As we've discussed before, the Pennsylvania POA law was changed in July 2014. Some of the changes became effective immediately while other provisions went into effect on January 1, 2015. If you have a power of attorney drafted before the change it is still valid, so long as valid when drafted. Some sections of the new law may affect the manner in which it is used however.
A power of attorney form is a document that allows another individual to make decisions on your behalf if you lose mental capacity or are unable to act. The person executing the document is the "principal" and the person appointed is the "agent." A person to whom the POA is presented is called a "third party" and examples are banks, landlords, utility companies, nursing homes, etc. In Pennsylvania it is assumed that all POA documents are durable (unaffected by subsequent incapacity of principal) and so it is helpful, but not necessary to designate them as such. Also, a POA expires upon the death of the maker. Although an agent under a POA loses authority at that point, the personal representative named in a will takes over.
The changes in the law were instituted to curtain abuses in use of the documents, and as a result of recent Pennsylvania Supreme Court decision. The issue before the court was what happens if someone relies on a POA document and it is later shown that the principal who signed it was not mentally competent to sign the form, or if it later turns out the form was forged. Is a third party liable for relying on the form, even if they did so in good faith? The Pennsylvania Supreme Court said that yes, the third party could be held liable for relying on a forged form, or one in which the person did not have the capacity to sign. The new law tries to mitigate that problem and reverse that holding by changes in the law.
These are some of the changes:
First, now every POA document must be signed before a notary and two independent witnesses. That should not be a problem for any of our clients because we, and most other lawyers, have always done that. Even before the new law, this was done to expedite land transfers where notarization and witnesses are required, or in case the POA was used in another state where notarization was required.
Second, The first page of the POA has a new statutory "notice" which must be capital letters and must be signed by the principal The agent must also sign an acknowledgement which has been updated. The notices and acknowledgements that were valid under the old law are still valid today and do not have to be changed.
Third, The agent now has three mandatory duties while acting under a POA: they must act in good faith; they must act only within the scope of authority granted in the POA, and they must act in accordance with the principal's reasonable expectations if known, or in the principal's best interests if they are not known.The statute imposes additional duties on the agent concerning comingling of funds and record keeping, many of which can be modified in the document itself. However, an agent must keep books and records of all the transactions and acts they perform for the principal and they must be made available on 30 days notice from a court, the local agency on aging who obtains a court order for the records, or anyone holding a fiduciary relationship to the principal. This provision of the law when into effect January 1, 2015 regardless of when the document was signed. It is important that anyone serving as agent have records kept on an accounting program, a spreadsheet, or in a journal and ledger. We are willing to assist in this important obligation.
Fourth. Any third party presented with a POA may now request (i) an agent's written certification regarding factual matters concerning either the principal, the agent, or the POA form itself; (ii) they may request an English translation of any POA in another language; (iii) if there is any articulable reason for suspicion, they may request a legal opinion confirming that the agent is acting within the scope of authority granted in the POA. If this request is made within seven days of presentation the agent under the POA must bear the cost of obtaining the legal opinion. In most cases the third party has an additional five days to act after receiving the requested information. Although we currently provide this service free for documents drafted in our office, a disturbing feature of this new law is that a third party can delay acceptance of the POA for up to 12 days by requesting the additional documentation. On the other hand, if the delay is unfounded, the third party may be subject to civil liability.
Fifth, A third-party may be immune from liability if they accept a POA in good faith, without any actual knowledge of it being void or deficient. This is a direct reversal of the Supreme Court decision.
Under the old law anyone who might inherit from the estate could file a petition for an accounting from the agent if they felt the agent was abusing his or her power. That right is removed under the new law, but the personal representative of the estate may request an accounting after the death of the principal. In all documents drafted in our office we specifically designate ourselves as a fiduciary who can demand an accounting from an agent if there is an articulable reason to suspect abuse. Some, but not all, attorneys do the same and there may be others in a fiduciary capacity who can request an accounting.
If you have any questions about the new law please do not hesitate to call our office. Although it is not necessary that you do so, we are willing to update any POA forms drafted under the old law for a nominal fee. We will continue to provide an opinion of counsel for any document we've drafted, free of charge.
Saturday, March 21, 2015
National Academy of Elder Lawyers Speak out Against Proposal to Limit Veteran Benefits
Please contact us if you would like assistance in contacting your elected representative about this issue:
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Aid and Attendance is an enhanced pension available to veterans and surviving spouses, to assist with the cost of medical expenses and long-term care. The benefit varies between $1,149 and $2,120 per month, depending on whether the applicant is the veteran, a veteran with a dependant, or a surviving spouse.
On January 23rd, the Veterans Affairs Department issued proposed regulations to change the eligibility criteria for Aid and Attendance. March 24, 2015 is the last day to comment on the proposed changes, although your congressman may be contacted at any time.
Some of the changes are as follows:
1. Asset Limit: The proposed regulation establishes an asset limit equivalent to Medicaid’s maximum community spouse resource allowance, which is $119,220, in 2015, plus one primary residence. A primary residence is only excluded to the extent that it is under two acres.
The new asset limit is actually helpful to applicants because it establishes a clear limit as opposed to the current rule, which does not. However, limiting the exclusion of a primary residence to two acres poses a problem because increased acreage is not necessarily equivalent to an increase in fair market value and it penalizes veterans in more rural areas.
In addition, the proposed regulations provide that proceeds from the sale of a home will not be countable if used to purchase another home within the calendar year. Using the calendar year is odd because it favors someone who sells their home in February over someone who sold it in November.
2. Penalty for Transferring Assets: The proposed regulations impose a three-year “lookback” period for transferring assets. In other words, if an applicant transfers assets within three years of applying for Aid and Attendance, the applicant will be ineligible for a period of time. The ineligibility period is calculated by taking the value of the asset transferred and dividing it by the maximum annual pension rate for the applicant. The ineligibility period can be up to ten years and begins the month after the last transfer was made.
This is a major change because currently there is no penalty imposed for transferring assets. This is a problem for our clients because very often they transfer assets to create eligibility for Aid and Attendance to help them supplement the cost of their care, but the Aid and Attendance benefit by itself is insufficient. So family members use the transferred assets to make up the difference.
In addition, since veterans and surviving spouses of veterans receive different levels of pension under the program, a different penalty period would be created on the same transfer depending on whether you are a veteran or a surviving spouse of a veteran. See the example below:
Married Veteran transfers $25,000: penalty period = 11 months ($25,000/$2,100)
Surviving Spouse transfers $25,000: penalty period = 21 months ($25,000/$1,149)
3. Limited Permissible Transfers: The proposed regulations only authorize transfers to a child who became disabled before age 18.
What about children who became disabled later in life as a result of a brain injury? The permissible transfers in the regulations for Aid and Attendance should follow the same rules as the Social Security Administration for Supplemental Security Income and Medicaid so there is uniformity.
4. Curing Transfers: A “cure” is when a transfer can be returned to eliminate the transfer and, therefore, the penalty period.
The proposed regulations do provide that transfers can be “cured” but, do not permit a partial cure. In addition, the proposed change only allows a “cure” within 30 days of filing the application, while the applications are often not even reviewed for months. In essence, by the time an applicant is notified that there is a transfer that is being penalized, the 30 days will have come and gone.
5. Limits Hourly Rate for Home Health Aides: The proposed regulation limits the hourly rate for countable medical expenses for home health aides to $21 per hour.
This may be reasonable in some parts of the country, but in Pennsylvania the hourly cost is generally higher than this.
6. Irrevocable Trusts, Revocable Trusts and Annuities: The proposed regulations would treat all transfers to any trust (revocable or irrevocable) as a transfer for less than fair market value and impose a penalty. In addition, the changes treat the purchase of any type of annuity as a transfer for less than fair market value.
It makes no sense to penalize transfers to revocable trusts since applicants still have full control of and access to such funds. The purchase of an immediate annuity should not be treated as a transfer for less than fair market value since this is simply a form of investment. The income should be counted toward an applicant’s countable income for eligibility purposes.
If you are a veteran or an attorney who represents veterans, reach out to your Senator and Congressman to oppose these changes. We will assist you in this effort if you contact us. You may also submit comments to the VA by clicking here by March 24th. All comments must be addressed before the final ruling can be issued.
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Aid and Attendance is an enhanced pension available to veterans and surviving spouses, to assist with the cost of medical expenses and long-term care. The benefit varies between $1,149 and $2,120 per month, depending on whether the applicant is the veteran, a veteran with a dependant, or a surviving spouse.
On January 23rd, the Veterans Affairs Department issued proposed regulations to change the eligibility criteria for Aid and Attendance. March 24, 2015 is the last day to comment on the proposed changes, although your congressman may be contacted at any time.
Some of the changes are as follows:
1. Asset Limit: The proposed regulation establishes an asset limit equivalent to Medicaid’s maximum community spouse resource allowance, which is $119,220, in 2015, plus one primary residence. A primary residence is only excluded to the extent that it is under two acres.
The new asset limit is actually helpful to applicants because it establishes a clear limit as opposed to the current rule, which does not. However, limiting the exclusion of a primary residence to two acres poses a problem because increased acreage is not necessarily equivalent to an increase in fair market value and it penalizes veterans in more rural areas.
In addition, the proposed regulations provide that proceeds from the sale of a home will not be countable if used to purchase another home within the calendar year. Using the calendar year is odd because it favors someone who sells their home in February over someone who sold it in November.
2. Penalty for Transferring Assets: The proposed regulations impose a three-year “lookback” period for transferring assets. In other words, if an applicant transfers assets within three years of applying for Aid and Attendance, the applicant will be ineligible for a period of time. The ineligibility period is calculated by taking the value of the asset transferred and dividing it by the maximum annual pension rate for the applicant. The ineligibility period can be up to ten years and begins the month after the last transfer was made.
This is a major change because currently there is no penalty imposed for transferring assets. This is a problem for our clients because very often they transfer assets to create eligibility for Aid and Attendance to help them supplement the cost of their care, but the Aid and Attendance benefit by itself is insufficient. So family members use the transferred assets to make up the difference.
In addition, since veterans and surviving spouses of veterans receive different levels of pension under the program, a different penalty period would be created on the same transfer depending on whether you are a veteran or a surviving spouse of a veteran. See the example below:
Married Veteran transfers $25,000: penalty period = 11 months ($25,000/$2,100)
Surviving Spouse transfers $25,000: penalty period = 21 months ($25,000/$1,149)
3. Limited Permissible Transfers: The proposed regulations only authorize transfers to a child who became disabled before age 18.
What about children who became disabled later in life as a result of a brain injury? The permissible transfers in the regulations for Aid and Attendance should follow the same rules as the Social Security Administration for Supplemental Security Income and Medicaid so there is uniformity.
4. Curing Transfers: A “cure” is when a transfer can be returned to eliminate the transfer and, therefore, the penalty period.
The proposed regulations do provide that transfers can be “cured” but, do not permit a partial cure. In addition, the proposed change only allows a “cure” within 30 days of filing the application, while the applications are often not even reviewed for months. In essence, by the time an applicant is notified that there is a transfer that is being penalized, the 30 days will have come and gone.
5. Limits Hourly Rate for Home Health Aides: The proposed regulation limits the hourly rate for countable medical expenses for home health aides to $21 per hour.
This may be reasonable in some parts of the country, but in Pennsylvania the hourly cost is generally higher than this.
6. Irrevocable Trusts, Revocable Trusts and Annuities: The proposed regulations would treat all transfers to any trust (revocable or irrevocable) as a transfer for less than fair market value and impose a penalty. In addition, the changes treat the purchase of any type of annuity as a transfer for less than fair market value.
It makes no sense to penalize transfers to revocable trusts since applicants still have full control of and access to such funds. The purchase of an immediate annuity should not be treated as a transfer for less than fair market value since this is simply a form of investment. The income should be counted toward an applicant’s countable income for eligibility purposes.
If you are a veteran or an attorney who represents veterans, reach out to your Senator and Congressman to oppose these changes. We will assist you in this effort if you contact us. You may also submit comments to the VA by clicking here by March 24th. All comments must be addressed before the final ruling can be issued.
Saturday, February 28, 2015
DELCO Resident Repaid for Sale of Bequeathed Home
The Delaware County Orphans Court recently decided that the adult son of a decedent should be compensated for the sale of a property that was devised to him in the decedent's will, even though it had been sold by the decedent's court appointed guardian earlier.
The decedent in this case was the mother of Alfred, Francis and Adele Rich. The decedent's will left her two N.J. vacation homes valued at $650,000. to Francis and Adele. She left a third property in Clifton Heights, valued at $125,000., to Alfred. Alfred was given the less valuable property because he allegedly stole money from his mother by taking mortgages against her property without her knowledge, used her money to pay his credit card bills, and purchased a gold coin with her money which he kept for himself.
In 2008 the court stepped in and appointed a local attorney as guardian for the mother. In order to meet the expenses of his ward, and after getting court approval for the sale, the guardian sold the Clifton Heights property for $115,000. Because of this sale, the other children received the New Jersey properties upon the death of the decedent in 2011, but since the Clifton Heights property had been sold, Alfred did not receive anything.
Although the weight of authority seemed to be against him, Alfred brought a petition in Delaware County Orphans Court. In January of 2015 the court, exercising it's equitable powers, awarded part of the estate to him. The verdict awarded him the sale price of the Clifton Heights property, less the costs of the sale and less the money he owed his mother from his previous mis appropriation of her funds for personal use. The case caption was CP 63 of 2008, and the decision was made by Hon. Chad Kenney.
Note: The case illustrates the benefits of having estate documents drafted by experienced counsel, and why we caution our clients against specific bequests of real estate. An agent under a power of attorney or a court appointed guardian is usually compelled to sell assets of the estate to meet principal's day to day living expenses. An experienced attorney realizes this and drafts documents with that in mind, to avoid any later disproportionate bequest to beneficiaries.
Robert Gasparro
The decedent in this case was the mother of Alfred, Francis and Adele Rich. The decedent's will left her two N.J. vacation homes valued at $650,000. to Francis and Adele. She left a third property in Clifton Heights, valued at $125,000., to Alfred. Alfred was given the less valuable property because he allegedly stole money from his mother by taking mortgages against her property without her knowledge, used her money to pay his credit card bills, and purchased a gold coin with her money which he kept for himself.
In 2008 the court stepped in and appointed a local attorney as guardian for the mother. In order to meet the expenses of his ward, and after getting court approval for the sale, the guardian sold the Clifton Heights property for $115,000. Because of this sale, the other children received the New Jersey properties upon the death of the decedent in 2011, but since the Clifton Heights property had been sold, Alfred did not receive anything.
Although the weight of authority seemed to be against him, Alfred brought a petition in Delaware County Orphans Court. In January of 2015 the court, exercising it's equitable powers, awarded part of the estate to him. The verdict awarded him the sale price of the Clifton Heights property, less the costs of the sale and less the money he owed his mother from his previous mis appropriation of her funds for personal use. The case caption was CP 63 of 2008, and the decision was made by Hon. Chad Kenney.
Note: The case illustrates the benefits of having estate documents drafted by experienced counsel, and why we caution our clients against specific bequests of real estate. An agent under a power of attorney or a court appointed guardian is usually compelled to sell assets of the estate to meet principal's day to day living expenses. An experienced attorney realizes this and drafts documents with that in mind, to avoid any later disproportionate bequest to beneficiaries.
Robert Gasparro
Friday, January 30, 2015
Mercy Fitzgerald Hospital Thrown Out of Court in DELCO Guardianship Case
Chapter 54 of the Pennsylvania Estates, Decedents and Fiduciaries Code (20 Pa. C.S.) deals with Living Wills and Medical Powers of Attorney. Unfortunately, few medical providers are aware of the terms of the law. This problem is compounded by the fact that many people download medical power of attorney and living will forms from the Internet without realizing the implications of their choices.
These two issues played out in a recent case in the Delaware Valley Orphans Court last September. The facts were as follows:
M.J. was a patient at Mercy Fitzgerald Hospital who was being kept alive by a mechanical ventilator and a feeding tube. Doctors at Mercy Fitzgerald filed a guardianship petition and informed the DELCO court that the patient would not be able to continue indefinitely with the current life supports, and the patient was also suffering from end-stage dementia and a failure to thrive. Since the current equipment was not intended for sustained use they would have to insert a PEG tube for feeding. The doctors also felt that the operation would be painful for the patient and would only serve to prolong the patient's process of dying. The doctors and hospital had recommended that the patient be placed in hospice and palliative care. The patient had two sons: one son disagreed with the hospital and the other son wanted the parent placed on hospice and palliative care.
Ten years prior to this, the patient had drafted a medical power of attorney and living will. There were several problems with those documents. The first problem was questions regarding the patient's capacity to draft the document when she did. Another problem was that the legal document appointed her two sons as her agents and gave them the power to act alone or together. The two sons could not agree on the procedure to be followed, so the hospital brought a guardianship action in court. The crux of the problem is that the power of attorney as drafted gave any of the sons the power to act as an agent either jointly or individually, thereby rendering it almost meaningless.
The DELCO Court stated that a guardianship was improper because there already was a Durable Power of Attorney in place, and the statute specifically gives preference to those documents. The Court cited Section 6612(a)(3) of the Pennsylvania Fiduciary Code stating that a guardian is generally not necessary if the principal has drafted a Power of Attorney. One of the sons who was an agent under the Power of Attorney showed up in the Delaware County court and explained how the principal would not have wanted the life support withdrawn. The court stated that although the attending physician and the hospital may not agree with the agent's decision, it should be controlling.
One thing the court did not mention is who is given the priority to make decisions under Advance Health Care Directives. Section 5461(g)(2) of the Decedent's and Fiduciaries Code - Title 20 provides express guidance to medical personnel when agents under the document are not in accord and evenly divided. In that case the law directs them to act as though no decision had been made, and to administer health care treatment "in accordance with accepted standards of medical practice." Hence, whatever options may have been available to them, the filing of a guardianship petition was not one of them.
This case points out that, contrary to rumors, if you draft one of these documents, they are honored. However, it may be worth the cost to have them drafted by a competent attorney who can offer drafting advice and spot any incongruities and/or provisions that may cause problems later.
Bob Gasparro
robert.gasparro@lifespanlegal.com
Telephone-484-451-6612
www.lifespanlegal.com
These two issues played out in a recent case in the Delaware Valley Orphans Court last September. The facts were as follows:
M.J. was a patient at Mercy Fitzgerald Hospital who was being kept alive by a mechanical ventilator and a feeding tube. Doctors at Mercy Fitzgerald filed a guardianship petition and informed the DELCO court that the patient would not be able to continue indefinitely with the current life supports, and the patient was also suffering from end-stage dementia and a failure to thrive. Since the current equipment was not intended for sustained use they would have to insert a PEG tube for feeding. The doctors also felt that the operation would be painful for the patient and would only serve to prolong the patient's process of dying. The doctors and hospital had recommended that the patient be placed in hospice and palliative care. The patient had two sons: one son disagreed with the hospital and the other son wanted the parent placed on hospice and palliative care.
Ten years prior to this, the patient had drafted a medical power of attorney and living will. There were several problems with those documents. The first problem was questions regarding the patient's capacity to draft the document when she did. Another problem was that the legal document appointed her two sons as her agents and gave them the power to act alone or together. The two sons could not agree on the procedure to be followed, so the hospital brought a guardianship action in court. The crux of the problem is that the power of attorney as drafted gave any of the sons the power to act as an agent either jointly or individually, thereby rendering it almost meaningless.
The DELCO Court stated that a guardianship was improper because there already was a Durable Power of Attorney in place, and the statute specifically gives preference to those documents. The Court cited Section 6612(a)(3) of the Pennsylvania Fiduciary Code stating that a guardian is generally not necessary if the principal has drafted a Power of Attorney. One of the sons who was an agent under the Power of Attorney showed up in the Delaware County court and explained how the principal would not have wanted the life support withdrawn. The court stated that although the attending physician and the hospital may not agree with the agent's decision, it should be controlling.
One thing the court did not mention is who is given the priority to make decisions under Advance Health Care Directives. Section 5461(g)(2) of the Decedent's and Fiduciaries Code - Title 20 provides express guidance to medical personnel when agents under the document are not in accord and evenly divided. In that case the law directs them to act as though no decision had been made, and to administer health care treatment "in accordance with accepted standards of medical practice." Hence, whatever options may have been available to them, the filing of a guardianship petition was not one of them.
This case points out that, contrary to rumors, if you draft one of these documents, they are honored. However, it may be worth the cost to have them drafted by a competent attorney who can offer drafting advice and spot any incongruities and/or provisions that may cause problems later.
Bob Gasparro
robert.gasparro@lifespanlegal.com
Telephone-484-451-6612
www.lifespanlegal.com
Surrey Services, in Conjunction With Penn Memory Center, to Offer Free Classes About Alzheimer's and Dementia
Surrey Services of Devon Pennsylvania has partnered with Penn Memory Center to offer a free lecture series about Alzheimer's and dementia.
The first lecture is entitled: Conundrums in Research on the Aging Mind. The lecture will be held Friday, February 20, 2016, from 9:30 to 11 a.m. at Surrey Services, 60 Surrey Way, Devon, PA, The lecturer will be Stephen E Arnold, M.D.
Other lectures held later include: How Early Can We Diagnose Alzheimer's Disease? This lecture will be held on Friday, March 20, 2015. Next is Cognitive Aging and Cognitive Fitness: A Proactive Approach, held on Friday, April 17, 2015. The final lecture is Caring for the dementia Caregiver which will be held on Friday, May 15, 2015.
For more information, or to register, call Nicole at Surrey, Senior Services of Devon PA 610-647-9172.
Bob Gasparro, Esq
Lifespan Legal Services, LLC
robert.gasparro@lifespanlegal.com
The first lecture is entitled: Conundrums in Research on the Aging Mind. The lecture will be held Friday, February 20, 2016, from 9:30 to 11 a.m. at Surrey Services, 60 Surrey Way, Devon, PA, The lecturer will be Stephen E Arnold, M.D.
Other lectures held later include: How Early Can We Diagnose Alzheimer's Disease? This lecture will be held on Friday, March 20, 2015. Next is Cognitive Aging and Cognitive Fitness: A Proactive Approach, held on Friday, April 17, 2015. The final lecture is Caring for the dementia Caregiver which will be held on Friday, May 15, 2015.
For more information, or to register, call Nicole at Surrey, Senior Services of Devon PA 610-647-9172.
Bob Gasparro, Esq
Lifespan Legal Services, LLC
robert.gasparro@lifespanlegal.com
PA Superior Court Case Earlier This Month Highlights Usefulness of a Standby Guardian for Minor Children
The recent Pennsylvania Superior Court decision published on January 6, 2015, highlights the usefulness and need of parents to appointing a Standby Guardian for minor children. This case dealt with a minor, J.A., who was injured in the same auto accident as her parent. The incapacitated parent could not make medical decisions for her child. The Allegheny County juvenile court appointed a social agency (KidsVoice) as the medical agent for the child.The Superior Court reversed the decision of the lower court, stating that only a juvenile court or a parent or a standby guardian appointed by the parent may make medical decisions regarding a minor. They said a juvenile court does not have the authority to delegate the decision making to an agency. Another reason the court had appointed the agency as Guardian was because the medical providers disagreed with the medical decisions made by the mother. The Pennsylvania Superior Court acknowledged that the juvenile court may take whatever action is necessary "in the best interest of the child" if the parent is making imprudent decisions, but the court may not delegate that authority. The case was In Re: J.A., No: 15-0059.
Many parents do not realize that, in addition to appointing a guardian for the child in their will, they can appoint a Standby Guardian to make decisions on behalf of their child even if they are only temporarily incapacitated, or even away on vacation.This law, found at 23 Pa.C.S.A. § 5601 et seq. , is appropriately entitled the Standby Guardianship Act. Please contact us or any competent attorney to have one of these documents drawn up.
Bob Gasparro
robert.gasparro@lifespanlegal.com
(484) 451-6612
Many parents do not realize that, in addition to appointing a guardian for the child in their will, they can appoint a Standby Guardian to make decisions on behalf of their child even if they are only temporarily incapacitated, or even away on vacation.This law, found at 23 Pa.C.S.A. § 5601 et seq. , is appropriately entitled the Standby Guardianship Act. Please contact us or any competent attorney to have one of these documents drawn up.
Bob Gasparro
robert.gasparro@lifespanlegal.com
(484) 451-6612
Sunday, December 21, 2014
Pa. Superior Court Decides Case Dealing With Rule Against Perpetuities
While giving a person flexibility in distributing their property, trusts do have some limitations. One of those limitations is known as the "Rule Against Perpetuities." Happily for many, Pennsylvania abolished that law in 2006 by passing Title 20 PSA § 6107.1. However, the new law only applies to interests created on or after January 1, 2007.
For trusts created before that date, the law contained in Section 6104 et seq of Title 20 still stands. It provides that any interest must vest within 21 years after lives in being. The intention of the law was to limit trusts from continuing forever. History and experience have established that the rule is not necessary. For those interested in knowing about the law in detail, click here. For others, you need only be aware that a trust created before January 1, 2007 should not continue for 21 years after the last life in being at the time the trust was created. That may limit trust bequests to great grandchildren who were not alive at the time a trust was established.
The Pennsylvania Superior Court recently decided a case where that law came into play. It was Re: In the Matter of Estate of George McFaddden, 2014 PA Super 203, decided September 18, 2014.This case dealt with a trust that was established in 1929 before the stock market crash. It is always a good idea to enlist the help of an experienced attorney when drafting a trust, because the "Rule Against Perpetuities" is one of several issues that confront the drafter. Trusts can be very useful, and are sometimes essential, but should be drafted by someone with the appropriate experience.
Stay well until the next post:
Bob Gasparro, Esq.
For trusts created before that date, the law contained in Section 6104 et seq of Title 20 still stands. It provides that any interest must vest within 21 years after lives in being. The intention of the law was to limit trusts from continuing forever. History and experience have established that the rule is not necessary. For those interested in knowing about the law in detail, click here. For others, you need only be aware that a trust created before January 1, 2007 should not continue for 21 years after the last life in being at the time the trust was created. That may limit trust bequests to great grandchildren who were not alive at the time a trust was established.
The Pennsylvania Superior Court recently decided a case where that law came into play. It was Re: In the Matter of Estate of George McFaddden, 2014 PA Super 203, decided September 18, 2014.This case dealt with a trust that was established in 1929 before the stock market crash. It is always a good idea to enlist the help of an experienced attorney when drafting a trust, because the "Rule Against Perpetuities" is one of several issues that confront the drafter. Trusts can be very useful, and are sometimes essential, but should be drafted by someone with the appropriate experience.
Stay well until the next post:
Bob Gasparro, Esq.
Philadelphia Court Gives Priority to Outstanding Child Support Claims Over Distributions to Beneficiaries
A recent Philadelphia case focused on the liability the executrix may face for improper distribution of the estate proceeds. It also considered exceptions to the "spendthrift provisions" contained in a will or trust. In this case, Roy Creamer Sr., deceased, had a will attempting to distribute the proceeds of his house to his son Roy Jr., who also had an outstanding $16,289.87 child support obligation. The mother of the children who were owed support filed a formal claim against the estate, saying that the children were entitled to the bequest before Roy Jr. Roy Sr., the decedent, also failed to provide for his wife in his will, so she filed a spousal election against the estate.
The executor initially dishonored the claim for child support, stating that only a creditor of the decedent can bring a claim against his estate, and that a creditor of a beneficiary had no standing to bring any claim at all. Furthermore, said the executor, the will contained a "spendthrift provision" which protected claims of beneficiaries against creditors.
Note #1: each of our clients, and many others who own a will drafted by an attorney, will notice a clause under "Powers of the Personal Representative" which permit them to make payments to any beneficiary without any duty to see to the proper allocation or application of the funds paid. In many cases a trust will contain a provision that the trustee may shield the principle from claims of creditors of the beneficiary. These are similar to "spendthrift provisions."
Note #2: No matter what a will says, a decedent may not disinherit a spouse. Under Title 20, Section 2203 of Pennsylvania laws, a spouse is entitled to at least 1/3 of the estate. However, in making this election, life insurance, annuities and other payments outside of probate are taken into consideration in computing the 1/3 share.
In this case the Philadelphia Orphans Court refused to approve the executor's proposed distribution of the estate. The court stated that the children who were owed child support had rights to contest the distribution of the estate to the beneficiary who owed the support obligation. The court went on to say that they also might rights against the spouse taking the 1/3 elective share, and the children might have a right to have a guardian appointed for them to pursue their claim. The court postponed the settling of the estate until the parties determined if there was enough money in the estate to pay the child support obligations, and to see if the parties could resolve the matter without resort to litigation. The case is In re Estate of Creamer, Court of Common Pleas of Philadelphia 14-1760, and the 16 page decision was published on September 30, 2014.
Stay well until the next post:
Bob Gasparro, Esq.
The executor initially dishonored the claim for child support, stating that only a creditor of the decedent can bring a claim against his estate, and that a creditor of a beneficiary had no standing to bring any claim at all. Furthermore, said the executor, the will contained a "spendthrift provision" which protected claims of beneficiaries against creditors.
Note #1: each of our clients, and many others who own a will drafted by an attorney, will notice a clause under "Powers of the Personal Representative" which permit them to make payments to any beneficiary without any duty to see to the proper allocation or application of the funds paid. In many cases a trust will contain a provision that the trustee may shield the principle from claims of creditors of the beneficiary. These are similar to "spendthrift provisions."
Note #2: No matter what a will says, a decedent may not disinherit a spouse. Under Title 20, Section 2203 of Pennsylvania laws, a spouse is entitled to at least 1/3 of the estate. However, in making this election, life insurance, annuities and other payments outside of probate are taken into consideration in computing the 1/3 share.
In this case the Philadelphia Orphans Court refused to approve the executor's proposed distribution of the estate. The court stated that the children who were owed child support had rights to contest the distribution of the estate to the beneficiary who owed the support obligation. The court went on to say that they also might rights against the spouse taking the 1/3 elective share, and the children might have a right to have a guardian appointed for them to pursue their claim. The court postponed the settling of the estate until the parties determined if there was enough money in the estate to pay the child support obligations, and to see if the parties could resolve the matter without resort to litigation. The case is In re Estate of Creamer, Court of Common Pleas of Philadelphia 14-1760, and the 16 page decision was published on September 30, 2014.
Stay well until the next post:
Bob Gasparro, Esq.
Friday, November 21, 2014
Judge in Lycoming County PA Reminds You to Read the Boilerplate in Your Will or Power of Attorney
Nearly every Power of Attorney or Will contains a clause enabling the agent, or the executor, to commence or settle or discontinue litigation. This boilerplate clause recently became the focus of litigation in Lycoming County, PA, where the court ruled that "it is what it says."
Prior to his death, John Bower, Sr. brought a lawsuit against a business. After he died his wife and executor discontinued the litigation under the power given to her in the will. The other beneficiaries of the estate brought an action against her and asked the court to remove her as executor for not acting prudently in handling the estate. The judge who heard the case disagreed with the beneficiaries, and stated that the boilerplate in the will gave her that power, and she was free to exercise it, even if they received less money. The case was In re the Estate of John Bower, Sr. 14-1593, Lycoming County, and the decision was rendered last September 23rd.
Cases like this are one reason many law firms, including ours, place a clause in a will stating that if anyone contests the will or the administration of the estate without probable cause, they are automatically disinherited from the will.
Stay well until the next post,
Bob Gasparro, Esq.
Prior to his death, John Bower, Sr. brought a lawsuit against a business. After he died his wife and executor discontinued the litigation under the power given to her in the will. The other beneficiaries of the estate brought an action against her and asked the court to remove her as executor for not acting prudently in handling the estate. The judge who heard the case disagreed with the beneficiaries, and stated that the boilerplate in the will gave her that power, and she was free to exercise it, even if they received less money. The case was In re the Estate of John Bower, Sr. 14-1593, Lycoming County, and the decision was rendered last September 23rd.
Cases like this are one reason many law firms, including ours, place a clause in a will stating that if anyone contests the will or the administration of the estate without probable cause, they are automatically disinherited from the will.
Stay well until the next post,
Bob Gasparro, Esq.
Allstate Insurance Forced to Pay $22. Million Dollars on a $250,000 policy, for Bad Faith Toward It's Policyholder
Unfortunately,
most consumers purchase insurance on the basis of a television commercial or by
though price comparisons. Yet, not all insurance companies are equal, and some have a reputation for providing meager loss payouts. The problem may be exacerbated
after a calamity such as a hurricane where several hundred claims are made at
once.
Contesting
the amount offered by an insurance company to cover a loss may be a daunting
task. Insurance companies are, after all, large companies. Most consumers do
not fully understand the terms of an insurance policy that may be fifty pages
long. One alternative to poor service, is to file a complaint with the state insurance commission, who will try to mediate the
complaint.
You
can also sue an insurance company for breach of contract, but that's also a poor
solution. The insurance company can afford to hire a law firm who may then file a
multitude of motions and other legal papers driving up the price of litigation.
Should the consumer prevail, even if they hire an attorney on a contingent fee
basis, they must still pay the costs of litigation. This may leave a consumer
with an insufficient amount to do the necessary repairs. Should
the consumer hire an insurance adjuster who takes 25%, and then hire an
attorney who takes a 33% contingent fee, they’re left with very little money to
perform repairs.
Fortunately,
Pennsylvania and most other states have a law called a “Bad Faith Statute”
which penalizes insurance companies for failing to make good on the policy they
sold to the consumer. Pennsylvania’s law is found at 42 Pa. C.S.A. § 8371, and
it provides that if an insurer does not comply with the terms of an insurance
policy by paying according to the terms of the policy, the policyholder may be
entitled to : (1) Interest on the amount of the claim at the prime rate + 3%;
(2) Punitive damages against the insurance company; (3) Court costs and
attorney fees paid.
Although
not our primary area of practice, our firm has handled a some of these cases in
the past. The insurance company will usually try to remove the case to federal
court to avoid the wrath of a local jury, and litigation can take years.
This
Bad Faith statue cited above recently played out in a case in Philadelphia, where the insurance company had to bear the wrath of a local jury. Allstate was required to pay a record $22 million dollars in punitive and delay damages for not living up to it’s promise
to place it’s insured “In good hands” by paying the $250,000. benefits under
an insurance policy. The local jury jury was incensed by Allstate’s refusal
to pay $250,000. benefits to a man whose leg was crushed following an auto
accident by their insured, and then using frivolous delay tactics in the case
brought against it by the insured, so they added punitive and delay damages to the
$250,000. policy held by the insured.
There is an added twist that may
have something to do with the verdict, and that is the fact that the insured
became so exasperated trying to get Allstate to pay under the policy, he assigned his rights under the policy to the man whose leg he crushed. So the
$22. million dollar award went directly to the man who’s
leg was crushed following the accident rather than to the person who bought the policy.
It is
never a good idea to buy insurance simply on the basis of a television commercial
or lower rates. If the insurance company will not repair your home after a
hurricane, or pay your benefits after an auto accident, it is not a bargain
after all. It is always better to talk to family and friends about their experiences with their insurance company. The case cited above was Hennessey v. Alltate Insurance,
Philadelphia Court of Common Pleas Case No. 131001095.
Stay
well until the next post.
Friday, November 14, 2014
Some Tips for Medicare Open Enrollment Ending December 7, 2015
It’s
that time of year again to choose a Medicare supplemental plan. Remember that it
isn’t necessary to have Medicare additional insurance and those with Medicare
coverage can choose to cover the 20% Medicare co-pay by themselves. In general,
however, most seniors opt for supplemental insurance.
Unfortunately,
most seniors are so overwhelmed by the complexity of choosing the right
supplemental plan that they just choose a name they know such as AARP or Blue
Cross. While both are good plans, most seniors might save money, and be better served,
by finding a plan which is the best fit for them.
There
are several ways to find the best plan: We perform that service and we consider
the insurance that your current physician accepts as well as your current
physician's ease in working with various insurance companies. We also consider
the Plan Quality and Performance Ratings posted on the Medicare web site. In addition
to that, we consider your current list of prescriptions and we try to forecast
your needs in the future (not an exact science by any means). The fee is
generally a few hundred dollars, but it is possible to save much more. We recommend at least three insurance companies and do not sell insurance.
Another
alternative is an independent insurance agent who specializes in Medicare supplemental
plans. While in some cases the determination is made only on the basis of
annual premiums, at least you will be presented with a few choices. A good
agent will go beyond price considerations. The best part about this option is
that it generally costs nothing and the agent is compensated by earning a
commission on the insurance sale.
Finally,
as part of the Medicare program, money is allocated for a program called
APPRISE and volunteers under this program will help you choose a supplemental
plan. Each county in Pennsylvania has it’s own APPRISE counselors. Whatever you do, it is very important to
obtain supplemental insurance within six months of attaining age 65, because
then your insurance will cover pre-existing conditions. The rules of Medicare
supplemental insurance are different from the rules under the Affordable Care
Act (Obama Care).
Another
separate but related consideration is whether a senior should choose a Medicare
Advantage plan or regular Medicare supplemental insurance.
Advantage
plans operate like Health Maintenance Organizations (HMO's) and are generally
less expensive. These insurance plans presume that a senior will spend most of
his or her time in a particular area. They are definitely not for seniors who
travel a lot. Although Advantage Plans have a more restrictive provider list (the
list of physicians to treat you), they usually provide more preventative
medicine support. You may receive visits from a nurse practitioner who will
assist you in maintaining your health and/or free transportation to a clinic. And
so, if you are just now Medicare-eligible (i.e. 65 to 70 years old) and in good
health, an Advantage Plan is probably a good choice because of the low cost and
the preventative support.
Under traditional Medicare nothing happens unless you visit a doctor first, and
there may be a tendency for doctors and hospitals to bill for as much as
possible while they have you. Advantage Plans cut costs through monitoring your
health and preventative medicine. Advantage plans may also offer additional
services such as dental, hearing or vision, and most cover prescription drugs.
They may also include health club fees.
On the
other hand, if you are frail and may require rehab after an injury, Medicare
Advantage plans will be more restrictive. When it comes to rehab, Medicare
itself allows 100 days of rehab and only pays in full for the first 20 days.
The remaining days are subject to the supplemental insurance 20% co-pay. An
Advantage Plan will pay close attention to your progress during therapy, and if
they do not see adequate progress, will cut of payments for continued rehab. We
have had experience with Medicare Advantage plans that denied some testing due
to cost, and that initial determination had to be appealed. Another possible
problem with Medicare Advantage plans is the wait time to see a physician.
While you can visit any doctor who takes Medicare if enrolled in a supplemental
plan, Medicare Advantage policyholders are restricted to physicians and testing
centers in the network. Also, some “no premium” Advantage
Plans have large co-pays.
To
reiterate, if you are young and need preventative support, a Medicare Advantage
Plan will have a low premium and may be a good fit. If you are on Medicare
because of a disability, or are on Medicaid for long term care, or if you’ve
had a rehab stay anytime in the past, you should consider a supplemental plan
instead.
And
don’t forget to re-evaluate your plan each year. For example Bravo Medicare
Advantage was later bought by Health ‘Springs and then that new entity was
bought by Cigna. The atmosphere and quality of service changed during the
evolution. Your prescription needs may also change. As with all insurance, you
should review your needs and your coverage.
Stay
well until the next post:
Bob Gasparro, Esq.
Saturday, October 25, 2014
The Pennsylvania Depatment of Welfare Receives a New Name
The Pennsylvania Department of Welfare is very much involved in Elder Law. It is this agency that governs and regulates personal care homes and assisted living facilities. While skilled nursing facilities (nursing homes) are regulated by the Pennsylvania Department of Health, DPW reviews applications for Medicaid made by nursing home residents. The department has more than 16,000 employees and oversees 94 county assistance offices statewide
On September 24th, 2014, the governor signed a law that changed the name of the agency to The Department of Human Services. The change will take effect beginning in November and be phased in gradually. For example, stationery will not be replaced right away, but the new stationery and deliverable will bear the new name as the old ones are replaced.
On September 24th, 2014, the governor signed a law that changed the name of the agency to The Department of Human Services. The change will take effect beginning in November and be phased in gradually. For example, stationery will not be replaced right away, but the new stationery and deliverable will bear the new name as the old ones are replaced.
Philadelphia Area Alzheimer's Walk. on November 9, 2014. Would You Like to Pledge?
The Philadelphia 2014 Walk to End Alzheimer's takes place on November 9, 2014, in South Philadelphia. If you would like to pledge, please contact the office at 484-451-6612.
For those willing to pledge $100. or above, I, Bob Gasparro, take you there live. You will receive an internet address so you can watch a live broadcast on YouTube, and feel as though you are in the middle of the march. I did this last year and you should know that the reception quality is not guaranteed throughout the walk, but it certainly was fun. Also, the broadcast will extend from the beginning of the walk to either the end of the walk, or the end of the battery. No refunds, but the money goes for a great cause.
There are some promising research studies that may prevent, end, or mitigate the effects of this disease. Treatment regimens learned from recent researched has already helped to make life more comfortable for those afflicted. When one considers that over 40% of those past the age of 85 are afflicted with the disease, you can appreciate how important the work done by the Alzheimer's Association is.
Bob Gasparro
For those willing to pledge $100. or above, I, Bob Gasparro, take you there live. You will receive an internet address so you can watch a live broadcast on YouTube, and feel as though you are in the middle of the march. I did this last year and you should know that the reception quality is not guaranteed throughout the walk, but it certainly was fun. Also, the broadcast will extend from the beginning of the walk to either the end of the walk, or the end of the battery. No refunds, but the money goes for a great cause.
There are some promising research studies that may prevent, end, or mitigate the effects of this disease. Treatment regimens learned from recent researched has already helped to make life more comfortable for those afflicted. When one considers that over 40% of those past the age of 85 are afflicted with the disease, you can appreciate how important the work done by the Alzheimer's Association is.
Bob Gasparro
Friday, October 24, 2014
Can You Vote as a Guardian or Agent Under a Power Of Attorney?
People often ask: "I am agent under my father's Power of Attorney. I know exactly how he would want to vote at the next election, may I vote for him?"
The simple answer to this question is "no." An agent's authority under a power of attorney is defined by statute in Title 20, Chapter 56, and voting in a government election is not one of those powers.. The power to vote in corporate elections is often granted, but it does not extend to governmental elections. Neither may a guardian vote for their ward.
However, you may transport your ward to the polls so they can vote. If they cannot travel to the polls, you may order an absentee ballot for them.
Another different, but related question, is whether someone who has been found incompetent after an adjudication in a guardianship proceeding, or pursuant to the terms of a springing power of attorney, may vote.
The law says that everyone is deemed to be competent until there has been a finding of incompetency. Someone who is demented,yet not formally determined to be incompetent, is still presumed competent. Furthermore, the distinction between competency and incompetency is not static; many people drift between the two depending on the time of day or other environmental conditions.
Even as to persons found to be incompetent, there is a constitutional right to vote. Because the right to vote is fundamental and preserves other basic civil and political rights, it has protections under the Due Process Clause of our nation's constitution. A state must provide an adequate notice and hearing to an incapacitated person before revoking the right to vote. While most states have laws that determine whether an incapacitated person may vote, Pennsylvania is one of the thirteen states that are completely silent on the issue.
This topic was addressed and the current law exhaustively reviewed in the most recent Journal of the National Academy of Elder Law Attorneys. If you would like a copy of the article, please contact our office.
Finally, the last date to obtain an absentee ballot in Pennsylvania for the upcoming election in November, is October 28, 2014.
The simple answer to this question is "no." An agent's authority under a power of attorney is defined by statute in Title 20, Chapter 56, and voting in a government election is not one of those powers.. The power to vote in corporate elections is often granted, but it does not extend to governmental elections. Neither may a guardian vote for their ward.
However, you may transport your ward to the polls so they can vote. If they cannot travel to the polls, you may order an absentee ballot for them.
Another different, but related question, is whether someone who has been found incompetent after an adjudication in a guardianship proceeding, or pursuant to the terms of a springing power of attorney, may vote.
The law says that everyone is deemed to be competent until there has been a finding of incompetency. Someone who is demented,yet not formally determined to be incompetent, is still presumed competent. Furthermore, the distinction between competency and incompetency is not static; many people drift between the two depending on the time of day or other environmental conditions.
Even as to persons found to be incompetent, there is a constitutional right to vote. Because the right to vote is fundamental and preserves other basic civil and political rights, it has protections under the Due Process Clause of our nation's constitution. A state must provide an adequate notice and hearing to an incapacitated person before revoking the right to vote. While most states have laws that determine whether an incapacitated person may vote, Pennsylvania is one of the thirteen states that are completely silent on the issue.
This topic was addressed and the current law exhaustively reviewed in the most recent Journal of the National Academy of Elder Law Attorneys. If you would like a copy of the article, please contact our office.
Finally, the last date to obtain an absentee ballot in Pennsylvania for the upcoming election in November, is October 28, 2014.
Tuesday, September 16, 2014
Judgement Against Philadelphia Nursing Home in the Amount of $2.9 Million Dollars
Thanks to enhanced regulation and inspection, nursing home negligence does not happen as much as it did in the past. However, it still does occur. One recent case dealt with a nursing home in Philadelphia, in the case of Williams v. Willow Terrace. The Pennsylvania Superior Court (No 14-1254), last July of 2014, upheld a verdict of $2, 901,602 against the nursing home for wrongful death, medical expenses and punitive damages for outrageous conduct.
Mr. Williams, a patient, was supposed to be turned every two hours due to his bed sores, but there were up to 33 eight hour shifts in one month in which, because of under-staffing, he was ignored.The failure to treat his pressure ulcers ultimately caused his death. The final verdict against the nursing home, consisting of both damages for negligence and punitive damages for outrageous conduct against a senior, was upheld on appeal.
After the verdict the family issued a statement: “The family hopes that the corporations that own and operate nursing homes and medical facilities in southeastern Pennsylvania and beyond take notice of this verdict, and operate their facilities the right way so that other people are not harmed.”
The defendant in this case was affiliated with a large medical center in Philadelphia. The take home message is that if you have a friend or relative in a nursing home, you need an Advance Medical Directive which places one person in charge, and that person needs to view the charts and medical records often.This is a service provided to our clients using the Nurse Practitioner affiliated with our firm, or a geriatric care manager or health care advocate can also be of assistance in matters such as this.
Stay well until the next post.
Bob Gasparro, Esq.
robert.gasparro@lifespanlegal.com
(484) 451-6612
Mr. Williams, a patient, was supposed to be turned every two hours due to his bed sores, but there were up to 33 eight hour shifts in one month in which, because of under-staffing, he was ignored.The failure to treat his pressure ulcers ultimately caused his death. The final verdict against the nursing home, consisting of both damages for negligence and punitive damages for outrageous conduct against a senior, was upheld on appeal.
After the verdict the family issued a statement: “The family hopes that the corporations that own and operate nursing homes and medical facilities in southeastern Pennsylvania and beyond take notice of this verdict, and operate their facilities the right way so that other people are not harmed.”
The defendant in this case was affiliated with a large medical center in Philadelphia. The take home message is that if you have a friend or relative in a nursing home, you need an Advance Medical Directive which places one person in charge, and that person needs to view the charts and medical records often.This is a service provided to our clients using the Nurse Practitioner affiliated with our firm, or a geriatric care manager or health care advocate can also be of assistance in matters such as this.
Stay well until the next post.
Bob Gasparro, Esq.
robert.gasparro@lifespanlegal.com
(484) 451-6612
WestChester County, PA Woman Gets Relief After the Court Sorts Out Her Husband's Letters
Pennsylvania has minimal requirements for creating a will. While these modest requirements were intended to protect consumers, on occasion they have the opposite effect. The law, contained in Title 20 Pennsylvania Code, Section 2502, states that the only requirement for making a will, is that the testator sign at the end of the document. The reason most lawyers have the testator sign before two witnesses is because of different laws governing the steps necessary to have a will accepted for probate by the local Register of Wills.
Section 3132 of Title 20 states that, before the Register of Will will accept the document for probate, all wills must be proved by the oath or affirmation of two witnesses to the testator's signature. Most lawyers figure it is easier to have the two witnesses present at the time the will is signed, rather than delay probate until two witnesses can be found after the death of the testator. If the decedent lives many years past his or her life expectancy there may not be many people around who can vouch for his or her signature. There are many other provisions of the law, not relevant here, dealing with acknowledgments before a notary (self proving wills), what happens if a will is destroyed or lost, and many other intricacies of interest mainly to lawyers. For purposes of our discussion here, we only need to know that a testator signs at the end of the will.
These simple laws made a big difference in the estate of Jeffrey K. Basner, who died on June 7, 2012, while a resident of West Grove, Chester County, Pennsylvania. On July 7, 1995, Mr. Basner drafted a simple document which stated that at the time of his death he left all of his "worldly possessions" to his mother Ellen. But during an inventory of his possessions after his death, another document was found which stated "at the time of my death, the house goes to Sally Munro." That latter document was not even dated. Sally Munro was the maiden name of the decedent's wife. So the question became, who received what from Jeffrey Basner? Did his mother or his wife receive his estate?
This issue went before the Courts in Chester County, PA a few weeks ago.The court recognized that the law does not require even a date on the will, but they were able to prove the document leaving things to his wife was drafted after the original will in 1995. But was that document leaving everything to his wife a second will? After taking testimony and conducting an examination, the court decided that the second document was a codicil (a minor modification to the original will) and that Mr. Basner's mother received all of his estate except for the house he owned on Sunnyside Rd, and the house went to his wife.
It might seem that justice has been served, but Mr. Basner's frugality probably did more harm than good. The cost of filing the court case in Chester County, at the time of this writing in 2014, starts at $173. The hourly fee for an attorney to try the case usually amounts to between $250 and $450. the money the beneficiaries spent in court over his documents came from their bequest, and they may lose even more if one or both parties appeal to the Pennsylvania Superior Court. Our office drafts a simple will, power of attorney and advance medical directive for $480. and dozens other law firms charge around the same. If someone in your family does not have a will, and you might be a beneficiary, you might want to nudge them toward seeing a lawyer to have it done right.
Stay well until the next post.
Bob Gasparro, Esq.
robert.gasparro@lifespanlegal.com
(484) 451-6612
Section 3132 of Title 20 states that, before the Register of Will will accept the document for probate, all wills must be proved by the oath or affirmation of two witnesses to the testator's signature. Most lawyers figure it is easier to have the two witnesses present at the time the will is signed, rather than delay probate until two witnesses can be found after the death of the testator. If the decedent lives many years past his or her life expectancy there may not be many people around who can vouch for his or her signature. There are many other provisions of the law, not relevant here, dealing with acknowledgments before a notary (self proving wills), what happens if a will is destroyed or lost, and many other intricacies of interest mainly to lawyers. For purposes of our discussion here, we only need to know that a testator signs at the end of the will.
These simple laws made a big difference in the estate of Jeffrey K. Basner, who died on June 7, 2012, while a resident of West Grove, Chester County, Pennsylvania. On July 7, 1995, Mr. Basner drafted a simple document which stated that at the time of his death he left all of his "worldly possessions" to his mother Ellen. But during an inventory of his possessions after his death, another document was found which stated "at the time of my death, the house goes to Sally Munro." That latter document was not even dated. Sally Munro was the maiden name of the decedent's wife. So the question became, who received what from Jeffrey Basner? Did his mother or his wife receive his estate?
This issue went before the Courts in Chester County, PA a few weeks ago.The court recognized that the law does not require even a date on the will, but they were able to prove the document leaving things to his wife was drafted after the original will in 1995. But was that document leaving everything to his wife a second will? After taking testimony and conducting an examination, the court decided that the second document was a codicil (a minor modification to the original will) and that Mr. Basner's mother received all of his estate except for the house he owned on Sunnyside Rd, and the house went to his wife.
It might seem that justice has been served, but Mr. Basner's frugality probably did more harm than good. The cost of filing the court case in Chester County, at the time of this writing in 2014, starts at $173. The hourly fee for an attorney to try the case usually amounts to between $250 and $450. the money the beneficiaries spent in court over his documents came from their bequest, and they may lose even more if one or both parties appeal to the Pennsylvania Superior Court. Our office drafts a simple will, power of attorney and advance medical directive for $480. and dozens other law firms charge around the same. If someone in your family does not have a will, and you might be a beneficiary, you might want to nudge them toward seeing a lawyer to have it done right.
Stay well until the next post.
Bob Gasparro, Esq.
robert.gasparro@lifespanlegal.com
(484) 451-6612
United States Supreme Court Asked To Strike Down Pennsylvania's Funeral Laws.
Two weeks ago, at the Jenkins Memorial Law Library, I taught a course about the laws surrounding death and burial. One topic of interest to the lawyers and judges who enrolled in the course, because of the Constitutional issues involved, was the controversy surrounding Pennsylvania's Funeral Laws. Our laws are in a state of flux following a suit brought by a contingent of funeral directors who are now asking the United States Supreme Court to find them so anti-competitive and protectionist, that they are unconstitutional. On the other hand, the State Board of Funeral Directors and the Commonwealth are trying to defend the laws.
This disagreement started when a York County, PA funeral director named Ernie Heffner challenged some of the state's laws, as well as the actions of the Board of Funeral Directors. Hefner was later joined by consumer groups such as the Funeral Consumers Alliance and the Institute for Justice. He brought suit in federal court where the judge found the Pennsylvania laws, passed in 1952, outdated and patently unconstitutional.
Some of the contested Pennsylvania laws are:
*Every funeral home must have an embalming room, including those funeral homes that engage exclusively in cremations or green funerals, neither of which use embalming fluid.
* The Pennsylvania board is given the authority to inspect funeral homes with no advance warning, and without a warrant.
* Funeral homes are banned from offering food of any kind although there is no proof of any safety concerns. The funeral directors who brought the suit felt that offering some light refreshments might be appropriate to any gathering of family and friends.
* Funeral homes must be named after the current or former funeral director operating them, despite the fact similar rules in other professions have been ruled unconstitutional.
*A wife of a deceased funeral director may continue to operate the funeral home even though she does not hold a license, but that exception does not apply to any other person.
Following defeat in the lower court, the state board appealed to the Third Circuit Court of Appeals who reversed. The Third Circuit agreed that the laws are outdated, but that alone did not make them unconstitutional, with one exception. They struck down the law mandating the funeral home must be named after one of the owners. They correctly held that state law does not in any way serve to protect the public. After all, Ernie Madoff operated under the insignia of his own name, but nevertheless cheated many of his customers. And so, in the months ahead we may see funeral homes with names such as "Happy Ending Funeral Services" or any derivation thereof.
Undaunted by the loss in the Third Circuit, the original plaintiffs have filed a writ of Certiori with the United States Supreme Court and is asking them to weigh in on the issue. The U.S. Supreme Court is not obligated to take every case that is filed with them, and we will see if they take on the Pennsylvania case or allow the antiquated laws to stand.
Stay well until the next post,
Bob Gasparo, Esq.
robert.gasparro@lifespanlegal.com
(484) 451-6612
This disagreement started when a York County, PA funeral director named Ernie Heffner challenged some of the state's laws, as well as the actions of the Board of Funeral Directors. Hefner was later joined by consumer groups such as the Funeral Consumers Alliance and the Institute for Justice. He brought suit in federal court where the judge found the Pennsylvania laws, passed in 1952, outdated and patently unconstitutional.
Some of the contested Pennsylvania laws are:
*Every funeral home must have an embalming room, including those funeral homes that engage exclusively in cremations or green funerals, neither of which use embalming fluid.
* The Pennsylvania board is given the authority to inspect funeral homes with no advance warning, and without a warrant.
* Funeral homes are banned from offering food of any kind although there is no proof of any safety concerns. The funeral directors who brought the suit felt that offering some light refreshments might be appropriate to any gathering of family and friends.
* Funeral homes must be named after the current or former funeral director operating them, despite the fact similar rules in other professions have been ruled unconstitutional.
*A wife of a deceased funeral director may continue to operate the funeral home even though she does not hold a license, but that exception does not apply to any other person.
Following defeat in the lower court, the state board appealed to the Third Circuit Court of Appeals who reversed. The Third Circuit agreed that the laws are outdated, but that alone did not make them unconstitutional, with one exception. They struck down the law mandating the funeral home must be named after one of the owners. They correctly held that state law does not in any way serve to protect the public. After all, Ernie Madoff operated under the insignia of his own name, but nevertheless cheated many of his customers. And so, in the months ahead we may see funeral homes with names such as "Happy Ending Funeral Services" or any derivation thereof.
Undaunted by the loss in the Third Circuit, the original plaintiffs have filed a writ of Certiori with the United States Supreme Court and is asking them to weigh in on the issue. The U.S. Supreme Court is not obligated to take every case that is filed with them, and we will see if they take on the Pennsylvania case or allow the antiquated laws to stand.
Stay well until the next post,
Bob Gasparo, Esq.
robert.gasparro@lifespanlegal.com
(484) 451-6612
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