely we will see anything passed within the first 100 days of the Trump Presidency.
The next question then becomes what part of the repeal and replace process will require Congressional approval. This New York Times article
breaks down each promise made in Trump’s contract to voters and designates it as needing congressional approval, may need approval, or does not need approval. While some parts of repealing Obamacare may be done through the budget reconciliation process, a full repeal and replace will require Congressional approval.
One certainty is that the next 100 days and all of 2017 are shaping up to address critical issues affecting seniors, persons with disabilities, and Veterans. Another certainty is that elder law attorneys will become even more critical in the coming months and years as new laws are passed.
Valerie L. Peterson, J.D.
Valerie joined ElderCounsel in January of 2008 and serves as Chief Executive Officer. Prior to joining ElderCounsel, Valerie was a practicing elder law attorney in Ft. Lauderdale and Miami and the owner of Peterson Law Office, P.A. Valerie was a litigator for several years after law school, but decided to focus her practice on elder law after she experienced firsthand the challenges of caring for an elderly loved one.
December 21st, 2016
In these divisive times, please consider the words of President Abraham Lincoln as you celebrate the holidays with family and friends:
“We are not enemies, but friends. We must not be enemies. Though passion may have strained it must not break our bonds of affection. The mystic chords of memory, stretching from every battlefield and patriot grave to every living heart and hearthstone all over this broad land, will yet swell the chorus of the Union, when again touched, as surely they will be, by the better angels of our nature.”
Abraham Lincoln, 16th President of the United States of America,
in his 1st inaugural address on 04 March 1861.
September 15th, 2016
BEER & BBQ BENEFIT 2016
Beer and BBQ Benefit for domestic abuse awareness this Saturday, September 17, 2016, from 7 – 10 p.m. for which I am proud to be a sponsor. All proceeds from the event go to SafeHome and Rose Brooks Center. I am providing two silent auction items. One is a pair of tickets to see the Kansas City Chiefs v. New Orleans Saints on Oct. 23, 2016, including parking (value: $400), and the other is a will-based estate planning package (value: $1,050).
For more information: http://eepurl.com/caMRh9
For a list of sponsors and auction items: http://artatsuite100.com/beer-bbq-benefit/
It will be a fun event for a good cause, including food, drink, art, and entertainment. Please stop by as my guest.
September 15th, 2016
Where Clinton and Trump Stand on Caregiver and Long-Term Care
What the candidates have said, or not said, on these vital topics: CLICK HERE
Thank you for joining us for this four-part series of blog posts on where presidential candidates Hillary Clinton and Donald Trump stand on key issues of interest to Americans over 50. Please give me a call at 816-249-2122 if you would like to discuss how you can plan ahead to avoid losing all or most of your assets if long-term care becomes necessary.
September 12th, 2016
Where Clinton and Trump Stand on Retirement Security
They haven't said much, but here's what we do know: CLICK HERE
Look for the final story of this 4-part series this Thursday, ‘Where Clinton and Trump Stand on Caregiver and Long-Term Care' and give me a call at 816-249-2122 if you would like to discuss how you can plan ahead to protect your assets.
September 8th, 2016
Where Trump and Clinton Stand on Health Care and Medicare
Click Here for The candidates' views on these vital issues for boomers and Gen X'ers
Look for Part 3 of this 4-part series next Monday, ‘Where Clinton and Trump Stand on Retirement Security’ and give me a call at 816-249-2122 if you would like to discuss how you can plan ahead for future healthcare costs.
September 5th, 2016
August 10th, 2016
Social Security: Where Clinton and Trump Stand
A head-to-head look at their plans for the retirement program: Click here for full article.
Look for Part 2 of this 4-part series this Thursday, ‘Where Trump and Clinton Stand on Health Care and Medicare’ and give me a call at 816-249-2122 if you would like to discuss how you can plan ahead to avoid losing all or most of your assets to a Medicaid spend down if nursing home care becomes necessary.
Click link above for full article via NYTimes.com
July 27th, 2016
Are Handwritten Intentions Enforceable? Princess Diana Thought So…
Princess Diana of Wales was one of the world’s most loved celebrities – and one of the richest. Her tragic death in 1997 was world news. The majority of her estate, reportedly worth $40 million at the time of her death, was divided between Prince William and Prince Harry in her estate plan.
However, she also wrote a “letter of wishes” that directed her executors to give a number of personal effects to her godchildren. Those executors, her mother and her sister, went to court and had it ruled unenforceable.
Holographic Wills – Sometimes Enforceable, Sometimes Not
Princess Diana’s letter of wishes is similar to what’s known as a “holographic” will in the United States. In its most simple terms, it is a handwritten
document which may or may not have to be signed.
State laws vary on whether holographic wills can be enforced and how they must be prepared. Approximately half of U.S. states allow them and those require the matter to be probated; however, holographic wills are not enforceable in either Kansas or Missouri.
In states where holographic wills are valid, some of the issues which frequently arise concerning holographic wills include:
Validity. Did the decedent write the will? In contested cases, handwriting experts are often used to determine validity.
Undue Influence. Was the decedent unduly influenced to create the will? That’s difficult to prove – or disprove – as they do not have to be witnessed.
Intentions. Does the will accurately describe the decedent’s intentions? Again, without witnesses (creating an actual last will and testament generally requires two), that becomes difficult to answer.
The question becomes – if you believe that no one will contest your holographic will (and it is legal in your state), should you skip the lawyers altogether? The answer is NO.
Don’t Subject Your Wishes to Scrutiny
The whole purpose of creating a document, any
document, which spells out your intentions upon death is to make it enforceable. Although last will and testaments still go through probate, they provide the court with a signed and witnessed document which is likely to reflect your intentions. Holographic wills, in Kansas and Missouri, will not hold up in court and your wishes are not likely to be followed.
The bottom line is that creating a will, a trust, or any other type of estate planning document is easy – when handled by an estate planning attorney. In effect, the process is simple and consists of having a conversation about your intentions, listing assets, and creating a legal document which will carry those intentions out. Sadly, Princess Diana’s godchildren got nothing. Don’t let someone else decide what you did, or did not, intend.
Contact our office at 816-249-2122
and we’ll show you which types of estate planning documents are best for you and your goals
July 13th, 2016
June 30th, 2016
Big Bang Theory Star’s “Ironclad” Prenup Challenged: How Does Yours Compare?
The Big Bang Theory actress Kaley Cuoco is one of the highest paid actresses on television. She earns one million dollars per episode and has a net worth of $44 million. Before she married tennis star Ryan Sweeting in 2013, Cuoco asked him to sign a prenuptial agreement (“prenup”).
After less than two years of marriage, Cuoco filed for divorce. She assumed the prenup would be valid. However, Sweeting alleges that the prenup shouldn’t be enforced and he wants spousal support. So, is The Big Bang Theory star’s prenup ironclad? A better question might be – is any?
Cuoco Was Smart, But…
Cuoco was certainly smart to have Sweeting sign a prenuptial agreement as his net worth was only about two million dollars versus her 44 million. However, while a well-written prenup generally addresses asset division and support issues, they are not always ironclad.
In this case, Sweeting alleges that his circumstances have substantially changed due to numerous sports injuries and an addiction to pain killers which have prevented him from earning a living as a tennis player. So, while he didn’t need support when the prenup was signed, he does now.
3 Ways to Invalidate a Prenup
There are generally three ways to invalidate a prenup, by proving:
This is a legal term of art meaning that, under the circumstances, it would be grossly unfair to enforce the document. To overcome it, Cuoco would likely have to prove that Sweeting was represented by an independent attorney who advised him of the consequences before signing.
Legal contracts can be deemed void when one party was coerced into signing it. In its harshest terms, that equates to being forced to sign something at gunpoint. In this case, it means that either Sweeting wasn’t given enough time to read it or didn’t voluntarily sign it.
Sweeting could also allege that Cuoco lied about her net worth and that, based on her fraudulent activity, the prenup shouldn’t be enforced.
If Cuoco’s attorney did his or her job correctly, which seems to be the case, it’s most likely that she’ll prevail.
Don’t Risk Your Wealth!
Prenuptial agreements, part of a strong estate plan, should always be prepared by experienced attorneys (a different one for each party) who know how to comply with the laws of that particular state and take into account what changes in the relationship might affect the validity of the prenup.
Today, 50% of all first marriages end in divorce; more than 70% of all second marriages do so. It makes sense to plan for the worst and hope for the best. Certainly, don’t risk your wealth and future by failing to have as ironclad a prenup (or “postnup” – an agreement made after marriage) as possible. It’s easier to accomplish than you would think and we can provide you with the tools you need to do just that.
If you are contemplating marriage, please contact our office immediately by email at firstname.lastname@example.org or call us at 816-249-2122 to make sure you're protected.
Celebrities Who Failed to Recognize Unborn Children in Their Wills: A Teachable Lesson
Having an estate plan that protects and provides for your loved ones is not only smart, it’s necessary. Without one, your family, friends, or the charitable organizations you wish to provide for may not receive your gifts.
It’s also important to remember to update
your estate planning documents whenever something changes which would affect your intentions.
Michael Crichton. Crichton was a best-selling author, physician, producer, director, and screenwriter. He was most known for his work in science fiction including books such as Jurassic Park, Andromeda Strain, The Lost World, and many more.
Sadly, he died of cancer in 2008 leaving behind a grown daughter from a previous marriage as well as his current wife, Sherri Alexander, who was pregnant with his son. As a self-admitted workaholic, Crichton never got around to updating his estate plan to provide for his unborn son.
When he passed, his net worth was approximately $175 million. Sherri Alexander filed a lawsuit against the estate to include her son in the will. However, Crichton's grown daughter, Taylor, opposed the lawsuit and a long and drawn out court battle ensued. A judge ruled that the son would inherit, but it likely cost millions of dollars in attorneys’ fees and much stress before that decision was made.
Heath Ledger. Ledger, an Australian director and actor, was most known for his role as the Joker in Dark Knight. Although only 28-years-old, his estate had a net worth of approximately $16 million. His will left his entire estate to his parents and three sisters. He failed to update his will even when he had a child (Matilda) with Michelle Williams and died from an accidental overdose of prescription drugs in 2008.
The ensuing family legal battles lasted for over five years. Similar to Crichton’s situation, Ledger’s daughter was
able to inherit – but again, not without spending a lot of money on litigation.
No One Likes to Think About Death, But It’s Necessary
Most people don’t like to think about their own death and dealing with estate planning documents often forces us to do just that. However, as these situations show, it’s an important and necessary task to undertake.
Find out how we can help you
protect your loved ones whenever you’re facing a pregnancy, birth, marriage, divorce, or any of the life changes which can affect your estate by contacting us for a free consultation at email@example.com
or calling 816-249-2122.
June 22nd, 2016
Did Whitney Houston Leave Too Much Money to Bobbi Kristina?
Whitney Houston’s estate was worth approximately $20 million when she died – plenty to meet the needs of her only daughter – Bobbi Kristina. Sadly, only a few years after Houston’s death, Bobbi Kristina died as well.
Although Bobbi Kristina’s previous boyfriend, Nick Gordon, is still a suspect in her murder, many say that having access to so much money at a young age was a contributing factor. Sadly, Houston’s estate planning mistakes are all too common.
Aunt & Grandmother Say Will Did Not Depict Houston’s Intentions
Houston’s aunt and grandmother filed a lawsuit to re-write the will as they say it didn’t accurately depict what Whitney really
wanted for Bobbi-Kristina. They claimed that she was too young to handle so much money.
Although they likely had the best of intentions, probate courts must follow the terms of the actual will or trust documents, not what the person who died might have
Whitney Houston’s will was created in 1993, specifying that a trust would be created after she died for any children she may have (so before Bobbi-Kristina was even born) so long as they were minors. Unfortunately, she never updated her will before she died.
Inheriting Money at a Young Age is Never a Good Idea
Whether this tragedy could have been averted if Bobbi Kristina’s distributions were delayed until she was older is anyone’s guess. The bottom line is that inheriting large sums of money at a young age is generally never a good idea. Although the young beneficiary might be responsible, young people can be easily manipulated by others.
While it’s clear that Houston could have better protected that money with a stronger estate plan, she’s certainly not the only one guilty of not following through. In fact, many of us have the best intentions, but simply don’t make the time to create – and update – proper estate planning documents that can help beneficiaries.
Set Your Beneficiaries Up for Success!
You do have the power to set your young beneficiaries up for success. In most cases, that means creating a trust that allows them access to money over time and can be managed by someone you trust and has their best interests at heart.
We can provide you with the tools you need to protect your loved ones – whatever your situation may be. As Houston’s case shows, ignoring estate planning issues can have tragic consequences. Contact us today at 816-249-2122 or firstname.lastname@example.org
and let’s get started protecting you and those you love.
June 16th, 2016
The Perils of Promises...Marlon Brando’s Story
Legendary Oscar-winning actor Marlon Brando left the bulk of his estate (worth approximately $26 million) to his producer and other associates.
Brando created a valid last will and testament. However, he did not include his longtime housekeeper Angela Borlaza – who later sued alleging that Brando promised that she would inherit a home from him when he died.
A Promise Is A Promise…
While a promise is a promise, not all promises are legally equal. In the courtroom, an oral promise is usually not treated the same as a written promise. In this case, Brando either never promised Borlaza anything or promised to give her the home, but never got around to putting it in his will (or in a written contract). Borlaza claimed a promise about a home was made and sued his estate for $627,000.
However, the alleged promise was oral. The law generally favors written evidence when it comes to estate planning matters, so the court examined only what was written in Brando’s will on the assumption that he made all of his wishes known. Borlaza eventually settled the matter for $125,000, but she was lucky to get even that.
Oral promises about inheritances are typically not legally valid and usually only introduce confusion and uncertainty about formal estate planning documents (such as a will or trust). Courts can – and reasonably must – rely upon the documents, like a will, when probating an estate. Although you might be trying to save money or time by promising inheritances to family members, friends, or others, but you aren’t doing anyone a favor. Luckily, there is a way to make your promises and wishes legally valid.
Put It in Writing - The Key to Making Promises Work
Make sure that your loved ones receive everything you promised them by putting your wishes in writing through a last will and testament, a trust, or other estate planning tool. Don’t rest on your laurels. It is imperative to update your estate planning documents when any significant or life changing events occur such as:
● a new oral promise you made to someone
● circumstance changes (change in health, wealth, or state of residence)
● income changes
Need help putting your wishes in writing? You’re in the right place. Contact our office today and let us help you decide what type of estate plan might work best for your situation. It’s easier than you think and will give you the peace of mind that your loved ones aren’t forgotten. www.jlwlawfirm.com
Today, June 15, 2016 is World Elder Abuse Awareness Day
I am grateful for all of you who provide care and support for those who have provided the same for you or others when they were able to do so.
Please take a moment to check on those you love and care about, wherever they may be.
June 8th, 2016
Don’t Burden Your Family! 4 Essential Purposes of a Trust...
As we learn from Prince’s mistakes, there are also lessons to be learned from other celebrities’ estate planning horror stories:
Michael Jackson’s Estate Pulled into Seemingly Endless Probate Court Battles
Michael Jackson, the “King of Pop,” had always been a controversial superstar. Over the years, he became the father of three children, Prince Michael Jackson II, Paris-Michael Katherine Jackson, and Michael Joseph Jackson, Jr.
While Jackson created a trust to care for his children and other family and friends, he never actually funded it. The result? Embarrassing and seemingly endless probate court battles between family members, the executors, and the IRS.
4 Essential Purposes of a Trust
A trust is a fiduciary arrangement which allows a third party (known as a trustee) to hold assets on behalf of beneficiaries. There are four primary benefits of trusts:
Avoiding probate. Funded trusts are not subject to probate. However, unfunded or underfunded trusts, just like wills, generally must go through probate.
Maintaining privacy. Probate is a matter of public record. However, since trusts aren’t subject to probate, privacy is maintained.
Mitigating the chance of litigation. Since trusts are not subject to the probate process, they are not a matter of public record. Therefore, fewer people know estate plan details – mitigating the chance of litigation.
Providing asset protection. Assets passed to loved ones in trust can be drafted to provide legal protection so assets cannot be easily seized by predators and creditors.
While these are arguably the most essential purposes, trusts can also affect what you pay in estate taxes as well.
Sadly, Jackson could not take advantage of any of these benefits. Although he created a “pour-over” will, which was intended to put his assets into a trust after his death, the “pour-over” will, like any other will, still had to be probated.
The probate, along with naming his attorney and a music executive as his executors (instead of family members), fueled a fire that could have been avoided with more mindful planning. Given the size of Jackson’s estate, it’s no surprise that everyone wanted a piece of the pie.
Don’t Burden Your Family!
Losing a loved one is difficult enough without having to endure legal battles afterward. In Jackson’s situation, properly retitling his assets into his trust would have reduced litigation and legal fees, and helped provide privacy for his survivors. His situation, although it deals with hundreds of millions of dollars, applies to anyone who has assets worth protecting. In other words, it likely applies to everyone!
There are many types of trusts and estate planning tools available to ensure that you don’t burden your family after your death. We’ll show you how to best provide for and protect your loved ones by creating the type of estate plan which is tailored to fit your needs.