Welcome to the June 2022 Edition of Lawyer Monthly! For our June issue, we are taking a close look at an area of law not often featured in this magazine: elder law. Taking point on the sector is Valerie Peterson, who in an exclusive interview shares the insights she has gained from years of experience in elder law and her efforts to educate new elder law attorneys. How could you gain from adding elder law to your practice, and how can you go about doing it? You can read more of her fascinating story on page 12. Continuing our sector focus for the month, Matthew Moore analyses the modern elder law landscape more broadly in another of our cover stories on page 22, touching upon Medicaid and the need for effective financial planning for elders. Samantha McCarthy’s page 18 article expands yet further, offering an in-depth look at what well-established Medicaid Asset Protection Trusts can bring to estate planning. We also feature a spotlight on Medicaid itself and the changes set to impact it this year; our coverage can be found on page 32. Our other features this month cover a wide swathe of the legal industry. From Edward Estrada’s eye-opening expose on Texas’s card skimmer epidemic (page 44) to Elnaz Masoom’s guide to preparing for tax audits (page 80), the June edition is packed with almost two dozen stories of interest in both criminal and civil law. As ever, this latest issue also sports the latest legal news and lawyer moves, along with our monthly M&A round-up and a series of eye-opening expert witness profiles. We hope that you enjoy this edition. Approx. 302,000 net digital distribution. LAWYER MONTHLY©2022 Universal Media Limited Lawyer Monthly is published by Universal Media Limited and is available on general subscription. Readership and circulation information can be found at: www.lawyer-monthly.com The views expressed in the articles within Lawyer Monthly are the contributors’ own. All rights reserved. Material contained within this publication is not to be reproduced in whole or in part without prior permission. Permission may only be given in written form by the management board of Universal Media Limited. Universal Media Limited: PO Box 17858 Tamworth, B77 9QG, United Kingdom Tel: 0044 (0) 1543 255 537 Follow Us: @lawyermonthly @LawyerMonthly @lawyermonthly linkedin.com/company/lawyer-monthly - EDITOR Oliver Sullivan editor@lawyer-monthly.com PRODUCTION MANAGER Emma Tansey production@lawyer-monthly.com - A Note From the Editor Oliver Sullivan Editor - Lawyer Monthly LM EDITOR'S NOTE 3 JUN 2022 | WWW.LAWYER-MONTHLY.COM
INSIDE THIS ISSUE Contents 4 WWW.LAWYER-MONTHLY.COM | JUN 2022 Valerie L Peterson 12 WORLD REPORT 6. Monthly Round-Up 8. Lawyer Moves - Recent Appointments FRONT COVER FEATURE 12. Nurturing Elder Law Practices in 2022 Valerie L Peterson, ElderCounsel LLC ELDER LAW: 18. Establishing a Medicaid Asset Protection Trust Samantha McCarthy, McCarthy Law LLC 22. The State of Modern Elder Law Matthew C Moore, Moore Law, LLC 26. Powers of Attorney in Elder Law Mike Bascom & Brad Bascom, Bascom Law PC 28. Wills, Trusts and End-of-Life Planning in New York Regina Kiperman, RK Law, PC 32. Changes Coming to Medicaid in 2022 Written By Oliver Sullivan SPECIAL FEATURES: 34. The Impact of Digital Forensics on Legal Proceedings Amy Francis, S-RM 40. How to Protect the Judiciary from Political Interference Mehmet Gün, Better Justice Association EXPERT INSIGHT 44. Card Skimmers Beware: Cybercrime in Rural Texas Edward G Estrada, Estrada Law 48. A Guide to DWI and DUI Offences Bobby Barrera, Robert J Barrera PC 52. Cautionary Tales from the Canadian Trademark Landscape Catherine Lovrics, Marks & Clerk Law Canada 58. The Legal Landscape of the Mining Industry in 2022 Darryl Levitt, Darryl Levitt Law 64. Construction Experts and Dispute Resolution Post COVID Anne Connolly, Ankura 68. Turkey’s Challenges With Data Privacy Batu Kınıkoğlu, Hamzaoğlu Hamzaoğlu Kınıkoğlu 72. Exploring the Insurance Landscape of Hong Kong Antony Sassi & Carmel Green, RPC 76. What Do Lawyers and Top Athletes Have in Common? Charlène Gisèle Bourliout 80. Preparing for an Employment Tax Audit in California Elnaz Masoom, Masoom Law Firm P.C. 82. Navigating High-Value Debt Recovery Filip Petráš, Advokátní kancelář Petráš Rezek, s.r.o. THOUGHT LEADER 86. The Qualities of a Successful Criminal Lawyer Adriana Anca Boghiu 90. What Are the Legal Risks of Purchasing NFTs? Kevin Kelly, Mazzola Lindstrom LLP Nurturing Elder Law Practices in 2022
INSIDE THIS ISSUE 5 JUN 2022 | WWW.LAWYER-MONTHLY.COM Samantha McCarthy Establishing a Medicaid Asset Protection Trust Charlène Gisèle Bourliout What Do Lawyers and Top Athletes Have in Common? Edward G Estrada Card Skimmers Beware: Cybercrime in Rural Texas 18 76 44 EXPERT WITNESS 94. Damages Experts and Intellectual Property Litigation Marcus Reading, Intellion Analytics 98. What Are the Legal Complications of Water Infiltration? Paul Beavers, Systems Building Envelope Consultants Ltd 100. What is the Role of a Medical Billing Expert? Rebecca Reier, Med-Econ, Inc. TRANSACTION 104. What’s Happening in the World of M&As and IPOs?
MONTHLY ROUND-UP Social media giant Twitter has agreed to pay $150 million to settle claims it misused private information to target advertising after telling users the data would be used for security reasons only. According to a report by Insider, SpaceX allegedly paid $250,000 in 2018 to resolve claims that CEO Elon Musk sexually propositioned a flight attendant abroad one of the company’s corporate jets. TWITTER TO PAY $150MILLION IN US PRIVACY AND SECURITY SETTLEMENT SPACEX ALLEGEDLY BAILED CEO ELONMUSK OUT OF SEXUALHARASSMENTCLAIM The $150 million settlement covers claims that Twitter misrepresented the “security and privacy” of user data between May 2013 and September 2019. In addition to the monetary settlement, the agreement requires the social media platform to improve its compliance practices. According to the complaint, the misrepresentations violated the FTC Act and a previous settlement with the agency in 2011. “While Twitter represented to users that it collected their telephone numbers and email addresses to secure to buy her a horse in exchange for an “erotic massage.” The flight attendant said she refused Musk’s alleged advances and that, following the incident, found her work shifts were reduced, giving her the impression that she was being punished. In 2018, she filed a complaint with SpaceX’s human resources department. The complaint was resolved without arbitration after the attendant signed an agreement not to sue or to According to Insider, the flight attendant told her friend that the SpaceX CEO had propositioned her in 2016 in his private cabin during a flight to London. Insider cited unpublished documents and their accounts, Twitter failed to disclose that it also used user contact information to aid advertisers in reaching their preferred audiences,” the complaint said. In a statement, Twitter said: “Keeping data secure and respecting privacy is something we take extremely seriously, and we have cooperated with the FTC every step of the way. In reaching this settlement, we have paid a $150M penalty, and we have aligned with the agency on operational updates and program enhancements to ensure that people’s personal data remains secure and their privacy protected.” LM disclose information about Musk or SpaceX in exchange for a $250,000 severance package. In an email to Insider, Musk said there is “a lot more to this story”. “If I were inclined to engage in sexual harassment, this is unlikely to be the first time in my entire 30-year career that it comes to light,” Musk said, calling the story against him a “politically motivated hit piece”. LM emails, as well as a declaration signed by the flight attendant’s friend. Musk allegedly “exposed his genitals” to the flight attendant, touched her leg, and offered 6 WWW.LAWYER-MONTHLY.COM | JUN 2022
MONTHLY ROUND-UP Dating app Grindr has tapped global law firm Cooley as its legal counsel as it goes public via a $2.1 billion acquisition by a blank-cheque company based in Singapore. On 13 May, a federal jury in Texas awarded financial services company United Services Automobile Association (USAA) around $218 million from PNC Bank NA, ruling that PNC’s mobile-banking technology violated USAA’s patent rights. PNC ORDERED TO PAY USAA $218 MILLION IN PATENT INFRINGEMENT CASE USAA filed a lawsuit against PNC in 2020, in which it said it developed its “Deposite@ Home” technology to enable overseas military persons to remotely deposit cheques. The jury was convinced that PNC’s mobile deposit feature operates the same as USAA’s patented technology. The Texas jury said that PNC’s technology infringed at least one of USAA’s four mobilebanking patents. It also said that PNC’s infringement was intentional, thus enabling the judge to potentially multiply the damages owed to USAA. A spokesperson for PNC said that the bank was disappointed with the verdict though the company remained confident it would “prevail as to all of the patents USAA has asserted” eventually. LM COOLEY TAPPED TO REPRESENT GRINDR IN $2.1 BILLION SPAC DEAL SPACS raise funds through initial public offerings (IPOs) to take private companies public. According to a statement by Cooley, the team representing Grindr is led by San Franciscobased M&A partners Jamie Leigh and Garth Osterman, and corporate partners Dave Peinsipp and Kristin VanderPas. Hong Kong-based corporate partner Will Cai will also assist with the deal. The global law firm has represented Grindr in the past. In a 2015 case that was dismissed the following year, the firm defended Grindr against claims it violated California state law by failing to make users aware of membership cancellation policies. LM 7 JUN 2022 | WWW.LAWYER-MONTHLY.COM
LAWYER MOVES
LAWYER MOVES Law firm Boies Schiller Flexner is losing three of its New-York-based partners, according to an internal 23 May memo. This will include a practice group leader as well as the firm’s cogeneral counsel. The firm has experienced a significant leadership shakeup in recent years as well as numerous lawyer departures to rival firms. In an internal memo viewed by Reuters, Boies Schiller’s managing partners said Ilana Miller, the firm’s co-general counsel, will be “taking some time off from the practice of law” and will leave the firm. Boies Schiller said that Amy Neuhardt will serve as deputy general counsel, working with Eric Brenner, the firm’s general counsel. Since 2020, Boies Schiller has experienced numerous departures, with attorneys citing concerns over the firm’s culture, transparency, and overall health, as primary reasons for leaving. In 2021, ex-deputy chair at Boies Schiller, Natasha Harrison, departed from the firm to establish her own, taking with her several members of the Boies Schiller team. Three Partners Exit Boies Schiller’s New York Branch Addleshaw Goddard has added two new partners from renowned firms to its global transport practice: Rachel Scott and Simon Gwynne, from Womble Bond Dickinson and Norton Rose Fulbright respectively. Scott is a highly experienced contracting specialist in rail and central government, with a history of advising on rail infrastructure projects in addition to operating contracts and regulated contracts for various large infrastructure clients. Gwynne’s practice is focused on international and domestic asset finances, with especial emphasis on rail, shipping, aircraft and other industrial sectors. Among his previous clients are various lenders, lessors and operators within the aforementioned sectors, in addition to the Department for Transport, with which he has acted extensively. He is also recognised by the Legal 500 Hall of Fame. Their hire boosts Addleshaw Goddard’s rail team, which has represented global clients including the UK Department for Transport, SMBC, Transport for London, Network Rail and Hitachi Rail Europe. The firmhas recently undergone an expansion, with the launch of a new office in Dublin in addition to a record number of senior promotions. 20 lawyers joined its partnership, taking its global total to more than 340 people as of 1 May. Most notably, the firm has appointed 15 new finance partners since April 2020. Freshfields Bruckhaus Deringer’s appointment of a batch of 27 new partners, initially announced n April, has taken effect as of May. All of the firm’s market-leading practices have seen new partner appointments, bringing new diversity and experience to its global partnership. The practices seeing partner appointments include antitrust, competition and trade; people and reward; dispute resolution; tax and global transactions. “We are absolutely delighted to welcome such a talented and diverse group of colleagues to our global partnership,” said Georgia Dawson, senior partner at Freshfields. “We are excited about what they will bring to Freshfields and our clients, and the contribution they will make to the long-term success of the firm and the communities in which we live and work.” 41% of the new partners are female, bringing Freshfields closer to meeting its gender diversity targets for new partnership appointments. The firm also reports that 30% of its new UK and US partners identify as part of an under-represented group, exceeding their respective 15% and 20% racial/ethnic diversity partner targets for both countries. Freshfields now boasts a team of more than 2,800 lawyers and other legal professionals from its 28 global offices. Double Partner Hire Bolsters Addleshaw Goddard’s Transport Practice Freshfields Takes On 27 New Partners 10 WWW.LAWYER-MONTHLY.COM | JUN 2022
LAWYER MOVES Dentons has announced the appointment of three new partners in Dublin: corporate lawyers David McGuinness and Michael McDonald and energy and projects lawyer Colm Ó hUiginn. McGuinness joins Dentons from Allen & Overy’s Dubai branch, having spent an earlier stint at William Fry in Dublin. His work involves private and public M&A, private equity, joint ventures, venture capital transactions and general corporate and commercial advisory. He has been involved in various significant corporate transactions in the infrastructure, life sciences, hospitality and food and beverage sectors. McDonald joins from Gilbert + Tobin in Australia, also having previously worked at William Fry. He specialises in mergers and acquisitions, private equity, equity capital markets and investment funds. He also has experience of working on large-scale cross-border transactions in the healthcare, healthcare technology, cybersecurity and energy sectors. Mr Ó hUiginn joins from Sherman & Sterling in London. His practice involves advising on the development and financing of greenfield projects, and he has been involved in large and strategically important projects within the energy, real estate and infrastructure sectors. Dentons entered the Irish market two years ago and now employs 26 lawyers in its Dublin office. As of these new appointments, its Dublin partner count has been brought to 10. Dentons Adds Three NewDublin Partners Global law firm Jones Day announced has announced the hire of Jennifer Kane as counsel in its Business & Tort Litigation Practice, based in Jones Day’s Atlanta Office. Kane represents companies in the consumer products, medical device, pharmaceutical and automotive sectors in high-risk matters in federal and state venues nationwide. In joining the Business & Tort Litigation Practice, she brings extensive experience in all phases of litigation, from discovery to mediation and trial. She is also skilled in litigation management, acting as a national coordinating attorney for large consumer products clients. Kane has served on trial teams in dozens of highstakes commercial disputes and was a key member of the team that was recognized for earning one of the National Law Journal’s “Top Defense Verdicts”. Jones Day’s Business Tort & Litigation Practice comprises litigators who represent major companies and organisations in multi-district litigation, coordinated state proceedings, product liability cases, class actions and other high-stakes business disputes. Stephanie Parker, co-leader of the practice, welcomed Kane’s arrival. “Jennifer’s experience with mass tort and product liability litigation is an excellent complement to a key strength of our global practice group,” she said. “Her knowledge across multiple industries and both federal and state jurisdictions will be an asset to our clients.” New Leadership Appointed at Linklaters’ Singapore Office 11 JUN 2022 | WWW.LAWYER-MONTHLY.COM
Nurturing Elder Law Practices in 2022 JUN 2022 | WWW.LAWYER-MONTHLY.COM are an estate planning attorney, then adding elder law is a logical next step. Establishing your elder law practice as an estate planning attorney can be done faster, as you have an existing client base that already needs your services, or they may have friends or loved ones who need elder law services. Having an existing practice and adding elder law can certainly help shorten the time needed to get established, because you have existing referral sources and existing clients to talk to immediately about needing elder law services. For others who are starting a new elder law practice without a related practice already established, the differences lie in identifying who to reach out to as potential referral sources, getting clear on your marketing message and who you are trying to reach, and really understanding what type of elder law services you want to provide, which will drive the decisions you make about referral sources and marketing. To illustrate, elder law encompasses a broad area of practice areas. You could offer Medicaid planning, special needs Please tell us a little about the current elder law environment. How has it developed in the US since you joined the field? Elder law has definitely become a more recognised area of law since I started practicing in this area in 2004. Over time I have seen more law schools offering elder law classes, with some offering advanced degrees in elder law. More national organisations are also offering elder law education, and within ElderCounsel we have seen much more interest in adding it as a practice area than in 2008 when we first started as a membership organisation. In what ways does establishing an elder law practice differ from other kinds of law firms? It depends on the type of practice you had before adding elder law. If you Valerie L Peterson Chief Executive ElderCounsel LLC Tel: +1 888-789-9908 x581 +1 541-588-6262 valerie.peterson@eldercounsel.com www.eldercounsel.com ELDER LAW COVER FEATURE - VALERIE PETERSON As evinced in the other elder law features in this month’s edition of Lawyer Monthly, elder law is a flourishing sector of law in the US and internationally. Rising demand must be met by capable elder law practitioners – which is where Valerie Peterson and ElderCounsel come in. In this exclusive interview, Valerie explores how her organisation helps to empower new and growing firms to add elder law to their practice, and the personal conviction that led her to specialise in this crucial sector. 13
WWW.LAWYER-MONTHLY.COM | JUN 2022 ELDER LAW COVER FEATURE - VALERIE PETERSON 14 It is also critical for attorneys to have some type of law practice management system that will help them keep all of their contacts organised, will help them set up reminders for tasks and send automatic emails when needed, and will help attorneys with billing, accounting, document storage, and more. Your law practice management system, in the cloud or on premises, should help you run your practice more efficiently and grow with your firm. It isalsoimportant forelder lawattorneys to embrace video conferencing with clients, to allow clients and prospects to schedule their own appointments online, and to make sure their websites are full of helpful, relevant content and are easy to navigate. How has the COVID-19 pandemic impacted the way elder law is practiced? Elder law attorneys are far more willing to use video conferencing or phone calls to meet with clients than they ever were before COVID-19. The belief that every client or potential client has to sit in an attorney’s office has lessened. This has been very impactful for elder law attorneys, as it can be difficult for older clients or clients with significant disabilities to travel to see an attorney. Even during the worst of COVID-19, planning and estate planning as themain areas in your elder law practice. Each of those three areas are very broad and if you are not clear about the services you will provide and the people you will provide them to, it can be difficult to get a clear marketing message out to the public and to potential referral sources. The benefit that attorneys who are starting a new elder law practice have is the ability to focus solely on learning what they need to know about how to help clients, and they do not have the distraction of an established practice diverting their attention. How does ElderCounsel aid these new practices in getting off the ground? ElderCounsel provides intensive training (immersion camps) in three areas: Elder Law, Special Needs Planning and Veterans’ Benefits. Our most comprehensive program is our Elder Law Immersion and Practice Building Camp. It is a year-long program that starts with a three-day live training. We cover the law, planning strategies and case studies, and we spend almost a full day providing guidance on how attorneys can start marketing their services and handle initial consultations. For the next year, attendees have the opportunity to ask questions of the instructors and other attendees once a month, and they have recorded webinars with new content every month. With each immersion camp we follow a similar pattern: we teach the rules and strategies, then have attendees apply the rules and strategies before they leave. While we provide some marketing materials and education as part of ElderCounsel membership, we also have a separate division called Law as a Business (LAB) Services. LAB Services is a back-office marketing agency for attorneys. We provide customised content for attorneys that we can distribute for them. We can create ad campaigns, websites and eBooks; we handle SEO services and can help attorneys prepare and market an event. We created LAB Services to help attorneys increase their brand awareness, better market their services, and generate more revenue. When adding a new practice area or starting a totally new practice, attorneys are often so focused on learning the law that they do not make time to market effectively. That is the void LAB Services can fill. What kinds of technology are most essential for modern elder law attorneys? Modern elder law attorneys should be utilising technology to help them stay current with the law, draft comprehensive documents for their clients quickly, keep their client and non-client contact information current and safe online, and help them with workflows so that nothing falls through the cracks when they are doing the legal work for a client. A document assembly system helps attorneys with staying on top of law changes and helps attorneys draft complex documents quickly. The cornerstone of ElderCounsel membership is our document assembly system, ElderDocx®. By keeping up with law changes in all states and providing an efficient way to draft complex documents, attorneys can spend more time getting new business, or have more personal time to themselves. Elder law attorneys are far more willing to use video conferencing or phone calls to meet with clients than they ever were before COVID-19.
JUN 2022 | WWW.LAWYER-MONTHLY.COM Many of our member attorneys have reported having their most profitable years of business in the last couple of years. When I ask them why they think that happened, they have told me that the pandemic forced families to think about their estate plans and also how they want to receive their end-of-life care. Elder law attorneys work with families to map out these concerns and plan appropriately when things are calm before a crisis is at hand. What have been the most significant recent changes in the elder law landscape, whether in legislation or practice trends? The Setting Every Community Up for Retirement Enhancement (SECURE) Act, which became law on 1 January attorneys were finding creative ways to get documents signed in a safe manner. Another way COVID-19 has impacted the way elder law is practiced involves where attorneys and their staff are physically located. Like many businesses, law firms realised that they can offer flexibility and allow staff to work from home either on a part-time or full-time basis. There is no longer an expectation that every attorney and staff member has to be in a brick-andmortar building to provide excellent service to clients. It has also opened the door to a greater talent pool who may not have been able to drive into an office or may not have lived near the law firm, but can work from home and even from another state. While it may be obvious from my answers above, COVID-19 forced attorneys to embrace new technology, especially cloud solutions, to run their businesses. Their business will no longer be negatively impacted if the attorney, staff, or clients cannot come into a physical office. ElderCounsel has been run as a virtual company since its beginning in 2008. Our employees have always worked from home, so we were in a unique position to help attorneys make the switch to running their practice virtually in 2020 when COVID-19 forced many of us to stay at home. Can you tell us how you have observed attorneys in this sector responding to the new challenges? We saw a few attorneys who accelerated their retirement, but most adapted well to the challenges that the pandemic brought our way. Many elder law firms were able to expand their businesses as a result of changes they made to cope with COVID-19. ELDER LAW COVER FEATURE - VALERIE PETERSON 15
WWW.LAWYER-MONTHLY.COM | JUN 2022 ELDER LAW COVER FEATURE - VALERIE PETERSON 16 monitor and understand the options clients have that they didn’t have in the past. Working closely with a variety of professionals that serve our growing senior population will be key in the future as these issues receive more media attention. If you had to give one piece of advice to a law student or recent grad who is interested in specialising in elder law, what would it be? Immerse yourself in learning this area. Don’t just dabble in it, really embrace it. You will make a huge positive impact in the lives of your clients. 2020, changed how retirement benefits are paid out and when. The age for mandatory distributions from an IRA was raised to 72. Individuals with earned income can now contribute to an IRA at any age, as opposed to having contributions barred at age 70½. One of the biggest changes was the 10-year distribution rule that requires most non-spousal beneficiaries of retirement plans to distribute the inherited account within 10 years of the account owner’s passing. However, there are exceptions for a disabled individual or a chronically ill individual (among other exceptions), which prompted ElderCounsel to create a new trust, called the SECURE Special Needs Trust, that allows a disabled or chronically ill individual to stretch out those payments rather than be limited to a 10-year payout. In the past year, we have seen some states loosen the financial criteria for qualifying for Medicaid. For example, in July, California will allow an individual with $130,000 to qualify for Medi-Cal benefits, when that limit was previously $2,000. There is a plan to phase out the asset limit altogether in that state. Other states have focused on providing more home and community-based services to allow individuals to access Medicaid benefits in a setting other than a nursing home. Are there any particular trends that elder law practitioners should watch out for in the years to come? Any newer challenges that you expect to emerge? The COVID-19 pandemic shone a light on long-term care and where it is received. Nursing home facilities were highlighted in the media and some had large numbers of casualties. There has been a lot of talk in Washington D.C. about expanding Medicaid’s budget to include more money for home and community-based programs (HCBS). This expansion would allow money to be available for care that a person could receive in their homes. Right now, these programs vary widely state to state and are generally underfunded with long wait times for approvals. The challenge for the elder law community is to stay on top of this issue and make sure the qualification rules make sense. Overall, I believe this is a positive trend for families to get their loved ones the help they need without having to move into a nursing home, but getting the legislation passed will require lobbying and volunteer time by elder law attorneys across the country. Another trend in long-term care is the expansion of creative ways to pay for it through private insurance policies. Traditional “use it or lose it” long term care insurance policies are being expanded upon by hybrid life insurance policies that can also have a long-term care rider. Again, this is a positive trend that elder law attorneys will need to Many elder law firms were able to expand their businesses as a result of changes they made to cope with COVID-19. Immerse yourself in learning this area. Don’t just dabble in it, really embrace it. You will make a huge positive impact in the lives of your clients.
JUN 2022 | WWW.LAWYER-MONTHLY.COM probably caused her more suffering than was needed because I did not understand how to fight for her rights as a dementia patient in a nursing home. Once she passed away and my mom and I had the chance to catch our breath and reflect on all that had happened, I realised that this is an area where families really need specialised help. I started doing some research and learned that “elder law” actually was a recognised practice area. There were no elder law attorneys in my city, so I started doing more research, then decided to open my own elder law firm. Can you share anything about your plans for ElderCounsel in 2022 and beyond? We are starting to offer in-person education again at our dedicated conference centre space in Denver, CO. We will be offering our traditional immersion programs and some new ones aimed at marketing and practice building. We will also continue investing in products and services that help our members be the best at what they do. We feel it is our responsibility to continue educating attorneys and the public about what elder law is and encourage as many as we can to embrace this area of law. There are so many families who need this type of specialised help and right now there are not nearly enough attorneys qualified to provide it.” Please tell us a little about your journey into law. From a young age I wanted to be a lawyer. We had a family friend when I was really young who was a lawyer and I always saw him helping people. I saw it first hand as a 19-year-old when he helped us after my dad died and we had overwhelming hospital bills. But for his guidance, we could have lost our home and much more. That experience only reinforced my decision to become a lawyer. Plus, I loved school, I loved to learn something and then talk about it (and often argue about it), and I saw law school as a way to continue doing~ @c vbm,hat I loved, with the end result being enabled to help people. What led you to specialise in elder law specifically? Growing up, I had two great aunts from my dad’s side who were always very involved in my life. Neither of them had children of their own, and they treated my sisters and me like their own. After my dad died, they became even more involved – they would attend my college basketball games, check on my mom constantly, and they helped pay for law school. My great aunts lived together for many years. In my third year of law school, one of them died. After she passed away, we realised that my other aunt’s memory was failing quite rapidly. I graduated from law school and took a job in the same town where my aunt lived so I could help care for her, as my mom was about five hours away. Together mom and I did the best we could, but eventually we needed to move my great aunt into a nursing home as she was no longer safe at home due to advancing dementia of the Alzheimer’s type. That was where the real challenges began, which would later lead me to elder law. I made a lot of poor decisions about my aunt’s care based on ignorance. I was a litigator at the time, and I had never heard of elder law. I certainly did not realise the rights my aunt had as a patient in a nursing home, so when they called to tell me they were discharging her because she had become combative, I did not fight it, even though it felt wrong. They gave me 48 hours to “come and get her,” but unfortunately there were no other nursing homes with space in my city. Instead I had to get her admitted to a hospital for evaluation while I scrambled to find her a new facility. The only one I could find was an hour away. With a dementia patient, a change of facility can be very detrimental, and it was to my aunt – she did not speak much after that first move and hardly recognised me from that point on. I ended up moving her one more time to a facility 30 minutes away before she died three years later. After the first move she hardly spoke to me again. I ELDER LAW COVER FEATURE - VALERIE PETERSON 17 I am Valerie Peterson, CEO of ElderCounsel. ElderCounsel is a membership organisation that supports elder law attorneys across the United States. Members of ElderCounsel receive a comprehensive document drafting system, education and marketing as well as practice building support. We cover elder law, estate planning, Medicaid planning, special needs planning and veterans’ pension planning in our documents and education.
Establishing a Medicaid Asset Protection Trust JUN 2022 | WWW.LAWYER-MONTHLY.COM retitled in the name of the trust once it is drafted and executed, and the trustee manages those assets in the way the grantor has laid out in the trust. Since the title to such assets is no longer in the name of the grantor, five years after the trust has been established and the assets funded to the trust, those assets are no longer considered available to pay for long-term care. They are therefore are preserved and able to pass to the beneficiaries under the trust rather than escheat to the state to pay for or reimburse the state for longterm care and Medicaid costs. What necessary steps must be taken in establishing a Medicaid asset protection trust? In order to establish a Medicaid asset protection trust, a client must carefully evaluate their available assets, the To begin with, could you please explain the meaning of a Medicaid Asset Protection Trust and its significance in elder law? A Medicaid Asset Protection Trust (MAPT) is an irrevocable trust which is designed to protect assets from being counted as available resources for purposes of Medicaid eligibility. These trusts provide a powerful tool in long-term care planning and allow an opportunity to protect assets such that they may pass to a client’s loved ones rather than being considered available resources to pay for long-term care in a nursing home. How can these trusts potentially help to preserve Medicaid eligibility? Through effective MAPT planning, clients can protect and preserve up to 100% of the available equity in assets. The most common assets that are funded to MAPTs are real estate, but these trusts are able to hold most types of non-retirement assets. Due to the way MAPTs work, assets are ELDER LAW - SAMANTHA MCCARTHY When planned correctly, a Medicaid Asset Protection Trust (MAPT) can offer significant benefits to elders seeking to plan for their long-term care and protect their assets for their loved ones’ benefit. Unfortunately, individuals attempting to establish a MAPT often encounter planning and funding difficulties – which is where the expertise of an elder law attorney is needed. Below, estate planning and elder law attorney Samantha McCarthy offers her insights on how MAPTs can be used to their best effect. 19 Through effective MAPT planning, clients can protect and preserve up to 100% of the available equity in assets.
WWW.LAWYER-MONTHLY.COM | JUN 2022 ELDER LAW - SAMANTHA MCCARTHY 20 that it meets the requirements of both the state and federal rules. What significant laws and regulations should be considered as part of this process? Trusts are subject to a plethora of laws and regulations, including, but certainly not limited to, state and federal laws regarding establishing and administering trusts, IRS rules and regulations regarding taxation of trusts, and state-specific tax laws regarding gifting, estate and inheritance taxes. However, as it relates to Medicaid asset protection trusts, the most important laws and regulations to be considered are those established by the United States Department of Health and Human Services, Centers for Medicare & Medicaid Services, as well as the specific state agency charged with administering and enforcing the Medicaid rules and regulations – which in Rhode Island is the Department of Human Services, Office of Health and Human Services. Because Medicaid is a federal program mandated to the states, which the states can legislate around, both the federal and state laws and regulations must be considered carefully when engaging in Medicaid planning, including establishing and funding MAPTs. Without the appropriate terms and conditions as required by such laws and regulations, a trust could, on its face, seem to provide asset protection, but not actually accomplish such purpose when evaluated by the potential need for future long-term care, the timeline of such need for care, and engage in a thorough discussion related to their goals and objectives for their assets both during their lifetime and upon their passing. Once assets are funded into a Medicaid asset protection trust, they should not be accessed for the benefit of the grantor. Therefore, careful consideration must be given regarding what assets to place into a MAPT and how such assets will be managed both in the near future as well as the long term. Clients must also give careful consideration to the five-year lookback rule imposed by Medicaid. This is a period of time during which any assets that have been transferred for less than fair market value are subject to a penalty imposed by the state Medicaid agency, therefore creating a period of time in which Medicaid coverage is not available and the client/Medicaid applicant must therefore privately pay for long-term care services. Because there is no consideration for the transfer to a trust, these transfers to a MAPT are considered a gift, and are therefore subject to the five-year lookback rule. Accordingly, if clients are uncertain regarding their health or ability to stay out of a nursing home for at least five years after establishing a MAPT, then this type of trust may not be the best option for them. Even if it is determined that a MAPT is not the best fit, there are still last-minute options that can be employed with proper planning and legal advice which will allow clients to save at least a portion of their otherwise available assets and still become qualified for Medicaid services. If a client has determined that establishing a MAPT is in their best interest, then consulting with an experienced and knowledgeable elder law attorney is essential to ensure the trust is appropriately drafted and funded so We often see clients who believe they have irrevocable Medicaid Asset Protection Trusts but, upon review, are missing many key provisions required by the state and federal government.
JUN 2022 | WWW.LAWYER-MONTHLY.COM state agency. We often see clients who believe they have irrevocable Medicaid Asset Protection Trusts but, upon review, are missing many key provisions required by the state and federal government. As a result, the protection initially sought may be lost. Are there any significant pitfalls that can occur when setting up a trust? How might these be circumvented or best prepared for before they arise? While setting up a trust can feel complicated and overwhelming, working with an experienced estate planning and elder law attorney can make all the difference. Common pitfalls that arise when setting up a trust include not thinking through all of the possible scenarios, including the “whatifs”, and “if this, then that”, as well as not giving adequate consideration to the individuals designated as trustee and the powers of the trustee. Additionally, and arguably most importantly, the biggest downfall we see with trusts is that clients do not always understand how to correctly fund them and retitle assets or update beneficiary designations to make sure the trusts are effective and accomplish their goals. Without proper funding, a trust is only an expensive piece of paper. Correct trust funding can provide asset protection, tax avoidance and a streamlined process for survivors, as well as probate avoidance. Under what circumstances might you recommend a Medicaid asset protection trust to a client? What might cause you to advise against this? A trust of some sort is recommended for most clients who own real estate and have goals of providing for their loved ones in a meaningful way. However, what type of trust is appropriate differs depending upon the client’s specific situation, including their goals, assets, care needs, and overall health. In general, trusts are a helpful tool to avoid probate and ensure assets pass without significant delay or difficulty upon one’s death. Revocable trusts maintain power in the grantor to manage their own assets and affairs. As a result, while they provide probate avoidance, they do not protect assets for long-term care planning and Medicaid purposes. On the other hand, a Medicaid Asset Protection Trust includes the benefits of probate avoidance that a revocable trust includes, but also has the added benefit of protecting assets from Medicaid liens after the expiration of five years from the time the trust was established and funded. The detriment, however, is that in order to ensure maximum asset protection, MAPTs must be Irrevocable, and the grantor should not be the trustee. Therefore, the grantor must have a trusted family member or friend whom they are comfortable appointing as trustee to manage the assets in the way the grantor has directed through the trust. Therefore, a MAPT is not right for everyone. Specifically, in situations where it is not clear that the grantor has a period of at least five years before the need for long-term care is likely to arise, either because of age or health condition, then an irrevocable asset protection trust may not be the best option. Additionally, if the grantor does not have a trusted person whom they can designate as trustee to manage the trust in lieu of the grantor, then this type of trust may not be the best way for the client to accomplish their goals. Trust planning is complex and there are many types of trusts available. The correct type of trust depends upon a number of factors, and the same planning techniques are not appropriate for everyone. ELDER LAW - SAMANTHA MCCARTHY 21 Samantha McCarthy founded McCarthy Law with a goal of making a meaningful impact in the lives of others. Currently residing in Smithfield, Rhode Island, and licenced to practice law in both Rhode Island and Massachusetts state courts, she has been recognised by the Feinstein Center for Pro Bono & Experiential Education for her extensive public interest legal work and commitment to public service. She prides herself on being approachable and compassionate, and believes in developing relationships with her clients that allow both parties to grow and learn. McCarthy Law LLC is an estate planning and elder law firm that assists clients with the creation of estate plans, advice on elder care issues, and aid with long-term care and Medicaid planning. The firm’s goal is to build relationships with clients where they feel listened to, understood and cared for. Samantha McCarthy Founder McCarthy Law LLC 19 First Avenue, East Greenwich, RI 02818 Tel: +1 401-541-5540 E: mloffice@mccarthylawri.com www.mccarthylawri.com
The State of Modern Elder Law JUN 2022 | WWW.LAWYER-MONTHLY.COM due to their spouse being in a nursing home. With proper planning and the use of these spousal impoverishment rules, we are able to ensure that the community spouse’s home is protected and that they will have sufficient assets to continue to live. Unfortunately, we see too many situations where clients continue to pay these bills without seeking assistance early in the process and no longer have sufficient resources for the community spouse. The second scenario we often deal with is where a single person needsMedicaid assistance. Indiana currently has a fiveyear “look back” provision regarding any transfer of assets (both in singles’ and couples’ cases), so many clients feel that if they have wait until someone is in the nursing home they have no options. How does the need to plan financially for medical emergencies grow more urgent as one ages? The need for proper estate planning exists at all ages due to the uncertainty of what life events may occur. As one ages, the need to plan increases because of the risk for a medical event that may prevent proper planning. For example, if a client does not have a power of attorney or proper estate transition in place and has a stroke, they may be unable to execute these documents after the fact. If this occurs, then we would have to either file a guardianship matter or open a probate estate. Either of these involves court involvement, which is more costly to the client and could have been avoided with proper planning. Thus, getting proper planning done before a medical emergency is imperative. In Indiana, there are two different types of Medicaid scenarios. The first involves a situation where there is a married couple and one of them enters a nursing facility or needs Medicaid assistance while the other one is still at home (“community spouse”). In this scenario, one of the biggest rules that many people do not understand involves what we refer to as spousal impoverishment provisions. Many of my clients in this situation come into my office worrying about losing their home or running out of financial resources Matthew C Moore Founder Moore Law, LLC 2 West Pearl Street, Batesville, IN 47006 Tel: +1 812-932-1227 E: matt@moorelawindiana.com www.moorelawindiana.com ELDER LAW - MATTHEW MOORE Elder Law has long comprised a significant sector of law, and one with an expanding demand in all countries with ageing populations. This is especially true for the US, where concerns surrounding Medicaid and related fees are paramount. In this feature, Matthew Moore provides us with a look at the most common challenges for elder law clients in the US and how effective estate planning may be undertaken on their behalf. 23 Too many times we see clients who are under the impression that there is nothing they can do.
WWW.LAWYER-MONTHLY.COM | JUN 2022 ELDER LAW - MATTHEW MOORE 24 assistance are the two most common issues I see my clients encounter. Many clients automatically assume that their spouse or their children can do anything on their behalf, so they do not prepare any estate planning documents. Then a substantial life event occurs and they do not have the proper legal paperwork to address the situation. Second, clients often try to either do their own legal documents or seek advice from someone who is not trained in this area. I often tell my clients: “I am not a plumber, so when I have a leak, I call a plumber to fix it correctly. I would rather pay someone to do it correctly than have a problem later on.” This is the same for legal work. You may be able to print forms off the internet more cheaply than having an attorney prepare them, but you do not know what you may be missing. You may have a correctly executed document, but you will still have no planning for that document – the most important part. The same can be true if you do not use an attorney who is skilled in this area. If you go to a general practice attorney to ask questions about Medicaid or advanced estate planning, they will not be able to answer the questions correctly. This can cause substantial financial losses, simply because clients did not seek proper assistance. Many This belief is also untrue. Although there will be some consequences to making a gift within the five-year time period, we are still able to protect assets for the individual’s future needs and also for their heirs. Again, too many times we see clients who are under the impression that there is nothing they can do and spend all of the individual’s assets on care prior to seeking our assistance. Do these considerations vary significantly from those seen in other states? Yes, these rules can vary significantly from state to state, so clients should always seek assistance from a trained professional in their home state. How can one’s assets or savings affect the availability of treatment under Medicaid? This is an extremely complicated question. First, as I mentioned previously, it depends on whether we are dealing with a married couple or a single individual. With a married couple, the types of investments can influence Medicaid eligibility more than in a single’s situation. For example, the retirement accounts of a community spouse are considered “exempt” assets for Medicaid, so in a couple’s situation we would not have to do any planning for the community spouse’s IRAs. In a single’s case, all accounts are considered countable assets, so more complicated planning would have to occur. In both situations, income-producing real estate could be considered an exempt asset, so clients may consider purchasing property as a planning technique. This is why planning in advance becomes some important, as clients can work with a skilled attorney to discuss the various options and the risks and rewards associated with each option. Tactical use of income-producing property can be a very useful technique in couples’ cases, especially if they have significant assets. Under Indiana Medicaid rules, income-producing property is exempt as an asset for Medicaid eligibility. So, if a couple has to “spend down” assets in order to qualify, they may decide instead to purchase some real estate to complete this spend down. For example, they could buy more farmland or a vacation home. This would allow them to essentially transfer countable assets (cash assets) into an exempt asset which has immediate value to them. Then the community spouse could decide to sell this property in the future without jeopardising the Medicaid eligibility of the spouse needing those services. The biggest caveat to this planning option is to understand that even though income-producing real estate is initially exempt from Medicaid eligibility, you still need proper planning, as it is still an asset potentially subject to Medicaid estate recovery. What issues are particularly common for elderly married couples to encounter? I think the failure to properly plan in advance and failure to seek proper
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