Any person can be the victim of a scam. Older adults, however, may be more susceptible to this type of abuse. Seniors tend to be retired and are more often at home when scammers call. Seniors may also be lonely and are more apt to talk to a stranger on the phone and eventually trust that stranger. They tend to have a large amount of liquid assets. They may be suffering from dementia or another mental illness and are more easily persuaded to send their money.
Scams usually begin when a scammer purchases your contact information from a third party. Have you ever filled out a form at a tradeshow? Do you have magazine subscriptions? Are you listed in the phone book? Some companies are willing to sell their customers' information for $5-7 per person. The scammers use this information to make to call, send an email, or send a letter.
Here is a list of typical scams:
You can find a more comprehensive list of common scams here.
How To Protect Yourself from Scams
It is important for you to educate yourself, loved ones, and clients on ways to prevent scams. Here are some common tools to use to prevent the scams.
You can sign up to receive alerts regarding scams here.
Make sure you educate your clients and your family members on ways they can protect themselves from these scams. The Consumer Protection Division of the Indiana Attorney General’s office is always willing to answer questions and provide guidance.
The holiday season is upon us. While the holidays usually mean eating too much and spending quality time with family, for some it may be the first time you notice that your mother, aunt, or grandfather is showing signs of aging, and perhaps, dementia. This article is not meant to scare you, it is intended to provide resources if you have questions about the health of a loved one.
Dementia is not a disease, it is a set of symptoms that can be caused by any number of diseases. Simple memory loss is not necessarily dementia, but if a loved one is exhibiting symptoms that interfere with their daily life, they might have dementia (remember, only a doctor can make a diagnosis). The most common cause of dementia is Alzheimer’s disease. Early signs and symptoms of Alzheimer’s includes the following:
Note, that some of the symptoms mentioned above can be common symptoms associated with aging, including slower thinking and problem solving, decreased attention and concentration, and slower recall. This article contains a helpful guide to distinguish between normal memory changes and symptoms of dementia. But remember, if you have any questions please seek the advice of a physician.
If you suspect your loved one has dementia, it is important to schedule an appointment with their primary care physician immediately. An appointment with a doctor can rule out other causes of the symptoms mentioned above - such as a stroke, vitamin deficiencies, thyroid problems, depression, and alcohol or drug abuse. If your relative does have dementia, it is best to get it diagnosed early so they can get treatment sooner and you can start to plan for long-term care.
As always, if you have questions do not hesitate to contact us.
The attorneys at Bennett & McClammer want to wish you and your family the best this holiday season. Have a great Thanksgiving!
What Exactly Is Dementia?, Healthline (Nov. 24, 2014, 3:05 PM), http://www.healthline.com/health/dementia/early-warning-signs#Overview1.
10 Early Signs and Symptoms of Alzhiemer’s, Alzheimer’s Association (Nov. 24, 2014, 2:53 PM), http://www.alz.org/alzheimers_disease_10_signs_of_alzheimers.asp.
Understanding Dementia, Help Guide (Nov. 24, 2014, 3:10 PM), http://www.helpguide.org/articles/alzheimers-dementia/understanding-dementia.htm.
Early Warning Signs: When to Call the Doctor About Alzheimer’s, WebMD (Nov. 24, 2014, 3:20 PM), http://www.webmd.com/alzheimers/early-warning-signs-when-to-call-the-doctor-about-alzheimers.
"Palliative care is a specialized form of medical care intended for people with serious illness. The focus of palliative care is to clarify the goals of a patient's care while helping to alleviate the pain and discomfort that follows life-altering conditions by providing effective symptom management." [Source]
Recently, WFYI's Sound Medicine program hosted a conversation about palliative care featuring Dr. Rich Frankel, Director of the IU Walther Palliative Care Research and Education Program as co- host and three guests, Gail Sheehy, author of “Passages in Caregiving: Turning Chaos Into Confidence”; Mark Nepo, a cancer survivor and New York Times best-selling author and poet; and Dr. Timothy Quill, the Director of the Center for Ethics, Humanities and Palliative Care at the University of Rochester School of Medicine.
You can listen to the conversation here.
Almost everyone can benefit from estate planning. But what exactly is an estate plan and why should you spend money to get one? This article will answer those basic questions.
The term “estate plan” is used to generally describe the process which people use to plan for their long-term financial future. An estate plan can include a number of different tools including insurance (for example, short- and long-term disability insurance and life insurance), investments, retirement accounts, wills, trusts, advanced directives, and powers of attorney. Some of these require a certified financial planner and others require an attorney.
At Bennett & McClammer, our attorneys include the following documents in a basic estate plan: last will and testament, financial power of attorney, and living will/healthcare directive. Of course, each estate plan is carefully crafted to an individual’s needs so every plan will vary and some plans require the use of more complex tools.
A last will and testament is a document that dictates how your estate is administered after your death. A will allows parents to dictate who will serve as guardian of their children in the event of the death of both parents. It allows you to list who will receive your property. It also tells the Court who you would like to serve as your personal representative and whether that representative can administer the estate without court supervision. This document can even contain instructions for your funeral.
A financial power of attorney gives another person the power to handle your finances. The general powers granted under a power of attorney allow your attorney-in-fact to file tax returns, buy and sell personal property, conduct banking transactions, and to communicate with your attorney. Importantly, an attorney-in-fact can access your bank account and pay your bills if you are unable to do so yourself.
A living will and healthcare directive serve two purposes. First, a healthcare directive allows you to appoint a person to make healthcare decisions for you if you are unable to do so. Second, a living will allows you to make decisions regarding the level of care you will receive, including receiving electrical or mechanical resuscitation, artificial nutrition and hydration, and/or pain medication
An estate planning attorney will also assist in the management of assets and will develop a plan to help maximize the value of those assets. For example, it may make sense to transfer some assets during your life as opposed to after your death. This type of planning is very specific and must be tailored to each client’s needs.
Even if you do not have a large amount of assets, estate planning tools are still very valuable. For example, if you do not have a will your family may fight over the custody of your children, over who should serve as personal representative, and who should receive your property. A properly drafted will covers all of these issues and eliminates or reduces the cost your family might spend to find out the answers.
Everyone can benefit from an estate plan, even if you do not have many assets, are single, widowed, or married. The attorneys Bennett & McClammer LLP will craft a carefully tailored estate plan to meet your needs. Questions? You can reach us at 317-931-0944 or firstname.lastname@example.org.
A valid will, under most circumstances, allows an individual to transfer assets after death. With few exceptions, the instructions in the will are followed and property transfers as per the decedent's wishes. However, Indiana law does not allow a married person to exclude their surviving spouse from their will. In fact, a surviving spouse is entitled to a certain percentage of the deceased spouse’s estate whether or not that spouse was included from the will and even if the will specifically states that the surviving spouse shall not receive any property. A surviving spouse may waive the right to receive his or her elective share under the will and the process to obtain such a waiver is discussed below.
A surviving spouse may elect to take against the will of his or her deceased spouse and is entitled to one-half of the deceased spouse’s net personal property and real estate. I.C. 29-1-3-1(a). If the surviving spouse is a subsequent spouse who (1) did not have children with the deceased spouse and (2) the deceased spouse left surviving children or decedents from a previous marriage, then the surviving spouse can elect to take one-third of the net personal estate, plus twenty-five percent of the remainder of the fair market value (as of the date of death) of real property, minus any liens and encumbrances. I.C. 29-1-3-1(a).
We often hear from clients who believe that if they leave their spouse a small amount of cash or property under the will - or specifically exclude their spouse from their will - that this prevents their spouse from taking any property. Indiana law, however, still allows the surviving spouse to take against the will and to receive the amounts described in the previous paragraph even if they are given a small share under their spouse’s will.
The historical roots of this law can be traced back to the English practices of curtsey and dowery where spouses were entitled to a certain share of their spouse’s property. It also protects spouses from losing property which was acquired through marriage.
In some circumstances, it may make sense for a spouse to exclude their surviving spouse from their will. For example, if a couple gets married later in life and they both have children from previous marriages, they may decide to not include their spouse in their will and instead leave everything to their children. Obviously this is a very personal decision that must be made by each family. If you do decide not to include your spouse in your will, there are certain precautions you must take.
Under the Indiana code, a spouse may waive his or her right to take against the will by signing a contract waiving such right. I.C. 29-1-3-6(a). Before singing the waiver, the spouse must be fully informed of the consequences of signing such a document. The waiver can be filed in Court after the estate is opened and it will protect the deceased spouse’s will from from an election by the surviving spouse. Note that you will need such a waiver even if you decide to leave your spouse a small share under the will, as the spouse may elect to take against the will to ensure he or she receives their statutory share.
Many couples forego officially signing a waiver and simply orally agree to one another that they will not take against the will. Again, this is a personal decision that every family must make together. We have, however, seen spouses who pledge not to take against their spouse’s will, but later decide to do so. This is a decision that a couple must make together.
If you have any questions about the waiver process, or about electing to take against the will, you may contact Ken or Sara at 317-931-0944 or email@example.com.
Temporary guardianships are frowned upon by the law. Or at least they are supposed to be. Temporary guardianships are designed to address true emergency situations.
Most times, temporary guardianships are stopgap measures to put in place necessary powers before a hearing on a permanent guardianship. (Yes, sometimes a temporary guardianship is all that is needed because the incapacity of the ward is itself temporary, but most of the time, no.)
Indiana Code section 29-3-3-4 is the temporary guardianship statute.
It being designed as an emergency measure, the code section requires that the court order specify the powers being granted:
"(d) A temporary guardian appointed under this section has only the responsibilities and powers that are ordered by the court. The court shall order only the powers that are necessary to prevent immediate and substantial injury or loss to the person or property of the alleged incapacitated person or minor in an appointment made under this section."
I.C. 29-3-3-4(d) (emphasis added).
Yet, courts will too often grant the temporary guardian plenary powers -- i.e., full powers of a guardian under the guardianship code. This is a no-no. So why do they do it? The petitioner's attorney is usually the one to prepare the order for the judge to sign in the first place. Maybe the attorney finds it too hard to specificy the powers, or maybe since they represent the petitioner they think they should try and get all the powers they can? Who knows.
But judges, let's not ignore this statute just because the petitioner's attorney chooses to when they draft the prepared order, OK? Let's remember that appointing a guardian not only bestows powers on the guardian, but it takes away rights from the ward. And in temporary guardianship proceedings this can happen oftentimes without even respecting basic Constitutional due process rights.
As a parent of a special needs teenager, you may be worried about what may happen when your child turns 18. Up until that important birthday, parents have complete authority over their child's finances and can participate in health care decisions. After age 18, however, a child is transformed into an "adult" under the law and a parent can no longer exercise control over a child's finances or property.
For parents of a special needs teenager, the 18th birthday may be a bit scary. For example, if your child has Autism he or she may be fully capable of handling their own money, but the child may also be very trusting of strangers and may be susceptible to undue influence. In Indiana, a parent may file a petition for guardianship over their special needs child. A guardianship allows the parent to continue to exercise care and control over the teenager's finances, property, and to participate in health care decisions even after the child turns 18.
Obtaining a guardianship involves the following steps:
A physician's report tells the Court your child's diagnosis and why a guardianship is necessary to protect the child. The petition attaches the physician's report and asks the Court to appoint one or two individuals, usually the parents, as the child's guardian. At the hearing, the child and potential guardians will be asked to testify. This process is informal and friendly. If the petition is granted, then the guardians will receive letters of guardianship and will take an oath. The guardian then has the power to maintain and care for the child's finances and property. The guardian is required to file an inventory of the protected person's assets within ninety days and is required to submit an accounting within one year, and then two years thereafter.
The guardianship can be permanent or temporary. For example, if your child has developmental delays and requires a few years to mature enough to handle his or her own finances, the guardianship can be terminated. The guardianship can also last indefinitely if the child will need a guardian for his or her lifetime.
If you have questions about obtaining a guardianship over your special needs teen or about guardianships in general, contact Ken or Sara.
In 2013 the Indiana legislature created a new kind of advanced directive form called the Physician Orders for Scope of Treatment form, or POST. This form is meant to allow chronically ill patients to dictate their end-of-life care on a form that will travel with them from facility to facility and will ensure they receive consistent care. The form discusses whether cardiopulmonary resuscitation (CPR) may be administered, whether or not to administer life support measures, antibiotics, and artificial nutrition.
A POST form may be filled out by any “qualified person” including any individual who has any of the following:
The form may be filled out by the individual, if over 18, or his or her representative (health care representative, healthcare power of attorney, or guardian, see I.C. 16-36-6-7(a)). If an individual is under the age of 18 that individual cannot complete the POST, unless certain requirements are met under I.C. 16-36-1-3(a)(2) (for example, the minor is emancipated or not receiving support from his or her parents).
The form should be filled out in consultation with a health care provider and it must be signed by a physician. The POST allows patients to designate a healthcare representative who is authorized to make decisions on behalf of the patient if the patient is no longer competent or well enough to make those decisions for him- or herself. Note that if an individual appoints a healthcare power of attorney on the POST form, that declaration supersedes any such appointment on any other form. See I.C. 16-36-6-20.
A copy of the form should be kept in the patient’s medical records. The original POST is considered the personal property of the individual and should be kept with the patient at all times.
The POST can be revoked in a variety of ways, including in writing or orally. The form is meant to be flexible and the statute allows a patient to change the form at any time. A patient may also change his or her mind during treatment and orally request different treatment than is stated on the POST.
The POST will likely be very valuable for chronically ill patients, especially for those who frequently move between facilities. This form, however, should be used in conjunction with a properly tailored estate plan that includes a last will and testament, general durable power of attorney, healthcare power of attorney, and/or advanced healthcare directives.
For example, if a chronically ill patient no longer has the capacity to fill out the POST, then that patient’s health care representative may complete the form. However, that patient must have first appointed the health care representative through his or her estate planning documents. Additionally, a healthcare power of attorney will allow your representative broader powers to make healthcare decisions for you, as the POST is limited to the three categories as described on the form. An advanced healthcare directive (or living will) similarly allows you to broadly describe any medical interventions you wish to or don’t wish to receive. As such, the POST is another useful tool that should be part of your overall estate plan.
If you need assistance with your estate plan or have questions about the POST, please contact Ken or Sara.
6/2/2014 0 Comments
Starting June 1, 2014 all Medicaid recipients who have income over $2,163 must establish a Miller Trust to maintain or establish Medicaid eligibility. This new law has created confusion and frustration among Medicaid recipients and practitioners alike. We anticipate that even if a recipient established a Miller Trust and sent the required documentation to the Family and Social Services Administration (FSSA) the recipient may receive a discontinue notice from Medicaid due to the backlog at FSSA in reviewing the trust documents.
If you receive a discontinue notice from Medicaid because your income is higher than $2,163 and you have already sent your Miller Trust documents to FSSA, you must appeal the decision. Note:
If you failed to establish the Miller Trust and submit the documentation to the FSSA before June 1, 2014 you can still appeal and work on establishing the trust during the appeal. The FSSA has information about Miller Trusts here.
Ken and Sara are happy to answer any questions you may have about your Medicaid eligibility.
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Focusing on legal issues relating to Indiana's elders as well as trust & estate planning & administration.
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