At TAPER Orlando, Dave will share his vision for the profitable practice of law in the new decade. His Keynote address will be followed by some of the most transformative breakout sessions we’ve ever hosted. There will be sessions about adding Alzheimer’s planning to your firm; the SECURE Act; a three-part series on the TLC Estate Planning Process; budgeting; ActionStep financial reporting; marketing; VA benefits; and more.
“How do I get my practice to the next level?” This is the first question the vast majority of our prospects ask. Unfortunately, it is the wrong question. Becoming an efficient, proficient, and consistently profitable firm isn’t about how, it’s about who. The question you must ask is, “Who do I need to take my firm to the next level?”
During the “Why Day” session at the Taper New Orleans retreat held this past March, Lawyers with Purpose Founder Dave Zumpano presented his take on law firm roles and the power of having the right person in the right seat. Zumpano offered that “Who?” (not “How?”) is the greater question to answer when planning to grow a law firm.
As a lawyer practicing in the elder law and estate planning industry for 25 years, I'm always intrigued by what lawyers refer to as remarriage protections. Remarriage protection relates to the provisions that one puts in a trust to ensure after a spouse dies and a surviving spouse remarries (or cohabitates) that the underlying estate plan of the deceased spouse is honored and maintained. The truth is that trust systems in the estate planning industry have little, if any, remarriage language or protections. The general protection that trust systems provide for remarriage is that if a spouse remarries, they allow you to discontinue payments of interest or principal to that spouse, and that's usually limited to the context in a family or marital trust. Wow, that's remarriage protection?
Hardly. In the Lawyers with Purpose Client Centered Software (LWP-CCS) system, there are layers of remarriage protections available to the client. First and foremost, the trust system tracks all of the benefits granted to a surviving spouse as you design the plan and import data into the trust system. Second, the trust system tracks all of the authority that you give a surviving spouse as trustee, trust protector, etc. Third, the LWP-CCS system allows you to identify what your client considers to be “remarriage.” In our default definition, the language identifies that a spouse will be deemed to be remarried after cohabiting for one night. The software also allows you to customize your own definition of remarriage, and once that definition is triggered you are then allowed to customize which of the powers or benefits that you have granted a surviving spouse will be modified or eliminated, along with any conditions for reinstatement.
For example, if a surviving spouse has been named trustee, the software knows that and asks you if you want to remove the right of the surviving spouse to be trustee upon marriage. Secondly, the trust software tracks all beneficial interests of the surviving spouse, and if you elect to have remarriage restrictions, the software will show you all the different places where the surviving spouse has retained a right to benefit from the trust. It will also ask if you want to minimize or eliminate any of those benefits individually, not collectively. That is, you can pick and choose which ones stay and which ones go.
Does this seem too good to be true? Well, it is if you have regular software, but the LWP-CCS software has been designed around the needs of the client, not the lawyers. The good news is, once you identify the needs of the client, the software will put in the necessary legal language to accomplish the objectives that you have identified for the clients. This is what being a Lawyer with Purpose means, and this is what client-centered software is all about. Don't go it alone. Let Lawyers with Purpose show you how to do real remarriage protection planning for clients.
If you aren't a Lawyers With Purpose member and are even thinking about adding estate or elder law to your existing practice, or want to make your estate/elder law practice more efficient, join us in the room in Houston this October 24th and 25th. Click here for the full agenda and to discover more of what you'll get from this program!
David J. Zumpano, Esq, CPA, Co-founder Lawyers With Purpose, Founder and Senior Partner of Estate Planning Law Center
There's a great buzzword out there in estate planning called planning for “blended families.” The term “blended families” represents individuals who are married but have previous marriages or relationships that resulted in children. One example would be a second marriage in which the husband and wife have children from a previous marriage, or one does and one doesn't. The question becomes, how do you plan for these individuals so they can provide for each other but still be confident that in the end, their children or beneficiaries will get what's legally entitled to them?
The challenge with blended family planning is that the spouses “trust each other” to carry out their wishes. The problem is, life doesn't often work out that way. After the death of one of the clients, the relationship between the surviving spouse and the deceased spouse's family tends to become more remote and diminished. As a result, over time the surviving spouse may forget or no longer wish to follow the planning as originally intended, or may no longer deem it relevant based on the new circumstances. More importantly, even if the surviving spouse did wish to follow the original plan, circumstances may occur that put the assets in danger. The surviving spouse might need a nursing home, or might face a lawsuit, or might remarry to another individual who could gain power of attorney and modify the planning after the incapacity of the original surviving spouse. There are so many complications in blended families, but there doesn't have to be.
The Lawyers with Purpose Client-Centered Software (LWP-CCS) system is designed to plan for each client’s individual needs and goals, including blended families. The LWP-CCS has extensive provisions that allow designation of particular assets, allocated and separated at the death of the first spouse for the benefit of the surviving spouse under the terms and conditions that the clients agree to. This permits the surviving spouse to continue to benefit from the deceased spouse’s assets until the conditions are met for the next stage of the planning to occur. For example, in many of our trusts, clients elect to have a trust for the surviving spouse terminate upon the spouse's remarriage or another terminating event as identified by the couple. Although this seems complicated, it's actually easy when you ask your clients. They are pretty clear on what they want. They're just looking for some guidance on how to accomplish it.
Perhaps the greatest final significance of using the LWP planning solutions for blended families is to protect the deceased grantors' assets from the surviving spouse’s unintended or unforeseen creditors and predators. This by far has had the greatest impact for my personal clients over the last 25 years of my planning for them. Unfortunately, too many lawyers today use the standard boilerplate trust, and most trust systems in the industry do not permit attorneys to do any extensive planning once prepared for blended families without expensive post-merge modifications.
That's why Lawyers with Purpose is different. Because we focus on purpose first, the software has been designed to always consider the client's needs, goals and wishes first, then the software puts in the appropriate legal language to accomplish those objectives. Although it sounds counterintuitive, it's actually easy, fun and valuable to the client. I actually have clients laughing as we design their plans; do you? If you want to learn more about how Lawyers with Purpose can help you plan for blended families in ways you never knew existed.. consider joining us for THE estate planning event not to be missed!
David J. Zumpano, Esq, CPA, Co-founder Lawyers With Purpose, Founder and Senior Partner of Estate Planning Law Center
Well, here we go again. On July 12, a New Hampshire Trial Court ruled that an irrevocable trust was an available resource. Or did it? A careful examination of the Braiterman case really comes down to three issues. The first was an imaginary stretching of the "any circumstances" provision in Medicaid law. The second was an imaginary stretching of "trustee's powers," and the third, superfluous language added by the attorney that had no legal relevance to the trust document.
I believe, however, that the superfluous language had the greatest impact on this court to find a way to make the trust assets available. The good news is that this case is neither precedent setting not universally applied. Let us take a look at the faulty (weak) holding. The crux of the court’s argument is that, under 42USC1396P(d)(3)(B), "if there are any circumstances under which proceeds from a trust could be made to or for the benefit of the applicant, then the irrevocable trust is deemed available for purposes of determining eligibility for Medicaid." Interestingly, it was clear under the trust terms that there were not any circumstances under which the payment from the trust could be made available to the beneficiary applicant. In fact, the court highlighted that the language specifically said that the trustees cannot make any distributions of income or principal to the grantor.
The court, however, focused on superfluous language in the trust stating that, if at any time during the lifetime of the grantor, the grantor could lose eligibility for benefit because of the existence of this trust, then it was the grantor's “request” that the trustee consider bringing action to terminate the trust and to distribute the trusts corpus to the beneficiaries (again, NOT the grantor). Continuing, the trust stated that the grantor “hoped” that the people who received the trust corpus would use it for her benefit. The superfluous language goes on explicitly to identify the grantor's disability, or need for income. The imaginary stretch by the court here is that, although the attorney added this language that the court hangs on, in fact, there's no legal authority to enforce it. Under most states’ laws, termination of an irrevocable trust requires the consent of not only the trustee, but also of the grantor and the residuary beneficiaries; state law determines whether an irrevocable trust can be terminated, not a trustee. The only authority granted to the trustee in this trust was to bring an action to terminate the trust and distribute it to the beneficiaries.
So there's a double faux pas here; first, there is a presumption that the trustee has the unilateral authority to terminate the trust. Second, there is an enormous leap by the court in deciding that, because the grantor added the language “hoping” for the beneficiaries to use the proceeds for her, that there in fact actually is a legal obligation or even a legal authority to consider it required, so as to make the assets declared available to the grantor. The mistake by the court here is that any access to the trust income or principal is NOT contained within the four corners of the trust, but rather is a stretch to what a beneficiary will choose to do with trust assets after receiving them (which, by the way, is no longer a trust asset!).
The court notes that in her capacity as trustee, the grantor had authority without limitation to "terminate the trust by distributing the principle and accumulating income of the trust fund if in her judgement she might lose eligibility to substantial cash benefits or medical or other services. Again, the court stretches and fills in this imaginary chasm with rationale that indicates that there's actually legal authority for the trustee to do this. In fact, the court alludes that the grantor not being named a trust beneficiary is not dispositive, and held that because there is "any circumstance" that would permit the grantor to get the proceeds, then it was countable. In this fact pattern, the court argued that, since it could be distributed to the children and there was no prohibition on the children to distribute it back to the grantor, the court could infer that there is a circumstance in which the grantor could benefit. This is troubling, as there is no basis, no background and legal support of language anywhere to support this other than the court's opinion.
So what does this case tell us? First and foremost, it affirms what we already know: that a lot of courts do not like Medicaid planning. And that's OK. Second, it tells us attorneys that adding superfluous language that does not relate to the legal provisions of the trust has absolutely no legal impact on the trust terms, but in every contrary case decided up to this point, including Braiterman, it is proven to be the words hung on by the court to disallow planning for people who engage in Medicaid planning. I have been a longtime advocate of Medicaid planning, but more importantly, proper Medicaid planning. When following the rules, individuals who give away their assets are subject to the lookback period and potential imposition of ineligibility based on any uncompensated transfers. The law anticipates this, provides for it, and has clearly stated it. The challenge here is when courts usurp the law and assume information that is not legal or based on legal principles. I fully expect this case to be overturned on appeal, but nonetheless in a state like New Hampshire, a more liberal state, anything is possible.
The good news is the Lawyers with Purpose Client Centered Software (LWP-CCS) system has specific language that would nullify the court's holding in this case. In addition, Lawyers with Purpose attorneys are trained never to add superfluous language that does not relate to the legal terms of the trust. It is when lawyers forget that trusts are legal documents and entities, much like an LLC, that we get cases such as Braiterman. For example, in an LLC operating agreement, would you allow the owners to have rights to pay their medical expenses if they went into a nursing home? Obviously it's silly, but a trust is no different; it's a separate legal entity and should be respected as such. Attorneys must ensure that all of the provisions and terms relate to authority of the trustee to administer the trust and make distributions to the intended beneficiaries, and should in no way ever suggest or provide that trust principal be available or used for the grantor if it is an irrevocable trust intending to exclude its assets from consideration for Medicaid eligibility.
Interestingly, on the same day this case was released, I was notified once again by an LWP member in Florida that the Florida Department of Medicaid upheld a Lawyers with Purpose trust that provided that the grantor was trustee and that all assets in the trust were deemed unavailable. So before we jump off any bridges based on the Braiterman case and give up our Medicaid practices, understand your jurisdictions, understand your job as the attorney and, as we focus on at Lawyers with Purpose, always be an advocate for your client using the law, and keep your superfluous language out of it.
Registration for THE estate and elder law event not to be missed is open! Grab your seat today before early bird pricing ends on September 5th. Click here to register now.
David J. Zumpano, Esq, CPA, Co-founder Lawyers With Purpose, Founder and Senior Partner of Estate Planning Law Center
I've been working with estate planning attorneys around the United States for almost 20 years, and I am always intrigued about how excited they get when they deliver a presentation, seminar or workshop. The interesting dynamic is how pumped they get in front of a room full of people. It might surprise you to learn that such a situation is not exciting to me or to any LWP attorney, for one simple reason. We have learned that it is not the number of people in the room or your ability to speak to them that matters, but rather your ability to communicate and create relationships with them so they trust you and understand how you can help them accomplish their goals. That’s when they hire you.
Under the Lawyers with Purpose workshop system, our members are provided three different workshops, depending upon which best matches their personal objectives. We offer members the “Estate Planning Essentials” workshop, the “Seven Threats to Every Estate Plan” workshop, and the “How to Protect Your Stuff in Three Easy Steps” workshop. All three teach the same concepts and utilize similar stories, but most importantly, all connect and relate to the Estate Plan Audit™ utilized in the Vision Meeting™ with individuals who attend the workshop and opt for a meeting with you. They also delve into what estate planning is and the specific issues you want them to know (all contained in our trademarked and copyrighted workshops).
Why is this relevant? Because the excitement over the number of people in your workshop is baseless if none of them hire you. If your workshop can't show people how you can help them and explain how your solutions are relevant to them and will benefit them, then stay home with your family rather than waste the time.
So, to avoid that scenario, let’s consider the core elements of a successful workshop. First, ensure in advance that you are clear on who is registered to attend your workshop. You should also ask how each attendee heard about you; that is, what source of marketing got them to call your office (a professional relationship, a retail advertisement, or other). Second, your staff should welcome all attendees during enrollment, excite them about the workshop they're going to attend and touch on how it will offer new ideas to solve their concerns. Third, your team should follow up with attendees ahead of time and confirm attendance. Fourth, during the workshop it is essential to set the expectation up front that you will make commitments to the audience, and to make sure the audience understands that you expect them at the end of the workshop to complete the evaluation and request a meeting if they think it's appropriate. This is perhaps the most important part of the workshop – not all the education you provide, but rather the invitation for them to move forward with you at the conclusion. You must be enthusiastic and excited for them to come in and apply what they learned to their personal situation, in hopes of helping them accomplish their goals and objectives based upon what they’ve learned in the workshop. If you don't believe in yourself, why would they?
And finally, another very important element of every workshop, one in which I have found that most lawyers fail, is to follow up with the attendees to schedule the appointment. I cannot tell you how many times I've worked with attorneys who either neglected to get an evaluation at the end or got the evaluation and failed to follow up on it.
Life is busy. People don't have “free time” to just pop into a workshop, and oh, by the way, I can't wait to go see a lawyer tomorrow to talk about all this crazy stuff. For most people, their lives are busy and complicated, and they're confused. You must be the one who clarifies the confusion and shows them a simple approach for them to get their concerns solved.
That's what the Lawyers with Purpose workshop system does. In fact, we call it the Client Enrollment System™ because it's a complete process, from identifying the client's needs after their initial contact with you, to the point of their engagement with your firm. That's the significance of workshops and seminars: not the excitement of delivering them, but the excitement of actually being able to help people implement great planning solutions that protect them and their family. Contact Lawyers with Purpose today if you want to learn more about what we can bring to your estate and/or elder law practice. Just click here and give us a little information then download our membership brochure.
Patient eviction is a growing problem in our country. Between 2000 and 2014, national Ombudsman programs report that eviction complaints are up 57 percent, despite the number of nursing home patients being slightly down. And the correlation between the growth of dementia and the eviction of patients seems clear. Knowing our state discharge procedures, appellate rights and care requirements is essential to us as elder care attorneys. Our understanding of patient rights and legal protections, along with a phone call to a facility, can often go further than anything a family can do.
Lawyers with Purpose is getting ready for some exciting changes in our legal technical training. Over the past several months, as my calendar has been freed up to provide one-on-one legal training and file reviews with members, case-specific questions for the Live Case Study review have slowly faded. As such, we are restructuring the Monday afternoon hour to continue to provide members with the most efficient use of your time and the time of your staff. Moving forward, while we will continue to address all questions that are submitted by 5 p.m. Friday on the following Monday, we will be using a large portion of the legal technical hour as an in-depth study of the Lawyers with Purpose system and the many uses of the LWP Client Centered Software.
Many lawyers proclaim to have remarriage protection in their estate planning documents, but few are worthy of this claim. For most lawyers, having remarriage protection means removing a spouse’s right to benefit from a trust in the event the spouse remarries. Although this is a good start, it is wholly insufficient in determining the expansive abilities that one can have regarding remarriage protections.
So let’s look at the key points. Typically, clients use trusts to benefit their spouse. Outright conveyances to spouses are common, but they do not provide any asset protection or remarriage protection. To ensure that assets are protected in a remarriage, one must plan appropriately in four core areas.
- Beneficial interest of the spouse
- The definition of “remarriage”
- Powers of appointment to the spouse
- Removal powers to the spouse
When designating trusts for clients of long-term marriages, most want to ensure that the intentions of the couple are carried out after the death of the first spouse, and are not adversely influenced. Although this is a common goal, it could be derailed when a new relationship enters the picture after the death of the first spouse. The goals and intentions of the surviving spouse are often altered significantly due to the fear of having lost their spouse and/or the introduction of a new relationship that can influence them. To ensure that the deceased spouse’s intentions are carried out, the Lawyers with Purpose Client-Centered Software (LWP-CCS) ensures remarriage protection at all three levels. Let’s examine each and how they apply to remarriage protection.
First is the spouse’s right to a beneficial interest. The surviving spouse often has a right to principle and/or income from the deceased spouse’s trust. That interest can come in the form of a family-type trust that benefits the spouse’s kids/non-family, or a common trust with other beneficiaries. So often, we see lawyers name just the spouse as the beneficiary of the family trust. Although this protects the spouse, it also unduly restricts them. A spouse who wants to benefit a child and use assets from the deceased spouse’s trust often has to take the distribution and then give it to the child. Instead, it is more practical to include the children and other descendants as benefits of the principal and income to a surviving spouse. This allows the surviving spouse, as trustee, to distribute or “sprinkle” the income or principal as they determine to accomplish the goals of the family. In contrast, if the surviving spouse gets unduly influenced by a new relationship, then one must be able to restrict that spouse’s right to income and principal under the deceased spouse’s trust. Remember, the surviving spouse has assets that are still available as provided by the original planning.
Another critical issue in remarriage planning is the definition of remarriage. Most trusts define remarriage as however remarriage is legal in the jurisdiction. This is another mistake. In today’s day and age, no one gets married anymore, but not getting married does not mean that a new “significant other” does not have significant influence over the surviving spouse. That’s why Lawyers with Purpose’s Client-Centered Software includes default remarriage language that identifies remarriage as any marriage legal in the jurisdiction or any relationship that results in cohabitation for one night. The software also allows attorneys to custom-tailor the definition of remarriage any way they choose. What’s critically important is what remarriage protections are triggered when the remarriage definition is met, first, upon remarriage under the definition, the ability to access principal or income can be restricted in the LWP-CCS software.
In addition, a deceased spouse’s trust can allow a spouse certain powers of appointment to ensure that the couple’s goals are continued after the death of the first spouse. When there is an outside influence or a remarriage (as defined by you), then you may also begin to restrict the surviving spouse’s power of appointment to ensure that the children are not penalized for failing to agree with the surviving spouse, and the power to make distributions that would go against the deceased spouse’s intentions.
Perhaps the most significant power that can be removed in the LWP-CCS remarriage protection software is the ability to remove a surviving spouse’s removal powers. Removal powers include the surviving spouse’s ability to remove a trustee and/or trust protector of the deceased spouse’s trust. Allowing removal powers after the influence of a new third party can adversely affect children or other beneficiaries who are acting as co-trustees, or trust protectors who were independent and in place to ensure the preservation of the deceased grantor’s intentions. Interestingly, the Lawyers with Purpose software allows not only the appointment of all these powers to a spouse, it also allows you as the attorney to cherry pick which powers, or any combination of them, are altered upon the remarriage of a spouse as you wish to create them with the client.
Again, this is what we call trust drafting. Too many times we have lawyers get comfortable and lazy with the simple provisions most would call “remarriage protection.” That’s why at Lawyers with Purpose our software supports your ability to be purposeful to your client’s plan.
If you want to learn more about what it means to be a Lawyers With Purpose member, consider joining us for THE estate and elder law event not to be missed this June in San Diego. You can see the full agenda here: http://retreat.lawyerswithpurpose.com/agenda/. If you aren't a member contact Molly Hall at firstname.lastname@example.org to find out more information about how you can reserve your spot today. Early bird pricing ends Friday, May 13th so register today!
Registration link: www.retreat.lawyerswithpurpose.com
Dave Zumpano, Co-founder – Lawyers With Purpose