Caregiving

Medical Devices and Infection

Published on: January 23, 2017 | by Ettinger Law Firm

Recent Recalls

Open heart surgery has saved the lives of thousands of patients across America, as well as the world. Performing this task takes a highly skilled team of doctors well equipped with the right medical devices to assist them. All of these tools require FDA approval and specific cleaning procedures prior to their implementation during surgery. The Center of Disease Control and Prevention announced that a heater cooler unit that has been used in the majority of these surgeries since 2012, could have been contaminated when it was in the manufacturing process.

Heater Cooler Units for Open Heart Surgery

Estate Planning 101 – What Is the Difference Between a Trust and a Will?

Published on: January 15, 2017 | by Ettinger Law Firm

When you begin estate planning, there are a variety of options that are available in order to plan how your estate will be distributed and may seem very similar, however, they all have distinct benefits. Two main estate planning tools commonly used are wills and/or trusts, but their main features are very different. When determining which tools are right for you, you should first assess what stage of distribution and what assets you wish to control.

Trusts

There are a number of different types of trust that one may use, depending on what their intentions are. Trusts can be enacted during the grantor’s, also known as the person who made the trust, lifetime, or may take effect upon the death of the grantor. When forming a trust, the grantor seeks to transfer their property to the trust, which is run by a trustee. A trustee can be any number of people, but are neutral third parties who are employed to operate in the best interest of all interested parties involved, including both the grantor and those beneficiaries.

Trusts: Your Right of Withdrawal

Published on: December 27, 2016 | by Ettinger Law Firm

Every trust document is different; the terms of a trust can vary greatly, giving the beneficiaries either a broad range of power or can limit a beneficiary’s power to only include specific rights. Some of the differing terms of trust include: how the income and principal investments are able to be distributed, when, and under what circumstances, if the objective of the trust is either for growth or to maintain balance, when a beneficiary receives a distribution and under what circumstances, such as age attainment or education attainment, as well as whether the beneficiaries have a right of withdrawal also known as 5 by 5 clause.

What is a 5 by 5 Clause?

A 5 by 5 clause, or right of withdrawal, must be specifically stated in the governing trust. The right occurs once a year generally, and will allow the beneficiary to take up to 5% of the value of the trust out to be included in their current tax year or to take $5,000, whichever is greater at the time. If the trust contains a right of withdrawal, the trustee must notify the beneficiary within a reasonable time of their ability that year to withdrawal and the beneficiary must indicate their wish to exercise the right in part or in total or whether they chose to forego taking the amount. In order for the beneficiary to qualify the income under present interest, and therefore exempt under the gift exemption that year, they must have a vested economic interest to the income and principal of the trust.

Back to the Basics – Understanding Contested Estates

Published on: December 15, 2016 | by Ettinger Law Firm

Probate and Contested Estates

When an individual dies, their transfer of property through the legal system is known as probate. During this process, the court determines the validity of a legally formed will or a how property will be distributed if it has not been designated to be inherited by another named party. When an estate enters probate, all of the debts and taxes owed by the deceased on the property are paid, any remaining income, dividends, stocks or investments are sold and the property is distributed or transferred out to the heirs of the deceased. While the deceased individual can leave property or assets to any party they wish, there are certain situations that call into question the validity of the transfer. If one of these suspicious situations arises, a party may raise a contested issue with the distribution.

Examples of Contested Estate Issues

Sumner Redstone Sues Claiming Elder Abuse

Published on: December 13, 2016 | by Ettinger Law Firm

Sumner Redstone, the 93 year old media mogul who has infamously alienated both family and friends over the past few years while determining the terms of administration for his estate, added another dramatic chapter last month when he made claims of elder abuse against two of his former girlfriends. The billionaire business man has claimed that his two former girlfriends conspired to take advantage of his wealth and now owe him over $150 million dollars, given in gifts over a period of years.

Some of the gifts to the women included designer clothing and bags, access to any of Redstone’s credit cards, vehicles and real estate located throughout the world. In addition to the gifts given while alive, both women stood to inherit nearly $23 million dollars each, before Redstone altered the terms of his will when he evicted the women from his home. There were numerous tax implications that came with the gifts given by Redstone that left him in financial trouble.

Last year, Redstone’s mental competency was called into question when one of his girlfriends, Manuela Herzer, filed a lawsuit against Redstone following her eviction from his home. The former girlfriend then petitioned a court to regain decision making power of Redstone’s estate and to regain what he originally set aside for her in his will. Herzer made allegations of financial abuse by his family members, however, her case was thrown out after testimony by Redstone was released from a deposition hearing proving that Herzer maintaining decisionmaking power would not be in his best interest.

Dementia on the Decline and How it Impacts Elder Care

Published on: December 2, 2016 | by Ettinger Law Firm

A study released in late November in the JAMA Internal Medicine journal reported that dementia rates for individuals over the age of 65 years old is down almost 24% from rates found in 2000. There are a variety of reasons why this decline may have happened, including elders with higher education levels than those before them, as well as better heart and brain monitoring, and more awareness as to social and behavioral changes that elders have as a way to combat Alzheimer’s Disease.

This news comes as a welcome surprise, as in 2016, 5.4 million Americans lives with Alzheimer’s Disease, roughly translating to one in nine people over the age of 65 years old. By 2050, the elder population will have tripled in size, amounting to a staggering 84 million people over the age of 65 years old. With the aging population growing at such a rapid pace, medical, legal and social professionals are working to determine how to cope with such a large amount of the population potentially living with this disease.

These recent findings shed some light on how the disease, which generally exhibits symptoms of memory loss, confusion, limited social skills, mood changes and disorders as the result of irritability and anxiety, as well as confused speech and muscular movement.

Back to the Basics – The Gift Tax

Published on: November 28, 2016 | by Ettinger Law Firm

Putting your assets in an irrevocable trust has a number of benefits, including: allowing the settlor, also known as the maker of the trust, to establish how his or her assets will be kept and eventually distributed, it allows the settlor to have access to the income produced by the trust, as well as the numerous tax benefits such as capital gains taxes being either deferred or in the event of gifting, avoided.

According to the Internal Revenue Service, the federal tax code applies a gift tax on an individual level, however, that tax does not apply to trusts. If you transfer funds from your personal account, whether it is a savings or checking, to another, in excess of $14,000 you will be subject to a tax for the gift made, however, the IRS does not place these same taxes on trusts, depending on how the gift was made.

If the beneficiary makes a discretionary gift to another, a gift that can be shown to be made for the immediate benefit of another, it depends on whether the donation is viewed as present or future interest in the gift. If it can shown that the gift was made for the future interest of another, the IRS will not subject the trust to gift tax, however if it can be perceived that the gift was made for a temporary relief of another, the gift tax will be applied to the donation made.

Fiduciary Duties & The New Rule for Financial Advisors

Published on: November 22, 2016 | by Ettinger Law Firm

The New Rule

When consulting a financial advisor, we all assume that they would have our best interest in mind when determining where our portfolio should be invested and what investments best suit our interests, however, this has not always been the case. This year, the Labor Department issued new regulations that require industry professionals dealing with individual retirement accounts and 401k accounts to act on the best behalf of their clients.

Before this new standard was issued, financial advisors only needed to meet a suitability standard, meaning that the financial advisor only has to choose what is suitable for the portfolio, which is not always what is in the client’s best interest. A financial advisor under this standard could invest in a fund he found suitable, but may be more risky or expensive, although a similar option is available with a different fund. This suitability standard led to many advisors investing in funds they were personally interested in, sparking a need for change.

How to Properly Choose a Caregiver For your Loved One

Published on: November 5, 2016 | by Ettinger Law Firm

There comes a time when difficult conversations must be had with an elderly loved one in your life that requires a caregiver, but is not receptive to the idea. These conversations can initially be overwhelming for both the loved one and the elderly person, as they start to make a plan about how their lives will change, but as so many Americans continue to live longer with a number of chronic health problems, enlisting the help of a caregiver is a very realistic and responsible choice in order to ensure an elderly person is well taken care of. This also tends to be the best option for those families who are not geographically close enough to care for their loved one full time but see the need for change in the current situation.

In determining the needs of your loved one, continue the dialogue to assess what is most important to both of the parties, such as, full time versus part time care, what daily activities the individual partakes in and what kind of assistance is needed with those, if any, as well as whether overnight care or meal assistance is needed, among many other factors.

Once needs have been determined, it is important to build a pool of applicants to interview. Caregivers build a very personal and intimate relationship with those they care for, thus, it is critical that the individual not only approves of the caregiver, but shares something in common and can trust that person.

Trust Settlement & Disbursement after Beneficiary Death

Published on: November 2, 2016 | by Ettinger Law Firm

Upon the happening of an event described in a trust, whether it is a term being met, a beneficiary reaching a certain age, or the death of a certain party, the trustee must settle the trust, terminating it and distributing the assets out. While sometimes these terminating events can be easily foreseen and planned for accordingly, such as a beneficiary reaching age attainment, other events may be more sudden. These sudden events, such as an unforeseen death, can cause particular difficulty for those administering the trust as well as those seeking the trust continue to pay for certain expenses, including funeral costs.

When the event occurs, the trustee, in most states, must either file paperwork with the court or notify all the of the beneficiaries of the event, the trust’s consequential termination, and next steps for distribution. This release is required in order for the trust to distribute out and for the trustee’s duties to terminate. The trustee’s acknowledgement of the event insulates the trustee in the event that the estate or any of its beneficiaries attempt to bring legal action against the trustee.

What many beneficiaries of a trust do not realize is that upon the happening of the event, as of that day, the trust going forward can no longer allocate any assets to pay costs that may have formerly been taken care of by the trust, such as real estate taxes or various bills. The trust must act as if it is then frozen in time in order to preserve what will eventually be distributed out. While it can be inconvenient in terms of timing as well as financially, the trustee can no longer pay out or make distributions on behalf of the trust because it fails to exist and the will of the grantor is no longer known.