Beneficiaries in Orange

On a “listserv” we both read, a colleague, Nathan Piwowarski, posted a helpful explanation about litigating SCRA cases. He also provides tips on how a trust should be drawn up to avoid claim of the Michigan Department of Corrections for reimbursement for the costs of imprisonment. His remarks build on my post, “Chains of Blood; Bars of Steel.”  He has kindly allowed me to quote him here:

I recently litigated a matter concerning the State Correctional Facility Reimbursement Act (SCFRA), MCL 800.401 et seq. These matters are prosecuted by a small group of Assistant AGs in the Detroit office.

Procedurally, here is how these cases work: the inmate is supposed to disclose the asset in a questionnaire that is put before them while incarcerated. Oftentimes, however, the state discovers an asset when a trustee sends an accounting or notice of trust administration to an inmate. Upon receiving the disclosure, the State Treasurer will sue the trustee and inmate/beneficiary to freeze the assets. The SCFRA proceeding will be in the circuit court that sentenced the inmate. If you know that this is inevitable, I strongly suggest that you proactively petition the probate court for instructions regarding the trust estate’s vulnerability to the SCFRA claim. This may afford you the ability to shop your forum a bit, too. If you do not file the petition for instructions first, you will have to respond to the SCFRA complaint and deal with the coordination of the probate and circuit court proceedings, or simply raise your defenses in circuit court (unless I know that the circuit judge is familiar with these types of issues, I tend to prefer having a probate judge hear these arguments).

Substantively, the case law you’ll want to start with is: Miller v Dep’t of Mental Health, 432 Mich 426; 442 NW2d 617 (1989); Treasury Dep’t v Turner, 110 Mich App 228 (1981); and, In re Wright Trust, an unpublished opinion of the Michigan Court of Appeals, 2015 Mich App LEXIS 543, at 12 (Ct App, Mar. 17, 2015). My quick take is that these assets are vulnerable to a SCFRA claim because the trust instrument just provides for delayed distribution of assets. To have an ironclad SCFRA defense, the assets would have to be held in a pure discretionary trust, and there would have to be at least a possibility that neither the income beneficiary nor his estate would ever receive distributions.

Nathan Piwowarski
McCurdy Wotila & Porteous, PC
120 West Harris Street
Cadillac, Michigan 49601
direct phone line: (231) 577-5246
general office line: (231) 775-1391
fax: (231) 577-1488
email: nathan@mwplegal.com
http://www.mwplegal.com

Advertisements

The BCBSM Stone Wall

A law firm that assists clients with public benefits applications frequently runs into boneheaded bureaucrats who consider it their mission to make it as difficult as possible for anyone outside the organization to receive the services they are due. Usually, a supervisor or a representative at a different office or branch can be found who will be more cooperative. Seldom does the law firm find itself trying to transact business with an entire organization of obstinate, discourteous boneheads. Blue Cross Blue Shield of Michigan (BCBSM) is such an organization.

Trying to procure a paper premium statement can take weeks if the insured person is not able to call BCBSM, hang on the line for 30 minutes or more, and explain what is wanted. When the insured is represented by an agent under a durable power of attorney, a retained attorney, or the spouse who pays the premiums, getting a paper premium statement usually involves a lengthy telephone campaign to get permission to mail or fax the power of attorney. Then it is necessary to wait for days for some sort of response.

Bear in mind that the information sought is not confidential medical records covered by HIPAA. It is just a paper premium statement that could be sent to the insured in the normal course of business.

Recently, a client told us that she had been trying for weeks to get a premium statement from BCBSM. She was told that a company release of information would be sent to her. It never came.

Because of past experience, I directed my request for a premium statement to Jeffrey Rumley, General Counsel of BCBSM. I attached the power of attorney signed by the insured appointing his agent. I also attached the release of information and appointment of representative giving me the right to request information and represent the insured. That document was signed by the agent. Nearly every bank, insurance company, real estate agent, brokerage firm, and government agency with which my office deals would honor a request backed up with a power of attorney and release of information. Not BCBSM!

Two days after emailing Mr. Rumley, my office received a call from a BCBSM representative. She stated that BCBSM does not recognize any power of attorney drawn up by an attorney — which is asinine. She stated that to get any information, the insured, who is in a nursing home and incapacitated, must sign a request on BCBSM’s form.

Furthermore, she stated that BCBSM would not fax the form, it would have to be mailed. There was no explanation of why they could not fax the form to my office, despite the fact that it would have no personal information of the insured – or anyone else – on it.

After a second emailed letter to Mr. Rumley, an assistant general counsel finally provided a link to procure the form for an agent under a power of attorney and a dizzying array of similar forms. The forms are, and have been, available to anyone with online access. Why the BCBSM representative was so coy is a mystery.

For BCBSM, which recently inflicted double-digit premium increases on its customers, to make it so difficult for people in nursing homes to get information needed to apply for Medicaid is appalling. There are thousands of BCBSM insureds receiving long-term care. There is no excuse for making it an excruciating ordeal to get premium verification for Department of Health and Human Services. Instead of erecting a bureaucratic brick wall, it should be possible to request that verification be sent to the Medicaid agency with a telephone call:

BCBSM: How may I help you?

Caller: I am applying for Medicaid for my mother, Suzanne Sugerbaker, and I would like insurance coverage and premium verification to give the worker.

BCBSM: We can send that directly to the Medicaid agency if you give me Suzanne’s Blue Cross member number and the case number assigned by Medicaid or her Social Security Number.

Caller: Suzanne’s Blue Cross member number is IDK313250075. Her Medicaid number is 8182850205.

BCBSM: Thanks, I’m sending the information right now.

This should not be difficult. If Google knows that I went to Wendy’s at noon and ate a Double-Double Baconater, then went to Walgreen’s at 2:24 p.m. and bought Nexium, how hard could it be for an IT juggernaut like BCBSM to verify a member’s premium and coverage to a government agency through a data link? I’ll bet that BCBSM already keeps track of how many Baconaters I eat.

John B. Payne, Attorney
Garrison LawHouse, PC
Dearborn, Michigan 313.563.4900
Pittsburgh, Pennsylvania 800.220.7200
law-business.com

©2017 John B. Payne, Attorney

Passing Title to Michigan Real Estate without Probate

When an individual who owns real estate dies, many attorneys assume that it is necessary to open a probate estate to pass title to family members. However, title to Michigan real estate passes immediately on death and probate may not be necessary if the decedent died intestate. An individual entitled to property by intestacy may establish title to the property by proving the decedent’s ownership, the decedent’s death, and the individual’s relationship to the decedent, although the individual may be liable for costs of administration, creditors’ claims and the surviving spouse’s and dependent children’s allowances. MCLA 700.3901. That liability lasts for one year from the time of the property’s distribution. MCLA 700.3957.

These principles give rise to interesting repercussions related to liability for real estate taxes, property insurance and the claims of creditors, including Medicaid estate recovery. If property passes outside of probate and there is only one year to pursue a claim, that makes it difficult for claimants to pursue the property.

Where the intestate decedent owned a parcel of land and no other assets requiring probate, the execution of an affidavit may pass title to the heirs. The affidavit should set forth the decedent’s ownership, the legal description of the real estate, the date and place of the decedent’s death, and the identities and relationships of the heirs to the decedent. The affidavit should be executed by a disinterested third party with knowledge of the salient facts. A specimen affidavit follows:

AFFIDAVIT AS TO HEIRS

AFFIANT, JEREMIAH JOHNSON, Attorney, of 22312 Garrison Street, Dearborn, MI 48124, having made proper inquiry into the facts stated below, makes this statement under MCLA 700.3901 and says:

1. SAMUEL PRINCETON, died intestate on February 9, 2017, with a residence address of 448 Tannahill Street, Dearborn, MI 48124.
2. The death certificate of SAMUEL PRINCETON is attached as Exhibit A.
3. At the time of his death, SAMUEL PRINCETON was the owner in fee of the following-described real estate in City of Dearborn, Wayne County, Michigan:

Lot 67 Fort Dearborn Manor, L49, P67;

448 Tannahill Street;

82 09 154 67 035.

4. The heirs at law of SAMUEL PRINCETON, at the time of death were:
a. PERSEPHONE PRINCETON, of 13087 Agnes Street, Southgate, MI 48195, daughter,
b. GARFIELD PRINCETON, of 141 Harrison Street, Trenton, Mi 48183, son.

5.  SAMUEL PRINCETON was not survived by a spouse and there were no other intestate heirs.

6. PERSEPHONE PRINCETON and GARFIELD PRINCETON claim title to the real estate described in § 3, above, as of February 9, 2017.

Executed June 25, 2017 by:                                                                                        JEREMIAH JOHNSON

In Wayne County, Michigan, this instrument was acknowledged before me June 25, 2017, by JEREMIAH JOHNSON as a free act and deed.

My commission expires
May 18, 2019                                                                                                                 CAMELLIA MONTI, Notary Public

When recorded return to drafter. Send tax bills to PERSEPHONE PRINCETON, of 13087 Agnes Street, Southgate, MI 48195.

Drafted by JEREMIAH JOHNSON, Attorney, of 22312 Garrison Street, Dearborn, MI 48124.

In most cases, the affidavit will be recorded as an exhibit to a deed conveying all of the interests to one heir or to a third party, signed by all of the heirs.  However, recording the affidavit in the chain of title for the property should start the one year waiting period.

John B. Payne, Attorney
Garrison LawHouse, PC
Dearborn, Michigan 313.563.4900
Pittsburgh, Pennsylvania 800.220.7200
law-business.com

©2017 John B. Payne, Attorney

What Happens to VA Aid & Attendance Funds after Death of the Veteran

When a veteran who has been receiving an improved pension, otherwise referred to as “Aid and Attendance,” dies, the question of what to do with the balance in the fiduciary bank account comes up.  Fortunately, in most cases, the family can keep that money.  My wise and wonderful colleague, Jack Rosenkrantz, in Florida, explains how that works in “No Probate for VA Fiduciary Accounts.”  If you have that situation, he has the answer.

John B. Payne, Attorney
Garrison LawHouse, P.C.
1800 Grindley Park Street, Suite 6
Dearborn, Michigan 48124

Pittsburgh Office:
9853 Old Perry Highway
Wexford, Pennsylvania 15090
800 220 7200

Restrict “Choose Life” License Plates to Considerate Drivers

The Michigan Senate and House have both passed bills to create “Choose Life” automobile license plates. This would involve a $35.00 surcharge that would go to a subsidiary of Right to Life of Michigan. I would not pay an extra dime for a special license plate, whether a vanity plate, a college identifier, or just a prettier image. Furthermore, the state should not endorse a religious or political position without allowing equal consideration for the opposite viewpoint. Aside from all that, if the state is going to issue “Choose Life” license plates, it should also require purchasers to sign a vow of consistent humanitarian values.

A few years ago, I saw a skateboarder going south in the right northbound lane of Military Street in Dearborn. He was being approached by a motorist going north, in the same lane. There were no other cars close to the motorist and he could have moved over to avoid hitting the skateboarder. He did not. He did not slow down; his brake lights did not flash. He bore down on the skateboarder, who swerved to the curb to save his life.

The skateboarder was in the wrong. He should not have been in a traffic lane, but such a minor infraction does not authorize a motorist to impose the death penalty.

I am relating this story because the car in question displayed a Right to Life bumper sticker. It also had a plate number that I noted. Since I had access to motor vehicle records at the time, I wrote the motorist a letter condemning his behavior. To be fair, I must mention that I received a reply several years later. He stated that he appreciated my bringing the matter to his attention and he regretted acting in a way that he characterized as “unchristian.”

Some people who would buy a “Choose Life” license plate have a consistent humanitarian ethic and would identify equally with a “Choose Love” license plate (if any organization with a philanthropic ax to grind could convince the state to issue one). They would support food, medical and housing assistance programs for those who need assistance. They would support foreign aid that is not military hardware for despots. They would support rehabilitation instead of incarceration for nonviolent offenses. They would support public education, including free public education from pre-school through at least two years of post-secondary education. Unfortunately, I think they are the minority.

Too many who display Right to Life bumper stickers are only concerned with preventing abortions. They are not concerned with women’s and children’s health except during gestation – and there the concern is exclusively directed at the welfare of the fœtus. They support capital punishment, stand-your-ground, and giving the Pentagon a blank check. They oppose social programs to help the less fortunate, particularly the Affordable Care Act, and contraception in general.

If “Choose Life” plates become available and you are considering making the purchase, look into your philosophy and beliefs. Are you a truly compassionate person with a consistent humanitarian ethic or a Right-to-Lifer who is only concerned with the welfare of the unborn?

What statement are you making if you put “Choose Life” on your car? Does it include a commitment to becoming a more considerate driver? If you are advertising a commitment to value life, take that gun out of your glove box and, if necessary, sign up for an anger-management class so you won’t be susceptible to road rage. Selling “Choose Life” license plates might not be such a bad thing if when you choose to purchase and display one, you also choose love and consideration.

John B. Payne, Attorney
Garrison LawHouse, PC
Dearborn, Michigan 313.563.4900
Pittsburgh, Pennsylvania 800.220.7200
law-business.com

Nursing-Home Residents Have Rights – Protect Them!

Ina Jaffe, in “As Nursing Homes Evict Patients, States Question Motives,” NPR, May 26, 2017, uncovers a dirty little secret of the long-term care industry. Many managers in that business are willing to abuse residents and break laws to maximize profits.

Maryland is suing Neiswanger Management Services, or NMS Healthcare, for flagrant and massive Medicare and Medicaid fraud. The suit alleges that the nursing home company charged the state for services it didn’t deliver, specifically for discharge planning. Nursing homes are legally required to ensure that a discharged resident is transferred to a safe placement where he or she will receive necessary care. But the Maryland Attorney General says that NMS absorbed patients’ lucrative Medicare rehabilitation days then sent residents with complex medical needs to homeless shelters or to shabby rooming houses that they knew would abuse the residents and fleece them for their Social Security. The room-and-board homes where the patients were dumped additionally charged Medicaid exorbitant per diem rates. Many skilled nursing facilities try to maximize profits by squeezing patients out when their Medicare benefits are exhausted, but NMS managers and their accomplices lowered the bar to the level of organized crime.

Medicare pays skilled-care facilities about three times as much per day for rehabilitation as Medicaid does for nursing care. A well-run nursing home can make money on Medicaid long-term care residents, but not nearly as much as they rake in for Medicare patients.

We have seen the result in the banking industry when management shreds the rule book and requires staff to pursue profit without regard to any ethical, or even legal, standard. Wells Fargo put such extreme pressure on staff to open new accounts that representatives steamrolled customers into opening unnecessary accounts and resorted to fraud when the customers resisted. They would hoodwink customers into executing blank signature cards, then use the cards to open unwanted accounts. The sole objective was to open as many accounts as possible. Many Wells Fargo customers had their credit ruined and their financial security compromised by having multiple bank and credit-card accounts opened without their knowledge or consent.

When that rapacious management style is adopted by a nursing-home operator, the results can be even more appalling. NMS, a five-facility rehabilitation and long-term care chain in Maryland, is being sued by the state’s attorney-general for flagrant disregard of Medicare and Medicaid regulations and resident safety in its involuntary discharge policies. When the rehabilitation bed occupancy was at or near capacity, the discharge coordinators would resort to kidnapping to get the patients out on the 101st day, the point at which skilled-care benefits are exhausted. They would traffick the unfortunate victim out of town to the sleazy owner of a shabby tenement lacking in care staff and medication. Worse yet, many patients were dumped at homeless shelters, hospital emergency rooms, relative’s addresses, or even on the street. The AG’s complaint is a Dickensian catalogue of horrors.

It is difficult to find a principle or proposition that most people agree on. Vaccination is even a source of controversy. The one thing that nearly everyone over 65 will vehemently oppose is being placed in a nursing home. Baby Boomers and older folks are 99 & 44/100% likely to prefer vegetating at home in their own filth over going to a <shudder> nursing home. Despite that, according to the federal government, the most common complaint against nursing home operators is not bad food, lack of staff, poor care or abuse by staff or other residents. It is eviction – involuntary discharge.

As much as they hate going to a nursing home, most residents – particularly those with dementia – become accustomed to the routine and begin to trust the staff after a month or two. Call it Stockholm Syndrome, but the prospect of being moved can be more stressful than the prospect of remaining in place. A change in location and caregivers can cause significant deterioration for a resident with dementia. Even those who are not mentally compromised suffer ill effects when moved without proper planning and social services. That is why an abrupt discharge on day 101, with no warning, is oppressive without regard to the placement. NMS did not just ignore the proper procedures for discharge, they carted the patients off to unfamiliar and unsafe surroundings and delivered them to scoundrels.

The legal restrictions and requirements of involuntary discharge are described in “Nursing Home Evictions.” A nursing-home resident has rights that can be enforced, with the assistance of an elder law attorney. Many rehabilitation, or skilled-care facilities that also have long-term care beds prefer to keep their beds filled with Medicare rehabilitation patients, not Medicaid long-term care residents. They will tell the patients’ families that they must move the patient at the end of rehabilitation because “they do not have an available Medicaid bed.” That is often a bluff to get the patient out so they can offer the bed to a more profitable Medicare rehabilitation patient. When the family has an attorney running interference on behalf of the patient the facility nearly always “finds” an available Medicaid bed at the last minute.

It is a pity that so many of NMS’s victims had no one to protect their rights. It is no less than criminal that the authorities ignored NMS’s abuse of vulnerable and elderly adults for years.

John B. Payne, Attorney
Garrison LawHouse, PC
Dearborn, Michigan 313.563.4900
Pittsburgh, Pennsylvania 800.220.7200
law-business.com

©2017 John B. Payne, Attorney

Michigan’s New Law to Allow Domestic Asset Protection Trusts

Asset protection has been has been a driving force in wealth generation and estate planning for as long as there has been a division between the “haves” and the “have-nots.” From fortified treasuries with armed guards in ancient times to secretive offshore banks and trust companies in Switzerland and the Caribbean, individuals and families have gone to great lengths to protect their monetary fortunes from discovery and recovery by creditors, criminals and even governments.

Although hiding money offshore provides the greatest protection for assets, there are many disadvantages: Cost, difficulty in retrieving and repatriating assets, and jurisdiction over the owner. Going to such great lengths to hide money is only cost-effective for very large sums.

Trustees in asset havens charge high fees. They have a favored position with regard to their local governments and can limit competition. Once an offshore trustee is in control of a hoard, the owner may be a captive client. It may be impractical or impossible to move the assets to a different repository.

The flip side to making assets hard for others to reach is that they may become hard for the owner to recover. Also, the assets are subject to a set of foreign laws that may become less favorable over time. Finally, ensuring that the owner’s intended beneficiaries will have access to the funds after the death of the present owner is problematic.

Placing assets outside the jurisdiction of domestic courts is not failsafe as long as the owner remains subject to the jurisdiction of those courts. One who refuses to provide information about offshore assets may be held in contempt of court. He or she may have to choose between keeping the assets or keeping his or her freedom.

In 1997, the Revised Alaska Trust Company Act, Alaska Stat. Ann. § 06.26.010, et seq. (West), was signed into law. It was developed to create a more accessible and less expensive alternative to foreign trust companies and to provide a business opportunity for trust companies. The Alaska statute was copied by similar laws in Delaware, Rhode Island, Nevada and 12 other states. Michigan is the 17th state to legalize domestic asset protection trusts when it enacted the Qualified Dispositions in Trust Act (QDTA), 2016 Pub. Act 330; MCLA 700.1041, et seq.

A domestic asset protection trust (DAPT) allows the settlor to fund an irrevocable trust with a completed gift that is removed from the settlor’s estate, despite the independent trustee’s power to make discretionary distributions of income and principal to the settlor. The trust also insulates the assets from the claims of most creditors. To receive this protection, the transfer into the trust must be a “qualified disposition” to a “qualified trustee.”

An individual, other than the settlor, who is a Michigan resident would be a qualified trustee. A nonresident or institutional trustee must be subject to supervision by the Department of Insurance and Financial Services, the Federal Deposit Insurance Corporation, the Comptroller of the Currency, or the Office of Thrift Supervision. Furthermore, at least some of the trust estate must be sited in Michigan and the nonresident trustee must have a place of business and maintain at least some of the records in Michigan. MCLA 700.1042(r).

A disposition is not qualified unless the trust is irrevocable and the settlor’s authority over the trust is limited to a list of permissible powers. The permissible powers include various items of administrative control, the right to receive income and annuity distributions and distributions to cover taxes on trust income, the right to receive up to 5% of the trust principal annually, the right to use real property in a qualified personal residence trust, and the right to direct post-mortem distributions to cover the settlor’s debts, expenses of estate administration and estate or inheritance taxes. A disposition is also not qualified if the settlor owes more than 30 days of child support or if an advisor who is related to the settlor is granted authority that the settlor may not exercise. MCLA 700.1042(p).

The settlor must sign a qualified affidavit affirming that the settlor has full title to the property, that the transfer will not make the settlor insolvent and the settlor does not intend to file for bankruptcy nor defraud a creditor, that if the settlor is involved in any pending court or administrative proceeding it is identified in an attachment to the affidavit, that the settlor is not 30 days in arrears on child support, and that the property is not the proceeds of illegal activity. MCLA 700.1046(1).

A creditor has two years from the date of the qualified disposition to file suit to void the disposition, or one year from when the creditor discovered or should have discovered a qualified disposition that was concealed. MCLA 700.1045(3). If the claim arose after the qualified disposition, the creditor must show “actual intent to defraud the creditor.” MCLA 700.1045(2)(b). The QDTA was accompanied by a revision of the Michigan Uniform Voidable Transactions Act, MCLA 566.31, et seq., to make it compatible with the new restrictions on the ability of creditors to attack asset protection trusts. 2016 Publ. Act 552.

A creditor who sues to cancel a qualified disposition is waging an uphill battle. Even if the creditor succeeds in voiding some or all of the disposition, unless the trustee was acting in bad faith, the recovery is diminished by the trustee’s costs in defending the disposition and the beneficiary may retain any distribution received before the creditor filed its action. MCLA 700.1047(2)(c). Furthermore, except for a distribution to a beneficiary who is also the settlor, the creditor must prove bad faith by clear and convincing evidence. MCLA 700.1047(3).

A Michigan DAPT provides protection equal to those established in other states, with two main advanteges: If the settlor has a trusted family member or friend who is a Michigan resident, it is not necessary to use an institutional trustee, saving substantial trustee fees. The settlor may choose an institutional trustee whose office is around the corner, instead of an unknown trust officer the settlor has never met in person.

Relatively few clients will find it cost-effective to establish a DAPT, but this type of planning could develope into a lucrative trust and estate sub-specialty. However, the practitioner must apply the statute meticulously, particularly in the early stages when many aspects of the law have not been interpreted and explained by the courts. The explanation above is only a starting point for drafting this specialized trust.

John B. Payne, Attorney
Garrison LawHouse, PC
Dearborn, Michigan 313.563.4900
Pittsburgh, Pennsylvania 800.220.7200
law-business.com

©2017 John B. Payne, Attorney