(Shhhhh…..) Client vs. Lawyer: TMI

January 29, 2016

by Lawyers With Purpose with No Comment Estate Planning Drafting Software Systems & Processes VA

The best way to illustrate the topic of this post is with the following joke:

A man is flying in a hot air balloon when he realizes he is lost. He reduces his altitude and spots a man in a field below. He lowers the balloon toward the man and shouts to him, “Excuse me, can you help me? I am late to meet a friend, but I don’t know where I am.”

The man below says, “I’m happy to help. You are in a hot air balloon, hovering approximately 30 feet above this field. You are between 40 and 42 degrees N. latitude, and between 58 and 60 degrees W. longitude.”

After a brief pause, the balloonist declares: “You must be a lawyer.”

“I am” replies the man. “How did you know?”

“Well,” says the balloonist, “everything you have told me I am sure is technically correct, but I have no idea what to make of your information, and the fact is I am still lost.”

The man below responds, “Indeed. And you … you must be a client.”

“Why, yes, I am,” replies the balloonist, “how in the world did you know?”

“Well,” says the man, “you don’t know where you are, or where you are going. You have made a promise that you have no idea how to keep, and you expect me to solve your problem. The fact is you are in the exact same position you were in before we met, but now it is somehow my fault.”

(From http://www.milwaukee-business-lawyer.com/my-favorite-lawyerclient-joke/)

Funny, right? But how true! Most of our clients and their families come to us for answers or solutions in the form of information, but sometimes the very information for which they pay us, and that they desperately need, is the source of much frustration and confusion for them. Why is that and what can you do to remedy the situation? One of the most common issues that may occur when relaying information to a client regarding a VA claim is giving too much or too little information. You can also have problems if you do not time the release of information correctly, or worse yet, give out the wrong information.

Some of this is undoubtedly beyond one’s control. For example, gauging the amount of information that your client is going to expect and want has a lot to do with that individual’s particular personality or social style. You can often tell from initial contact if your client or client’s family is going to participate actively in their planning and the application process versus how much they want you to just take care of everything and leave them out of it. Thus you may have to adjust your response and the amount of information you provide to meet individual needs on a client-to-client basis. As a good baseline, resist the urge to discuss how the sausage is made. I actually prefer clients who are engaged in the process and seek to comprehend the information they are given. Clients like this can be strong allies in the process of getting a VA claim completed and filed, as well as great referral sources because they appreciate how much work is entailed.

However, regardless of what the client may want, there is obviously a lawyer’s duty to the clients to keep them informed concerning their representation. Per the Preamble of the American Bar Association’s Model Rules of Professional Conduct, a lawyer's responsibilities include the following: “As advisor, a lawyer provides a client with an informed understanding of the client's legal rights and obligations and explains their practical implications. . . . As an evaluator, a lawyer acts by examining a client's legal affairs and reporting about them to the client or to others.” At the very least, someone in the family has to be made aware of the most basic information regarding the legal services you are performing for them: what you are doing, what is happening next, and what to do if circumstances change.

While you can’t always choose the personality of your client, factors like bad timing of information or giving out wrong information are largely ones that you should be able to control. By bad timing, I mean giving information when it is not required at that particular moment. This could be as simple as explaining the VA appeals process when you haven’t even filed an “Intent to file claim” form yet. It could also be giving necessary information too late to be of use. The best way to avoid either is to anchor back to your VA process and advise and inform your client at every major step as to what you have just done and what to expect next. Also systematize what information should be given at each stage using client handouts, correspondence templates, etc., so the client receives the information when needed and not afterwards. While there is no problem with giving the client an overall summary of the process, avoid giving too much information for future stages in the process that may in fact never occur.

The problem with giving a client the wrong information should be self-evident. The rules and laws impacting VA eligibility can be complex, but there is a wealth of resources online, including original sources like the Code of Federal Regulations and the VA Adjudication manuals, both of which are available at the VA’s Web Automated Reference Material System and which should be consulted regularly to ensure the accuracy of what you are telling your clients. Organizations like Lawyers with Purpose are also indispensable for the support they provide in the form of legal/technical learning opportunities and a network of colleagues facing the same challenges who are ready to answer your questions or act as a sounding board for your daily dilemmas. If you choose to make the time to use the resources available, you can ensure that you do not make the mistake of giving the wrong information.

Are you interested in learning more about the Lawyers With Purpose Estate Planning Trust Drafting Software? If so, click here and we'll hop on a call with you and show you how it works first hand! We think it's the best thing out there and are confident you will too after you see it for yourself. Click here now and we'll take it from there and start walking you through the difference it will make to your estate and/or elder law practice.

By Sabrina A. Scott, Paralegal, The Elder & Disability Law Firm of Victoria L. Collier, PC and Director of VA Services for Lawyers With Purpose.

Victoria L. Collier, Veteran of the United States Air Force, 1989-1995 and United States Army Reserves, 2001-2004. Victoria is a Certified Elder Law Attorney through the National Elder Law Foundation; Author of “47 Secret Veterans Benefits for Seniors”; Author of “Paying for Long Term Care: Financial Help for Wartime Veterans: The VA Aid & Attendance Benefit”; Founder of The Elder & Disability Law Firm of Victoria L. Collier, PC; Co-Founder of Lawyers with Purpose; and Co-Founder of Veterans Advocate Group of America.

Estate Planning & Tax Basis Basics

January 27, 2016

by David Zumpano with No Comment Asset Protection David J. Zumpano Estate Planning Drafting Software

When doing estate planning, it is critical that the attorney is aware of the basic tax basis issues and their impact on estate planning.

Tax “basis” is a term related to income taxes. The “tax basis” of an asset owned by an individual can change based upon the type of asset, when it was purchased, and the value at sale or death of the owner. So let's start with the basics. Most principal assets are purchased. This includes stocks, bonds, mutual funds, real estate, and even businesses, among other things. When you purchase a principal asset, the IRS looks at the value of that asset when purchased to determine what, if any, income tax should be paid when and if it is later sold. For example, if you buy a stock at $10 per share and hold it for a period of years and then sell it when it is worth $15 a share, the IRS will identify your tax basis as $10 and your sale value at $15 to net an income taxable amount of $5 per share (aka “capital gains”). Over the years, the government has taxed capital gains differently from ordinary income.

There are additional issues to consider with basis. For example, it can change if you own real estate, and if it is used as a business (rented out to others), you can “depreciate” the real property. Depreciation is a non-cash-flow expense against your income. For example if you buy a commercial building for $250,000 and rent it out, in addition to the regular expenses incurred each year from your cash flow, including interest, taxes, insurance, utilities, and general maintenance, the IRS also allows you to take a depreciation expense that represents a percentage of the value of the real estate. Traditionally, depreciation periods are over 27½ or 39½ years. So a $250,000 building divided by 39½ years provides for the annual depreciation amount of $6,329. While the IRS allows you this deduction, you do not have to pay anybody anything to get the deduction. In contrast, however, the $6,239 depreciation deduction reduces your basis in the real estate. So, for income tax purposes, your building no longer has a basis of $250,000, but now $243,761. As you continue to own the building and take the depreciation expense, your tax basis in the real estate continues to decrease, thereby leading to a greater potential income tax when the property is later sold. If the property had been depreciated for 10 years, the basis would have been reduced by $63,390, netting a new tax basis of $186,710. If later sold for $350,000, a capital gain will be assessed on the difference between the sales price and no adjusted basis ($163,290), not the original purchased price and sales price ($100,000).

Finally, it is important to note as an estate planner that tax basis gets automatically “stepped up” if you own the asset at death. Under the previous scenario, if you bought a stock for $10 that grew to $15 or you owned a piece of property that you paid $250,000 for and depreciated $63,000, when you die, both are revalued at your date of death and the values are included in your taxable estate for estate tax purposes. The good news is their estate tax does not trigger any actual payment requirement unless the estate exceeds $5,430,000. Conversely, while it does not incur an estate tax, the beneficiaries get a “step up” in basis after the death of the original owner to the value at date of death, so any subsequent sale after death will yield no income taxes. When planning, sometimes holding assets until after death has a strategic advantage if they are significantly appreciated.

This is also true in charitable planning. If assets that have been appreciated are donated to charity prior to death, the donor will receive an income tax charitable deduction equal to the fair market value, not the tax basis, but there are limitations on the charitable deduction if the contribution was made from appreciated assets. A charitable contribution made with a full basis asset (i.e. cash) can be deducted up to 50 percent of the donor’s adjusted gross income, whereas the deduction for a charitable donation of appreciated property is limited to 30 percent of adjusted gross income. The biggest advantage, however, comes from individuals waiting until after death to convey their highly appreciated assets, so no capital gains tax is incurred to the client (because they didn’t sell it during life) nor the beneficiary (because they received a “step up” in basis). Understanding tax basics is critical to ensure that you always consider the income tax impacts when signing in the short and long term for a client.

If you are interested in learning more about Lawyers With Purpose and in particular how our Client Centered Estate Planning Drafting Software can make a difference in your estate and/or elder law practice, just click here and schedule a day/time that works for you to discover it for yourself – first hand. Just show up with any questions you have! We've got the answers!

David J. Zumpano, Esq, CPA, Co-founder Lawyers With Purpose, Founder and Senior Partner of Estate Planning Law Center

Will You Be In The Conference Room or The Courtroom Resolving The Estate?

January 19, 2016

by David Zumpano with No Comment Asset Protection David J. Zumpano Estate Planning Drafting Software

Many clients understand the benefits of trusts because of the past 25 years of the marketing of revocable living trusts. Clients, however, don't always understand what makes trusts work. Still today, many lawyers draft simple trusts that are little more than a "fill in the blank" form in an attempt to "avoid probate." Even if attorneys are able to deliver higher-quality trusts, many still fail to fund them. This leads to the greatest challenge of all. After death, will the client's family be in a courtroom trying to resolve the estate or will it happen in your conference room? The worst part is, most attorneys don’t think they have a "fill in the blank" trust, because they have a document creation system from XYZ Estate Planning organization. Surely they know what they are doing!

The key to the answer will depend upon the terms of the trust created, and the integration of the financial assets into the plan to ensure probate is avoided and the full benefits of the trust are accomplished. Unfortunately, most advanced trust systems are nothing more than a higher-level "fill in the blank" trust and usually create around the attorney’s needs, not the client's. That inevitably leads to other challenges.

The next question in trust planning centers around the after-death provisions in a living trust. A lot of control and latitude can be provided to the family members of a decedent if the trust was properly drafted and funded. The specific powers you grant to the after-death trustees, in addition to the specific manner in which the assets can be distributed, can also have a significant impact. For example, a majority of practitioners still continue to deliver the trust assets to the beneficiaries outright after the death of the grantor. While this is simple, it requires a whole other estate planning endeavor for the beneficiary that didn’t have to happen. While that puts more money in the beneficiaries’ pocket, I am not sure it is the best way to meet the client’s overall goal.

Another strategy to consider while drafting revocable living trusts is to transfer the assets to a separate share asset protection trust for each of the beneficiaries. This assures that the client's ultimate goals of protecting their assets for their loved ones – and perhaps from their loved ones – can be achieved. Obviously this can’t be achieved in the "fill in the blank" trusts many lawyers use, and not easily in the lawyer-centered document systems.

Don't go it alone. Let Lawyers with Purpose help you sort this out in a systemized and organized fashion that includes the legal technical training, comprehensive customization of trusts and particular drafting available to accomplish the myriad needs of the clients’ overall planning strategy – and helps them sleep at night. Don't go it alone. Join us for the legal technical, practice management, and marketing strategies to be a comprehensive solution to your client.

If you're at all interested in joining Lawyers With Purpose and making 2016 your best year yet – we'd like to invite you to a webinar THIS FRIDAY, January 22nd at 2 EST. Register now for "How You Can Have the Business, the Income and the Life that You Once Dreamed About When You First Started Your Practice" and see how we can help you make it happen once and for all!

David J. Zumpano, Esq, CPA, Co-founder Lawyers With Purpose, Founder and Senior Partner of Estate Planning Law Center

What David Bowie Taught Us About Personal Care Plans

January 11, 2016

by David Zumpano with 2 Comments Asset Protection Estate Planning Drafting Software

I was in 5^th grade when I got my first ghetto blaster. It was pink and came from Santa wrapped up with a David Bowie cassette tape. I played “Dancing in the Street” on that ghetto blaster, danced around my room and stared at my David Bowie poster what seemed like a million times. He was an icon. His music masterfully took over MTV during the time period when MTV played music videos. He was able to paint the exact picture he desired his audiences to see. A talent he held even in death. David Bowie fought cancer for 18 months privately and died in his home, peacefully, surrounded by family. With the help of his wife, Iman, and children David died exactly as he lived … on his own terms.

As soon as I read of the way that he passed, I instantly knew that David had a personal care plan. He decided exactly who he wanted around him at death. It has been reported that when he got too sick to go to his favorite pub for his favorite sandwiches, assistants would go pick them up for him. When facing a chronic disease, there is so little we can control, but isn’t it nice to know that we can plan to be as comfortable as possible, surrounded by the things and people we love and sheltered from those we do not want around.

Personal care plans are an amazing, yet largely overlooked, estate planning tool. While having our finances in order is critical, knowing we will pass with the comforts and dignity we deserve can offer more assurance than any other portion of a well-made plan. Early in my career, I largely disregarded the personal care plan as an ancillary document not necessary. But, as I watched client after client pass in various ways under various circumstances, I saw over and over not only the comfort it brought to the ill party, but the guidance and assurance it brought to family members that they were honoring their loved one as he would have wanted.

A well written personal care plan allows a client the ability to guide who visits during end stages of life. It guides the determination of when and in what condition the person wishes to be taken out in public. It allows a person to select what food, drinks, television shows, books and entertainment he wants available when he can no longer articulate such things. It lists religious preferences and whether or not one wishes to attend church services.

Personal care plans also offer the ability to appoint one’s own disability panel. This disability panel is a group of individuals in someone’s life who will decide when a person is incompetent for purposes of any trust in which his estate is held. What a power! Now this person has kept his life from going on display as a Judge who knows little about him determines his competence. Instead the decision is made by a hand selected group of loved, trusted people in a private manner.

On his 50^th birthday, David Bowie stood in Madison Square Garden and said, “I don’t know where I’m going from here, but I promise it won’t be boring.” And, it wasn’t. He left us on top of the charts and under his own terms. As LWP attorneys, how great is it that we make sure our clients pass with the same dignity? And we have everything we need to do it right at our fingertips within the drafting software…

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Kimberly Brannon, Legal-Technical & Software, Lawyers With Purpose

Revoking An Irrevocable Trust

January 6, 2016

by David Zumpano with No Comment Asset Protection David J. Zumpano Estate Planning Drafting Software

Did you ever wonder if you can revoke an irrevocable trust? The bigger question is, why would you want to? Didn't the grantor set it up to ensure it's not revoked? All good questions, but you never know.

Many clients' biggest concern with creating irrevocable trusts is, “what if something happens” they never expected. As estate planning attorneys, we are able to calm client fears by expressing that an IPug® trust can permit them, as grantor, to retain rights to the income and continue for their life to continue all their assets and retain the complete authority to distribute the principal to anyone they choose at any time, other than themselves or their spouses (if Medicaid eligibility is a goal). Inevitably, there's always one client who worries they might need it.

A typical response is, they can distribute it to their kids and the kids can give it back. While this is true, it is not a foolproof planning strategy, as we cannot be assured that the children will actually give it to them in the manner the grantor so desired. More commonly, the need to revoke an irrevocable trust occurs if the client falls ill and needs long-term care prior to the five-year look-back period running. To “cure” the transfer to the irrevocable trust, one seeks to revoke the irrevocable trust in whole or in part, to ensure funds are given back to the grantor to pay through any penalty period caused by the transfer of assets that remain in the IPug. The question becomes, can you revoke an irrevocable trust?

The answer is, it depends on your state law. In most states, an irrevocable trust can be modified or revoked (completely or partially) if all of the parties consent. In an IPug trust, however, you do not need all of the parties to consent to modify the trust, as the grantor retains a non-generated power of appointment that allows the grantor the full rights to modify the trust beneficiaries in any way, shape or form, including the ability to modify the timing, manner and method of distribution to the beneficiaries. But one unbending restriction is that the grantor can never change the trust to give himself or herself access to the principal.

So who are considered the parties to the trust? Generally, the parties consist of the grantor, the trustee, and all of the beneficiaries. When drafting an irrevocable IPug trust, the grantor and trustee is traditionally the client. Therefore two out of the three can be accomplished with just the grantor. Further, getting consent of all of the beneficiaries traditionally includes the grantor, as they may be an income beneficiary during their life. The distinction then becomes, who else are the beneficiaries?

When considering those who are responsible to consent to a modification or revocation, one must look to the trust terms to determine if an individual is a present beneficiary, a residuary beneficiary, or a contingent beneficiary. Generally, most states require the consent of the present and residuary beneficiaries. Consent will not be required from any beneficiaries whose interest is not affected by the amendment or revocation. Some states, however, require even the consent of the contingent beneficiaries. Contingent beneficiaries are those who would receive the benefit from the trust if the present interest or residuary beneficiaries were not able to. Typically, this would be the children beneficiaries where a "per stirpes" distribution is provided for.

This can become very problematic if you need contingent beneficiaries’ consent, because most would be a minor and unable to consent. Then you would need to look to state law to see if a parent can consent on behalf of a child. In most states, since it's a property interest, parents do not automatically have the legal right to affect the property interests of their children, just guardianship over their “person.” The strategy with an IPug is to utilize the retained power of appointment to remove all beneficiaries except one, and then get that one named beneficiary to consent to the modification. After the modification is accomplished, the grantor can again modify the trust and rename all of the original beneficiaries if desired. Where it can get complicated is if any of the parties are deceased. Generally speaking, if a party is deceased, then the contingent beneficiaries would be required.

The bigger challenge is if the grantor is deceased. While a strong argument can be made that consent of the beneficiaries who ultimately benefit from the trust should be enough, it is very difficult to overcome a challenge that an irrevocable trust in the absence of the grantor who created it was meant to remain unchanged. It is presumed in the creation of the trust that the intentions of the grantor will be maintained in their absence. If you want to ensure that it can be modified after a grantor’s death or incompetence, your irrevocable trust should authorize a modification with the consent of the beneficiaries in the absence of the grantor by virtue of incompetency or death. You must, however, in all circumstances ensure that no modification can be made to permit the grantor to have access to the principle. Doing so would invalidate all of the protections originally sought by the irrevocable trust.

In a handful of states, consent of the parties is not sufficient to modify an irrevocable trust and consent from the court is required. This is a much more difficult approach, if for no other reason than the time it takes to get the court's consent, and the possible consequences or loss of assets caused by the delay. The cost by utilizing courts can be counter to the client's “protection” goal. That's obviously on a state by state and court by court basis. So if you're doing this planning, know your state's rules. The good news is that it is rare, if ever, that you need to revoke an IPug trust, and if you need to, it is quite simple to do by minimizing the beneficiaries through your power of appointment.

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David J. Zumpano, Esq, CPA, Co-founder Lawyers With Purpose, Founder and Senior Partner of Estate Planning Law Center

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Getting the Physician Form Right for Aid and Attendance

January 4, 2016

by Lawyers With Purpose with 6 Comments Estate Planning Drafting Software Legal Technical VA

Purpose of the 21-2680:

The VA form 21-2680 “Examination for Housebound Status or Permanent Need for Regular Aid and Attendance” is used to document the level of care required by a claimant or a claimant’s dependent. The VA form 21-2680 is completed by a physician based on his/her medical evaluation of the patient. The importance of documenting the level of care is two-fold:

To support a claim for additional pension above and beyond the base level AND
To support the need for certain medical expenses.

There are three levels of non-service-connected pension that a claimant may qualify for: base pension, housebound, and aid and attendance. The base pension is the lowest pension that a claimant may be awarded. Additional funds are granted if you can document that the claimant is housebound, and even more funds go to those requiring another individual to assist with at least two activities of daily living (ADLs). The VA also looks at level of care when considering medical expenses to offset income. Therefore, the VA form 21-2680 should document the level of care that justifies the medical expenses being declared. This applies to the claimant’s dependents as much as the claimant. So for example, the VA will not consider the assisted living facility expense for a veteran’s spouse unless a form 21-2680 is also completed for the spouse indicating the need for the facility to assist with at least two ADLs.

Completing the 21-2680:

The VA form 21-2680 is relatively short (two pages) and is to be completed by a third party – that is, a physician. All you need to complete the form is the veteran’s and claimant’s – if other than the veteran – name(s), Social Security number(s), and address. When you are completing the form for a living veteran’s spouse or other dependent, it is that person's name that appears in the field that requests the name of the claimant, even though, strictly speaking, the claimant is the living veteran. When downloaded from the VA website at http://www.va.gov/vaforms/, the 21-2680 has no separate instruction pages. It does state its purpose near the top of the first page: “The purpose of this examination is to record manifestations and findings pertinent to the question of whether the claimant is housebound (confined to the home or immediate premises) or in need of the regular aid and attendance of another person.”

Despite the fact that you are not completing this form yourself, you should still review all 21-2680s once completed by the physician and before submitting to the VA so that you can confirm that every field is answered and that further explanation is provided when required by the instructions. Form 21-2680 should be signed by a physician because the signatures of nurse practitioners or physician’s assistants are not acceptable. Errors and omissions of this type should be corrected before filing the claim or you may risk a delay. Most importantly, you should also confirm whether the form 21-2680 does in fact document the claimant’s housebound status or the need for aid and attendance.

Housebound status is documented by the physician’s answer to field 33, “Describe how often per day or week and under what circumstances the claimant is able to leave the home or immediate premises.” A clear indication of housebound status would include a statement from the physician such as, “Patient no longer drives and relies solely on caregivers to attend necessary doctor appointments.” The VA form 21-2680 will support the need for aid and attendance, if it provides clear evidence that the claimant needs assistance with at least two ADLs. Acceptable ADLs are bathing/showering, dressing, eating, getting in/out of bed or chair, and using the toilet. The following are not considered ADLs by the VA: walking, medication administration, meal preparation, and protective environment only. This is very important in the case of independent living facilities, the expense of which will not be considered by the VA unless the 21-2680 documents that such a facility provides a protective environment and custodial care that is supplemented by a third party providing the assistance with two or more ADLs. Otherwise the cost of the independent living facility may be considered merely rent and thus not a deductible medical expense. A clear indication of the need for aid and attendance would be input into box #25, where it asks if the claimant needs a nursing home. The answer to that question may be “no.” However, the physician should write out to the side something like, “Patient needs to live at ABC facility for a protected environment, custodial care and assistance with ADLs.”

Because of the importance of using the right language on the VA form 21-2680, the software developed by Lawyers with Purpose to complete VA claim forms produces a sample VA form 21-2680 with recommended verbiage and other guidance for the most important fields. This sample can be provided along with a blank form to the doctor for guidance with instructions that can be used if the doctor feels it applies. If the doctor does not believe that it applies, it may be that your client simply does not qualify for as high a level of care. You may still be able to file for base pension or plan to follow up with the client periodically to check if medical needs have increased.

What to file with the 21-2680

Other than the regular VA application forms, nothing else is required to be filed with this form. However, if you feel that your completed VA form 21-2680 is weak in areas, but you believe that your client’s medical condition warrants aid and attendance, you can add supporting medical records. This form should be submitted as part of a fully developed claim in order to expedite the processing. As a reminder, you may not need to file a VA form 21-2680 if your claimant is only seeking base pension. And a 21-2680 does not need to be filed if you are filing the VA form 21-0779 because the latter documents that the claimant is in a nursing home and requires skilled nursing care, and thus by definition has a permanent need for regular aid and attendance. This will however not stop some VA adjudicators from requesting the 21-2680 form nonetheless, so we generally request all of our VA clients to get one completed as soon as they have retained us – particularly because it can take some time to get the completed form back from the doctor.

Always remember that this form can be used for both supporting a claim for higher levels of pension and the need for certain medical expenses. Keep those two purposes in mind when you are deciding whether or not the VA form 21-2680 needs to be included as part of your VA claim, and when reviewing their completion by a third party to make sure there are not unexpected results with your claim.

If you want to see first hand how the LWP-CCS Drafting Software works with VA form 21-2680 – along with the thousands of other things it has to offer you're estate and elder law practice – click here to schedule a live software demo.

By Sabrina A. Scott, Paralegal, The Elder & Disability Law Firm of Victoria L. Collier, PC and Director of VA Services for Lawyers With Purpose.

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Seven Business Lessons from Celine Dion

January 2, 2016

by Lawyers With Purpose with 2 Comments Coaching & Implementation Estate Planning Drafting Software

While on business in Las Vegas, I was at dinner with friends and colleagues sharing our dreams. I mentioned that the one thing I would love to do while in town was to see Celine Dion perform at Caesar’s Palace. Before I knew it, I had fourth row center seats for the show the very next night. I was so excited and ready to be entertained. Surprisingly, Celine’s performance also taught me a tremendous amount on how to really run a business. The lessons below are listed in order of how I recognized them during the concert, but in no other order of priority.

Bigstock-Vector-illustration-of-realist-90391868 The LessThe Lessons:

Give it your all! With every song (every client), put everything you have into that relationship. As far as the client knows, they are your only client and want your full attention to every detail. Celine would not sing one song really great, then only half-heartedly sing another. She poured everything she had into every song.
Be passionate. It is clear that Celine loves performing and puts a lot of emotion into her shows. As estate planning and elder care attorneys, we meet people who are desperate for our services. The least we can provide is an appearance that we are passionate about what we do and how we do it. After I give seminars, I frequently get comments such as, “I can really tell you love what you do.” And it is true. When you are passionate about what you do, the client can tell and it really enhances their experience.
Take necessary breaks. The concert was no more than two hours, yet Celine must have taken at least four breaks. During her breaks, she would change clothes and get ready for the next set of songs. She would recharge and show up differently, but with the same passion and energy. As lawyers, we have the opportunity to take mini-breaks between clients to recharge. On a larger scale, we should be taking vacations throughout the year. I hear from lawyers fairly regularly, “I haven’t taken a vacation in five years.” My first question is, “Why?” Without taking breaks, it is nearly impossible to give it your all because you are exhausted and running on nothing.
Get comfortable with being personal and vulnerable. Celine’s husband has cancer and is dying. She has just returned from taking a year off from the stage so she could be with him. They decided it was time for her to return to her audience. Being away from him scares her, and she shared that with us before singing a really emotional song. Our clients share a lot of sensitive information with us about their families and their lives. How can we share ourselves with them in a meaningful way? At appropriate times, we can share our stories. During my seminars, I always mention that my father died at the age of 68 with congestive heart failure. It shows that I, too, have been a caregiver and understand losing a family member. Find a way to be personal with your clients.
Give more than expected. All good lawyers can draft documents and put an estate plan together. It is the great lawyers who do more, and give more, than what the client paid you to do. When the concert is over, the last song is sung, the lights go out. The audience lingers and hopes for something more, one more song. The great performers oblige, as did Celine, coming back to sing signature songs. Not all performers do. Not all lawyers do. What is your signature piece? When we sign estate planning documents, we always give our clients a special “pen in a box” that has our firm’s information on it. But the pen is different from the ones I regularly hand out like candy. This new pen is a different color and in a box presented at the end in a ceremonious manner. It is giving more than expected.
Have fun and enjoy what you do. Showing up and giving it your all every day is difficult work. It can suck the life out of you if you don’t enjoy it or find ways to have fun. While performing, Celine shocked the crowd and walked down the aisle singing and taking “selfies” with audience members. It was clear she was having as much fun as the audience, really creating a memorable experience for all. When my law firm is on retreat together, we always make sure to take silly pictures and enjoy an evening together.
Have strong backup support. We all know who we are going to see for the night: Celine Dion! But Celine is not the only one on stage; she has an abundance of support around her. Moreover, while she was backstage on break changing attire, she had performers continuing to keep us entertained in her absence. It is no different for us as attorneys. Our team keeps our clients “entertained” in our absence. Our client services coordinator is our opening act, and our estate planning and government assistance paralegals keep our clients happy while we change attire. In my office, my team even shows up on stage to deliver our workshops. Who do you have for support so you can give it your all, be passionate and take breaks to rejuvenate?

Celine Dion is amazing and I highly recommend seeing her performance if you find yourself in Las Vegas. Between now and then, you too can be amazing and give your clients the best show in town. With so many to choose from, taking these lessons from Celine Dion can really help you stand out from the others and leave your clients feeling special.

It’s time to stop just "thinking" about becoming a Lawyers With Purpose Member. Becoming a member will forever change your practice. You owe it to yourself to spend a few minutes reading through this page: www.joinlwp.com. Join us in 2016! And of course if you have ANY questions or concerns, just pick up the phone and call Molly Hall at 877-299-0326 x 102 and hammer out anything holding you back.

Victoria L. Collier, Co-Founder, Lawyers with Purpose, LLC, www.LawyersWithPurpose.com; Certified Elder Law Attorney through the National Elder Law Foundation; Fellow of the National Academy of Elder Law Attorneys; Founder and Managing Attorney of The Elder & Disability Law Firm of Victoria L. Collier, PC, www.ElderLawGeorgia.com; Co-Founder of Veterans Advocates Group of America; Entrepreneur; Author; and nationally renowned Presenter.

Irrevocable Trusts After Divorce

December 29, 2015

by David Zumpano with One Comment Asset Protection David J. Zumpano Estate Planning Drafting Software

Many clients I come across as an estate planning attorney have been married for 30 or more years. I recall once when a couple who had been married for 37 years came into my office to engage in estate planning. I encouraged them to plan for remarriage if either of them died. They both giggled and laughed and said, oh my gosh, how silly. We don't need that. We're very confident in each other that each of us will take care of our kids and not be influenced by a new relationship.

In a weird twist of fate, six months after completing their plan, the husband came back in with a blonde bombshell 20 years his junior at his side. He explained to me that, soon after executing the plan with us, his wife contracted cancer and died within three months. Now, three months after that, he had this newfound “friend,” and he was asking me to change his trust to make her a beneficiary and not his children. I reminded him of the planning he and his wife set out, and he was adamant to say, “Nope, we decided we could do whatever we wanted.” Unfortunately, his version of whatever he wanted and his wife’s were different for me than they were for him.

Needless to say, I refused to do the work; he fired me and found another lawyer to make his modifications. The LWP™ Client Centered Software has extensive remarriage planning options – but it also has provisions to address if a husband and wife that we did estate planning for decide to divorce before they die. I've had this happen on a couple of occasions.

The key question you must ask yourself in this situation is, what type of planning did the client do? If your client did traditional estate planning consisting of wills, healthcare proxies, powers of attorney or a revocable trust, then it becomes critical after a divorce to amend those plans to accommodate each spouse’s new goals separately. But, what if your married clients did an irrevocable asset protection trust as part of their planning?

In the Lawyers with Purpose Client Centered Software (LWP-CCS) system, the traditional trust we would use to protect against creditors, predators and to ensure the client is eligible for Medicaid and other needs-based benefits is an IPug®, which is an Irrevocable Pure Grantor Trust®. If you think about it, an IPug trust or other asset protection trust is set up to protect against creditors and predators and to ensure that the client is eligible for state-funded long-term care benefits should the need arise. But what about protecting from each other? A properly drawn IPug protection trust provides the terms for a divorce. The trust clearly identifies the beneficiaries of the irrevocable trust during the couple’s life and after their death. Interestingly, the LWP-CCS has a customized divorce provision in the trust that ensures that, if the grantors divorce, the trust bifurcates and all of the terms and provisions related to each spouse apply to them in the separate trusts. Further, the provision eliminates all references to spouse, and thereby creates the trust for the other beneficiaries as if the spouse were deceased. So, the question becomes, what does it mean when the trust bifurcates and thereafter is managed in accordance with all of the other trust term provisions? That's where the drafting of your IPug trust becomes critical.

In the LWP-CCS trust system, you are able to customize the contributions of each spouse and include them on separate and/or joint schedules. In addition, the question of whether you design the trust to separate a deceased spouse's assets for the benefit of the surviving spouse will be critical in determining what happens in the case of a divorce. By separating assets into two schedules, bifurcated trusts are created. Each spouse then manages his or her funds through the bifurcated trust. This ensures that, when a spouse passes a way, all assets of the individual deceased spouse will be allocated to the separate bifurcated trust, thereby sheltering said assets from the living spouses subsequent remarriage and divorce. The trust further includes protective provisions regarding divorce for the trust beneficiaries through the disability panel, specific bequests and other customizations.

So, as estate “planning” attorneys, we must not only be concerned about protecting the assets from our client's remarriage after the loss of their spouse, we can also ensure that proper divorce planning is accomplished at the same time. Hey, like Prego spaghetti sauce, it's in there. The LWP-CCS has you covered. Hopefully they'll never have to use it, but for those few times it happens, it's nice to know there'll be one less thing to worry about.

In the LWP-CCS trust system, you are able to customize the contributions of each spouse and include them on separate and/or joint schedules. In addition, the question of whether you design the trust to separate a deceased spouse's assets for the benefit of the surviving spouse will be critical in determining what happens in the case of a divorce. By separating assets into two schedules, bifurcated trusts are created. Each spouse then manages his or her funds through the bifurcated trust. This ensures that, when a spouse passes away, all assets of the individual deceased spouse will be allocated to the separate bifurcated trust, thereby sheltering said assets from the living spouses subsequent remarriage and divorce. the trust further includes protective provisions regarding divorce for the trust beneficiaries through the disability panel, specific bequests and other customizations.

It’s time to check out what becoming a Lawyers With Purpose Member would look like for you and your practice. If you’re even at all curious about what we offer in the Lawyers With Purpose program and how becoming a member will forever change your practice, you owe it to yourself to spend a few minutes reading through this page: www.joinlwp.com. Make a change in your practice for 2016 and join us!

David J. Zumpano, Esq, CPA, Co-founder Lawyers With Purpose, Founder and Senior Partner of Estate Planning Law Center

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Skilled Nursing at VA Expense

December 26, 2015

by Lawyers With Purpose with One Comment Asset Protection Estate Planning Drafting Software Legal Technical VA

“But I won’t ever need Medicaid. I’ll be in a VA nursing home.” You may have heard this before from a client in your attempts to consider the possible need for Medicaid in a veteran’s estate planning. Hopefully the client will never require skilled nursing care, but the reality is that the VA will only pay for or subsidize veterans who need nursing home care due to a service-connected disability or any vet with a combined service-connected disability rating of 70% or more and who need skilled nursing care. The VA only provides nursing home care for individuals in other categories IF beds and resources are available.

First, what do we mean by skilled nursing care and what exactly is a VA nursing home? Medicare.gov defines skilled nursing care as “Care given or supervised by registered nurses. Nurses provide direct care; manage, observe, and evaluate a patient’s care; and teach the patient and his or her family caregiver.” It goes on to say, “Any service that could be done safely by a non-medical person (or by yourself) without the supervision of a nurse isn’t skilled nursing care.” Title 38, Chapter 1 of the Code of Federal Regulations, which relates to the VA, defines a nursing home as:

(1) Any extended care facility which is licensed by a State to provide skilled or intermediate-level nursing care,

(2) A nursing home care unit in a State veterans' home which is approved for payment under 38 U.S.C. 1742, or

(3) A Department of Veterans Affairs Nursing Home Care Unit. [38 CFR 3.1(z)]

The first type of nursing home is one not affiliated with the VA at all. These are private facilities, and probably the majority of nursing homes in which your clients may reside are of this kind. The second type of nursing home is a state veterans’ home that is owned, operated and managed by the state, but must be formally recognized and certified by the VA on an ongoing basis. The state, however, determines the criteria for admission, even though the facility may receive funds from the VA to help subsidize the cost of care to veterans. The third type is what is commonly called a VA nursing home, even though the VA doesn’t call them nursing homes anymore. The VA introduced the term “Community Living Center” and seeks to make the nursing home as much as possible like a real home.

As stated earlier, only veterans with both a documented need for skilled nursing care and who have a service-connected disability that meets certain criteria will qualify for this care at a VA nursing home at no charge. Veterans with non-service-connected disabilities and veterans with lesser-rated service-connected disabilities can apply as long as they require skilled nursing care, but they may be subject to long-term care co-payments.

There are also some other limitations if your client insists on a VA nursing home. There are far fewer of these than the other types of nursing home, and thus there might not be a VA nursing home in your client’s geographical area. State Veterans Homes are fortunately much more common. You can find a directory of State Veterans Homes at the website of the National Association of State Veterans Homes at http://www.nasvh.org/StateHomes/statedir.cfm.

Furthermore, you can’t just decide you are going to a VA nursing home, even if you believe you meet the level of care and rating requirements. There is a process to be evaluated for VA nursing home care. You must first be enrolled for Veterans Health Benefits, which is another process in and of itself and can include an evaluation of income and assets. For example, veterans with non-service-connected disabilities applying for extended care or the Nursing Home Care Unit may be required to complete the VA Form 10-10EC to determine the family's current income and assets. Then, once enrolled with the Veterans Health Administration, you must then be evaluated by a primary care provider or a geriatric specialist for nursing home care.

Another limitation of VA nursing homes is that they generally only accept veterans and not surviving spouses. Some State Veterans Homes do admit surviving spouses and even parents, but that depends on the state. For example, California has veterans assisted living facilities and skilled nursing facilities that will admit spouses, but California also has aggressive estate recovery policies to recoup state funds used to pay for those facilities. Finally, veterans who qualify for VA nursing home care may not always remain qualified. Veterans may be discharged from a VA nursing home without consent when VA nursing home care is no longer needed; for example, if the veteran's needs can be met at home or in a private nursing home close to the family.

If, despite all these hurdles, your client still wants to explore skilled nursing at VA expense or any other long-term care resources of the VA, visit the VA’s webpage at http://www.va.gov/GERIATRICS/index.asp to find information related to geriatrics and extended care.

As we approach the end of the year, we want to personally tell you how thankful we are to have you as a subscriber of the LWP Connection blogs and newsletter. Whatever the reason is that you stay connected with us each week via email (i.e. substantive law training, marketing assistance, practice management tips)…we are glad you are here

Yet, as you work on your practice goals and plans for 2016, please know that the guidance and mentorship you receive here is only THE TIP OF THE ICEBERG of what we offer at LWP.

We want these same results for YOU in 2016! It’s time to check out what becoming a Lawyers With Purpose Member would look like for you and your practice. If you’re even a little curious about what we offer in the Lawyers With Purpose program and how becoming a member will forever change your practice, you owe it to yourself to spend a few minutes reading through this page: www.joinlwp.com.

Sabrina A. Scott, Paralegal, The Elder & Disability Law Firm of Victoria L. Collier, PC and Director of VA Services for Lawyers With Purpose.

iPug As A Prenup?

November 11, 2015

by David Zumpano with No Comment David J. Zumpano Estate Planning Drafting Software

On occasion, we have clients in their 50s and 60s who are considering remarriage after the kids have grown up, or after they are ready to finally recommit to someone. As an estate planning attorney, what options can we offer them with regard to a prenuptial agreement? Perhaps the answer is an Irrevocable Pure Grantor Trust® (IPug®).

Typically, older clients have accumulated some assets, and getting married again creates a whole new dynamic for them. It could be that they lost their spouse or are divorced. The question is, how do you ensure that your client's assets are protected from a second marriage but still ensure that the marriage is whole – that is, both husband and wife participate in the financial responsibilities? An IPug may be your answer. An irrevocable pure grantor trust allows the grantor to maintain full control as trustee. The grantor can modify the trust in any way for the rest of his life, other than to convey the assets back to himself; and can even retain some benefit from the trust, including being able to live in the real estate and retain all of the income from the trust assets.

In most states, for a prenuptial agreement to be valid, each spouse must declare their assets to the other and have the other sign off on their rights to those assets after the marriage. Prenuptial agreements are a common practice to ensure that the assets of each spouse are protected from the other if the marriage does not last, or if one spouse later dies. Prenuptial agreements can be quite dicey to bring up in a new relationship, as it calls into question the very act of marriage, which is supposedly "forever," and it also raises the question of whether one “trusts” the other.

A solution that can manage all of this is to use an IPug. As an irrevocable trust, once funded, the grantor can never again take ownership of the assets, but the grantor can still control all of the assets and maintain basic benefits. Since you irrevocably give up your right to even get out the assets you put into an IPug, your spouse can’t own them in a divorce and will have no dowry or right of election. Having an individual create an IPug and put the majority, if not all, of their assets into it is a proper way to protect their assets from creditors and predators. Is a spouse not a potential creditor or predator? So utilizing an IPug trust might be an ideal way to have the same legal effect as a prenuptial agreement. The question becomes determining the powers of appointment language to ensure that your assets are protected, but also so you have the option to benefit those you intend, including your new spouse if you so desire.

Allowing your spouse to be a beneficiary of your power of appointment would subject the trust principal to being an available resource if the spouse needed long-term care. Alternatively, if the client has long-term care insurance and other means to pay for long-term care, one could consider allowing the grantor to include a spouse in the powers of appointment. Obviously, the power is retained by the grantor, and only he or she would decide if and when a new spouse may be able to benefit from the IPug.

So, prenup or IPug? And, if IPug, what are the provisions? That's where the Lawyers with Purpose, client-centered software will help you. Contact us now for a live software demo.

David J. Zumpano, Esq, CPA, Co-founder Lawyers With Purpose, Founder and Senior Partner of Estate Planning Law Center