Article: Nursing Homes Routinely Mask Low Staff Levels

Via New York Times By Jordan Rau

ITHACA, N.Y. — Most nursing homes had fewer nurses and caretaking staff than they had reported to the government for years, according to new federal data, bolstering the long-held suspicions of many families that staffing levels were often inadequate.

The records for the first time reveal frequent and significant fluctuations in day-to-day staffing, with particularly large shortfalls on weekends. On the worst staffed days at an average facility, the new data show, on-duty personnel cared for nearly twice as many residents as they did when the staffing roster was fullest.

The data, analyzed by Kaiser Health News, come from daily payroll records Medicare only recently began gathering and publishing from more than 14,000 nursing homes, as required by the Affordable Care Act of 2010. Medicare previously had been rating each facility’s staffing levels based on the homes’ own unverified reports, making it possible to game the system.

The payroll records provide the strongest evidence that over the last decade, the government’s five-star rating system for nursing homes often exaggerated staffing levels and rarely identified the periods of thin staffing that were common. Medicare is now relying on the new data to evaluate staffing, but the revamped star ratings still mask the erratic levels of people working from day to day.

Stan Hugo with his wife, Donna, who is a resident at the Beechtree 
Center for Rehabilitation and Nursing in Ithaca, N.Y. Mr. Hugo 
tracks staffing levels at the skilled nursing facility.

At the Beechtree Center for Rehabilitation & Nursing here, Jay Vandemark, 47, who had a stroke last year, said he often roams the halls looking for an aide not already swamped with work when he needs help putting on his shirt.

Especially on weekends, he said, “It’s almost like a ghost town.”

Nearly 1.4 million people are cared for in skilled nursing facilities in the United States. When nursing homes are short of staff, nurses and aides scramble to deliver meals, ferry bedbound residents to the bathroom and answer calls for pain medication. Essential medical tasks such as repositioning a patient to avert bedsores can be overlooked when workers are overburdened, sometimes leading to avoidable hospitalizations.

Nursing Home Abuse Lawsuits >

“Volatility means there are gaps in care,” said David Stevenson, an associate professor of health policy at Vanderbilt University School of Medicine in Nashville, Tenn. “It’s not like the day-to-day life of nursing home residents and their needs vary substantially on a weekend and a weekday. They need to get dressed, to bathe and to eat every single day.”

David Gifford, a senior vice president at the American Health Care Association, a nursing home trade group, disagreed, saying there are legitimate reasons staffing varies. On weekends, for instance, there are fewer activities for residents and more family members around, he said.

“While staffing is important, what really matters is what the overall outcomes are,” he said.

While Medicare does not set a minimum resident-to-staff ratio, it does require the presence of a registered nurse for eight hours a day and a licensed nurse at all times.

The payroll records show that even facilities that Medicare rated positively for staffing levels on its Nursing Home Compare website, including Beechtree, were short nurses and aides on some days. On its best staffed days, Beechtree had one aide for every eight residents, while on its lowest staffed days, there was only one aide for 18 residents. Nursing levels also varied.

The Centers for Medicare & Medicaid Services, the federal agency that oversees nursing home inspections, said in a statement that it “is concerned and taking steps to address fluctuations in staffing levels” that have emerged from the new data. This month, it said it would lower ratings for nursing homes that had gone seven or more days without a registered nurse.

Beechtree’s payroll records showed similar staffing levels to those it had reported before. David Camerota, chief operating officer of Upstate Services Group, the for-profit chain that owns Beechtree, said in a statement that the facility has enough nurses and aides to properly care for its 120 residents. But, he said, like other nursing homes, Beechtree is in “a constant battle” to recruit and retain employees even as it has increased pay to be more competitive.

Mr. Camerota wrote that weekend staffing is a special challenge as employees are guaranteed every other weekend off. “This impacts our ability to have as many staff as we would really like to have,” he wrote.

New rating method is still flawed

In April, the government started using daily payroll reports to calculate average staffing ratings, replacing the old method, which relied on homes to report staffing for the two weeks before an inspection. The homes sometimes anticipated when an inspection would happen and could staff up before it.

Payroll records at Beechtree show that on its highest staffed days, it had one aide for every eight residents, but there was only one aide for 18 residents at the lowest staffing level.CreditHeather Ainsworth for The New York Times

“They get burned out and they quit,” said Adam Chandler, whose mother lived at Beachtree until her death earlier this year. “It’s been constant turmoil, and it never ends.”

Medicare’s payroll records for the nursing homes showed that there were, on average, 11 percent fewer nurses providing direct care on weekends and 8 percent fewer aides. Staffing levels fluctuated substantially during the week as well, when an aide at a typical home might have to care for as few as nine residents or as many as 14.

 

A family council forms

Beechtree actually gets its best Medicare rating in the category of staffing, with four stars. (Its inspection citations and the frequency of declines in residents’ health dragged its overall star rating down to two of five.)

To Stan Hugo, a retired math teacher whose wife, Donna, 80, lives at Beechtree, staffing levels have long seemed inadequate. In 2017, he and a handful of other residents and family members became so dissatisfied that they formed a council to scrutinize the home’s operation. Medicare requires nursing home administrators to listen to such councils’ grievances and recommendations.

Sandy Ferreira, who makes health care decisions for Effie Hamilton, a blind resident, said Ms. Hamilton broke her arm falling out of bed and has been hospitalized for dehydration and septic shock.

“Almost every problem we’ve had on the floor is one that could have been alleviated with enough and well-trained staff,” Mrs. Ferreira said.

Beechtree declined to discuss individual residents, but said it had investigated these complaints and did not find inadequate staffing on those days. Mr. Camerota also said that Medicare does not count assistants it hires to handle the simplest duties like making beds.

In recent months, Mr. Camerota said, Beechtree “has made major strides in listening to and addressing concerns related to staffing at the facility.”

Mr. Hugo agreed that Beechtree has increased daytime staffing during the week under the prodding of his council. On nights and weekends, he said, it still remained too low.

His wife has Alzheimer’s, uses a wheelchair and no longer talks. She enjoys music, and Mr. Hugo placed earphones on her head so she could listen to her favorite singers as he spoon-fed her lunch in the dining room on a recent Sunday.

As he does each day he visits, he counted each nursing assistant he saw tending residents, took a photograph of the official staffing log in the lobby and compared it to what he had observed. While he fed his wife, he noted two aides for the 40 residents on the floor — half what Medicare says is average at Beechtree.

“Weekends are terrible,” he said. While he’s regularly there overseeing his wife’s care, he wondered: “What about all these other residents? They don’t have people who come in.”

This article was produced in collaboration with Kaiser Health News, an editorially independent program of the Kaiser Family Foundation. The author is a reporter for Kaiser Health News.
A version of this article appears in print on , on Page A1 of the New York edition with the headline: Nursing Homes Routinely Mask Low Staff Levels. Order Reprints | Today’s Paper | Subscribe

Elder Law News Blog:   More Nursing Home Articles >

How To Spot Nursing Home Neglect Or Abuse?

justice engraved on courthouse

Nursing home neglect and abuse is often difficult to detect, and families should be on the lookout for common warning signs for physical, emotional and financial abuse.

Common warning signs of physical abuse are:

  • Untreated bedsores, pressure sores, wounds, cuts, bruises, or welts
  • Abnormally pale complexion
  • Bruises in a pattern that would suggest restraints
  • Excessive and sudden weight loss
  • Fleas, lice, or dirt on or in the room
  • Poor personal hygiene, unpleasant odors or other unattended health problems
  • Torn clothing or broken personal items
  • Bleeding around private parts
  • Bloody undergarments
  • Bruises around the breast/genital region
  • An unexpected look of fear from the elder when aide may be present

Common warning signs of emotional abuse are:

  • Intimidation through yelling and threats
  • Humiliation
  • Ignoring the patient
  • Isolating the patient from other residents and/or activities
  • Terrorizing the patient
  • Mocking the patient

Financial exploitation is another form of abuse. An unscrupulous caregiver may:

  • Misuse checks, accounts, or credit cards
  • Steal money, steal checks, or steal belongings
  • Forge signatures
  • Authorize withdrawals or transfer of monies
  • Steal the patient’s identity

No family is exempt from any of these possibilities. Abuse affects the rich and poor. Suffering sustained by the elderly ranges from financial, to emotional and physical. Abuse escalating to physical can result in severe infections, amputations, dehydration and, unfortunately, death. A lawsuit should be filed on behalf of your loved one to get the justice your family deserves. Compensation may cover the costs of treatment and recovery, as well as compensation for non-financial hardships such as pain and suffering.

If you suspect elder abuse of any kind speak up and demand answers of those in charge.

Feel free to contact me for more information or inquire about a lawsuit.

Sincerely,

Brian

Secret data: Most VA nursing homes have more residents with bed sores, pain, than private facilities

Via Donovan Slack, USA TODAY, and Andrea Estes, The Boston Globe

Don Ruch’s family thought round-the-clock care would help him recuperate, but he ended up in intensive care in septic shock, suffering from “severe” malnutrition, bedsores on his pelvis and back, a burn on his right thigh and a trauma wound. USA TODAY

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Click for video:

An analysis of internal documents shows residents at more than two-thirds of Department of Veterans Affairs nursing homes last year were more likely to have serious bedsores, as well as suffer serious pain, than their counterparts in private nursing homes across the country.

The analysis suggests large numbers of veterans suffered potential neglect or medication mismanagement and provides a fuller picture of the state of care in the 133 VA nursing homes that serve 46,000 sick and infirm military veterans each year.

More than 100 VA nursing homes scored worse than private nursing homes on a majority of key quality indicators, which include rates of infection and decline in daily living skills, according to the analysis of data withheld by the VA from public view but obtained by USA TODAY and The Boston Globe.

The news organizations reported last week that 60 VA nursing homes received the agency’s lowest quality ranking of one out of five stars last year, but the data didn’t detail how individual facilities scored on specific measures. USA TODAY and The Globe are now publishing the full data, outlined in internal documents, for every VA nursing facility as of Dec. 31, 2017.

Four VA facilities – nursing homes in Bedford, Massachusetts; Chillicothe, Ohio; Tuscaloosa, Alabama; and Roseburg, Oregon – lagged private nursing home averages on 10 of 11 indicators. At all four, about a third of residents were given anti-psychotic drugs – almost twice as much as in the private sector. The FDA has said such drugs are associated with an increased risk of death in elderly patients with dementia.

“They should be assessing individuals and doing what they can to manage it,” said Robyn Grant, director of public policy and advocacy at the National Consumer Voice for Quality Long-Term Care. “And if it’s not working, they should be trying different things.”

The VA, which has argued that its residents are typically sicker than those in private facilities, has tracked the detailed quality data for more than two years but has kept it secret, depriving veterans of potentially crucial health care information.

VA ‘evaluating’ what information to release

VA Press Secretary Curt Cashour has declined to answer questions about whether or when the agency planned to release the quality information, as well as nursing home staff data the VA has compiled dating to 2004. He also declined to say when the VA would release inspection reports the agency has kept secret for more than a decade.

After the investigative report by USA TODAY and The Globe last week, Louisiana Republican Sen. Bill Cassidy and Alabama Democratic Sen. Doug Jones introduced legislation that would force the VA to release all of its nursing home quality information at least once a year.

“We cannot work with this administration or any administration to fix the VA if we don’t have the information,’’ Jones said.

Acting VA Secretary Peter O’Rourke told the CBS affiliate in Dallas last week that VA officials were “evaluating exactly what is the most appropriate for us to put out there and that will support continuous improvement and then also will provide good decision-making information for veterans.”

He called the USA TODAY and Globe reporting on the VA nursing home ratings “fake news.”

Federal regulations require private nursing homes to disclose voluminous data on the care they provide. The federal government uses the data to calculate quality measures and posts them on a federal website, along with inspection results and staffing information. But the rules don’t apply to the VA.

Playing ‘hide the ball’ with nursing home data

The VA has used similar data internally to track quality at its nursing homes as far back as 2011, according to a report in October that year from the nonpartisan Government Accountability Office. At that point, the agency monitored at least two dozen factors, including how many residents had bedsores or were in serious pain. But none of the information was released.

The 2011 review found that 80 percent of the agency’s nursing homes had problems with medication management, but VA headquarters wasn’t using the data “ to detect patterns and trends in the quality of care and quality of life within a (VA nursing home) or across many (of them).”

The VA launched another tracking system in May 2016. It now measures 11 indicators – the same as those used for private nursing homes – and assigns star ratings based on the indicators, which can be clues to larger problems with overall quality. For example, high rates of falls or bedsores may indicate neglect.

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Anthony Bourdain Left Loved Ones In Limbo But The Heirs Will End Up Better Than Michael Jackson’s

Via The Wealth Advisor Scott Martin Contributor

He lived on the edge and died without warning. The family needed a disaster plan to minimize strain in the worst moments and smooth the financial transition afterward. These are teachable moments.

Anthony Bourdain chased gusto all over the planet, occasionally tracking into war and disaster zones along the way. There were moments when he could’ve gotten in over his head and never come home.

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A personal disaster plan would have been the responsible way to approach that kind of life. From the way news of his death spread last week, it’s fairly clear that level of forethought just wasn’t his style.

That’s a burden on those he left behind. At a moment when they’re already stunned and vulnerable, it’s up to them to make the hard decisions about managing the press, the authorities and the fans.

Let’s hope that his financial situation was in better shape. While the money will never bring him back, it can at least make life without him easier — provided of course it’s managed properly now.

The personal disaster plan

Enterprises, individual professionals and even well-run restaurants have succession plans. But while Bourdain’s life revolved around his personal participation in every venture, there’s no sign that the work can continue without him.

The TV show is unlikely to ever film again. There won’t be any new expeditions and no new episodes beyond what’s already ready to roll.

There won’t be any new books. There’s no archive of unreleased material waiting for a successor organization to release to bereaved fans.

And the window for him to ever open another restaurant has slammed shut. If he gave much thought to a creative executor to groom the intellectual property he built up in life, again, it would be a surprise.

Otherwise, that person or some other spokesperson he delegated would have stepped up to handle the announcements last week. Instead, everyone looked to Asia Argento, who was understandably shocked and stunned.

The family was quiet. His ex-wife isn’t active on public social media networks and their daughter is only 11. It was up to a colleague to find his body and his network to break the news to the world.

A lawyer, a financial advisor, an agent, a manager: someone could have been authorized to route messaging to the public and make absolutely sure nobody bothered the family.

That didn’t really happen here. There’s no crime in that beyond a missed opportunity to make a tidier transition, whether death comes by surprise or design.

And in the absence of any clear plan on that front, it remains to be seen whether there was a plan to keep his businesses afloat without his personal participation.

Bourdain never really created much of an institution around himself. The copyright on his books was never assigned to any trust, holding company or other entity. While he got production credit on his shows, the actual production company belonged to other people.

There’s no restaurant for his heirs to operate or sell off. He could’ve built a foodie empire to survive him, but evidently wasn’t interested.

His big dream, the Blade Runner themed global food court in New York, stalled last year. Whether that failure to create something lasting preyed on him, we just don’t know.

Again, that level of planning really wasn’t his style. Even if it could’ve made his heirs more comfortable down the road, we would’ve seen the hints years ago.

Healthier, maybe even wealthier

That said, there can be a morbid tinge to building a captive empire of intellectual property and operating businesses. Look at Michael Jackson, who was practically insolvent in life because he’d hoarded other people’s creative output as well as his own.

Jackson’s kids are reportedly billionaires now. He’s the best-selling musical artist in the world. But the cold equations of the estate forced the executors to sell off his songs and back catalog to pay the debts.

Bourdain’s books are seeing a similar posthumous bestseller effect now. Odds are good that ratings of unaired episodes will be the best ever. His daughter will get her piece of that income.

If he left a will — a big hypothetical, all in all — the rights and royalties may well go into a trust for her upkeep now and use when she’s an adult. Otherwise, the money flows into Unified Gifts To Minors Act (UGMA) accounts while the assets themselves sit in Unified Transfers To Minors Act (UGTA) accounts until she turns 18.

Unlike Michael Jackson’s kids, she has an immediate parental guardian to look out for her in the meantime. While mom and dad split up a few years ago, mom is definitely alive and well. As you’ll recall, she’s a professional kickboxer.

Reading between the lines, mom also got the $3 million New York condo as part of the split. She might already have all of the Bourdain cash as it is. Otherwise, sad to say, child support evaporates now.

Whatever Bourdain left behind for his daughter is that support. She can’t touch it for awhile. I hope he made arrangements for someone to monetize his legacy in the here and now.

With the right management, the Bourdain name and likeness stay vibrant and keep generating income. Maybe there actually are book drafts to polish, TV concepts to pitch. There might even be restaurant concepts looking for partners.

The potential here is vast. A creative and savvy executor can turn Bourdain’s name into the empire he never chased in life — maybe even a Michael Jackson scale franchise built on new approaches to food, new grocery models, who knows?

And without the $400 million debt hole Jackson’s heirs started with, right now Bourdain’s survivors are financially ahead of the game. I know it still hurts, but against the inevitability of pain sometimes the only thing we can do is stack the dollar signs.

When his daughter comes of age, she may pick up the family legacy. It belongs to her. That’s the best bequest of all.

 

Did You Know Choosing Retirement Account Beneficiaries Can Have Tax Implications?

While the execution of Wills requires formalities like witnesses and a notary, the reality is that most property passes to heirs through other, less formal means.

Many bank and investments accounts, as well as real estate, have joint owners who take ownership automatically at the death of the primary owner. Other banks and investment companies offer payable on death accounts that permit owners to name the person or people who will receive them when the owners die. Life insurance, of course, permits the owner to name beneficiaries.

All of these types of ownership and beneficiary designations permit these accounts and types of property to avoid probate, meaning that they will not be governed by the terms of a Will. When taking advantage of these simplified procedures, owners need to be sure that the decisions they make are consistent with their overall estate planning. It’s not unusual for a Will to direct that an estate be equally divided among the decedent’s children, but to find that because of joint accounts or beneficiary designations the estate is distributed totally unequally, or even to non-family members, such as new boyfriends and girlfriends.

It’s also important to review beneficiary designations every few years to make sure that they are still correct. An out-of-date designation may leave property to an ex-spouse, to ex-girlfriends or -boyfriends, and to people who died before the owner. All of these can thoroughly undermine an estate plan and leave a legacy of resentment that most people would prefer to avoid.

These concerns are heightened when dealing with retirement plans, whether IRAs, SEPs or 401(k) plans, because the choice of beneficiary can have significant tax implications. These types of retirement plans benefit from deferred taxation in that the income deposited into them as well as the earnings on the investments are not taxed until the funds are withdrawn. In addition, owners may withdraw funds based more or less on their life expectancy, so the younger the owner the smaller the annual required distribution.  Further, in most cases, withdrawals do not have to begin until after the owner reaches age 70 1/2. However, this is not always the case for inherited IRAs.

Following are some of the rules and concerns when designating retirement account beneficiaries:

  • Name your spouse, usually. Surviving husbands and wives may roll over retirement plans inherited from their spouses into their own plans. This means that they can defer withdrawals until after they reach age 70 1/2 and take minimum distributions based on their age. Non-spouses of retirement plans must begin taking distributions immediately, but they can base them on their own presumably younger ages.
  • But not always. There are a few reasons you might not want to name your spouse, including the following:
    • He or she is incapacitated and can’t manage the account
    • Doing so would add to his or her taxable estate
    • You are in a second marriage and want the investments to benefit your first family
    • Your children need the money more than your spouse
  • Consider a trust. In a number of the above circumstances, a trust can solve the problem, providing for management in the case of an incapacitated spouse, permitting assets to benefit a surviving spouse while being preserved for the next generation, and providing estate tax planning opportunities. Those in first marriages may want to name their spouse as the primary beneficiary and a trust as the secondary, or contingent, beneficiary. This permits the surviving spouse, or spouse’s agent if the spouse is incapacitated, to refuse some or all of the inheritance through a “disclaimer” so it will pass to the trust. Known as “post mortem” estate planning, this approach permits flexibility to respond to “facts on the ground” after the death of the first spouse.
  • But check the trust. Most trusts are not designed to accept retirement fund assets. If they are missing key provisions, they might not be treated as “designated beneficiaries” for retirement plan purposes. In such cases, rather than being able to stretch out distributions during the beneficiary’s lifetime, the IRA or 401(k) will have to be liquidated within five years of the decedent’s death, resulting in accelerated taxation.
  • Be careful with charities. While there are some tax benefits to naming charities as beneficiaries of retirement plans, if a charity is a partial beneficiary of an account or of a trust, the other beneficiaries may not be able to stretch the distributions during their life expectancies and will have to withdraw the funds and pay the taxes within five years of the owner’s death. One solution is to dedicate some retirement plans exclusively to charities and others to family members.
  • Consider special needs planning. It can be unfortunate if retirement plans pass to individuals with special needs who cannot manage the accounts or who may lose vital public benefits as a result of receiving the funds. This can be resolved by naming a special needs trust as the beneficiary of the funds, although this gets a bit more complicated than most trusts designed to receive retirement funds. Another alternative is not to name the individual with special needs or his trust as beneficiary, but to make up the difference with other assets of the estate or through life insurance.
  • Keep copies of your beneficiary designation forms. Don’t count on your retirement plan administrator to maintain records of your beneficiary designations, especially if the plan is connected with a company you worked for in the past, which may or may not still exist upon your death. Keep copies of all of your forms and provide your estate planning attorney with a copy to keep with your estate plan.
  • But name beneficiaries! The biggest mistake many people make is not to name beneficiaries at all, or they end up in this position by not updating their plan after the originally-named beneficiary passes away. This means that the plan will have to go through probate at some expense and delay and that the funds will have to be withdrawn and taxes paid within five years of the owner’s death.

In short, while Wills are important, in large part because they name a personal representative to take charge of your estate and they name guardians for minor children, they are only a small part of the picture. A comprehensive plan needs to include consideration of beneficiary designations, especially those for retirement plans.

If you have any question or planning needs, feel free to contact me.

Regards,

Brian

Senior Citizens update: Puerto Rico. Hurricanes effect on elders

After a lifetime of agricultural work on the U.S. mainland, Ausberto Maldonado retired home to a suburb of San Juan, Puerto Rico. But he has diabetes, and especially since Hurricane Maria, has been struggling to get by.
Sarah Varney/Kaiser Health News
Straddled across Ausberto Maldonado’s backyard in Bayamon, Puerto Rico, a suburb of San Juan, is a nagging reminder of Hurricane Maria’s destructive power.

“See, that tree broke off that branch, which is as thick as a tree — and now it’s in my yard,” says Maldonado, a 65-year-old retiree.

Rats scurry from under the downed tree, preventing Maldonado from hanging his laundry. To get the tree removed, he must show up in person at a local government office. But the diabetic ulcers on his feet make it painful to walk.

After a lifetime of work on the U.S. mainland picking corn and asparagus and processing chickens in poultry plants, Maldonado returned to Puerto Rico a decade ago to help care for his ailing mother, who has since died. Today the retiree finds himself living day-to-day on the island. He receives $280 a month in Social Security and $89 a month in food stamps — or about $3 a day for food.

Six months after Hurricane Maria devastated Puerto Rico and its economy, the daily indignities are piling up, especially for people who are frail or elderly. Many are finding their current economic straits nearly as threatening as the storm.

Stay Safe Online This Holiday Season

This holiday season is ripe for a lot of spam, online scams, viruses, malware and ransomware.  All can be at the least annoying and at best extremely costly.

Here are some tips I use to stay safe when online:

•Do not click to open attached files in your email that come from unknown senders. Files with extensions .zip, .pdf, .exe should be a red flag. Also, even if sender appears to be known, i.e. Chase Bank, UPS, that doesn’t mean it is from Chase bank or UPS. A known sender means a friend you have emailed before. Note that even if it is a known sender, if you are not expecting anything be cautious. Look for errors in the message or language. If unsure, call or email that person or company separately—not as a reply email— and ask them if they sent you something.

•Think twice before clicking on links in emails. If your bank or credit card sends you an email with a link, don’t click it. Log in via your bank or credit cards website from your browser. The ‘from’ column of your email may be disguised and read like a familiar or bonafide email address but may actually be from elsewhere.

• Be cautious of any suspicious pop ups of applications showing up on your pc.

• Most email applications will allow you to mark spam as ‘spam’ or ‘junk’. This is a good practice If you get frequent spam from same sender. It should keep the spam from showing up again in your inbox.

For more detailed information about online safety see below.

Yes, you can click theses links from me 🙂

-Brian

https://staysafeonline.org/stay-safe-online

https://securingtomorrow.mcafee.com/consumer/consumer-threat-notices/10-tips-stay-safe-online/

 

A Brothers’ Dispute Over Mother’s Nursing Home Placement Is Not Domestic Violence

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A New Jersey appeals court rules that an ugly dispute between two brothers over their mother’s placement in a nursing home did not amount to domestic violence. R.G. v. R.G.(N.J. Super. Ct., App. Div., No. A-0945-15T3, March 14, 2017).

R.G was the attorney-in-fact and primary caregiver for his parents. After R.G.’s mother fell ill, R.G. wanted to place his mother in a nursing home. R.G’s brother objected to this plan, but R.G. went ahead and had his mother admitted to a nursing home without his brother’s consent. R.G.’s brother sent angry and threatening texts and emails to R.G. as well as emails expressing his desire to find a way to care for their parents in their home. Eventually the men got into a physical altercation in which R.G.’s brother shoved R.G.

R.G. filed for a restraining order against his brother under the Prevention of Domestic Violence Act. The trial judge ruled that R.G. was harassed and assaulted and issued the restraining order. R.G.’s brother appealed, arguing that R.G. did not meet the definition of a victim of domestic violence.

The New Jersey Superior Court, Appellate Division, reverses, holding that R.G.’s brother’s actions did not amount to domestic violence. The court finds that there was insufficient evidence that R.G.’s brother purposely acted to harass R.G., ruling that “a mere expression of anger between persons in a requisite relationship is not an act of harassment.”

For the full text of this decision, go to: http://www.judiciary.state.nj.us/opinions/a0945-15.pdf

 

The Money Letter That Every Parent Should Write

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As an elder law attorney I come across many clients that are looking to pass their wealth to their children–but how about passing on some of your hard earned financial wisdom as well. Read on and you’ll find great ways to pass along your most prized asset…your wisdom.

6/17/16  via The New York Times Ron Lieber

The Money Talk, capital “M” and capital “T,” is overrated. As with the Sex Talk, children can sense that one is coming. And if they get antsy, your words will go in one ear and out the other.

Tempted to hand over a notecard instead? Your first principles may fit on it, and making one for a new graduate is a fine thing to do. But there isn’t much space for storytelling.

So in this season of transitions, consider the old-fashioned letter. It’s long enough to tell some tales to bolster your advice, and if it’s written with enough soul, there’s a good chance the recipient will keep it for a long time. Plus, it’s a literal conversation piece, since the good letters will inspire more curiosity about how the writers oversee their own financial affairs.

Kimberly Palmer still has the money letter her mother wrote her and her two younger sisters 13 years ago, and in her new book, “Smart Mom, Rich Mom: How to Build Wealth While Raising a Family,” she offers a template that parents or grandparents can use to pass on similar wisdom.

A good letter, according to Ms. Palmer, should include at least one story about a large financial challenge and another one about a big money triumph. Then, include a list of crucial habits and the tangible things they have helped the family achieve.

HEED YOUR IGNORANCE: Quite often, the best stories and takeaways come from the biggest mistakes, and so it is with Gail Shearer, Ms. Palmer’s mother. Lesson No. 6 in her letter is this one: Never invest in anything you don’t totally understand.

How many times did she and her husband ignore this advice? “Oh, three or four,” she said in an interview this week. Ms. Shearer, 65, a retired consumer health advocate who spent years at Consumers Union, proceeded to tick them off.

There was the tax shelter. “In the 1980s, they were the thing,” she said. “We drank the Kool-Aid, just a little bit.” And then suffered through many years of complex tax filings, which nobody tells you about during the sales pitch.

Then, there was some variable life insurance. And an annuity. And an adviser who promoted a “black box” investment strategy, as if that were a good thing.

The couple did not lose a lot of money, though if they had put it all in indexed mutual funds in the first place (See Lesson No. 5 in the letter). as they did with most of the rest of their savings, they would have more money now.

So better that their daughters avoid any such blunders from the beginning.

BEWARE OF GENIUS: The Palmer-Shearer clan is not the only one with a letter-writing tradition. Four years ago, John D. Spooner, an investment adviser and writer, collected an entire book of them called, “No One Ever Told Us That: Money and Life Letters to my Grandchildren.”

In it, Mr. Spooner takes to its logical conclusion Ms. Shearer’s advice about not understanding something: Don’t trust the person who claims to be omniscient either.

In a chapter titled “Beware of Genius,” Mr. Spooner tells the story of an impenetrable Alan Greenspan speech he once heard. He instructs his grandchildren to consider the following hypothetical: “If someone cannot explain his economic concepts to you in several simple paragraphs, then you should view those concepts as probably being dangerous to your financial health.”

STICK TO YOUR SELLING PLANS: The most memorable tale in Mr. Spooner’s book is about his failure to sell his seven-figure holding in Citigroup stock before the economic collapse in 2008.

As an investment adviser with the firm, he thought he knew it well enough. He had made plans to sell after any change in leadership. But the new chief executive liked him. “We can be blinded by flattery from the seats of power,” he wrote to his grandchildren. “Be aware of this in your business lives.”

Selling something that is still valuable is the hardest part of any trade, he added. So if you can’t name three good reasons to continue owning something, he warned his grandchildren, then it’s time to sell. In retrospect, he did not have three good ones, but he kept the stock anyway as it fell to $1 a share. (It had been above $55.) He held on to it as the stock rebounded and made some money buying shares of other blue-chip companies during the downturn.

Another idea that I’ll include in my own letter someday: You could just follow Ms. Shearer’s lead and invest in a variety of index funds that own every stock in a particular market, thus avoiding this sort of concentrated stock risk.

BUDGETS ARE ABOUT VALUES It may be tempting for any of Ms. Shearer’s daughters to gloss over Lesson No. 8, where she exhorts them to keep track of their spending. How boring, right? But almost in passing, she seizes on one of the least understood, yet most essential, pieces of money wisdom.

Did rockstar Prince die without a Will?

Who will get his millions?

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This article in USA Today states; Prince left no will, according to documents filed Tuesday by his sister, Tyka Nelson, in probate court for Carver County, Minn., where the beloved pop icon died suddenly last week at his Paisley Park compound.

“The Decedent died intestate,” Nelson said in her petition for the appointment of a special administrator to deal with Prince’s estate, which has been widely reported to be valued at $300 million.

Nelson said her brother left no surviving spouse, no children and no parents.  Besides Nelson, his full sister, he is survived by half-brothers and half-sisters, whom Nelson names in her petition as “interested parties” to the Prince estate to her knowledge thus far.

The adult half-siblings are: John Nelson, Norrine Nelson, Sharon Nelson, Alfred Jackson and Omar Baker. She also listed another half-sister, Lorna Nelson, who has died and did not have children. There was at least one other sibling identified as a stepbrother, Duane Nelson, who also has died, but Tyka Nelson did not list him as an interested party.

“I do not know of the existence of a Will and have no reason to believe that the Decedent executed testamentary documents in any form,” Tyka Nelson stated in the petition.

It’s possible there is a will and Nelson doesn’t know about it, but no one has come forward yet to say so. Calls to the office of Prince’s longtime attorney, L. Londell McMillan, were not answered.

When someone dies intestate, without a will, a probate court takes over the administration of the decedent’s estate and distribution of assets, which Nelson listed as “Homestead, other real estate, cash, securities and Other.”

Her petition said Prince had “substantial assets consisting of personal and real property that requires protection.” He “owned and controlled business interests that require ongoing management and supervision.” And he “has heirs whose identities and addresses need to be determined.”

She said “an emergency exists to the extent that the appointment should be made without notice because immediate action and decisions need to be made to continue the ongoing management and supervision of Decedent’s business interests; and because the names and addresses of all interested parties are currently unknown.”

She named Bremer Bank, National Association, as Prince’s longtime banker, which would be in “the best position of any corporate trust company to protect the Decedent’s assets pending the appointment” of an executor.

According to estate lawyers contacted by USA TODAY, when there is no will, state laws on inheritance prevail. In Minnesota, for instance, half-siblings are treated the same as full siblings for the purposes of inheritance. Nelson’s filings on Tuesday come as a surprise. Estate lawyers and Prince’s former manager, Owen Husney, said they would have expected Prince to have drawn up a will and an estate plan long ago.

Husney said he was too smart to have overlooked something that crucial and he had teams of lawyers, business managers and accountants over the years who would have advised him it was crucial.

So what’s the lesson learned here? Let’s start with you should have a Will.

If you die without a Will, the people who inherit may not be those you want to receive your money or personal property when you die!  This could include remote relatives you haven’t spoken to in years. If the Public Administrator is appointed to administer the estate, they will auction or dispose of your intimate personal property and your family may never have an opportunity to receive, or pass on, items which may have wanted them to have.

If you die without a Will in New York, your estate will pass under the laws of the State of New York. When an estate is handled by the Public Administrator, heirs may be required to partake in potentially lengthy and costly legal proceedings to prove their relationships before they can inherit. The Court may also appoint a “Guardian ad Litem” for “unknown” persons.  This Guardian ad Litem, along with the Public Administrator, will get a fee from your estate! If your heirs cannot prove their relationship to the Court, your estate may be paid to the State of New York.

Having a Will can ensure those you select inherit from you, reduce expenses, and expedite handling of your estate. It also allows you to nominate an Executor, who is the person who collects your assets and delivers them to your beneficiaries.  If you have the right Executor, your estate should move swiftly. Lastly, if you already have a Will and haven’t reviewed it in over two years, now is the time to do so to ensure your current wishes are carried out.

If you have any questions about drafting a Will or revising an existing Will feel free to reach out to me.

Regards,

Matthew S. Raphan, Esq.

mraphan@raphanlaw.com