Book Review: “Elder Fraud Wars” by David Neil Kirkman

By Colin K. Austin

As Elder Law attorneys, we need to be aware of the dangers our clients face from a number of fraudulent scams that can quickly deplete their assets. One good resource is a new book, “Elder Fraud Wars: Case Histories from an Enforcement Attorney” (Exposit, 2020). Author David Neil Kirkman is a recently retired attorney who spent most of his career working with the Consumer Protection Division of the North Carolina Attorney General’s Office. In his book, Kirkman recounts stories and specific cases that he encountered during his time managing the Elder Fraud Unit.

Why are the elderly at extraordinary risk of being scammed? Kirkman quotes Willie Sutton’s response when asked why he robbed banks: “Because that’s where the money is.” According to the most recent Survey of Consumer Finances from the Federal Reserve Board (2017), median wealth in the U.S. for those who are 35-44 years old is $60,000 while the median wealth figure for those who are 65 years old and over is above $225,000. Kirkman also presents a set of other key victim vulnerabilities for the elderly, including many situations that we routinely encounter with our elderly clients: 100% equity in their home, physical or emotional isolation, impairments such as immobility, limited eyesight or hearing, cognitive decline, and loneliness. Elderly individuals may also have the desire to be decision makers again and to have something important happening in their lives. Any combination of these factors presents an opportunity for professional scammers to present themselves and take advantage of elderly individuals.

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A Marketing Idea for Elder Law Attorneys

By David W. Silver

Looking for another way to market your elder law and estate planning practice? Divorce attorneys can be a great referral source of potential clients who find themselves in need of updating their estate plans. One method of encouraging divorce attorneys to refer your firm to their clients is to give them something of value that they can provide to their clients.

I prepared a summary, which I include below, that describes how marriage, divorce and death can affect a spouse’s Social Security benefits. My aspiration would be to provide this summary (including my name and contact information) to nearby divorce attorneys and let the divorce attorneys hand my summary out to their clients.

While there are plenty of topics that elder law attorneys could cover to assist a person going through a divorce, I realize that the time and research necessary to devote to creating the summary is usually the biggest impediment. If you wish to start with a summary of Social Security benefits, please feel free to cut and paste and utilize any part of my summary that you feel would be useful in creating your own document. Good luck, and let me know how this works for you.

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Guardianships During the COVID-19 Crisis: Changes to Legislation & Friendly Reminders

By Kathleen Rodberg

[Editor’s Note: This is the second of two posts related to North Carolina’s COVID-19 emergency legislation. For information regarding emergency witnessing and notarization requirements, please see the previous post.]

The current COVID-19 public health crisis has presented numerous novel issues to elder and special needs law attorneys—particularly in the area of guardianships. While many legal proceedings can be put on hold for several months, guardianships are of a particularly time-sensitive nature in most instances. This post is intended to provide some statutory updates and include some reminders and suggestions for navigating guardianship matters during COVID-19.

Service Requirements. On May 4, 2020, Governor Cooper signed Session Law 2020-3 into law. This new legislation addresses numerous time-sensitive matters impacted by COVID-19, including issues impacting guardianships in North Carolina.

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Emergency Remote Notary, Witnesses and Execution of Health Care Directives Without Witnesses During Emergency

By Andrew Atherton

[Editor’s note: We appreciate the substantial contributions of John H. Griffing of Griffing Leazer, PLLC in Gastonia and Kathleen R. Rodberg of McGuire Wood & Bissette in Asheville in preparing this post for timely publication. Please look for a separate post by Kathleen R. Rodberg on guardianship changes shortly.]

[Additional Writer and Editor’s note: When assisting clients with estate planning documents this statute does not alter legal precedent requiring original wet signatures and original wet notarizations on most documents. This blog only focuses on the steps a notary would take in completing a remote video notarization when an original wet signature is required. Please reference the provisions of G.S. 10B-25(e)(1) for direction on remote video notarization when an original wet signature and original wet notarization are not required for the document.]

Attorneys from the Elder and Special Needs Law Section of the North Carolina Bar Association in collaboration with NC NAELA, other sections of the North Carolina Bar Association and its leadership, other interested parties, and the North Carolina General Assembly have been working to introduce the legislation that passed on May 2, 2020, and was signed into law by Gov. Cooper on May 4, 2020, authorizing remote notarization, remote witnessing, and execution of health care directives without witnesses during the state of emergency. There were a lot of compromises. Ultimately, we have legislation that will aid you in providing safe assistance to your clients during the COVID-19 public health crisis.

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Update on Jimmo v. Sebelius and Opportunities to Participate in Section

By John R. Potter 

This blog updating the status of the Jimmo v. Sebelius was drafted in December for publication in January but was preempted by the SECURE Act. The goal of these Elder Law blog posts is to raise awareness about significant issues elder law attorneys might want to consider or investigate further. We welcome suggestions for blog post topics; we also welcome blog post writers. As you will see from this blog and the SECURE Act blog, we are not looking for the great American novel, and we do not ask that posts rise to the level of law review-level research or commentary. If you have a suggested topic or would like to submit a blog post, please reach out to me at john@carolinaestatelaw.com.

Just a reminder that the Elder Law Symposium is in Charlotte at the end of this week. If you have an interest in participating in the Elder Law Section, whether the contribution is big or small, we would love to hear from you. Our Pro Bono Committee and CLE Committee in particular could use more hands, but Communications, Ethics, Legislative, and Membership would also welcome help. To find out more, please talk to a member of the Section Council or a Committee Chair at the Symposium or reach out to one of us afterward.

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Elder Law Section CLE Scholarship Program Deadline 1/30

By Shirley Diefenbach 

NCBA Elder and Special Needs Law Section CLE Scholarship Program

The North Carolina Bar Association Elder and Special Needs Law Section (NCBA-EL) recognizes that, although the public perceives lawyers to be among the most affluent members of society, in fact many attorneys struggle to make ends meet, need to pay off large amounts of law school debt, or sometimes suffer from economic hardship due to the poor job market, disabilities or other factors. The NCBA-EL wants membership in, and services from, the Section to be available to attorneys regardless of their ability to pay. We understand that one of the greatest services available for members is the high quality continuing legal education sponsored by the NCBA Foundation. As a result, the NCBA-EL has established a Scholarship program for CLE program tuition for the Section’s 24th Annual Elder & Special Needs Law Symposium on February 20, 2020 and February 21, 2020.

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The SECURE Act Has Passed: How Does It Affect Our Clients?

By John R. Potter

After months of sitting in committee in the Senate, the Setting Every Community Up for Retirement Enhancement Act (SECURE Act) has been added to one of the year-end appropriations bills and passed by Congress.  Particularly with the change in required minimum distribution rules, the SECURE Act represents a significant change in the law surrounding qualified plans.  This post summarizes some of the provisions most relevant to elder law attorneys.  The summary is organized by section of the Act with the change in required distribution rules discussed first.  The language of select sections is included at the end.  Thank you to Larry Rocamora and Jason Page for their insights on the Act.

Section 401. Modification of Required Distribution Rules for Designated Beneficiaries

Section 401(a)(1) of the Act adds a new subsection (H) to 26 U.S.C. Section 401(a)(9) (IRC Section 401(a)(9)).  For individuals dying on or after January 1, 2020, this Section creates a ten-year distribution period for most designated beneficiaries similar to the five-year period that has long been applied to non-designated beneficiaries.  IRC §401(a)(9)(H)(i)(I).  This is true whether or not the employee reached the required beginning date before death.  IRC §401(a)(9)(H)(i)(II).

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Scholarships Available For 2019 Elder Law Basics Program

By Shirley M. Diefenbach

The North Carolina Bar Association Elder and Special Needs Law Section has established a scholarship program for CLE program tuition for NCBA-Basics of Elder and Special Needs Law Program, to be held on Oct. 10 at the Bar Center.  The scholarship will pay no more than 100% of the lowest NCBA member registration fee for the program. A limited number of scholarships are available. Any attorney member of the NCBA Elder and Special Needs Law Section is eligible to apply for CLE scholarship. Non-member attorneys interested in the CLE scholarship are required to apply for membership in the Elder and Special Needs Law Section before or concurrently with submission of an application for CLE Scholarships.

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Elder & Special Needs Law Section: Chair’s Comments

By David W. Silver

We had a successful Elder & Special Needs Law Symposium in Pinehurst in February. Thank you to the CLE committee who put the program together (Kara Gansmann, Nicki Applefield Engel, and Nancy Mayer).  If you were not able to attend, the materials can be acquired through the NCBA CLE. I have already utilized the materials and planning techniques provided during Eric Barnes’ presentation about the new rules and gifting penalty related to the VA’s Aid and Attendance program.

The location for the symposium needs to be reserved a couple of years in advance, so change happens slowly.  While Pinehurst has been a good host for quite a few years, we will be holding the symposium in Charlotte next year and then return to Pinehurst in 2021. The goal of the location change next year is to see if we can make the program more accessible and more enjoyable to more of our members.  Our CLE committee would be very interested in feedback regarding your opinion about the location of the symposium going forward.

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New Year, New Estate Recovery Headaches

By Kathleen Rose Rodberg

By now most of you have heard about changes to North Carolina’s estate recovery program and may even have clients facing uncertainty in the wake of these changes.  This blog article will bring you up to speed on the developments so far and things to keep in mind while assisting with estate recovery cases.

Background

In 2017, North Carolina adopted an amendment to its State Medicaid Plan that changed waivers of estate recovery in certain cases, most notably when the recipient is survived by a spouse or disabled child, to a deferral.  State Plan Amendment 17-0005 was approved by the Center for Medicare & Medicaid Services on August 1, 2017.  Additional, but less substantive, edits were approved by State Plan Amendment 18-0002 approved on August 17, 2018.

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