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As boomers age, lawyers seeing new trends in estate and health care planning

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Indiana Lawyer Focus

In 2010, the oldest members of the “baby boomer” generation began reaching retirement age. Born between 1946 and 1964, boomers are not like generations that came before them with regard to estate-planning needs. Many of them are living longer and will be working longer – some by choice and others because the value of their retirement accounts has plunged in recent years. As they look toward their future, the boomers’ top concerns are asset protection and paying for long-term care, although each person may have a different approach about how to accomplish those goals.

Tax laws

Sullivan attorney Jeff Hawkins, chair of the Indiana State Bar Association’s Probate, Trust & Real Property Section, said that boomers are primarily concerned with planning for disability – not death.

huffman-keith-mug Huffman

“Death tax is not a concern for the majority of people, but now with long-term care costs rapidly approaching $100,000 per year, per person, suddenly that’s a much bigger issue,” he said.

Hawkins said that federal tax legislation enacted in December 2010 increased the estate and gift tax exemptions from $1 million to $5 million per decedent. He predicts that won’t change with the next Congress in 2012. But as South Bend attorney Richard B. Urda explained, estate planners are in a holding pattern until they know whether Congress will extend the tax breaks.

If the tax exemptions don’t change, a husband and wife could each pass $5 million to their children. But if in 2013 the tax rate reverts to its pre-2010 level of $1 million per person, about half of anything above and beyond $1 million will belong to the Internal Revenue Service.

“It’s kind of hard to tell a couple which way to jump at this point,” Urda said.

Long-term care

Sarah Pierce, an estate attorney for Muncie firm DeFur Voran, said long-term care is a top concern for clients.

“The number one question seems to be, ‘Am I going to lose everything if I have to go into a nursing home?’” she said.

Keith Huffman, attorney for Dale Huffman & Babcock in Bluffton, said he thinks long-term care may be the biggest threat to accumulated assets. Census population projections showed about 79,000 people were age 100 or older in 2010. By 2050, projections say about 600,000 people will be 100 or older. And that increase in life expectancy could mean longer, financially-draining stays in nursing homes.

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“The first thing you always look at is genetics,” Huffman said. Someone who has many relatives that have lived well into their 90s is probably going to need long-term care at some point. Medicaid may pay for that care, but if an applicant for Medicaid has recently shifted assets to someone other than a spouse, paying for long-term care – at least initially – may be impossible.

In determining an applicant’s eligibility for Medicaid, the Family and Social Services Administration will consider a “look-back” period – the five years preceding the application date. If an applicant has, during that time, transferred money to anyone other than his or her spouse, penalties will apply.

In the case of Lola Austin v. Indiana Family and Social Services Administration, No. 64A04-1008-MI-514, the Indiana Court of Appeals affirmed the FSSA’s finding that a $35,500 payment Lola Austin made to her niece and nephew was a “transfer penalty,” making her ineligible for Medicaid benefits for the eight months following the gift.

Huffman said that a simple loan to an adult child could end up counting against a parent’s Medicaid eligibility unless a promissory note shows the loan is actuarially sound, has periodic payments with no balloon payment, and is not cancelled at the death of the lender.

“No one’s ever heard of any of these rules until they’ve seen an elder law attorney,” he said.

Huffman advises clients to invest in long-term care insurance, which he said is the best way to protect assets. But he also advises clients to work toward a solid foundation first.

“You need to own your own home and have $150,000 in the bank before you look at nursing home insurance,” he said.

Late-life divorce and marriage

Connie Bauswell, a certified elder law attorney who practices in Schererville and Valparaiso, said that late-life divorce is becoming more prevalent.

“We’re going to continue to see that more and more people that are at retirement age and older are going to be getting divorced,” she said. Many factors may be to blame for late-life divorce, she explained, including the stress that comes from a lack of adequate financial planning.

Bauswell said that the generation that lived through the Depression was much more concerned than baby boomers about saving for retirement from an early age.

“And I’m not saying that baby boomers on the whole aren’t frugal,” she said. “They just weren’t of the same mindset, because they didn’t go through the Depression.”

Bauswell said Indiana statute nullifies a will that names a spouse as a beneficiary when the couple divorces. She encourages clients to revisit their estate plans periodically, especially in the case of divorce or other developments.

While some relationships may end after age 65, new romances pose challenges for estate planners as well.

“Increasingly, we’re having people living longer and marrying late in life,” Hawkins said. “They have a lifetime of assets accumulated and a desire for their kids to have those assets.” But, Hawkins said, even if a couple sets up separate wills that disinherit their spouse, the surviving spouse can still claim a $25,000 survivor’s allowance. That’s one reason why more couples are turning to prenuptial agreements – the only way to get around the survivor’s allowance, Hawkins said.

Pierce said she’s seen an increase in prenuptial agreements for second marriages.

“What I usually see is a client has basically been burned in a divorce,” she said. “So they’re very cautious when they remarry. That’s the reason that they want to have such an agreement, to protect their kids (of) their first marriage.”

Powers of attorney

With a longer life expectancy comes the possibility that at some point down the road, older people may lose the ability to make informed decisions about their own medical care. Urda, who has been practicing law for more than three decades, has noticed a significant increase in clients requesting powers of attorney.

“When I first started, powers of attorney were something that mostly elderly clients would use,” he said. “Now the clients will consider, no matter what their age, whether they want powers of attorney that would cover financial matters, health matters, and financial and health matters.”

Huffman, who is on the board of directors for Bluffton Regional Medical Center, said that health care decision-making is extremely important for clients to consider.

Huffman said that Indiana’s living will may not be the best choice for an advanced directive, as it puts doctors in the position of stating a patient is dying. “Each facility has to act if (a patient) has an advanced directive, but there’s very little uniformity from hospital to nursing home – very often, the patient’s wishes for end-of-life care don’t get heard. There really needs to be a focus on educating people about health care decision-making.”

Bauswell said she strongly believes clients should have a health care power of attorney. She said it’s one of the most cost-effective ways to ensure that a person will have the best quality of life possible. She urges people to choose wisely, noting that simply picking the oldest child or the relative who lives closest may not always be the best fit.

“My recommendation is to look at it through a different looking glass, to pick based upon who would make decisions that are most closely aligned with the decisions you would make, if you were able to,” she added.•

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  1. This guy sounds like the classic molester/manipulator.

  2. Louis D. Brandeis was born in 1856. At 9 years of age it would have been 1865. The Brandeis family did not own slaves. My source Louis D. Brandeis: A Life, by Melvin L. Urofsky.

  3. My name is Matthew Lucas Major, I recently went through a jury trial in Bloomington , In. It was the week of Feb 19-21. Although I have been incarcerated since August 5, 2014. The reason I 'am writing to you sir is on the 21 of February the jury came in with a very excessive and wrongful verdict of guilty on 6 child molesting charges against my daughter who was 9 at the time I was accused. I also had 2 other Felonies one of Intimidation and 1 of Sexual Vicarious Gratification. Judge Marc Kellam on the second day of trial gave me a not guilty on those 2 felonies. The jury was sent out during that time and when brought back Judge Kellam told them to not concern themselves with the 2 Felonies that he ruled on them. They were told to not let evidence they had already heard influence there verdicts. I never in my life touched any child sexually and definitely not with my own daughter. When I was arrested Detective Shawn Karr told me I would be convicted guilty just on my daughters word even without evidence. That's just what happened. my public defender did me so wrong he never once proved to the court and jury all the lies the child told, and Jeremy Noel my public defender could of proven the lies easily. The stories in Serenity's depositions and Forensic interview changed and were not consistent as Prosecutor Darcie Fawcett claimed they were. Yet my attorney never mentioned that. The facts that the child accused me of full penetration in her vagina and rectum was proven lies. Doctor Roberta Hibbard of Riley hospital in Indianapolis confirmed Serenity's hymen intact, no scars, no tearing, no signs of rape to her. Yet my attorney didn't use that knowledge . the DNA was all in my favor. I tell you I will spend my entire life in prison going through rape and beatings etc. even Judge Kellam abused his authority by telling the jurors to listen and believe what the prosecutors side in evidence like my daughters testimony. In one interview with the detectives my daughter got flustered with her mom and said on camera " I'm saying what you told me to mom"!! Yet Mr. Noel said nor did anything to even resemble a defense attorney. Judge Kellam allowed edited version of a taped conversation between the child and her mother. Also Judge Kellam allowed the Prosecutor too bring in to my case a knife found under my seat, the knife wasn't part of my case. She was allowed by my attorney and the judge to put a huge picture of it on the screen and huge picture of my naked privates in a full courtroom and open court. Ms. Fawcett says to jury see how easy Mr. Major could reach the knife and cut his Childs throat. Even though I had no weapons charge against these cases. This gave the jurors prejudice thought against me thinking I threatened her with that knife and how scared she would of been knowing i could get it and kill her. On my sentencing court March 19, 2014 my public defender told Judge Kellam he wish to resign from being my attorney and wished for the court to give me outside council to file a error to trial or appeal. We were denied. Now after openly knowing my public defender don't want to represent me he has to. Well when as parents we make our kids clean a room when they really don't wish to, well the child will but don't mean she will do a good job, that's where I'm at with Mr. Noel. please dont ignore mine and my families pleas for your help . we have all the legal proof you could need to prove Im innocent. Please dont make my spend years in prison innocent when you can fix this wrong. Im not saying Im a perfect man or that I was a perfect dad to my 2 children none of us are. Ive made some bad choices in life and I paid for them. But I didnt ever touch or rape my daughter . I love my children with all my heart. And now through needing attention and a ex-wife who told my granny several times she wish she could put me in prison to get me out of their lives. Well my ex finally accomplished her goal. Sad part is she is destroying our daughter with all this horrific lies and things she taught my daughter to say. My daughter will need therapist to ever hope for a chance of a normal life after what she had done to her by her mom and their side of the family. My daughter told everyone even on stand she had a dream months before i supposedly molested her in this dream I was molesting her and when I finally did it matched her dream perfectly. She admitted to watching movies about little girls being molested and watching U-Tube videos about child molesting all before it happened supposedly to her. Doesn't that sound very unusual that a non molested 9 yr old would need to know so much about being molested? The only reason I could think a 9 year old would need so much information is to be prepared to know what to say and be able to say how it felt what took place etc.. So when questioned by authorities she would be prepared. And there again sir if a parent is pre grooming a 9 year old child she would need intimate details . Like telling her daughter about a couple moles on my private area. The child admitted to sneaking my cell and looking many many times at nudes of me and my girlfriend even one where my penis was entering my girlfriends vagina. In that picture my moles are obvious. Yet when prosecutor showed everyone in court my privates and pictures of the moles she said the only way the child would know about them is if she saw them for herself. My attorney once again said nothing about the pictures my child saw. Or could a ex-wife be able to describe my moles to help her case against getting rid of me? I beg you help me. This is my very existence. Ive lost everything , a good job, a wonderful girlfriend, my freedom, but worse thing Ive lost is my children. They were my reason to get up every morning and strive to be better. The wonderful bond I had with my Serenity is gone. After this I would be afraid to even hug her for fear of what next can they do to me. I'm not afraid to tell you I sit here in this cell and try to hold back my tears. Everyone knows you cant show weakness in prison. My life has already been threatened here at Wabash Valley Prison. After only 3 days of arrival. I was tricked into signing a waiver now Im in G Block General Population with 6 child molesting felony charges. Mrs. Hart as a 18 year old I almost died hooked to machines in hospital almost 1 month and now I know that fear was childish compared to this . I cant help but put emotions in this, after all Mrs. Hart Im human and God help Me I never been more afraid in my life. I didnt hurt my little girl I didnt touch her sexually. As much as it shreds me and fills my mind what Im facing I worry more about my mom and granny because of their great love for me mam they are suffering so deeply. I aint done this things but my loved ones suffering right along beside me and If you take my case you will be in essence freeing them also. I sent momma this letter and asked her to email it to you. I'm scared I have been done so unjustly by our legal system and I need you to fix this and give me freedom. I ask you please don't just ignore my pleas. Here in America its nice to be able to trust our legal justice system, well they destroyed my and my loved ones trust in our justice system . And I'm trusting in You !!! My entire family is suffering this nightmare with me. My 77 year old granny had a stroke and isn't doing so well. My single mother that raised 3 kids alone is dying from Lupus and since my arrest has stayed so sick and weary. Our lives torn to peices by a government I was taught I could trust in. my momma has tried so many innocent project and wrongfully accused and cant get anywhere. please please help me. A quote from the late Nelson Mandela: To be free is not merely to cast off ones chains, But to live in a way that respects and enhances The Freedom Of Others. I have Faith in you and your clinic to cast my chains off and give me freedom I do deserve as a wrongfully accused Man, son, brother, father, friend. Matthew Major DOC# 246179 Cause # : 53c02-1308-FA-000779 God Bless you. Please contact me with your decision so I know you made a life changing decision for me , just please at least write me so I know you care enough about your citizens to respond to cries for your help. You can speak openly with my mother Charlotte Spain (828) 476-0406: 71 Lakeview Dr. Canton, NC 28716 Thank You Matthew Major I know yall get thousands of request and inmates claiming innocence, and each person who are innocent deserve to have organizations like yours willing to fight for them and I give yall so much Thanks and I thank God everyday yall are out there caring enough to help free the innocents. Since discovering firsthand how easily lives and families can be destroyed by Poor Defense attorneys not doing their job . And Prosecutors allowed to do as they please in court

  4. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

  5. As a lawyer who grew up in Fort Wayne (but went to a real law school), it is not that hard to find a mentor in the legal community without your school's assistance. One does not need to pay tens of thousands of dollars to go to an unaccredited legal diploma mill to get a mentor. Having a mentor means precisely nothing if you cannot get a job upon graduation, and considering that the legal job market is utterly terrible, these students from Indiana Tech are going to be adrift after graduation.

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