ESTATE PLANNING

ESTATE PLANNING - Independence Plan

Do you want to have more say in your future?  Then it's time to develop an independence plan. A written plan will help you identify the kind of support and care you want if and when you can no longer do everything for yourself.

No one likes to think of needing assistance to get around or of living in a nursing home. But at a certain age, our normal aches and pains start to worry us. We start to wonder how long we will maintain the vibrant, healthy lifestyle we enjoy. 

Developing an independence plan now, before you need support, will help you feel in charge and take some of the anxiety away.

Some questions to ask yourself to get started on a Plan:

Who can make medical decisions on my behalf if I am unable to?

Who can make financial decisions on my behalf?

What financial plan do I need to hire assistance if I need it?

How can I hire my own staff to help me in my home?

If I need a long term care facility, can I afford it?

How do I qualify for Medicaid if my finances run out?

Private Pay versus Medicaid: Will Medicaid be part of my Plan?

Unless we are very rich, we will not be able to afford long term care for an extended period of time. It is important to be informed about Medicaid eligibility and regulations.

Facts about Medicaid 

1. The average monthly cost of a nursing home in the state of Michigan is $8,084. 
   
2. A person can only have a certain amount of assets to become eligible for Medicaid.
3. Rules are different for married couples than for single people for eligibility.
4. Divestment means any transfer of property out of your name to someone else for less than fair market value. 
5. Medicaid’s “look back” period is 5 years right now. That means Medicaid looks back at any gifts or transfers of money or property you have made prior to determining your eligibility for Medicaid. If you made a transaction that is considered a divestment within 5 years of Medicaid eligibility, you will have a penalty.  You will be required to pay privately within the penalty period.
   
6. The formula for the penalty period is the value of divestment/8,084= months of private pay.
7. What you do 5 years within the date of your Medicaid eligibility can affect how long you have to pay out of your own pocket even if you have absolutely no money when you become Medicaid eligible. 
8. The best plans are made before the need arises. You can take weeks or months to work out the details and cover everything from listing your assets, to determining your heirs, to making it clear whether you want to stay in your own home with private assistance as long as possible or move into an assisted living setting that you prefer.  
9. An independence plan helps you, and those who support you, know what kind of care and assistance you want to receive and how you are going to pay for it. Consider it your back-up plan. 

Katie Clark

Hobby Lobby

Supporters of Indiana’s new law supporting discrimination under the guise of religious liberty are telling opponents that the new law does not stand for what everybody is saying it stands for: “It’s about religious liberty! Not discrimination!”

What these people are failing to recognize is that this law comes on the heels of two revolutionary, unprecedented rulings by the US Supreme Court granting religious rights(Hobby Lobby) and free speech rights to corporations(Citizens United), previously understood to be reserved for human beings. 

The Hobby Lobby ruling granted religious rights to big corporations that are privately held, like…. Koch Industries with 100,000 employees, or Meijer stores with 74,000 employees. Indiana’s new law gives companies like this the green light to discriminate against anything they see fit as long as “religious liberty” is invoked. This law stretches much further than the wedding photographer who refused to shoot a gay wedding. 

Proponents would have you think that the law is only to protect the photographer or a wedding planner from having to serve gay people. What they forget, is that we rely on A LOT of other people to do A LOT of things for us. We rely on each other to come to our rescue when we are injured. We rely on each other to perform medical and legal services. We rely on each other to grow and cook our food. We rely on others to fix our cars and sell us gas. Not just photograph a wedding. 

Imagine an America where you can’t go to a particular grocery store because the owner thinks that all non-Christians should suffer from starvation. Or a Muslim ER doctor refuses to treat a Christian. This is the way we are heading with a backwards law like this.

As for those corporations I mentioned, we rely on them for jobs, property taxes, supplying our food. This law would allow a corporation like that with 100,000 employees to not hire a person on the basis of whatever it’s majority shareholder felt was his religious liberty. It would allow Meijer to refuse shoppers who violate its shareholders’ beliefs.

When starting law school 12 years ago, I couldn’t have imagined that laws reminiscent of Jim Crow would be enacted in the name of religion. Not in today’s age. But what’s funny (not funny at all) is that the same arguments were made by Jim Crow supporters who didn’t want to let blacks eat at their restaurants or go to their schools. At that time, religion was cited to discriminate against blacks. Now, religion is the reason to discriminate against gays or just about anything.

As for Jim Crow supporters, they at least had the convictions to be open about their discrimination. They owned it— “Whites Only” signs on their doors. Indiana’s chief politician signed this travesty at night. No public. No cameras. At night. He tried not to own it. 

The same legislation was recently proposed in Oklahoma until one of its democratic opponents added language to the bill which would have required those invoking religious liberty to put up a sign or public notice as to what religious convictions were being invoked in order to save people the humiliation of being refused service and shown the door. Oklahoma dropped that bill.

Indiana should re-think its law. My convictions find it repugnant to spend money in their state until that law is repealed.

Gabe Cameron

Michigan No Fault System

The Michigan No Fault system must be investigated.  Charges have been made that insurance companies, in essence, treat their insureds as adversaries.  It wasn't supposed to be that way.

The Michigan No Fault was passed in the early 1970s.  At that time, insurance companies employed adjusters in local areas.  Adjusters were people who went to the accident scene, met with injured people and got their medical bills, wage loss, replacement service and rehabilitation bills paid.  Adjusters knew the geography and the kinds of people making the claim.  They often helped people with their claims.  They put injured people they insured in their "good hands" or act as "good neighbors."

The No Fault system was thought to be automatic.  Hurt in a motor vehicle accident?  The No Fault insurer paid.  There was an ethical question about whether an attorney could charge a contingent - a percentage - fee for helping a person with the person's No Fault claim.

Insurance companies stopped using local adjusters and began centralizing adjusting service.  Adjusters sit in a centralized office or at home and process files.  No longer do adjusters visit people.  It is a bureaucratic paper process requiring paperwork filed precisely in accordance with company requirements.  A slip up and payments are cut off.

A recent article in the Michigan Association of Justice magazine assails State Farm for using a policy that does not work to make sure State Farm's insured drivers are paid benefits they are entitled to but, instead, to make State Farm money.  The policy, if accurately described in the article, delays payments, for example, to pressure lower settlements.

Insurance companies use a couple of agencies to provide doctors, to examine injured people, and give opinions that claim there is no physical problem.  Anecdotal evidence indicates that insurance company doctors make findings against the injured person at least 90% of the time.

It is time that adjusting practices by insurance companies be vigorously investigated.  Do they treat insureds as "good neighbors" and keep them in "good hands" or do they treat insureds as adversaries?  Until the practices of No Fault companies are exposed to sunlight by investigation, people will need to seek lawyers for advice in a system originally thought to be automatic.

Richard Clark

Local Representation is Best - Here's Why!!

Very often we will receive phone calls from people that have hired attorneys that are not from the Upper Peninsula or even from Michigan.  Usually, these people have had very little contact with their attorney and often are unhappy with the current representation that they are receiving from these attorneys.  What they want is advice from us telling them to fire their attorney and assuring the caller that we will represent him or her.  Unfortunately, we can’t do that.  

According to the Michigan Rules of Professional Conduct, a lawyer shall not communicate with a person the lawyer knows to be represented in the matter by another lawyer.  (MRPC 4.2)

We represent many people with pending Social Security disability cases.  These people are waiting for a hearing and often the wait can be 12 to 18 months.  As you may see on TV, there are many law firms that advertise nationally for Social Security disability cases.  Because it is federal law, a lawyer does not have to be licensed in the state in which they represent someone for a social security disability case.  Therefore, they will advertise nationally, take just about every single case that comes in through their phone line and then once the hook is in to the client, won’t do a very good job of representing the client.  

Just recently, I had a woman call me who was waiting for a decision on her Social Security disability case.  She hired a national firm out of Texas.   When it was time for her hearing, the Texas firm did nothing for her.  She had to track down all of her medical records and submit those.  Then, no one met with her to prepare her for the hearing.  Instead, the Texas firm, hired a Marquette lawyer to go to the Social Security office and sit next to the woman during her hearing.  This lawyer had never met her and had never reviewed her file.  Then, she called us worried that her case was screwed up and wanting help.  Unfortunately, I couldn’t give her advice because she was already represented and I couldn’t tell her I would represent her should she fire her Texas attorney.  It was too late for me to jump into the case, as well, when I didn’t get a chance to look at her file, prepare the medical, and of course, meet a few times and prepare the client for the hearing.  

The short version of this is to warn people to be very careful before hiring a lawyer. While it may seem appealing to hire a big national or state wide law firm, it is often not the best avenue.  Lawyers that practice in the Upper Peninsula have a unique knowledge of the area, the people here, the judges and courtrooms and the procedures.  In addition, most local lawyers care about the people in their own community and want to do what is best for them.  Whether you want to hire Upper Michigan Law or not, please think twice before you hire a firm out of the area.  

Jessica Bray

Michigan Workers’ Compensation Update

Effective December 26, 2014, the new Health Care Service Rules will make it much easier for workers’ compensation insurance carriers to deny reimbursement to physicians who prescribe opioids to injured workers.

Rule 418.101008 will require the physician to submit a written report to the insurance carrier no later than 90 days after the initial opioid prescription fill, and every 90 days thereafter.  In addition, the physician will have to include a treatment plan, which includes periodic urine drug screens.

The new regulation is touted as part of the Workers’ Compensation Agency’s efforts to contain costs for job providers.  (See the Associated Press article on Michigan Radio).

Clearly, this regulation will benefit workers’ compensation insurance carriers; it is another step towards evidence-based medicine.  How it effects physicians, injured workers, and employers remains to be seen.  Can physicians provide the office time to meet with injured workers every 90 days?  Will it be feasible for physicians to meet these reporting requirements?  Will injured workers receive less than optimal treatment for their work injuries, which in turn may prevent them from being able to return to work?  Will insurance premiums be reduced for employers?

Sam Larrabee

Estate Planning

Life has a 100 % risk of death: Plan for it!

It is difficult for us to spend money on problems that haven’t happened yet.  We buy car and home owner’s insurance because we are required to by law. Other types of insurance are personal decisions: Do I buy life insurance and how much? Do I buy a short term or long term disability plan  in case of injury or illness? All of these insurance coverages have something in common: we are making payments now to avoid financial difficulties or even ruin for ourselves and our families in the future.

When it comes to making a will, we are not required by law to do so.  And, since most of us would like to avoid the unpleasant thoughts of incapacity, possible nursing home care and death, we put off doing so. Yet, if we are honest with ourselves, one out of those three events will most certainly happen. We may never be injured in a car accident or fall seriously ill but, one day, all of us will pass.  How well have we have prepared for it?

The uncertainty that we face when making a will is this: Will the Court honor my wishes and my intentions? Do my heirs and family clearly understand what I intended in order to manage my will?

Given the importance of “getting it right”, this is not the time to do-it-yourself by using an internet document.   A good wills and trust attorney will provide you clarity and certainty as you develop and record your wishes and intentions. Some people hesitate to consult an attorney, concerned they will be charged an exorbitant fee and required to take services they do not want. A good estate planning attorney will let you know up front the anticipated cost of drafting a simple will or a more involved trust. The attorney will allow you to choose which plan you are comfortable with and discuss with you goals, pricing and the consequences of particular plans. 

Be cautious if the attorney you have consulted tries to “upsell” you a plan you do not need.  For instance, an individual with limited assets does not need a trust and should not be talked into one. If you are not comfortable with what your potential attorney is telling you, seek other counsel.  A key ingredient to making a satisfactory will or estate plan is that your attorney listens carefully to you. This ensures that your wishes are communicated clearly in the written document. Don’t stay with an attorney who passes you on to support staff after a quick, “cookie-cutter” interview.

Don’t gamble with putting your wishes and intentions in a document you pulled off the internet or got from a  friend.  A good wills and trusts attorney is like an insurance plan.You want to make sure that the document that records your wishes holds up in court when you’re not there to explain what you meant.

Katie Clark

Michigan No-Fault Law

Most people know that Michigan Automobile Insurance Law is called No-Fault or PIP which stands for Personal Injury Protection.  Essentially, what that means is that if you are involved in an automobile accident, no matter who caused the accident, you look to your own insurance for medical coverage, wage loss benefits and household services, among other benefits.  Of course, there are a myriad of factors that go into the analysis of which insurance company covers the claimant and whether or not the claimant is actually entitled to those no-fault benefits.  

In general, no-fault coverage for those above mentioned benefits is payable to people who suffer injuries “arising out of the ownership, operation, maintenance or use of a motor vehicle.”  MCLA 500.3105.  This will include not only those in a motor vehicle but also pedestrians struck by a motor vehicle or a bicyclist.  Excluded from coverage will be a thief or an uninsured person and even perhaps an out-of-state motorist in an out-of-State vehicle not insured by a Michigan compliant insurance company.  However, most Michigan residents with insurance will be covered under the Michigan No-Fault statute.  

The reason this is important, is that our legislators are constantly trying to take away the benefits that the No-Fault Statute affords us.  House Bills (HB) are continuously being brought to the floor and offered to amend those No-Fault protections that we have as Michigan residents.  For example, just in February, HB 4612 (H-3) was offered on the floor of the Michigan House to substitute for H-1 which had been stalled in the House for almost a year.  H-3 imposes unprecedented limitations of medical benefits and treatment and services allowed to those involved in a motor vehicle accident.  More specifically, H-3 seeks to limit benefits for those catastrophically injured in accident by capping lifetime medical for residents and non residents alike.  

Fortunately, we have the Coalition Protecting Auto No-Fault (CPAN) looking out for Michigan residents and monitoring the bills that come before our legislators.  However, if you have concerns about auto No-Fault and your benefits, it is important that you contact your local legislators to voice those concerns.  At this time of year, it is more important than ever.  Many legislators try to push bills though because it will be a “lame duck” session soon.  Watch for this and contact your local representatives.  Already, there is yet another proposal with further attempts to limit your No-Fault benefits call HB 5854.  While plaintiff lawyers and organizations like Michigan Association of Justice and CPAN will do their best to block these bills, it would be helpful if you too spoke up and demanded the No-Fault protections you are entitled too instead of cut or reduced versions of it.  You pay your premiums and someday, you may need the coverage.  

Jessica Bray