NAELA_NEWS_june 07_v3.indd - National Academy of Elder Law ...

FEATURES41220244 Rebecca Morgan: How Does She Do That?Robert B. Fleming, CELA11 Inaugural NAELA Elder Leadership Award12 NAELA Rocks! 2007 Symposium Wrap-upEdwin M. Boyer, Esq.14 Special THANKS to the Sponsors andExhibitors of the 2007 NAELA Symposium!16 NAELA Fellow’s Acceptance SpeechFay Blix, CELA19 John J. Regan Writing Award Recipient19 2007 Theresa Award in CommunityService Recipient20 Dead Man RevisitedJohn Barry Stutt, MBA22 These Are Really Nice PeopleProfessor Rebecca Morgan24 Stetson Launches Distance Learning LL.M.in Elder LawProfessor Rebecca Morgan26 “Trigger Provisions” Creating SpecialNeeds TrustWilliam T. Edy, CELA and Evan H. Farr, CELA27 Where Do We Go From Here?Daniel O. Tully, Esq.30 Tax Issues for Personal Service ContractsDavid Lee Rice,CELAVolume 19 • Issue 2The NAELA Newsis published by theNational Academy ofElder Law Attorneys, Inc.1604 N. Country Club RoadTucson, AZ 85716-3102520/881-4005Fax: 520/325-7925www.naela.orgPUBLICATIONS CHAIRWendy H. Sheinberg, CELAGarden City, NYEDITORRuth Ratzlaff, Esq.Fresno, CAPUBLICATIONS COORDINATORStacy FobarTucson, AZGRAPHIC DESIGN/LAYOUTKellen CreativeAtlanta, GA33 Rob LaMaster, Managing Director Articles appearing in the NAELAEVERY ISSUE5 Presidents Message21 Executive Director’s Message23 NAELA Calendar of Events25 NAELA in the News33 Welcome New CELA’s and FellowsNews may not be regarded as legaladvice. The nature of Elder Lawpractice makes it imperative that locallaw and practice be consulted beforeadvising clients. Statements of fact andopinion are the responsibility of theauthor and do not imply an opinionor endorsement on the part of theofficers or directors of NAELA unlessotherwise specifically stated as such.3

FEATURED MEMBERRebecca MorganHow Does She Do That?Robert B. Fleming, CELAYou already knowProfessor RebeccaC. Morgan (almostuniversally, but not here,“Becky”). She (withco-author Prof. DavidEnglish) is responsible formaintenance and updateof one of the legal elderlaw treatises, and the onethat probably sits on thecredenza behind your desk:Tax, Estate & FinancialPlanning for the Elderly,and the companion FormsBook, both publishedby LexisNexis. She hasserved as President ofNAELA (1998–1999), andcontinues to be intenselyactive in the organization.She is recognized nationallyas an expert in ElderLaw, and has receivedinnumerable awardsevidencing her involvementand impact.But where should one goto really get to know Prof.Morgan? You might start inthe small town of Clinton,Missouri—where she wasraised, met and marriedher husband Jay and whereher mother and family stilllive. (If you’re not sure howto find Clinton, you can go to Kansas City and head easttoward Tightwad. Honest.) Her Midwestern, small-townroots explain a lot about her impressive work ethic, herno-nonsense approach to ethics and morality, and heraffection for seniors and other underdogs.You might also try the local outlet (there’s one withina few blocks of where you are right now) of a nationalcoffee emporium. Chances are you might find her there,fueling up on soy chai lattes. Or if you can find your wayto the mountains of Colorado, you might find her sittingon a porch, devoted dog and cats surrounding her, orperhaps hiking in the rarefied mountain air.Like all of us, Prof. Morgan is more than just hercareer. The career part, however, is pretty impressive. Sheholds the Boston Asset Management Faculty Chair atthe Stetson University College of Law in St. Petersburg,Florida (little-known fact: the College is actually inGulfport), where she is also the Director of the Centerfor Excellence in Elder Law (http://wwwlaw.stetson.edu/excellence/elderlaw). Even more impressively, she hasspearheaded the development of a new and innovativeLLM (Master of Laws) program in Elder Law (see thearticle on page 24 for more details), which will enroll itsfirst class this fall.In an academic career spanning three decades, Prof.Morgan has collected a number of prestigious awardsand amassed considerable professional recognition.Just last year, for example, the National Committeefor the Prevention of Elder Abuse gave her the RosalieWolf Memorial Elder Abuse Prevention Award,named in honor of the founder of the NCPEA. Theyear before that, she and Professor Roberta Flowers ofStetson received the Florida Supreme Court’s ProjectAward on Professionalism for their development oftheir unique series of video clips illustrating commonethical and professionalism dilemmas encountered by4

PRESIDENT’S MESSAGEThank You, Thank You, Thank You!Donna R. Bashaw, CELAIwrite this on the last week of the 2006–2007 NAELAyear. The year went incredibly fast (as my predecessorLawrence Davidow, CELA said it would) and I write thiscolumn with mixed feelings. As President, it was wonderfulvisiting with chapters and meeting NAELA members, someof whom have never attended a national conference. Onthe other hand, it will be nice not to travel so often and toget caught up at the office and at home.Speaking of the office and home, many thanks are due tomy office staff and to my family, especially to my husband,Phil. As we all know, we cannot do a job as time consumingas being President of NAELA without a lot of support atthe office and at home, as well as support from many, manyNAELA members who served on the board, on committees,on SIGS and on task forces. THANK YOU, THANKYOU, THANK YOU!The time has now come to report on the year. As I saidlast year, NAELA is similar to Disneyland and we havemany lands in NAELA. What did the 2006–2007 NAELAteam accomplish in all of these lands this year? Let’s look athow we did with the 2006–2007 goals.Goal 1. Establish a Law Professor’s Task Force to increaseawareness of NAELA in law schools and to provide input ondiversity concerns.An Academic/Diversity Task Force was created, chairedby Kim Dayton, Esq. and Katherine Pearson, Esq. Thetask force is completing recommendations to be presentedto the board later this year on ways to strengthen theconnection between law schools and NAELA and how toincrease awareness of Elder Law with students of color andethnicity. The committee is also working on the StudentJournal Writing Contest, a law student event to be heldat the 2007 Institute, compiling a list of law professors(those in and out of NAELA) and tweaking the Elder Lawcurriculum for law schools.Goal 2. Create a National Senior Award to encourage andrecognize seniors who continue to contribute to society in theirlater years.This charge was given to the Public Relations committeechaired by Craig Reaves, CELA. The committee securedAARP and Grand Magazine as co-sponsors with NAELAof the new NAELA Elder Leadership Award. From anumber of nominations four finalists were selected fromwhich Dr. Elbert C. Cole was selectedas the winner. Dr. Cole is the founderof the Shepherd’s Centers of America—approximately 75 centers, in 21 states,serving thousands of elders. The awardwas presented at the Symposiumin Cleveland. The Public RelationsCommittee has also worked on updatingall the NAELA brochures and on keepNAELA in the public eye through all media sources.Goal 3. Establish an Emeritus Member Category.The Membership Committee, chaired by SteveSilverberg, CELA, looked at this goal. The committeepresented a proposal to confer Emeritus status on retiredmembers who have madesignificant contributionsduring service toAs President, itwas wonderfulvisiting withchapters andmeeting NAELAmembers, someof whom havenever attendeda nationalconference.NAELA. The committeehas also been asked bythe board to look atthe Retired Membercategory as to thebenefits and privilegesof this category. Thefinal proposal will bepresented and voted onby the board later thisyear. The committeealso worked on updatingthe All About NAELAbreakfast session forthe 2007 Symposiumand worked with Goodand Welfare committeeto welcome new/firsttime attendees.Goal 4. Establish a White House Conference on AgingTask Force.The newly-formed WHCoA Task Force was chairedby Kerry Peck, Esq. All NAELA members and NAELAstaff who attended the 2005 conference were invited tobe on the task force. The task force reviewed the top 50resolutions from the conference and chose the NAELA top6

continued from page 6ten resolutions. Of the ten, the task force decided to focus onassisting in the passage of the Elder Justice Act. The task forcealso identified some resolutions that NAELA is supportingwith programs already in place such as the resolution toencourage volunterism with our Elder Leadership Award andNAELA’s work on long term care concerns which supportsseveral of the resolutions.Goal 5. Provide incentives to NAELA speakers.This goal was reviewed by the Program Committee chairedby Reginald Turnbull, CELA . A subcommittee lookedat the speaker incentive issue. They took a survey of howother professional organizations compensate members whospeak at programs. They also looked at the financial impactof a variety of tiered compensation plans. In reviewing theinformation provided, the Executive Committee requestedthe committee to explore other means of providing nonmonetaryrecognition of speakers. A further report will bepresented later this year.Goal 6. Focus on the redesign of the members’ practices.Again, the Program Committee worked on this goal. AsNAELA pursues Special Needs Law a whole new area opensup for our members. Programming has already begun to offereducation and guidance in this area of law. Programming isalso offering classes in litigation, working with upper incomeseniors and expanding into other services and products.A program review task force continued its work this year.It was chaired by Tim Takacs, CELA. Surveying NAELAmembership resulted in a written proposal which has beenpresented to the board and favorably adopted. This willresult in some major changes in future programing. Anadditional program change occurred as a result of membersrequesting lower cost programs, closer to home with little orno travel required. Having many more telephonic programsavailable seemed to be the answer. The Telephonic ProgramSubcommittee, chaired by Fay Blix, CELA, resulted in anincreased number of these low cost programs for attorneysand staff which can be accessed in their own offices.Goal 7. Revitalize the Good and Welfare Committee.The committee was co-chaired by John Wargo, CELAand Martha Brown, CELA. They worked on a welcomeprogram for first time attendees at NAELA conferences.continued on page 8BOARD OF DIRECTORS: 2007 – 2008PRESIDENTG. Mark Shalloway, CELAWest Palm Beach, FLVICE PRESIDENTStephen J. Silverberg, CELAEast Meadow, NYSECRETARYEdwin M. Boyer, Esq.Sarasota, FLEXECUTIVE DIRECTORSusan B. McMahon, Esq.Tucson, AZRobert F. Brogan, CELAPoint Pleasant, NJMartha C. Brown, CELASaint Louis, MOA. Kimberley Dayton, Esq.Minneapolis, MNRobert B. Fleming, CELATucson, AZGregory S. French, CELACincinnati, OHBradley J. Frigon, CELAEnglewood, CONancy P. Gibson, Esq.Missoula, MTBrian W. LindbergPublic PolicyWashington, D.C.DIRECTORSEdward E. Zetlin, Esq.Falls Church, VACONSULTANTSPRESIDENT ELECTCraig C. Reaves, CELAKansas City, MOTREASURERRuth A. Phelps, CELAPasadena, CAPAST PRESIDENTDonna R. Bashaw CELALaguna Hills, CAMANAGING DIRECTORRobert K. LaMasterTucson, AZDoris E. Hawks, Esq.Los Altos, CAHoward S. Krooks, CELABoca Raton, FLMichael F. Loring, Esq.Scituate, MATimothy L. Takacs, CELAHendersonville, TNReginald H. Turnbull, CELAJefferson City, MOKathleen T. Whitehead, CELASan Antonio, TXShirley B. Whitenack, Esq.Morristown, NJHugh K. Webster, Esq.Legal CounselWashington, D.C.7

President’s Message continued from page 8They also started the NAELA Neighborhood listserv wheremembers can send messages not appropriate for the generalNAELA listserv. They also are creating “Spotlight of a NAELAMember” as a regular feature of the NAELA News.Goal 8. Branding NAELAAll of NAELA is charged with branding NAELA andestablishing the new logo and tagline. However, the PublicRelations Committee is consciously working at brandingNAELA through all types of media. This effort has been quitesuccessful in that NAELAis considered by manyin government and inthe media as experts onsenior topics. There is stillmuch work to be donein branding NAELA andefforts will continue.Goal 9. Encourage furtherrecognition of the AspirationalStandards.The Professionalism andEthics Committee, chairedby Greg French, CELA,have continued serving onthis committee which wasformed in former PresidentStuart Zimring’s, Esq.term. They are helpingmembers to incorporatethese standards in theirpractices. They are presentlyfocusing on producing atool kit to assist members.They are also lookingat perhaps forming anadvisory panel to respondto membership questionsabout ethical issues.A lot of work has beendone, and will continue tobe done, to work on theseFor sunlit hoursand visions clear,For all rememberedfaces dear,For comrades of asingle day,Who sent usstronger on ourway,For friends whoshared the year’slong road,And bore with usthe common load,For hours thatlevied heavy tolls,But brought usnearer to our goals,For insightswon through toiland tear,We thank thekeeper of our year.—For Sunlit Hours byClyde McGeegoals. But, there were also other committees who did atremendous amount of work this year.These include:1. Amicus CommitteeThe chair, Victoria Heuler, Esq. and the membersapproved three amicus briefs to be filed in Osborn v.Ohio Dept. Of Job & Family Services, Timm v. MontanaDept. Of Public Health & Human Services, and James v.Richman/Commonwealth Penn. Dept. Of Public Welfare.2. Advanced Elder Law Review CommitteeCo-chairs K.T. Whitehead, CELA and DennisSandoval, CELA have expanded the course to includemore detailed information in all 13 areas covered bythe certification exam. The program is now also gearedfor an advanced elder law course for experiencedpractitioners who want to update and enhance theirgeneral practice knowledge at an advanced level.3. Chapter Presidents’ CommitteeMichael Loring, Esq. and Frank Dana, CELAcontinue their excellent job as Co-chairs of thiscommittee. Chapter presidents serve on thecommittee. Two new chapters, Vermont and Tennesseereceived their charters at the 2007 Symposium. Thecommittee is also working on providing a chapterwebsite template.4. Council of Advanced Practitioners (CAP)CAP was chaired by Baird Brown, CELA until heexperienced a serious medical problem and FrankJohns, CELA graciously agreed to chair in his stead.CAP was formed at the request of NAELA’s mostexperienced practitioners and provides advancedprograming for its members as well as providingexpertise and a brain trust for NAELA and for thepractice of Elder Law in general.5. The Fellows CommitteeThe Fellows Committee was chaired by JudithStein, Esq. Their work resulted in three new Fellowsbing introduced at the Cleveland Symposium: FayBlix, CELA, Lawrence Frolik, Esq., and ShirleyWhitenack, Esq.8

continued from page 86. Member Discount PartnersThis committee was chaired by Brad Frigon, CELA.The committee is constantly researching products andvendors to partner with NAELA for member discountsand rebates to NEALA. New vendors include Avis CarRental and Growth Coach.7. Program ChairsThe meat and potatoes of NAELA are our programs. Theprogram chairs presented outstanding programs this year.Thanks to our chairs and their committees. The chairswere: Institute (Salt Lake)—Barbara Hughes, Esq.;Unprogram—Wendy Sheinberg, CELA; Symposium(Cleveland)—Ed Boyer, Esq.8. Publications CommitteeThe Publications chair was Wendy Sheinberg, CELAwith Bridget O’Brien Swartz, CELA as the Editor-in-Chief of the NAELA News and Lawernce Frolik, Esq. asthe Editor-in-Chief of the NAELA Journal. We have newlooks for the Journal and the News. Check out all of thecolor in the NAELA News.9. Public Policy CommitteeNo one works harder or puts in more time then thePublic Policy Committee chaired by Charles Sabatino,Esq. They have done endless work on the DRA with aspecial thanks to Vincent Russo, CELA for all of hiswork on the issue. Biran Lindberg keeps us continuallyupdated on what is happening in Washington D.C. Ontop of all of their other work, the committee has beenupdating the public policy guidelines.10. Synergy SummitSynergy Summit encourages networking by membersof seven organizations. These organizations are ABA/RPPTS, ABA Tax Section, ACTEC, AICPA, NAELA,NAEPC, and SFSP. NAELA’s representative is BradFrigon, CELA. The next chair of the group is our ownFrank Johns, CELA.11. Long Range Planning Committee (Now called theStrategic Planning Committee)2007 is the year to begin work on the new Strategic planwhich will run from January 2008 through December2010. This committee was chaired by StuartZimring, Esq. A draft was provided for the board inCleveland to get feed back from the board members.The final report is due at the board retreat thissummer for final consideration.The last group of members who have put in alot of work this year are the SIG chairs and theirsteering committees:1. Advocacy/Litigation SIG - Chair Shirley Whitenack,Esq., 105 members.2. Guardianship/Capacity SIG - Chair Edward Zetlin,Esq., 215 members.3. Health Care SIG - Chair Mary Berthelot, Esq.,136 members.4. Practice Development/Practice Management SIGChair Timothy Crawford, CELA., 364 members.5. Tax SIG - Chair Timothy Crawford, CELA andVice Chair Robert Anderson, CELA., 172 members.6. Trust and Special Needs Trust SIG - Chair RichardCourtney, CELA and Vice Chair Sharon KovacsGruer, CELA., 442 members.Thanks would never be complete without an extraspecial thank you to the NAELA staff and especially toSusan McMahan and Debbie Barnett. These are twogreat ladies. And Debbie, you know how much you willbe missed.What a tremendous amount of work has been donethis year. Thank you from me personally and thank youfrom NAELA. The quality of the volunteers is incredible.Think of the value of all the hours freely given. THANKYOU, THANK YOU, THANK YOU!NAELA’s new President Mark Shalloway is now busyappointing members to all of the above positions. It isa big job but so important in determining the qualityof the 2007–2008 year. I am confident it will be a greatyear. Mark will be an outstanding president. He hasmany exciting ideas. As I said in Cleveland, I pass thegavel from Disneyland, located near my office in OrangeCounty, California, to Disney World, near Mark’s officein Florida. Here’s to NAELA—leading the way.9

Chapter PresidentsMaterialsAvailable On-lineMaterials for the individual sessions from the 2007NAELA Symposium are available on the NAELAWeb site in our on-line store at http://www.naela.org/applications/store or by calling Terri Anthony in theNational office at (520) 881-4005.2007 Case Law Update ............................................................. $20.00A Day in the Life of a Geri-Psych Unit ....................................... $20.00Care Planning Along the Long-Term Care Continuum .............. $20.00Challenge for the New Congress:Solving the Health and Long-Term Care Crises ........................ $20.00Envisioning Your Future: Goal Setting and Planningas a Means to Achieve Balance in Practice & Life .................... $20.00Estate Recoveries ..................................................................... $20.00Ethical Issues in Representing Seniors, Personswith Disabilities, and Their Families .......................................... $20.00Income Tax Issues Affecting the Elderly .................................... $20.00Incorporating the New Medicare Into Your Practice,and How to Make Money Doing It ............................................. $20.00Marketing Your Special Needs Trust Practice ........................... $20.00Recognizing and Resolving Nursing Home Problems:Strategies for You and Your Clients ........................................... $20.00Sex, Wards, and Rock n’ Roll .................................................... $20.00Solving the Interstate JurisdictionProblems in Guardianships ....................................................... $20.00The DRA’s New Home and Community-based Care Benefi t:Boon to Consumers or Bust to Medicaid Coverage .................. $20.00The Effect of the Uniform Trust Code (UTC)on Special Needs Trusts (SNTs) ............................................... $20.00Trust Reformation ...................................................................... $20.00What’s Special About Medicare Special Needs Plans? ............. $20.00Whys and Wherefores of Medical Ethics Committees andParticipation: How it Can Affect Your Practice ........................... $20.00Arizona ChapterSuzanna Goldman, Esq.Phoenix, AZ(602) 254-5992California Chapter -NorthernRuth E. Ratzlaff, Esq.Fresno, CA(559) 226-1540California Chapter -SouthernPatrick Green, Esq.Pasadena, CA(626) 449-8433Colorado ChapterCatherine Anne Seal, CELAColorado Springs, CO(719) 448-0734Connecticut ChapterFranklin A. Drazen, CELAMilford, CT(203) 877-7511Florida ChapterMichael A. Pyle, Esq.Daytona Beach, FL(386) 615-9007Georgia ChapterDavid G. Carter, Esq.Atlanta, GA(404) 442-6644Illinois ChapterMarguerite Angelari, Esq.Chicago, IL(312) 915-6775Indiana ChapterClaire E. Lewis, Esq.Indianapolis, IN(317) 484-8115Kansas ChapterMolly M. Wood, Esq.Lawrence, KS(785) 843-0811Maryland/DC ChapterMorris Klein, CELABethesda, MD(301) 652-4462Massachusetts ChapterMark W. Worthington,CELAWorcester, MA(508) 757-1140Missouri ChapterMary R. McCormick, CELALiberty, MO(816) 505-1999New Hampshire ChapterDavid R. Craig, CELANew Boston, NH(603) 487-3915New Jersey ChapterSharon Rivenson Mark,CELAJersey City, NJ(201) 239-0300New Mexico ChapterBarbara J. Buck, Esq.Albuquerque, NM(505) 842-5551New York ChapterBernard A. Krooks, CELANew York, NY(212) 490-2020Ohio ChapterRachel Kabb-Effron, CELABeachwood, OH(216) 831-5222North Carolina ChapterJ. Gregory Wallace, Esq.Raleigh, NC(919) 876-1400Wendy A. Craig, Esq.Black Mountain, NC(828) 669-0799South Carolina ChapterMitchell C. Payne, Esq.Rock Hill, SC(803) 329-8656Texas ChapterG. Gaye Thompson, Esq.Austin, TX(512) 335-6800Virginia ChapterJoseph T. Buxton III, CELAUrbanna, VA(804) 958-2244Washington ChapterErv A. DeSmet, Esq.Bellevue, WA(425) 990-451010

Inaugural NAELA Elder Leadership AwardThe inaugural NAELAElder Leadership Awardwas presented during theopening remarks at the 2007Symposium in Cleveland,Ohio. NAELA PresidentDonna R. Bashaw, CELA,presented the award tothe Reverend Dr. ElbertC. Cole, an 89-year oldMissouri minister whohas spent the past 20 yearsmotivating seniors to sharetheir talents and wisdom tomake their communities abetter place for everyoneDr. Cole founded theShepherd’s Centers ofAmerica in 1975. It isan interfaith, nonprofitorganization that encourages“This has beena labor of loveand I’ve beenblessed to seeso many seniorsnow betteringthe lives of thecommunities theyserve throughthe Shepherd’sCenters ofAmerica.”elder involvement on a local basis. In the past two decades,the organization has grown from one center in KansasCity, Missouri, to about 75 centers in 21 states servingtens of thousands of older adults. The centers partner withall religious groups and are led by independent boardsof trustees, each sharing the common mission to involveseniors in community improvement efforts.“I’m truly honored to receive the first-ever ElderLeadership Award,” said Dr. Cole. “This has been a laborof love and I’ve been blessed to see so many seniors nowbettering the lives of the communities they serve throughthe Shepherd’s Centers of America.”“Elbert Cole embodies the activist spirit we’re hopingto see increase within the nation’s elder community,” saidBashaw. “This award is designed to honor seniors who havegiven back to their communities. We intend that it willalso promote more volunteerism among the senior ranks.”In addition to watching Dr. Cole accept the award,Symposium attendees saw a professionally-prepared videopresentation highlighting his life and work. As part of thehonor, a monetary donation was made to the Shepherd’sCenters, his chosen charity.The award was co-sponsored by GRAND Magazine,a publication catering to grandparents and retiringBaby Boomers.“It is a great pleasure to be involvedwith this award and to recognize the outstandingcontributions and accomplishments of Dr. Cole andthe other finalists,” said Jonathan Micocci, President ofGRAND Magazine.The NAELA Elder Leadership Award was thebrainchild of President Bashaw, who had the vision ofhonoring seniors who are active and involved membersof society. Dr. Cole was nominated by Karen H. Weber,Esq., a NAELA member from Kansas City, Missouri,where the Shepherd’s Center movement started.Victoria E. Heuler, Esq., chaired the committee thatscreened NAELA members’ nominations of active andinvolved seniors 65 or older. Heuler’s committee alsocoordinated various aspects of the presentation togetherwith NAELA staff.Keep an eye open for prospective nominees for the2008 award as you work with elders in your community.Other candidates for the Elder Leadership Award, cosponsoredby GRAND Magazine, were:Bess (Budd) Lander Bell, a 91-year-old Floridavolunteer advocate nominated by Twyla L. Sketchley,Esq., a Tallahassee-based NAELA Member.Saul Friedman, a long-time Newsday columnistnominated by Ronald A. Fatoullah, CELA, a New YorkbasedNAELA Member.Eugene Lehrmann, a former AARP national presidentfrom Wisconsin nominated by Barbara S. Hughes, Esq.,a Madison, Wisconsin-based NAELA Member.The four have been outspoken champions for theirrespective causes – whether it involve improving thelives of American senior citizens, people with disabilitiesor children – and have served as an inspiration to theircommunities. Each was nominated by a NAELA memberand had to be 65 or older.11

NAELA ROCKS!NAELA Rocks! 2007 Symposium Wrap-upEdwin M. Boyer, Esq.The Cleveland 2007 Symposium steering committee andI would like to thank all of the presenters and nearly 300attendees who helped “NAELA Rocks” in Cleveland, May3–6 2007. Many of the presentations will certainly becomepart of the “Best of NAELA” tapes. If you were unable toattend you can still order the session audio recordings in CD orMP3 format to add to your professional library by visiting theNAELA store on-line at www.naela.org/applications/store/.We opened the Symposium with our first ever NAELA ElderLeadership Award Presentation sponsored by AARP, and GrandMagazine. This award, a long time dream of President DonnaBashaw, CELA, was designed to encourage and promoteactivism and involvement by elders for the betterment oflives of others. Our keynote speaker on Thursday was formerUnited States Senator (D-GA), and the youngest administratorever of the Veteran’s Administration, Joseph “Max” MaxwellCleland. In his speech titled “The Moral Test of Government,”Senator Cleland inspired us with the challenge to protect theinterests of the forgotten and most vulnerable of our citizens,our children, those with disabilities and the elderly.The Symposium also featured the ever-popular andinformative case law update by Robert Fleming, CELAand Professor Rebecca Morgan. The rock music andflower arrangements were a new creative addition totheir presentation.Our keynote speaker for Saturday was Senator SherrodBrown (D-OH). Senator Brown shared with us his insightson the new Congress, and his vision for the future, withparticularly focus on issues of great import to NAELA.Saturday’s general session was filled to capacity for anexcellent presentation by Bill Browning, CELA and FrankJohns, CELA on cases and strategies in estate recoveryissues. A highlight of the afternoon breakout sessions was thepresentation by Professor Rebecca Morgan and Mary AliceJackson, Esq. on “Sex, Wards, and Rock n’ Roll.”At Sunday’s closing session, a stellar panel of medicalprofessionals and attorneys gave a marvelous and well-preparedpresentation on the workings of hospital medical ethicscommittees and the importance of attorney involvement.At our business meeting, we welcomed this year’s newFellows, Fay Blix, CELA, Professor Lawrence Frolik andShirley Whitenack, Esq. Donna Bashaw’s President’s awardwent to Stu Zimring, Esq. for his continuing contributionsto NAELA. The 2007 John J. Regan writing award waspresented to Kathryn L. Tucker, Esq, for her NAELA Journalarticle “Oregon’s Landmark Death with Dignity Law.” At alater session, the “Theresa Award” was presented to Emily S.Starr, CELA, for her endless dedication to people with specialneeds. We congratulate all new Fellows and award recipientsfor their achievements.Thursday evening, over 90 members enjoyed dinner anddancing on the Goodtime III dinner cruise, a fund raisingevent sponsored by the NAELA SR-PAC. The luxury shiptoured the lakefront and explored the winding the CuyahogaRiver. Sunset over the Cleveland skyline was beautiful.Friday evening was our farewell appreciation dinner forNAELA’s Managing Director, since 1992, Debbie Barnett.A hilarious but often poignant program was coordinated byNAELA Past Presidents and Staff. Debbie has always been anintegral part of the NAELA family, and we wished her well onher retirement.A special thanks goes to the dedicated group whovolunteered for the traditional NAELA community serviceproject. We repackaged a full pallet of breakfast cereal at theCleveland Food Bank, and presented them with a check forover $1,000 representing contributions from our members.The Cleveland Food Bank has distributed over 19 millionpounds of food for over 450 member programs, and itsupplies a majority of the food used in local soup kitchens,shelters, and food pantries in northeast Ohio. The Food Banksaves an estimated $800,000 a year by using volunteers to dovarious jobs at the Food Bank.The steering committee responsible for the Symposiumdeserves a huge thank you. The very talented committeeincluded Linda Anderson, CELA, Betsy Angevine, Esq.,Bob Brogan, CELA, Bill Browning, CELA, Frank Dana,CELA, Greg French, CELA, Rachel Kabb-Effron, CELA,Professor Rebecca Morgan, Dennis Sandoval, CELA, andKristi Vetri, Esq. Thanks also to our track committee chairs,Professor Rebecca Morgan and Bill Browning, CELA(Advocacy Litigation Track), Bob Brogan, CELA and KristiVetri, Esq. (Practice Management/Practice Development),and Rachel Kabb Effron, CELA (Special Needs DisabilitiesTrack). Brian Lindberg was instrumental in maintainingour focus on hot topics, and Greg French, CELA helped usinclude ethical issues in our presentations. Thanks also to ourSIG Chairs, Shirley Whitenack, Esq. (Advocacy/ Litigation),Ed Zetlin, Esq. (Guardianship/Capacity), Tim Crawford,CELA (Practice Development/Practice Management andTax), Mary T. Berthelot, Esq. (Health Care), and RichardCourtney, CELA (Trust and Special Needs Trust).12

Ed Boyer working hard at the Cleveland Food Bank.Getting ready to ride the Goodtime IIIEnjoying the company on the Goodtime III.Robert FlemingRebeccaMorgan andSenator MaxCleland13

NAELA ROCKS!Special THANKS to the Sponsors andExhibitors of the 2007 NAELA Symposium!Without their support andparticipation, NAELA would not beable to provide many of the events andbenefits throughout each conference!If you didn’t attend the Symposiumand would like to learn more about theservices and products each organizationhas to other, please reach out to thecompany contact listed as follows.Special Thanks to Our SponsorsGOLD Sponsor–Thursday and Saturday Coffee BreaksMerrill LynchContact: Christopher Sullivan1700 Merrill Lynch Drive (B1-73)Pennington, NJ O8534Phone: (609) 274-1542Fax: (609) 274-0032Email: chris_sullivan@ml.comWeb site: www.totalmerrill.com/specialneedsGOLD Sponsor–Saturday LuncheonWealthCounsel, LLCContact: Anita Trudeau6115 SW Virginia Ave.Portland, OR 97239Phone: (888) 659-4069Fax: (888) 292-6126Email: Anita.trudeau@wealthcounsel.comWeb site: www.wealthcounsel.comSpecial Thanks to Our2007 NAELA Symposium Exhibitors!Academy Of Special Needs PlannersContact: Mark Miller11 S. Angell St., Ste. 341Providence, RI O2906Phone: (866) 2670947Fax: (401) 351-2642Email: mark@elderlawanswers.comWeb site: www.specialneedsplanners.comAsset Preservation StrategiesContact: Cheryl FletcherP.O. Box 5877DePere, WI 54115Phone: (888) 605-4222Fax: (877) 523-0783Email: christina@assetpreservationstrategies.comWeb site: www.assetpreservationstrategies.comCarolina Academic PressContact: Kenny Hegland700 Kent St.Durham, NC 27701Phone: (919) 493-7486Fax: (919) 493-5688Email: jgilchrist@cap-press.comWeb site: www.cap-press.comElderLaw AnswersContact: Mark Miller11 S. Angell St., Ste. 341Providence, RI 2906Phone: (866) 267-0947Fax: (401) 351-2642Email: mark@elderlawanswers.comWeb site: www.elderlawanswers.comEuropean Expert Care AgencyContact: Yolanta Khalil110 Norman Ave.Brooklyn, NY 11222Phone: (718) 349-0099Fax: (718) 389-0172Email: mail@eecare.comWeb site: www.eecare.comInteractive Legal SystemsContact: Nicole Splitter100 Highland Park Village,Ste. 200, Dallas, TX 75205Phone: (888) 315-0872Fax: (866) 249-6649Email: nsm@ilsdocs.comWeb site: www.ilsdocs.comInterim HealthCareContact: Meredith Millman1601 Sawgrass Corp. Pkwy.Sunrise, FL 33323Phone: (954) 858-2882Fax: (954) 858-2870Email: mmillman@interim healthcare.comWeb site: www.interimhealthcare.comInternational Genealogical SearchContact: Jennifer Meyer2985 Virtual Way, 4th FlrVancourver, BC V5M 4X7Phone: (604) 654-6766Fax: (604) 654-6706Email: Jennifer.meyer@heirsearch.comWeb site: www.heirsearch.comJ.G. WentworthContact: John Zepeda40 Morris Ave., 3rd FlrBryn Mawr, PA 19010Phone: (866) 410-8898Fax: (800) 543-1269Email: johnz@jgwentworth.comWeb site: www.jgwentworth.comKrause Financial ServicesContact: Dale Krause1120 Red Wing TrailDe Pere, WI 45115Phone: (920) 330-0190Fax: (920) 330-0191Email: dalekrause@new.rr.comWeb site: www.Medicaidannuity.comLegal ResourcesContact: Meg Rudansky36 Woodvale St.Sag Harbor, NY 11963Phone: (631) 725-4778Fax: (631) 725-8685Email: mrudansky@legalresourcesllc.comWeb site: www.legalresourcesllc.comLexisNexisContact: Karen Lynam555 Middle Creek Pkwy.Colorado Springs, CO 80921Phone: (719) 481-7426Fax: (719) 488-5028Email: Karen.lynam@lexisnexis.comWeb site: www.lexisnexis.comMedicaid Planning SystemsContact: Colleen Caruso509 S Lenola Rd., Bldg. 7Lenola, NJ 8057Phone: (781) 396-3235Fax: (781) 396-3647Email: tlinc02155@aol.comWeb site: www.medicaidplanningsystems.comMedicaid Practice SystemsContact: Phillip Miner555 French Rd.New Hartford, NY 13413Phone: (315) 866-7461Fax: (315) 732-6857Email: pminer@medicaidpractice.comWeb site: www.medicaidpractice.comMelville CapitalContact: Douglas Himmel1636 Abbot Kinney Blvd.Venice, CA 90291Phone: (310) 581-6141Fax: (631) 390-2422Email: dhimmel@melvillecapital.comWeb site: www.melvillecapital.comMerrill LynchContact: Christopher Sullivan1700 Merrill Lynch Drive (B1-73)Pennington, NJ O8534Phone: (609) 274-1542Fax: (609) 274-0032Email: chris_sullivan@ml.comWeb site: www.totalmerrill.com/specialneeds14

continued from page 14National Guardianship AssociationContact: Patricia Heuser526 Brittany Dr.State College, PA 16803-1420Phone: (877) 326-5992Fax: (814) 238-7051Email: info@guardianship.orgWeb site: www.Guardianship.orgPremier SoftwareContact: Tom Caffrey1230 Brace Rd.Cherry Hill, NJ 8034Phone: (856) 429-3010Fax: (856) 429-3559Email: tcaffrey@premiersoftware.comWeb site: www.premiersoftware.comLaw Office of John M. PrestonContact: Nick Preston12396 World Trade Dr., Ste. 212San Diego, CA 92128Phone: (800) 698-6918Fax: (858) 675-4045Email: jmplaw@msn.comWeb site: www.prestonestateplanning.comRight at HomeContact: Pat Stemmermann11949 Q St., Ste.100Omaha, NE 68137Phone: (402) 697-7537Fax: 402) 697-7536Email: pats@rightathome.netWeb site: www.rightathome.comSeniorBridgeContact: Beth Jackson845 Third Ave.New York, NY 100222Phone: (212) 994-6167Fax: (212) 994-4260Email: bjackson@seniorbridge.netWeb site: www.seniorbridge.netSmart MarketingContact: Michelle Buckley3033 Riviera Dr., Ste. 103Naples, FL 34103Phone: (239) 403-7755Fax: (239) 403-7556Email: mark@smartmarketingnow.comWeb site: www.smartmarketingnow.comStetson University College of LawContact: Cathy Fitch1401 61St St., SouthGulfport, FL 33707Phone: (727) 526-7815Fax: (727) 347-5692Email: fitch@law.stetson.eduWeb site: www.law.stetson.eduThe Center For Special Needs TrustAdministration, Inc.Contact: Marilyn Davis4912 Creekside Dr.Clearwater, FL 33760Phone: (877) 766-5331Fax: (727) 894-4036Email: marilyn@bostonassetmanagement.comWeb site: www.sntcenter.orgWealthCounsel, LLCContact: Anita Trudeau6115 SW Virginia Ave.Portland, OR 97239Phone: (888) 659-4069Fax: (888) 292-6126Email: Anita.trudeau@wealthcounsel.comWeb site: www.wealthcounsel.comWolters Kluwer Law & BusinessContact: Lisa Olsen2700 Lake Cook Rd.Riverwoods, IL 60015Phone: (847) 267-2190Fax: (847) 267-2873Email: Lisa.olsen@wolterskluwer.comWeb site: www.wolterskluwer.comSponsor-Krause Financial ServicesGold Sponsor- WealthCounselVeterans Information Services, Inc.Contact: Jay Mclntyre643 Springharbor Dr.Woodstock, GA 30188Phone: (866) 869-2777Fax: (866) 512-9013Email: aspsjay@yahoo.comVSA, Inc.Contact: Valerie Schlitt441 Station Ave.Haddonfield, NJ O8033Phone: (856) 429-5078Fax: (856) 428-3678Email: valerie.schlitt@vsaprospecting.comWeb site: www.vsaprospecting.comGold Sponsor-Merril Lynch15

NAELA ROCKS!NAELA Fellow’s Acceptance SpeechFay Blix, CELAVincent Russo, Steve Silverberg and Rolf NelsonThank you.To be honored by one’s peers is especially meaningful.But one does not arrive here alone.There have been many along my personal pathway who havemade a difference.NAELA Staff, NAELA leaders, NAELA members...particularly your president, Donna Bashaw, with whom I haveshared the Elder Law Center in Laguna Hills for almost 15 years.A little less than two years ago, I lost my only sister at theage of 59.Three years previous to that, I lost my only brother at theage of 57.I dedicate this award especially to them this afternoon, fortwo reasons:One, their absence is painful as Ireceive this honor, butTwo, their deaths have given mea gift—their deaths have taught meto live my life mindful of itstemporariness.Mortality changespriorities.Every momentbecomes precious.I want toknow mylife hasmattered.I want to leave behind something of value... somethingof beauty...The practice of elder law is such a gift...Caring for people when they are most vulnerable can beone of the most gratifying experiences possible.It takes a lot out...It puts a lot in.I love to look at my clients’ hands.The wrinkles.The large veins.The liver spots.The gnarled knuckles.There is history in those hands.Senator Sherrod Brown with Rajiv NagaichHard work.Courage in callouses.Those hands represent a lifetime of commitment—Diapers changed...Meals prepared...Children disciplined...Households sustained...Needy neighbors helped...Communities comforted...Country and nation secured...And I love to watch those hands as they sign thedocuments I have prepared.I love to watch their signatures of purpose, willing thosestiff fingers and swollen joints to the finish line...I watch my client whose perfect Palmer penmanship hasbeen pummeled by Parkinsons rise to the challenge...16 16Debbie Barnett and family

Donna Bashaw and Betsy AngivineI watch my client with macular degeneration devisecarefully crafted creative ways to ensure the signature lands onthe line despite the holes in his vision...I watch my client freshly diagnosed with Alzheimer’sDisease sign with the courage of his convictions, doggedlydetermined to protect and prepare for his family before braindarkness falls...I love those hands...I want to hold those hands...I want to receive from those hands what they have to give...I don’t want those hands to be hurt...to be bruised and battered by abuse...to be stripped of dignity...to be rendered useless...to be completely impoverished by costs of care...And then I look at my hands...I want my hands to construct...to contribute...to comfort...to care...Inaction is a luxury this nation cannot afford.Harry Moody of AARP describes these timesas “a moment of call.” 1And so, I look at my hands...And I look at your hands...Together, we have an extraordinary pool of social andhuman capital.To those who have given us a lifetime of commitment,we can return something of value...of beauty...Let us not be discouraged by the setbacks such as DRA or theslowness of the implementation of the Elder Justice Act.Thomas Merton once said to an advocate despondent andweary while engaging in protest of the Vietnam war,“Do not depend on the hope of results...Concentrate on the value... the truth of the work itself.” 2And what a value... what a truth this work of elder law is—Senator Sherrod Brownwith Rachel Efron KabbBut together we can do more...In the words of Marge Piercy—“It goes on one at a timeIt starts when you careto act, it starts when you doit again after they said noit starts when you say WeAnd know who you mean and eachday you mean one more.” 3We canWe will make a difference!Thank you again for giving me this honor.1 Harry R. Moody, et al., The Five Stages of the Soul, Anchor Books, 1998.2 William H. Shannon, editor, “Letter to Jim Forest, dated February 21, 1966,”The Hidden Ground of Love: Letters by Thomas Merton, Farrar, Straus,Giroux, 1990.3 Marge Piercy, The Moon Is Always Female, Alfred A. Knopf, Inc., 1980.Craig Gordonand Fay Blix17

2007 National Academy of Elder Law Attorneys Symposium NAELA Rocks!Renaissance Hotel / Cleveland, Ohio / May 3-6, 2007EducationalAudio RecordingsSPECIAL PRE-CONFERENCE SESSION: 1/1-6. Special Pre-Session: Fundamentals of Elder Law sold as a set only$48.00 plus $9.75 postage, not sold in series.........X 6EDUCATIONAL AUDIO RECORDINGS: 2. The Moral Test of Government Joseph Maxwell Cleland 3. Challenge for the New Congress: Solving the Health andLong-Term Care Crises Judith Feder 4. Trust Reformation Richard Davis; Patricia E. Dudek &Shirley B. Whitenack 5. Incorporating the New Medicare Into Your Practice, andhow to Make Money Doing It Norman Harrison;Doris E. Hawks; Sanford J. Mall; Debra K. Schuster;Timothy L. Takacs & Morris Klein 6. The DRA’s New Home and Community Based CareBenefit: Boom to Consumers or Bust? Gene Coffey 7. The Challenges Facing Long-Term Care Reform: AARP andNAELA Perspective Mary Alice Jackson; Robert A. Jackson;Brian W. Lindberg; Sarah Lenz Lock & Kathryn Tefft-Keller 8. Envisioning Your Future: An Interactive Introduction toGoal Setting and Planning Robert F. Brogan; Kevin Shulman 9. Solving the Interstate Jurisdiction Problems inGuardianships David M. English, Terry W. Hammond &Sally Balch Hurme 10. Care Planning Along the Long-Term Care ContinuumDavid L. McGuffey; Thomas A. Minetree; Rajiv Nagaich &Antoinnette Williams 11. The Effect of the Uniform Trust Code (UTC) on SpecialNeeds Trusts(SNTs): A Panel From Both SidesI. Mark Cohen; Randy E. Drewett & Douglas W. Stein 12. 2007 Case Law Update Robert B. Fleming &Rebecca C. Morgan 13. Estate Recoveries A. Frank Johns & William J. Browning 14. Recognizing and Resolving Nursing Home Problems:Strategies for You and Your Clients Edwin M. Boyer &Eric M. Carlson 15. Ethical Issues in Representing Seniors, Persons WithDisabilities, and Their Families Stuart D. Zimring 16. What’s Special About Medicare Special Needs Plans?Vicki Gottlich; Alissa Eden Halperin & Patricia B. Nemore 17. Sex, Wards, and Rock ‘n Roll Mary Alice Jackson &Rebecca C. Morgan 18. Income Tax Issues Affecting the Elderly Ben A. Neiburger 19. Marketing Your Special Needs Trust PracticeRobert W. Fechtman; Ruthann P. Lacey & Janet L. Lowder 20. Whys and Wherefores of Medical Ethics CommitteeParticipation: How It Can Affect Your Practice &Community Fay Blix; Phebe Saunders Haugen;Edward W. Long & D. Jamieson Long, Jr.(Sessions Numbered in Bold are More Than 1 CD)CDs ARE $10 EACH—SPECIAL—FOR EVERY 10 CDs PURCHASED, YOU’LL RECEIVE 1 COMPLIMENTARYTHE 2007 NAELA SYMPOSIUM (19 CDs—WITH ALBUM—ONLY $171.00 *Session #1 not included in seriesTHE COMPLETE NAELA SERIES ON 2-MP3 AUDIO DISKS, INCLUDES SPECIAL PRE-SESSION #1—ONLY $159.00 plus $5.75 postage American Express Master Charge VISA DiscoverBank Credit Card _______________________________________Exp. Date____________Signature _________________________________________________________________Name ____________________________________________________________________Firm _____________________________________________________________________Sub TotalPOSTAGE:1st CD - Include $4.75Each Additional CD $1.00Maximum 13 CDs - $16.75Shipped byPRIORITY MAILAmount DueU.S. FUNDS___________________________________________________Address ___________________________________________________________________City/State/Zip _____________________________________________________________Area Code/Telephone No. ____________________________________________________PAYMENT MUST ACCOMPANY ORDERMAKE CHECKS PAYBLE TO: ADC Services69013 River Bend Drive, Covington, LA 70433ADCTape@AOL.COMTO FAX ORDER: 985-892-997518

John J. Regan Writing Award RecipientThe 2007 John J. Regan Writing Award is presentedto Kathryn L. Tucker, Esq. for her article “Oregon’sLandmark Death with Dignity Law,” which waspublished in the NAELA Journal, volume II, number II.Kathryn L. Tucker, a graduate of GeorgetownUniversity Law School, is Director of Legal Affairs forCompassion & Choices, a national nonprofit publicinterest organization dedicated to improving end-oflifecare and expanding and protecting the rights of theterminally ill. Ms. Tucker practiced law with the Seattlebasedlaw firm, Perkins Coie, LLP, prior to movingto C & C. She is an Adjunct Professor of Law at theUniversity of Washington School of Law and SeattleUniversity School of Law, teaching in the areas of healthlaw and policy. Ms. Tucker served as co-counsel to thepatient plaintiffs/respondents in Gonzales v. Oregon.The NAELA Regan Writing Award is presented on anannual basis to the best original article published in theNAELA Journal during that year. The award is namedafter, and was established, in memory of John J. Regan, along-time NAELA member, Fellow and pioneer in ElderLaw. Articles considered for the award must be original,in-depth articles exploring a single topic which has animpact on the field of Elder Law.2007 Theresa Award in CommunityService RecipientCongratulations to Emily S. Starr, CELA — who washonored for her endless dedication to people with specialneeds by being presented with the 2007 Theresa Awardin Community Service. The award was established inmemory of Theresa Alessandra Russo, the daughter ofNAELA Past President Vincent and Sussan Russo, andis funded through a grant from the Theresa AlessandraRusso Foundation. Emily was recognized at theSymposium on Friday, May 4th before the general sessionbegan and honored at the Theresa Foundation’s Annualdinner in New York on Friday, May 18, 2007. Formore information about the Theresa Alessandra RussoFoundation and recipients of this award, contact (516)432-0200 or online at www.theresafoundation.org.The Peabody Hotel149 Union AveMemphis, TN 38103(901) 529-4000 Phonewww.peabodymemphis.comRates: $175.00 Single/DoubleFor reservations, call 1-800-PEABODY (Press 2) andreference NAELA no laterthan September 14, 2007and be sure to mention thatyou are with NAELA to receivethis special conferencerate. Navigant Internationalis available to assist you withyour travel needs (800) 229-8731. Please note: As with alltravel agencies, a service feewill apply.A full conference brochure willbe available by August, 2007.Early Bird Registration availableuntil September 14, 2007! Formore information, contact theNAELA Office at (520) 881-4005or visit the NAELA website atwww.naela.org.Mark yourCalendars!November 1–4200719

Dead Man RevisitedAdead man’s statute, or dead man’s rule, is drastic. Thereis no typical or uniform dead man’s statute. FelixFrankfurter gave the best advice: “Read the statute.”A dead man statute is a law derived from English commonlaw that prohibits an interested party witness from testifyingabout communications or transactions with a decedent unlessthere is an exception.For generations, these rules have perplexed lawyers as wellas judges. Benham criticized the rule as being “blind andbrainless.” Because of the harshness of these rules, courtshave diluted them or given them strict scrutiny.One method of dilution is requiring an opponent ofthe rule to provide corroboration by evidence. The overallworkability of the corroboration requirement is suspect.Wigmore feels that the requirement is misguided.A second way of diluting the rule is to permit testimonyto prevent injustice. A third method is to permit theintroduction of hearsay or other writings of the decedent.What is the foundation for exclusion of evidence ortestimony? You must read your statute. There are no typicalstatutes.The federal law does not have a counterpart. Diversity caseshave the only application of a state’s dead man’s statute infederal court.Keep in mind that there are different formal objectionsto the statute. For example, in Wisconsin, the appropriateobjection is not to state the inadmissibility of evidence, butto state specifically that the objection is to the “competency”of the witness.What is the formula to introduce evidence incontravention of the dead man’s rule?Often, it is to assert that the other party opened a door forevidence. A second way to introduce evidence is to find anexception to your state rule.A third way of introducing evidence is to assert waiver ofthe rule by a cross-examination of one of your witnesses byyour opponent. A fourth way to introduce testimony is touse a third party, who was familiar with the transaction butwho has no self-interest in the transaction. Another way tointroduce evidence is to present letters or other documentaryevidence from the decedent.An additional tactic to introduce evidence is to find aninterested witness to testify on behalf of the side of thedecedent. Such availability is then going to permit theintroduction of your testimony.John Barry Stutt, Esq., MBAIt is estimated that there are fewer than a dozen statesthat have these statutes. Consider reading the Report to theBoyd-Graves Conference, located at http://www.vba.org/section/civil/civil/bgevid.pdf, for an excellent discussion of theweaknesses of a dead man’s statute.Roy R. Ray, Professor of Law, Southern MethodistUniversity, is to be saluted for his critical dissection of the deadman’s statute in his article in the 1963 Ohio State Law Journal:“(1) The statutes are based upon a fallacious philosophy, i.e.,that the number of dishonest men is greater than the numberof honest ones; and that self-interest makes it probable thatmen will commit perjury.“(2) The statutes create an intolerable injustice by preventingproof of honest claims and defenses. In seeking to avoid thepossibility of injustice to one side, they work a certain injusticeto the other. It is difficult to understand why all the concern isfor the possibility of unfounded claims against the estate. Whyis there no concern for a loss by the survivor who finds himselfunable to prove as valid claim against decedents estate? Surely alitigant should not be deprived of his claim merely because hisadversary dies. It cannot be more important to save dead men’sestates from false claims, than it is to save living man’s statesfrom the loss by lack of proof.”“(4) The statutes fail to accomplish their purported purposesince they suppress only a small part of the opportunities forperjured testimony. They blocked the testimony of a witnessonly as a certain subjects, leaving him free to testify falsely asto other matters if he sees fit to do so. Furthermore, a witnesswho will not stick at perjury will not hesitate to suborn perjuryby getting a third person to testify as to those matters as towhich his own testimony is barred.“(5) The statutes impede the search for truth. The realhazard in shaping any exclusionary rule is that the jury cannotbe expected to make sensible findings when it is deprived ofsubstantial parts of available evidence bearing on the issue indispute. The great danger lies in the suppression of truth.“(6) The statutes underestimate the efficacy of crossexaminationin exposing falsehood and the abilities of thejudge and the jury to separate the false from the true. Thesesafeguards have proved adequate in other situations involvingthe testimony of parties and interested persons. Why not here?“(7) The statutes burden the parties with uncertainties andappeals. For hundreds of years or more, our courts have beenstruggling with the interpretation of the statutes. The result isa labyrinth of decisions, which have often brought confusion20

continued from page 18Executive Director’s MessageSusan McMahon, Esq.rather than clarity. The statutescontinue to mystify able judges andlawyers in endless complexities ofinterpretation and application. ”The reader is advised that whenthe next judge revisits the deadman’s statute, it will be with ajaundiced eye.Attorney John Barry Stutt, Esq.has been certified in Civil TrialAdvocacy by the National Boardof Trial Advocacy, which has beenapproved as the Sole CertifyingOrganization for Civil Trial Lawyersby the American Bar AssociationEndnotes1. Henry J. Friendly, Benchmarks 202 (1967).2. Charles Tilford McCormick, McCormickon Evidence § 65 (6th ed. West Pub. Co.2003).3. Va. Code § 8.01-396 (2006).4. See generally Report to the Boyd-GravesConference, http://www.vba.org/section/civil/civil/bgevid.pdf (fall 2005).5. 7 John H. Wigmore, Wigmore on Evidence§ 2065 (4th ed. Aspen Pub. 2006).6. See United States v. Diehl, 460 F. Supp.1282 (S.D. Texas 1978), affd., 586 F. 2d1080 (5th Ct. 1978.); Troutman v. ValleyNations Bank, 826 P. 2nd, 810 (Ariz. Ct.App. 1992).7. In Matter of Estate of Reist, 91 Wis. 2d209, 222-24 (1979).8. Botka v. Estate of Hoerr, 105 Wash. App.974, 21 P. 3d 723 (Wash. Ct. App. 2001).9. Estate of Molay, 46 Wis. 2d 450, 460, 462(1970).10. Estate of Nale, 61 Wis. 2d 654, 659-60(1974).11. Daniels, Executor v. Foster, 26 Wis. 2d 686,691-92 (1870); Epes’ Adm’r v. Hardaway,135 Va. 80, 90, 115 S.E. 712 (1923);Corporate Dissolution of Ocean ShoresPark, Inc. v. Rawson-Sweet, 134 P. 3d 1188,132 Wash. App. 903 (Wash. Ct. App. 2006).12. Johnson v. Raviotta, 264 Va. 27, 563 S.E.2d 727 (2002); Paul v. Gomez, 118 F. Supp.2d, 694, 696 (W.D. Va. 2000).13. Report to the Boyd-Graves Conference,supra n. 4.24 Ohio St. L.J. 89, 108 (1963).Ahis has been an exciting and productive year for NAELA. Iwould like to tell you about some of the things which haveoccurred that you may not be aware of.The Good and Welfare Committee has established theNAELA Neighborhood, a listserve for members to share nonlegalinformation, job postings and personal concerns (http://lists.naela.com/neighbor/). The committee has also initiateda “Spotlight on a NAELA member” as a regular feature of theNews. Please let staff know of anyone who you believe shouldbe a spotlight.After taking a short breather, the Professionalism and Ethics Committee is nowdeveloping tools to assist members in incorporating the Aspirational Standards intotheir practices.The Telephonic Program Committee, chaired by Fay Blix, has done a wonderfuljob of expanding the training opportunities for our members. Please tell them abouttopics or speakers you would like for them to consider. Our first ethics Webinar hastaken place and we hope to expand into this medium.Our Special Needs and Elder Law Brochures are all being redesigned and updated.Three are available now for purchase. The CMS Task Force and the Trust and SpecialNeeds Trust SIG have drafted additional brochures to expand the series.The Council of Advanced Practitioners has become a valuable resource for ouradvanced members. These long term NAELA members regularly give their timeand talents to NAELA as was evidenced by the large number who were involved inmaking the Cleveland Symposium a success (including Ed Boyer, the SymposiumChair).The National Conference on Uniform State Laws (NCUSL) has designated NAELAas Advisors. As a result NCUSL will be contacting NAELA when they address issuesthat fall within the expertise of NAELA members to request participation in theirdrafting committees.Certainly you all noticed that we utilized Votenet for the first time this year toelectronically administer the NAELA elections. This step resulted in a significantsavings both in direct expenses and staff time. Hopefully in the years to come youwill all take advantage of this expedient means of voting.The Long Range Planning Committee has begun the development of what willnow be referred to as the NAELA Strategic Plan covering January 2008 to December2010. The plan includes several new initiatives including increased support forNAELA Chapters and integration of Special Needs Law into the activities of theAcademy. You will receive more details as the Strategic Plan is finalized.NAELA has many wonderful volunteers who are working hard to support thedevelopment of NAELA. If you are interested in volunteering please contactNAELA’s new account manager, Rob LaMaster (rlamaster@naela.com), and tell himwhat committee you would like to work with. We will forward your name to the newcommittee chair to get you more involved with your organization.21

These Are Really Nice PeopleProfessor Rebecca Morganare really nice people.” One of my colleagueshad come with me to a NAELA program to copresentat a breakout session. This was a few“Theseprograms back and the location and session escape menow. Those details are not really importantto this story anyway. I do not even rememberexactly where we were—at a reception, inthe hallway between sessions, or walking toour rooms—when my colleague made thecomment. I do remember the comment...and the surprise in her voice... that theseNAELA members were really nice people.Her comment surprised me. Of coursethese are really nice people. Elder LawAttorneys, and NAELA members inparticular, are really nice people. They havealways been nice people, and perhaps that iswhy they are drawn to Elder Law.I have never known NAELA membersto be anything but nice, so I was reallysurprised by her observation. I do not takethe niceness for granted; instead I take it asa given.I know that there are lawyers who mightnot be described as nice people and in somepractice areas, attorneys may be not ascollegial or as willing to help their peers. Perhaps we inNAELA have gotten accustomed to being around thesenice people so that we forget that we are nice people, andthat those new to NAELA might actually be surprisedby this.NAELA members always help their clients, their clients’families and each other. Just read the listserv and see howhelpful members are to each other, by answering questions,providing advice, providing documents, pointing out ahelpful case, celebrating members’ personal milestones andconsoling them in their sorrows.Conversations in the hallways at a program, thesharing of documents, writing of articles and presentingat programs all help members. Service to the Academybenefits all of us, and so many members give unselfishlyof their time to the Academy to make it a more valuableorganization for us. The DRA Task Force, and all of theElder LawAttorneys, andNAELA membersin particular,are really nicepeople. Theyhave alwaysbeen nice people,and perhapsthat is why theyare drawn toElder Law.time the task force members put into their analysis of theDRA and drafting the White Paper, is just a recent example.The NAELA programs and publications all help us stayinformed and keep us on the cutting edge of developments.NAELA members are nice people.Because NAELA is a member-drivenorganization, that niceness is reflected inall that NAELA does. NAELA reaches outto members in times of disaster and loss,whether a hurricane or a house fire, lettingmembers know that NAELA is there forthem and willing to help. NAELA membersenthusiastically participate in communityservice projects at the Symposiums. Forexample, in 2004, NAELA membersworked with the Programs for ExceptionalPeople (“PEP”) on Hilton Head Island,South Carolina. In 2005, NAELA membersworked with the On Lok (PACE) programin San Francisco. At the 2007 Symposium,members had the opportunity to volunteerat the Cleveland Community Food Bank.When my colleague and I returned fromthe NAELA program, someone at workasked us about our trip. My colleague said22

continued from page 20NAELA Calendar of Eventswithout hesitation: “Those NAELA people are really nice.” Then shefollowed that observation with another one (unsurprising to those ofus in NAELA): “And boy are they hard-working. They meet all thetime, all day long.” We do put in long days at the NAELA programs.Meetings start at 7:30 in the morning, and go non-stop until day’send and then we are not finished. We often go late into the night, atreceptions, over dinner, at the dine-arounds and the optional events.We would go longer if we could figure out how to do without sleep!And if we happen to be on the same plane flights home, we still keepgoing. Isn’t it great!Although the hours are long, it is not work. Hang out with a bunchof nice people who share the common goal of doing well by doinggood, and realize how energizing the NAELA experience is for us. ANAELA program is an opportunity to exchange information, meetpeople, network, learn new practice tips and changes to the law, getrevved up and make friends. Sit down at a lunch at a NAELA programwith a group of strangers and by the time lunch is over, you have abunch of friends. I have so many elder law attorneys whom I callfriends who I have met through NAELA and all of whom I know willbe there to help if I call.When I get calls from attorneys who tell me they want to startpracticing elder law and want to know how to get started, I alwaystell them the same two things: one, join NAELA and two, go to theprograms. I do not care how busy someone is; going to the programsis a must! I tell them “These are really nice people who will be veryhelpful to you.” I tell the elder law attorney “wannabes” that theNAELA members will be willing to share documents, to mentor andto help get them going in an elder law practice. No kidding... because,after all, they are really nice people.Some months after my colleague’s visit to NAELA, my colleaguecame back from a meeting of attorneys who practice in another areaof law. When I asked my colleague about the meeting, my colleaguesaid “I want to go to the NAELA meetings with you. Those NAELAmembers are really nice people.”Since that program, I have had other colleagues accompany me tosome NAELA programs. Their reactions are always the same. I am nolonger surprised by it.I have grown accustomed to expecting it. I am never disappointed.At some point during the few days of the NAELA meeting, mycolleague will turn to me and say, “These are really nice people.” Ismile, nod and say: “Yes, they are.These NAELA members are really nice people.”July 27–29, 2007Tennessee Bar Association/NAELA2007 Elder Law BasicsNashville, TNAugust 24–25, 2007Council of Advanced Practitioners 2007 ProgramHotel Monaco ChicagoChicago, ILNovember 01–04, 20072007 Advanced Elder Law InstituteElder Law and Advocacy - It’s Now or NeverThe Peabody HotelMemphis, TNJanuary 25–27, 20082008 NAELA UnProgramEmbassy Suites Outdoor WorldGrapevine, TXMay 14–18, 20082008 NAELA Symposium20th Anniversary CelebrationHyatt Regency Maui Resort & SpaLahaina, Maui HIFall, 20082008 Advanced Elder Law InstituteKansas City, MOStay tuned for more information on ALL NEWNAELA Programming beginning in 2009!!January 25–27, 20082008 NAELA UnProgramEmbassy Suites Outdoor WorldGrapevine, TXSpring, 20092009 NAELA Annual MeetingWashington, DC23

NAELA in the NewsStetson Launches DistanceLearning LL.M. in Elder LawProfessor Rebecca MorganStetson University College of Law has launched anonline LL.M. in Elder Law. The degree requires thecompletion of twenty-four credits of study from a listof required and elective courses. Each course is a mix ofvideo-taped lectures and a “virtual” classroom throughon-line discussion.The courses are offered “on demand” to give studentsthe flexibility of watching the course lectures andparticipating in the class electronic discussions withina time frame that is convenient to the students, ratherthan requiring students to be on-line at a scheduledtime. The courses are taught by full-time faculty andsome adjunct professors.New students will be admitted each fall for the LL.M.Prospective students are those who received their firstlaw degree from a U.S. law school or at a law schoolapproved by the appropriate authority in a countryother than the United States.The full course load is three courses per semester.Students taking the full course load will graduate inthree semesters. Students may apply for permission totake a partial (one or two) course load for each semester.The first class is scheduled to graduate with the LL.M.in December of 2008.Attorneys who are interested in taking courses withoutseeking the degree can apply for permission to auditcourses. For more information about the Stetson LL.M.in Elder Law, visit www.law.stetson.edu/excellence/elderlaw/llm or email elderlaw@ law.stetson.edu.NAELA was mentioned as aresource and/or Elder Lawwas prominently noted in:• “Sandwich Generation:Survive the Tug of War/TheWeb Sites, Books, PeopleThat Can Help You to BeBoth a Good Kid and aGood Parent,” which waspublished in the February20, 2007 issue of CNN/Money Magazine.• “Tailor Will, Power ofAttorney for MultipleStates,” which waspublished in the March10, 2007 issue of The WallStreet Journal.• “Online Resources,” whichwas published in the March25, 2007 issue of TheWashington Post.• “Parents Aging orIncapacity Can PutFamilies in a TerribleBind if Documents Aren’tAvailable to Let VitalDecisions be Made,”which was published in theApril 2, 2007 issue of TheWashington Post.NAELA Membersin the News:• Jean Galloway Ball,CELA, Charles P.Sabatino, Esq., andSally Hurme, Esq., werequoted in “Parents Agingor Incapacity Can PutFamilies in a TerribleBind if Documents Aren’tAvailable to Let VitalDecisions be Made,”which was published in theApril 2, 2007 issue of TheWashington Post.• William J. Browning,CELA, was quoted in“Should Grandma DivorceGrandpa? Senior Couplesare Splitting Up in RecordNumbers, and a MedicaidSystem that Leaves OneSpouse in Poverty asthe Other is Dying maybe a Reason,” whichwas published in theFebruary 15, 2007 issue ofMSN Money.• William J. Browning,CELA, was quotedin “How to Pay forOld-Age Care,” whichwas published in theMarch 26, 2007 issueof Newsweek.• Tim E. Casserly, Esq.,was quoted in “SandwichGeneration: Survive theTug of War/The WebSites, Books, People ThatCan Help You to BeBoth a Good Kid and aGood Parent,” which waspublished in the February20, 2007 issue of CNN/Money Magazine.• Kevin B. Rack, Esq.,was quoted in “AnInterview with Kevin B.Rack, Chair, VirginiaBar Association’s ElderLaw Section,” which waspublished in the October2006 issue of BIFOCAL,the e-newsletter publishedby the ABA’s Commissionon Law and Aging.• Harry S. Margolis, Esq.,was quoted in “TailorWill, Power of Attorneyfor Multiple States,” whichwas published in theMarch 10, 2007 issue ofThe Wall Street Journal.24

continued from page 22• G. Mark Shalloway,CELA, and PatriciaSitchler, CELA, werequoted in “Caring forPops: Put it in Writing– Suggests Sibling Contractto Avoid Court Case overAging Parents,” which waspublished in the April 7,2007 issue of The DallasMorning News.• Stephen J. Silverberg,CELA, was quoted in“Helping Trusts Keep theFaith Unitrusts Can Honoran Estate’s Goals and BoostIncome to Survivors,”which was published in theFebruary 19, 2007 issue ofBusinessweek.• Donna Bashaw, CELAappeared on January 22& 23, 2007 in an “In TheKnow” :30 TV segmentabout long-term careplanning. On February 27and March 2, 2007, StuartZimring, Esq. appearedas well in an “In TheKnow” :30 TV segmentabout advance directives.Both segments highlightedinformation from theNAELA Elder Issues Surveyand aired on First Business(a nationally syndicatedTV news magazine) andthe America One Network.Additionally, DirecTVsubscribers watching CNN,Headline News, Fox News,MSNBC, CNBC andBloomberg saw the advancedirectives segment. In total,560 TV stations in 148cities (including 23 of thetop 25 cities in the UnitedStates) aired the segments.• Donna Bashaw, CELAwas quoted as presidentof the National Academyof Elder Law Attorneysin “Plan for Care,” whichwas published in theJanuary 9, 2007 issue ofUSA Today.• Vincent J. Russo, CELAwas quoted as pastpresident of the NationalAcademy of Elder LawAttorneys and the NAELAwebsite was featured in“Qualifying for Medicaidafter making cash gifts,”published January27, 2007 in The WallStreet Journal.• Charlie Sabatino, Esq.and Eric Carlson, Esq.were co-hosts in a radiomedia tour on February27 & 28, 2007, partneringNAELA with Carlson’sNational Senior CitizensLaw Center. The topicof “What Do We DoWith Mom And Dad?”generated 444 airingsvia 122 radio stations,including 24 of the top25 cities, along withnationally syndicatedshows Money Matters,USA Radio Network andThe Right Balance andnetworks XM Radio,Sirius Radio and the CableRadio Network.• Donna Bashaw, CELA,Stephen Silverberg, CELAand Howard Krooks,CELA were included inan article entitled “Up tothe Task of Executor?”,published on February 22,2007 in Kiplinger.com• Bernard Krooks, CELAand Stuart Zimring, Esq.was quoted in “MakingFinal Choices while they’reyours,” published October26, 2006 in The Wall StreetJournal. October 29, 2006• Mary Alice Jackson, Esq.and Howard Krooks,CELA were quoted in“Retirees Up AgainstDebt,” published January24, 2007 in USA Today.• G. Mark Shalloway,CELA and Joseph S. Karp,CELA were included in“No Safety Net for EarlyDementia,” publishedFebruary 28, 2007 in PalmBeach Post.• Wendy Hoey Sheinberg,CELA appeared on thebroadcast of The ArthritisFoundation Show on LongIsland’s TV 55. duringthe broadcast Wendy wasinterviewed on topicsincluding estate planning,wills and charitablegift-giving.• Frank L. Buquicchio, Esq.appeared on the broadcastof The Arthritis FoundationShow on Long Island’s TV55. During the broadcastFrank was interviewedon topics including estateplanning and wills.• Wendy H. Sheinberg,CELA was quoted in“Home Transfers inMedicaid” published inthe June 2, 2007 editionof Newsday.• Wendy H. SheinbergCELA, was quoted in“Personal ExperienceLeads to Private Elder LawPractice” published in theJune 29, 2007 edition ofLong Island Business News.• Marie Elena R. Puma,Esq. appeared onTelecare Television.NAELA Member Awards:Howard S. Krooks, Esq., recently received an award forhis work as the Co-Chair of the Compact Working Groupof the New York State Bar Association (NYBSA) ElderLaw Section. The Compact for Long-Term Care is widelyrecognized for providing an alternative means of financinglong-term care. It represents a fair and rational approach topaying for long-term care by offering seniors and people withdisabilities the option to pledge a certain amount for theirassets towards long-term care services without subjectingthemselves to forced impoverishment typically associatedwith the Medicaid program. It also permits individuals withlong-term care needs to purchase services at all three primarylevels of care, including home care, assisted living andnursing home care. Currently, the Medicaid program mayoffer coverage for one or two levels of care, but not all three.25

“Trigger Provisions” Creating Special Needs Trust William T. Edy, CELA and Evan H. Farr, CELAMost estate planning and Elder Law Attorneys, andmany attorneys who know little about estate planningor Elder Law, draft inter vivos trusts for clients. Manyhave learned that giving the remainder beneficiaries outrightdistributions can subject those distributions of income andprincipal to the beneficiary’s creditors. A lot of attorneysare now including provisions that direct the trustee, afterthe death of the grantors, to establish separate shares foreach beneficiary and to fund each share under a differenttaxpayer identification number, utilizing the separateshare rules.Generally, each separate share allows the beneficiary toreceive discretionary distributions based on an ascertainablestandard, to avoid subsequent inclusion of the remainingprincipal in the beneficiary’s estate. Because of the word“support” in the ascertainable standard, these trusts areusually considered support trusts, and often will thereforedisqualify the beneficiary from receiving public benefits,should the beneficiary otherwise qualify.Because these trusts may continue for many years, fromgeneration to generation, it is important for the draftingattorney to consider every possible eventuality and to draftwith the utmost flexibility. The trust should thereforecontemplate the possibility that a beneficiary could, at anyage, become disabled and require Supplement SecurityIncome (SSI) and Medicaid. Assets in the trust or a flow ofincome from the trust could disqualify the beneficiary fromthese vital public benefits, which certainly would not havebeen the intention of the grantor if the drafting attorneyhad raised the possibility. The trust should also contemplatethe possibility that one or more of the beneficiaries willretire, become ill, and require nursing home placement.In this event, an otherwise-qualified beneficiary may bedisqualified from long-term care Medicaid if the trust is notproperly drafted.Due to these concerns, many attorneys now place a triggerprovision in revocable living trusts that causes the share of ahealthy beneficiary to convert to a third-party special needstrust if and when the beneficiary becomes disabled. Sucha trigger provision will render the share unavailable to thedisabled beneficiary and will thus avoid the need for thebeneficiary to transfer the inheritance to the beneficiary’sown D4a trust: thus, avoiding a pay-back clause.All attorneys who draft inter vivos trusts to distributeproperty after death should draft the trusts to allow theprincipal to remain in each beneficiary’s share should abeneficiary ever need public benefits. Although somestates may not honor such a trigger clause (e.g., seeTestamentary Trust is an “Available Resource” WhenLanguage and Context Make it a Support trust, TheNAELA eBulletin, 2 January 2007), it is still wise toinsert it. At worst, a state may ignore it; at best, thebeneficiary may reside in a state that does allow it. Itmay also be wise to give a trust protector the powerto add the necessary language or delete language thatwould otherwise result in disqualification.The event necessary to trigger the supplementalneeds provisions can be a subjective determination bythe trustee or the trust protector that a beneficiary ismedically eligible for public benefits, for example:“Should any beneficiary, in the sole determinationof the Trust Protector, be medically eligible for“public benefits,” then said beneficiary shall not serveas trustee of his or her share. Thereafter, my Trusteeshall not make any distributions to that beneficiarythat might decrease or eliminate that beneficiary’seligibility for any public benefits based on need, suchas, but not limited to, Medicaid or SupplementalSecurity Income.”Or the triggering event could be based on an objectivedetermination, for example:“At the time any distribution or distributive share ofTrust assets is to be made by the Trustee, if a beneficiaryof this Trust is disabled as defined in Section 1614(a)(3)of the Social Security Act (as determined by the SocialSecurity Administration or by any State-level disabilitydetermination agency operating under the auspices ofthe Social Security Administration), and/or has beendetermined by a nursing home or State agency to bemedically eligible for nursing home care, then saidbeneficiary shall cease to be a Trustee of this Trust or anyTrust share hereunder and, thereafter, the Trustee shallnot make any distributions to said beneficiary that mightdecrease or eliminate that beneficiary’s eligibility for anypublic benefits based on need, such as, but not limited to,Medicaid or Supplemental Security Income.”26

continued from page 24None of us would want to bethe first attorney sued by thegrandson because the principalfrom his father’s share of hisgrandfather’s trust was dissipatedby many years of his father’snursing home care, which couldhave been easily prevented witha proper trigger provision.William Edy, CELA, CFP, ofCape Coral, Florida, (billedy@aol.com), is a sole practitioner in CapeCoral, Florida. He also writes aweekly column in the Ft. Myers,Florida News-Press on Elder Lawand is a frequent speaker on estateplanning and Medicaid planning.He is a member of the NationalAcademy of Elder Law Attorneys,the National Network of EstatePlanning Attorneys and theFinancial Planning Association.Evan H. Farr, CELA, CEA(evanfarr@farrlawfirm.com), isthe principal attorney of The FarrLaw Firm in Fairfax, Virginia.Evan focuses his practice on Long-Term Care Planning, MedicaidPlanning, Disability Planning,and Estate Planning. A frequentspeaker and published author,Evan has written a book entitledThe Virginia Nursing HomeSurvival Guide, and has alsowritten numerous articles thathave appeared in the Guide toRetirement Living (published byGreater Washington PublishingInc.) and the Golden Gazette(published by the Fairfax CountyArea Agency on Aging).Where DoWe Go From Here?Daniel O. Tully, Esq.Where do we go from here? What is the future of health and long term care inthis nation? The answer may exist in Professor Judy Feder’s recent presentationat the National Academy of Elder Law Attorneys’ 2007 Symposium inCleveland.Judy Feder, Dean of Georgetown’s Public Policy Institute and former HealthCare Advisor to President Clinton, noted that the recent congressional election willsignificantly affect health care services paid from the federal budget, but it will nothappen overnight. While it appears that health care reform will be considered by the110th Congress, long term care probably will not.If this is the case, why should you continue to contribute to NAELA’s SeniorRights Political Action Committee (SR-PAC)? Because changing health care policyis a marathon and not a sprint. Feder notes, “Health and Long Term Care are suchbig issues in terms of dollars… that I’ve got to tell you it’s going to take more thanone election and one Congress to enable us to move forward in terms of seriouslyaddressing the problems we face.”Professor Feder, who is intimately aware of the inner workings of national publichealthcare policy, argues that if you look at the big picture of the politics of longterm care reform and stay the course, senior advocates could be on the ground floorin building a new long term care system.Will future elections make a difference in health and long term care reform?Professor Feder is of the opinion that the 2008 election is a chance for significantchange. The 2006 election made a dent, but not a permanent fix.Feder also noted that, “NAELA’s SR- PAC can make an enormous differencein allowing change to happen. Not every organization has a political fundingmechanism, a PAC, but you do. I want you to know that the SR-PAC makes adifference in getting people elected. I’d love to tell you getting elected isn’t aboutmoney, but I’ve learned too much to pretend. If you want candidates elected youneed to advocate for them, knock on doors for them. You’ve got to make it possiblefor them to run ads and do what they need to do to get elected.“And whether or not they transform our society, they shape the debate, define theagenda and if we are in luck, they give us leaders who will do all they can to movethis nation forward.”Professor Feder concluded, “Stay concerned, stay attentive and stay politicallyactive on all fronts. Donate to the SR-PAC today.”27

NAELA Senior Rights PACContribution Commitment FormNAELA NAELA has recently created a federal political action committee, Senior Rights PAC, to increaseour recognition and effectiveness in the public policy arena. Please join your fellow NAELA members inthis exciting time as NAELA actively advocates for our Country’s seniors and persons with special needs!Name ________________________________________________Member ID ____________________________________________Occupation ___________________________________________Who contacted you about contributing?_______________________Employer ___________________________________________________________________________________________________Address _____________________________________________________________________________________________________City _________________________________________________State ________________________Zip Code __________________Phone ________________________________Fax _____________________________ E-mail ________________________________Contribution I wish to contribute $___________________, as denoted below: Patron: $1 - $499 Supporter: $500 - $999 Benefactor: $2,500 - $4,999 Friend: $1,000 - $2,499 Pacesetter: $5,000Payment Details Enclosed is my personal check, payable to NAELA Senior Rights PACPersonal checks are preferred. Corporate checks are not acceptable. If a firm (partnership) check is used, the contribution will be equallyattributed to ALL principals in the firm, unless you direct us otherwise. If using a firm check, please list all other principals below (or thoseprincipals to whom the contribution should be allocated, and in what proportions).________________________________ _________________________________ _________________________________Charge my Credit Card, details as follows: American Express Visa MasterCardCard Number _________________________________________________ Expiration Date ________________Signature _________________________________________________________________________________I certify that this is a personal or firm (partnership) credit card, not a corporate card.Charge my credit card in ______ installments of $ ______ every ______ month(s) for a total amount of $ ______Please return Commitment Form and payment to:NAELA SR-PAC, 1604. N. Country Club Rd., Tucson, AZ 85715 / Fax: 520/325-7925Thank you for your generous support!The purpose of the SR-PAC is to help elect candidates who will support the goals and objectives of NAELA. SR-PAC funds are used to make contributions tocandidates for public office. The contribution amounts listed are only suggestions; more or less may be contributed (subject to a limit of $5,000 per donor per calendaryear). The amount given, or the refusal to give, will not benefit or disadvantage a member. You may refuse to contribute without reprisal. Only members of NAELAmay be solicited to contribute. We may not accept contributions from corporations, foreign nationals, federal government contractors, or by one person in the nameof another person, nor may we accept contributions of more than $5,000 per calendar year from any one contributor. Contributions are not tax deductible. Federallaw requires us to obtain and report the name, address, occupation and employer of each contributor who gives more than $200 in any calendar year.28

Tax Issues for Personal Service ContractsDavid Lee Rice,CELAThis paper will explore the common tax issues that arisewith respect to Personal Service Contracts, both for therecipient as well as the payor. As a result of the enactmentof the “Nursing Home Bankruptcy Act” (also known as theDeficit Reduction Act of 2005), personal service contractswill become an even more popular method to assist theelderly clients in their daily care as well as a planningtechnique to qualify elderly clients for Medicaid. However,if your client intends to spenddown his or her assets throughcompensating relatives for care taking services, then thecontract must be in writing.Is a Caregiver an Employee or an Independent Contractor?Generally, if your client hires someone to performhousehold work, including caregiver services, that person isdeemed to be an employee. The relationship of employerand employee exists when the person for whom the servicesare performed has the right to control and direct theindividual who performs the services, not only as to the resultto be accomplished by the work but also as to the details andmeans by which the work is done. In essence, an employeeis subject to the will and control of the employer not only asto what shall be done, but as to how it should be done. Inthis connection, it is not necessary that the employer actuallydirect or control the manner in which the services areperformed, it is sufficient if he has the right to do so.The right to discharge is also an important factorindicating that the person possessing the right is theemployer. Other factors include how the person is paid, thefurnishing of tools and of a place to work, and whether thereis real risk as a result whether the worker will realize a profitor suffer a loss.Indeed, the IRS asserts in Publication 926 that cleaningpeople, health aides, private nurses, caregivers, and similardomestic workers are employees. Based on the factorsset forth above, the IRS is probably correct as to theclassification of these types of workers, with the exception ofperhaps private nurses and those hired from agencies wherethe agency is paid for the worker’s services.With respect to private nurses, if the worker is licensedby the State and only checks on the patient sporadically oreven once a day just to render medical assistance, then thatindividual may be deemed an independent contractor. Onthe other hand, if that private nurse is rendering care onan on-going basis, daily, and for many hours a day, than thatindividual is more likely to be deemed an employee.If the workers, including private nurses, are hired throughan agency, and the agency is paid for the services, then theagency will be deemed an employer. However, if all the agencyreceives is a commission, then, person receiving services may bedeemed to be the employer. However, if the agency establishesthe scope of the work, when the caregiver will be paid and thecaregiver rate, then the agency can be deemed the employer.This should be discussed with the agency ahead of time toassure that your client is not the one responsible for taxes.Withholding RequirementsIf your client hires a caregiver in 2006 and pays wages of$1500 or more to that individual, the client may need towithhold and pay Social Security and Medicare taxes, as wellas pay federal unemployment tax (FUTA)and certain stateemployment taxes. A client may also need to withhold FederalIncome Tax if both the client and caregiver agree to do so. Ifthe client does agree, then the client should give the caregivera Form W-4 Employee’s Withholding Allowance Certificate tofill out. If the client does not agree, then there is no obligationon the client’s part to do so, but the client should notify thecaregiver in writing of such non-agreement.For 2006 the Social Security taxes amount to 15.3 percentof the wages and the client is responsible for paying one-half(½) of the tax, and the employee the other half, providingthe client withholds the caregiver=s portion. If the client doesnot withhold, the client is responsible for paying the fullamount of the tax; however, the taxes the client pays to coverthe caregiver’s portion must be included in the caregiver’swages for income tax purposes. The caregiver’s share of SocialSecurity and Medicare taxes are not counted as Social Security,Medicare, or as FUTA wages. In addition, the client will alsobe responsible for paying a FUTA tax equal to 0.8 percentof the first $7000 of wages for each employee. Finally, eachstate will differ as to its taxes and the attorney should becomeknowledgeable with respect to his or her state withholdingrequirements.For purposes of Medicare, Social Security taxes and FUTA,the client should not count any wages paid to his or herspouse, a child under 12, or a parent. If the caregiver is underthe age of 18, and his principal occupation is providinghousehold services, then he or she isn’t required to pay30

continued from page 30deduction. Consequently, this deduction is only availableto taxpayers who itemize their deductions as opposed totaking the standard deduction, which in 2005 was $5,000for singles, $7,300 for a head of household and $10,000for married couples. An additional $1250 is allowed to anytaxpayer who is at least 65 by December 31. However, fullyone-half of all taxpayers over 65 don’t have a tax liability,making this deduction to be of illusory benefit.Assuming that the client does indeed have a tax liabilityand itemizes as opposed to taking the standard deduction,there is still another limitation on the medical deduction.Medical expenses are only allowed to the extent thatthey exceed 7.5 percent of adjusted gross income (AGI).Accordingly, if your client has AGI of $40,000, then theclient can only deduct those medical expenses that exceed$3,000. Finally, the taxpayer can only deduct those medicalexpenses that are not covered by insurance, includingMedicare.From the tax perspective of an elderly client, paymentsmade to a caregiver will most likely result in no tax benefit atall. Payments to family members are not deductible, unlessmade to a family member who is a “licensed professional”for which such services are performed. Even if the paymentswere deductible, the elderly client would have to be ataxpayer with an income tax liability and who itemizes hisor her deductions and then would still be subject to the7.5 percent deduction from AGI as well as not be entitledto reimbursement by insurance, including medicare. As aresult, unless the payments to the caregiver are sufficient innature, and not made to a family member (unless he or she isa licensed professional), then in all likelihood the paymentswill not result in a deduction for tax purposes.Tax Consequences to CaregiversIndividuals are taxed on the compensation they receive forservices, whether that compensation is received in the formof cash, cash equivalents, property, or options to acquireproperty. As a result the recipient of the income will besubject to the following tax consequences:• Federal and State income taxes.• Social Security tax of 12.4% on the first $90,000of earnings.• Medicaid tax of 2.9% on all earnings.• Local taxes such as in the city of New York.• The city may charge a business license tax since in essencethe caregiver is conducting a business in the location wherethe services are performed.On the other hand, if the payments made were deemedgifts, then there would be no tax consequences at all.However, if Medicaid planning is the goal, then gifting isprobably no longer a reasonable alternative in light of thenew law (Deficit Reduction Act) effective February 8, 2006.Under the new law, the penalty period starts not from thedate of the gift as under the old law, but at the time theperson is in a nursing home and first qualifies for Medicaid.Consequently, the old gifting techniques, such as staggeredgifting or half-a-loaf approach will no longer be a viable as amethod for qualifying for Medicaid.Certainly if there is enough time to do some Medicaidplanning, the use of a caregiver agreement will indeed causethe elderly client to spend down all of his or her assets. Butwith the potentially high tax rates to the caregiver, one hasto determine whether the government will end up with theproceeds anyway. In other words, a calculation should bemade on the savings on income taxes to the client (if any) aswell as the tax consequences to the caregiver (assuming thatthe caregiver is a family member) to determine whether acaregiver contract will be worth it in the end. Recall that ifthe client’s longevity is questionable, income taxes may causeyour client’s caregiver to end up with less, as an inheritanceunder $2,000,000 is not subject to any tax at all.For example, assume that the client has an estate of$250,000 and a personal care contract is put in place onJanuary 1, 2007 to pay her daughter, who is an accountant,the sum of $50,000. Assume further that the client dies onJanuary 1, 2008. Because the $50,000 is paid to a familymember, it is not deductible to the client for income taxpurposes. It is, however, taxable income to the daughter.If daughter is married and they are in a high tax bracket,there will be FICA and Medicare taxes of 15.6 percent,federal income taxes of 34 percent; FUTA taxes (less thanone percent) and state income taxes which will vary byjurisdiction.In this case using the personal care contract for spendingdown saved nothing with respect to Medicaid and thecontinued on page 3231

Tax Issues for Personal Service Contracts continued from page 31any Medicare or Social Security tax, but the client is stillresponsible for paying the client’s share (7.65 percent of thewage base).The caregiver does not have to include in income the valueof food and lodging as well as reimbursement for parking inthe amount of $205 per month. Additionally, a caregiver canbe reimbursed tax-free for a transit pass for a bus or train inthe amount of $105 per month.The client is required to file a W-2 for any caregiver whoseSocial Security and Medicare wages were $1500 or more forthe 2006 calendar year, otherwise a 1099 should be filed,if the wages paid exceeded $600 during the calendar year.However, if both the client and caregiver agreed to withholdincome tax, then a W-2 would be required even if $1500 inwages were not paid.If there is no income tax withholding the client can eitherpay the payroll taxes quarterly basis or all at once on April15th of the year subsequent to the time the wages were paid.Each State will vary in their payment requirements, butwill generally be on a quarterly basis. The client is requiredto report the wages on Schedule H with his or her federalincome tax return. If no return is due, then Schedule H canbe filed separately.If there is income tax withholding and the withholding forall federal payroll taxes is under $50,000 a year, the clientwill have to make deposits of all the taxes on a monthly basisfor federal taxes and will have to check the state withholdingrequirements, which will most likely be on a monthly basis.What are the tax consequences to the Elderly Client withrespect to the payment for a Caregiver Contract?Assuming that the elderly client files his or her own taxreturn, and doesn’t qualify as a dependent of another, theclient may be entitled to deduct some of the payment asa medical expense under Internal Revenue Code (IRC)Section 213. However, the elderly client must show that theexpenditure qualifies as a medical expense. In the case ofpayments for caregivers, this should not present much of aproblem as payments for “qualified long-term cares services”are within the definition of medical expenses, as are variouscapital improvements to the family home to accommodatethe elderly client. If the payment is “capital” in nature, thecosts for the improvement would be added to the basis of theasset to the extent that the fair market value of the propertyhas not been increased as a result of the capital improvement.Long term care services are defined as those serviceswhich are “necessary diagnostic, preventive, therapeutic,curing, treating, mitigating, and rehabilitative services, andmaintenance or personal care services.” However, this assumesthat the services are provided to a chronically ill individual.The term chronically ill means any individual who has beencertified by a licensed health care practitioner as:“(i)being unable to perform (without substantial assistancefrom another individual) at least 2 activities of daily livingfor a period of at least 90 days due to a loss of functionalcapacity...or(iii) requiring substantial supervision to protect suchindividual from threats to health and safety due to severecognitive impairment.”It should be fairly easy for most elderly clients to comewithin the ambit of the statute. First, the elderly client mustnot be able to perform at least two activities of daily living,which would include, dressing, bathing, cooking, eating,normal bathroom functions or even just getting up from achair. Secondly, this must be documented by a licensed healthcare practitioner such as a doctor, nurse or social workerand this must be done on an annual basis. Assuming theabove requirements are met then the expenditures for suchservices should be deductible as a medical expense under IRCSection 2l3.However, there is an important exception in the IRC whichdisallows any payments to family members or other relativesfor caregiver services as a medical deduction. A relative isdefined as any spouse, lineal descendant, brother or sister(includes half-brother or half-sister), and various entities,including corporations, trusts or partnerships in which anyof the above individuals own more than a 50 percent interest.In essence, if the elderly client pays his child or brother totake care of him or her, then that client is not entitled to amedical expense deduction. The only exception is where thefamily caregiver is a “licensed professional with respect to suchservice,” in which case a deduction will be allowed.Even assuming that the payment is deductible under theabove tests, there are two additional limitations. First, thededuction is commonly referred to by tax practitioners as a“below the line deduction” which means it is deductible fromAdjusted Gross Income (AGI), or is classified as an itemized32

continued from page 32Rob LaMasterManaging Director$50,000 payment to the daughter resulted in at least $25,000in taxes, which would not have been paid if no caretakercontract had been entered into, as the inheritance wouldhave been tax-free.i See IRS Publication 926 and Rev. Rul. 80-365, 1955-2 C.B. 396.ii For a number of years the IRS took the position that there were 20 factors toapply to classify a worker, albeit some of the tests were more important thanothers. See Rev. Rul. 87-41, 1987-1 C.B. 296. As of October 30, 1996, the IRS hasacknowledged that the 20 common law factors listed in Rev. Rul. 87-41 are not theonly ones that may be important. The IRS Training Manual provides that the mostimportant test is control, and the agents are to look at three areas: (1) behavioralcontrol; (2) financial control; and (3) relationship of the parties. See EmploymentTax Handbook 104.6 Section 5.8.1 (04/21/1999).iii IRC Sections 213(d)(1)8 and 7702B(c)(1)-(3).iv IRC Section 7702B(c)(3).v IRC Section 7702B(c)(2)(A).vi IRC Section 7702(B)(c)(2)(B).vii IRC Sections 7702(B)(c)(4) and 7702B(c)(2)(A).viii IRC Section 213(d)(11)(A).ix IRC Section 213(d)(11)(A).x IRC Section 62(a).xi Kaplan, supra., at 544.xii IRC Section 61.xiii IRC Section 102(a). If the caregiver is a child and will receive an additionalinheritance, then the practitioner needs to be very careful if using a writtenagreement, as the IRS may attempt to deem the inheritance as compensation. SeeUnited States v. Dieter, 2003-1 U.S.T.C. & 50,439 (D. Minn 2003). If a contract isnot used, then the caregiver may face a will contest by his or her siblings for undueinfluence and lack of capacity.xiv There will be considerable debate whether gifting through the use of annuities andAhalf-a-loaf@ gifting approach will work under the new law. Some commentatorsbelieve that Ahalf-a-loaf@ gifting is still possible, by having the elder care clientmake the gift just before he or she enters the nursing home and then have thedonees give back enough money to cover the proposed penalty period. Othercommentators believe that a gift can be made with enough money held backto purchase an annuity that would cover the period of ineligibility. Because theannuity is an exempt asset, the elderly person would still qualify for Medicaid.David Lee Rice, CELA, J.D., LLM is a principal in the law firmof David Lee Rice, APLC, in Torrance, California. Mr. Rice is aCertified ax Specialist in tax law and elder law. He is currentlyChair of the Board of Legal Specialization for the State of California;Third Vice Chair of the Los Angeles County Bar Association; ViceChair of the American Bar Association Income Tax Section; Memberof the Executive Committee of the Tax Section NAELA; Memberof the Executive Committee of the Tax Section of the Beverly HillsBar Association. Mr. Rice is a frequent lecturer on tax and eldercare matters.Joining the wonderfulstaff in Tucson, AZ is RobLaMaster, NAELA’s newManaging Director. Robis the primary staff contactwith the By-Laws, Finance,Member Relations,Professionalism and Ethics,and the Program andEducation Committees.He also works with theMember Discount Program and the TelephonicProgramming Sub-Committees. He supportsNAELA’s Executive Director, Susan McMahon,with Executive Committee and Board ofDirectors functions.Rob comes to NAELA with an extensivebackground in Association Management. Robwas most recently the Regional Director forthe National Traffic Safety Institute where heinteracted with over 50 Municipal and JusticeCourts as well as the Arizona Supreme Court forthe Arizona Defensive Driving Program.Rob has also held positions with the MuscularDystrophy Association, the Tucson MetropolitanChamber of Commerce and the Greater DallasChamber of Commerce.A native of Dallas, Texas, Rob attended TexasTech University, graduating with a Bachelorof Business degree in Marketing and a Masterof Arts in Interdisciplinary Studies, with anemphasis on Business, Political Science and MassCommunications.Rob is married to Karen, an OncologyPhysician Assistant (PA) and has a 13 year- olddaughter, Madison and two boxers, Nala andNelson. He is currently on the Board of theCanyon Del Oro Soccer Club and his localHomeowners Association.Rob loves to play golf (not well), hike and isan avid sports fan. His main hobby these daysthough seems to be driving to and from soccertournaments and middle school volleyball games.33

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Thankyouto everyonewho made the2007 NAELASymposium asuccess!