Can you protect mom from financial exploitation?

“Mom had money in her account last I looked, but now it is gone!  What can I do?”

This is a too common issue for our older population.  Financial exploitation can come in many forms, including scams, theft, cons, and so on.  It can happen by phone or email, or in person.  For example, consider the sales person who offers to paint the house for an outrageous sum, and then does a poor job or simply never shows up.  Mom doesn’t want to complain because “he was nice a nice young man!”  And, she is embarrassed to ask you for help.  Yes, it happens more often than you think, and you don’t have to be incompetent to fall for a scam or a “nice young man”.

But maybe the most common form of financial exploitation (or financial abuse) is when a relative takes money from the elder’s bank accounts.  We have had several clients recently for whom this has happened.  As a family member, how can you prevent it?

Simply put, this is a hard issue.  It is nearly impossible to stop every kind of abuse and exploitation.   You can help best by staying vigilant while she can still make decisions and take advice.  Eventually, she may actually lack capacity to make financial decisions (also known as being “incompetent”).
If she is incompetent, then she cannot sign anything legal.  To get to that point, you have to have her declared incompetent by a doctor.  Then, future documents would be invalid (such as if a person got her to sign a deed or a new POA).  But, you’d still have to prosecute the event, by filing criminal or civil charges to reverse anything done.  In some cases that might be too late because the perp will have spent the money or be unable to comply with a judgment.
And, even if she is actually found incompetent, she can still take actions (like taking funds from the ATM) that could result in problems.
Guardianship is a reasonable solution, but sometimes doesn’t help much more because mom could still wield a pen or an ATM card, or she can give the ATM card to the exploiter.  Even if the banks and everyone else know that she is incompetent, it might be preventable, but, that is about the same result as for the POA document.  The advantage to guardianship is that you would have court oversight, so she would simply not have any ability to spend her own money without court approval.  But, that goes both ways … you are also under that same authority, and would need to manage and get approval for her entire life (literally).  And, it is possible that you would win a full guardianship in most courts … but most clerks prefer to make it limited, it is an adversarial hearing, and she will be defended by a lawyer during the process.  And it has to be held in the county in which she resides, which can be an issue for an out-of-state child looking to help mom.
Further, if she is incompetent, she won’t be of any help in explaining what happened or preventing issues or exploitation.  And she will likely deny any problems even if you bring them up in plain view.
If you wanted to proceed with protecting her more, I could suggest some or all of the following:
  • have her evaluated and found incompetent
  • get a formal letter from a doctor that states that
  • notify the banks she deals with and anyone else she might work with for financial matters that she has been found incompetent and that you are the proper authority, give them copies of the letter and the FPOA
  • Keep an eye on her bank accounts for improper activity
  • If she does sign or spend due to another person’s influence, file for the guardianship and press charges or get Adult Protective Services involved as needed.
Beyond that, you can only remediate, not prevent, when you are not physically in control.
How can you gain control?  If you are her agent under a Power of Attorney, then one way to get control is to move everything to bank accounts that you control and give her an allowance via a check, autodeposit to her existing account, or a reloadable credit card.  Most of this could be automated.
You might also want to apply to be the Social Security representative payee and move the SSA deposits to the bank account you control.  You may have the right to do this as her Financial agent under the POA, and you probably should do this once she is found incompetent.  Sooner, if you can get her to agree.  But be aware that such a move may create issues in the family, or could be closely scrutinized by Medicaid.   Taking control may be required, and it is a big step.
Ultimately, the finding of incompetence is an important first step that starts the ball rolling.
If you have questions, contact us.  We always suggest that you also find a Professional Aging Life Care Manager in her community to help.  Check out our resources pages for more information or this website.

Doug Koenig is going to Congo! Why?

I have a few reasons for going … let me share them with you …

First, The Democratic Republic of Congo is one of the world’s richest and poorest countries at the same time.  It is a land of amazing opportunity, and of unfulfilled potential.   But, they need help.

Why help?  In the Bible, Jesus tells us to give to the poor (Matt 19:21), and that when we do, it is as if we are doing it for him (Matt 25:40).   A godly woman is described as one who gives to the poor. (Prov. 31:20)  We are joyful when we can help others. (2 Cor. 9:7)

We all generally want to help other people – especially those in extreme need.

But, what if we don’t see them?  What if they are kept from our sight?  What if the poor and suffering people of God’s lands are forgotten?

Why worry about Congo?

A Short History …

Congo has gone through major political upheavals in the past two hundred years.  It was settled by tribal and aboriginal peoples long ago, but during the 1800’s suffered from the global slave trade like much of Africa.  Many people died.  The land was acquired by King Leopold II of Belgium for the rubber and mineral wealth, and after millions of Congolese were brutally exploited (as much as half the population died), the Belgian Parliament took over the “Congo Free State” in 1908.  Indigenous courts were a dual-system mess, strangled by Belgian rules and hundreds of local administrators.

In 1960, the country gained independence and was called the Republic of Congo.  This ended in 1965 after several changes of leaders and governments and political intrigue when Joseph Mobutu led a military coup.  People died in the war.  The “Democratic Republic of Congo” name lasted until 1971 when the name was changed to Zaire.  Political stability was the trade-off for human rights violations and corruption.  In the 1990’s civil war raged.  More people died.

The country was renamed Democratic Republic of Congo (DRC) in 1997 and a constitution was approved with a democratic election held in 2006.  Today, the DRC is stable for the moment awaiting the next constitutional election in 2018.

Human rights has been a problem for a long time.  Today there is still a culture of violence against women.  The UN regularly issues alerts.  Documentaries describe brutal violence.  Politically active women pay a heavy price.  Corruption exists.  For many people, life is a never-ceasing struggle.  Faith comes hard in those situations.  Help is hard to find.

When people have come to Congo to “help” to often the result has been more oppression and more injustice.  Today, the country needs real help that doesn’t oppress or bring death, but brings hope and justice.

What will change?  When will it change?  Who will make it change?

The past has been horrific.  But, today, over 80% of Congolese children attend school, and 75% of people are literate.  The land itself is rich in natural resources and the country could support itself given the right conditions.  The DRC is the world’s second largest producer of diamonds and is a major producer of cobalt and copper.  God gave the DRC an amazing natural bounty.

At the same time, God gave His people hope and imagination.  The people are working to regain their dignity, rebuild their culture, and restore their lives.  Progress is coming.  Potential is being realized.  Justice is working and there has been a major change in the attitude toward violence against women.  Today, prosecutions are happening and change is occurring.

Through it all, what has persisted?     Faith.  The people.  God’s love.  Potential. 

But, it isn’t easy and they have a long way to go.  And, the land and its troubles are so far away that we don’t easily see it.  So, then, because we don’t see them in our midst, we forget to help.

Oh, yes, this is going to be a “churchy” letter, because that is who I am.

And, this is the masterplan of darkness …

Keep Congo and all its troubles “out of sight, out of mind”.

Is it working?     Is Congo “out” of your mind?

The darkness wants you to forget, but today, I want to answer the one question I posed above … “Why worry about Congo?” with this:

  • Because our brothers and sisters struggle every day. 
  •  Because oppression should be relieved. 
  •  Because we are all called to do justice, love mercy, and walk humbly with the Lord (Micah 6:8). 
  •  Because God has a really big plan, and for all of us, even here in the USA, Congo is part of His plan.

You might be asking … “Can I really help?”

The short answer is yes, and let me invite you to become “super-marginal” with me.  Let me explain.

I learned long ago that we do not need to invent anything new…. God has seen it all and He is in control.  He is already active in the world.  The best thing I can do?  Come alongside of God in what he is already doing.

For many years, churches all over the world, over 60 denominations in all, have worked together to bring light to the “Heart of Darkness” in Congo.  The name of that project is Congo Initiative (CI).  I’m not going to tell you more about CI … instead, let me tell you how I am involved.

You know that I am a second career attorney and that I practice Elder Law, which means that I help clients face aging with their dignity intact and with them in control of their future.  Many of my clients are in their 80s, give or take a few years, although I do support all ages, including some in college.  More about my practice near the end of the letter.

Recently, I was invited to participate in a Justice Conference in Congo.  The goal is to help Congolese attorneys and judges develop a response to the history of injustice and to build a new pattern of human rights, justice, and mercy.  I’m not talking about conversions and evangelism … this is much simpler and yet deeper than that.  It is standing alongside people who struggle as they work for their nation and their neighbors.

How can I do that?” I have no skills that pertain to the Congolese.  I don’t speak French.  I’ve never been to Africa.  Truthfully, I’m even a little afraid of Africa.  I struggle with putting faith into action in my job.  What do I bring to this event?

Prayerfully, I sought an answer.  I asked people I respect as I struggled over the desire to be involved over the fear of being involved.

I learned this… I just bring a little marginal change.

What I bring is a message of hope and love for the people.  A visible statement that I care about them … that American churches pray for and support them.  It is a simple a message of hope and encouragement from a brother standing with them in their own efforts to follow Micah 6:8.

But, visiting them isn’t marginal in cost … it is expensive.  It takes time.  Determination.  Endurance and courage.    And shots … lots of shots!

This is where YOU come in … you can be involved in at least two ways.

First, I do need your thoughts and prayers … since I decided to follow where God was leading in this effort, many things have apparently “conspired” to make it harder to go.

Not everyone prays, and not all of us understand God in the same ways.  That is ok!  I welcome your participation in any way that is meaningful to you.

But, pray-er or not, secondly, you can help financially.  I know that isn’t a surprise, and I’ll have some creative ways that you can benefit from this too, but let me say that the trips cost about $3,500 to $5,000.  It is a lot to afford, and my church, Blacknall Presbyterian in Durham, is incredibly generous because members have been so generous in the past.  But, each traveler needs to raise these funds so that the next person whom God calls to see what He is doing can also afford to go.  For now, I have access to some funds in various places, but not enough.  Yet.

Think about how you can help.  And read on to see how I can respond to your help!
While you consider that, let me tell you another fact about Congo …

The second thing to know is that the church is already involved in working with the Congolese.

Over 60 denominations are active in Congo, including Blacknall Presbyterian in Durham (my church).  Congo Initiative is a joint effort for global entry into Congo, and our way to support missions from the USA.

Other denominations are involved too, of course, setting up schools, supporting education, and helping people.  Children and women as especially vulnerable and do receive targeted help.  God’s people are active and supportive, heeding the voices crying out so that we can in the wilderness prepare a way for the Lord (Isaiah 40:3).

The primary religion of Congo is Catholic, and today, the Catholic church is a major influence in culture and politics playing an important role in peace-keeping and education. Between 85% and 90% of the population is Christian, with about 10% Muslim.  But, merely being affiliated with a denomination is not enough.  We must actively help bring justice to a troubled people.

There is good news…

Churches come to Congo from a position of historical involvement … and success.

As believers, we work from a position of victory, knowing that God always leads us in triumph in Christ (see 2 Cor. 2:14). We are more than conquerors through Him who loved us (see Rom. 8:37). And if God is for us, then who can be against us? (see Rom. 8:31)

You see, I believe that the real battle is already won … for all history.  The darkness does not win.

But, that does not stop hunger, and injustice, and horrors from being forced upon the weaker and poorer among us.  It is especially true in poorer countries, including Congo (as I explained earlier).  That is why Jesus told us to give, and why He healed while He walked this earth.

Whomever you follow (for me, it is Jesus), most religions agree that justice is good and should be sought after.

But, for now, people suffer, and we must do what we can to help all of God’s children.

Wait, what about local work, Durham, for example?

Ok, I know some of you are asking, what about Durham?  What about spending that money right here?  Why spend it so far away in Congo?  Great questions!

For me, I think of the marginal dollar.  I think relief works in amazing ways, locally, nationally, and internationally.  Here, in the US, we have systems and people and ways to assist.  Here, most people are not homeless (although some are) and most people do not have to worry about food (although some do).

A dollar given here, and an hour of time there … it is great, and necessary, and it does help.  And, I do participate locally various ways.

But, over in Congo, a dollar … or an hour … can make a national difference.

It is what I am calling the “super-marginal” dollar.

If I spend a week with the Justice Conference …

  • Judges may be able resist corruption
  • Attorneys could make real change
  • People could receive real justice

Their actions could affect hundreds or thousands of women and children, and could liberate a nation!

The marginal effect is astonishing.

The heat of darkness seems to have a plan … a plan around the world to oppress the people so that they don’t have time, or energy, or hope to look up to see God or to find hope.  Too often it works with war, oppression, corruption.  Lately right here in the US it seems like he has also found ways to use prosperity to make us complacent about ourselves and the world.

Don’t be complacent.  Be a part of the “super-marginal” majority …

 

Will you help?

Will you be Super-Marginal?

 

Doug Koenig

 

Change the Will when the testator must downsize?

Downsize Needed?

Sometimes, people will have a significant list of items in their home to go to others. But, when it is time to downsize, and move to a new smaller residence or to assisted living, what should a person do with them?

In general, the advice I give is in two parts… sell it, or give it now.  Which choice depends on the answers to a couple of questions:
  1. Does the testator (the person writing the Will) need money that would be gained through sale of the items?
  2. Can the testator fit certain (or all) the items in the new downsize residence?  Does she even want to take them all?  Can she afford the cost of moving the items?
  3. Will the persons to whom the items were intended be a able to take them now, and/or be upset if the items were not available in the future?  This might happen, for example, when grandkids are the intended recipient and they do not have a place of their own or are still living at school.

Give the gift now!

Usually, the gift given during the testator’s life is more appreciated than after death.  And, the testator can enjoy seeing the recipient have the gift and use it.  Wonderful memories are shared when grandmother’s pearl necklace is given to a great-granddaughter along with the story of how she got it in the first place!  Or, of hearing the piano played by a grandchild who could not afford one for many more years!
And, if you do decide to give the gifts now, do these two things as well:
  • Gift them as instructed in the will  – it fulfills her wishes ahead of time, and it will prevent hurt feelings when the will is later revealed and everyone sees that the “wrong person” ended up with the necklace, piano, painting (or whatever).
  • Then, mark a copy of the will with gifts given out and identify which she still has with her.  That will make the executor’s job a lot easier in the future!

The choice to downsize can be a difficult time for lots of reasons.  Derive immediate joy by gifting the important personal possession now.

Press Release – Entrepreneurial Attorney of the Year finalist

Many attorneys start firms, but not as many have successful firms.  In those cases, the successful ones simply have learned to treat the firm as a business, and to consider themselves as “small business owners” first and as attorneys second.  This one enlightened decision (or realization) can make all the difference to the practice.

In 2013, Doug decided that the business aspects of his practice needed  to be treated as the number-one detail, and so began to develop practices and procedures that support a profit while at the same time delivering premier customer service to his clients.

His efforts were recognized in 2016 when he was nominated for “Entrepreneurial Attorney of the Year” by the Richard James marketing company (Your Business Automated LLC) and competed in November at their annual meeting with five other outstanding entrepreneurial attorneys.  Although Doug did not win (this year), he believes that he learned an incredible amount of information in the preparation and presentation and is honored to have been considered a finalist.  He looks forward to continuing and expanding his practice of service to elders and veterans in the coming years.

Filling in your NC Health Care Power of Attorney

Sometimes I am asked about the Health Care Power of Attorney .. .that is the document that names an “agent” who will be able to make medical decisions for you when you cannot.  It is an important role.  But, what do you put in the various spots?

Here is the blank form used in NC for standard choices for the health care agent under a power of attorney.
For section 1, you would simply fill in the name of the advocate you choose, and if you would like a second or third, add those.  Please be sure to enter the contact information because if you need help, your doctors need to know how to reach the agent you are naming.
I advise NOT entering a physician in section 2.  The language allows your attending to start the process of deciding when to call on the agent … you don’t want to wait until your primary care doctor returns from his annual 2-week trip to Yellowstone…
If your family knows your wishes in section 5, no additional entries are needed.  But, you might have some religious or other limitations.  For example, if you wish to refuse blood transfusions, you can enter it in part B.  Also, you can (and should) tell doctors to turn off your pacemaker.
If you would like to specify organ donation chose one of the blocks to initial in item 6 (or leave them blank, it is not required).
Then have it witnessed and notarized.  The notary has to see all the people sign it, so don’t sign it and then take it to a notary.
Witnesses CANNOT be related to you, or be caregivers, or heirs.
You can often have the document notarized at a bank, the hospital, or of course, you can come to our office.
Once completed, you keep a copy for each of the agent advocate, and then send /give the original to the doctor’s office or any doctors you use as specialists.  Usually just your primary care doctor is sufficient.
Let us know if you’d like to come in to have it witnessed and notarized.  Call at 919-883-2800.
Or if you have more questions, schedule a complimentary strategy session on aging and long-term planning.

What is PASRR?

I’ve been asked a couple of times this week about admission to adult care facilities and this thing called “PASRR”… what is it?  Well, let’s check it out at the NC Health and Human Services website​.

​As always, if you have questions about VA benefits, Medicaid, or Estate planning, please give us a call!  919-883-2800

North Carolina Pre-Admission Screening and Resident Review (PASRR)
Who is subject to PASRR Screening?
The PASRR is a required screening of any individual who is being considered for admission into a Medicaid Certified Nursing Facility or Adult Care Home regardless of the source of payment. Please see the specific informaition below for each program.

PASRR Level I

Federal law (42 CFR 483.128) mandates that states provide a Level I screen for all applicants to Medicaid-certified nursing facilities to identify residents with serious mental illness (SMI), mental retardation (MR), or a related condition (RC). For residents with no evidence or diagnosis of SMI, MR, or RC, the initial Level I screen remains valid unless there is a significant change in status.
Referred to as the Level I or identification screen, specific diagnostic and functional questions about an individual are raised to identify those persons with mental illness, mental retardation, and conditions related to mental retardation. The Level I and, when required, the Level II screens must be performed prior to nursing facility admission (excluding those situations discussed in Section II.D.ii of this manual).
The Division of Mental Health, Developmental Disabilities, and Substance Abuse Services (DMH/DD/SAS) PASRR Unit is the agency which will make final determinations regarding appropriateness of placement and need for specialized services and, in cases where specialized services are determined as necessary, the DMH/DD/SAS will arrange for provision of those services.

PASRR Level II

The Level II screening is triggered by evidence of a serious mental illness (MI), mental retardation (MR) or condition related to mental retardation (RC) as defined by state and federal guidelines. The purpose of the Level II screening is to determine if the individual has any special needs due to his/her identified condition that need to be addressed in a nursing facility or if those special needs are so significant that they cannot be met in a nursing facility and can only be met in a psychiatric hospital or a specialized facility dedicated to the care of the developmentally disabled. For those suspected of meeting state and federal PASRR criteria for MI or MR/RC, Level II screens must be performed both prior to admission (PAS) to assess for both NF placement appropriateness and specialized service needs.​

When to update your will?

Here are some thoughts from St. Jude’s Children’s Hospital:

Does your will need updating?

Creating a will and estate plan is a good first step in protecting the people closest to you and the assets you’ve worked so hard to accumulate. But even the best will can become obsolete over time.
Consider the many life events that can impact a will and other arrangements:

  • moving to another state
  • changes in the value of your assets
  • a change in marital status
  • birth of a grandchild
  • a change in the real estate you own
  • new tax laws
  • changes in your charitable goals

If you need to update your will, there is no substitute for using a qualified attorney with estate planning experience in your state. A knowledgeable attorney can make sure that your revisions are properly recorded, which can reduce expenses and help heirs receive their inheritances sooner.

Proposed regulations offer guidelines for new state – sponsored ABLE accounts for people with disabilities

Proposed Regulations Offer Guidelines for New State-Sponsored ABLE Accounts for People with Disabilities
IR-2015-91, June 19, 2015

WASHINGTON

— The Internal Revenue Service today released proposed regulations implementing a new federal law authorizing states to offer specially-designed tax-favored ABLE accounts to people with disabilities who became disabled before age 26.
The Achieving a Better Life Experience (ABLE) account provision was signed into law in December 2014. Recognizing the special financial burdens faced by families raising children with disabilities, ABLE accounts are designed to enable people with disabilities and their families to save for and pay for disability-related expenses.
The new law authorizes any state to offer its residents the option of setting up an ABLE account. Alternatively, a state may contract with another state that offers such accounts. The account owner and designated beneficiary of the account is the disabled individual. In general, a designated beneficiary can have only one ABLE account at a time, and must have been disabled before his or her 26th birthday. The law provides what it means to be disabled for this purpose.
Contributions in a total amount up to the annual gift tax exclusion amount, currently $14,000, can be made to an ABLE account on an annual basis, and distributions are tax-free if used to pay qualified disability expenses.  These are expenses that relate to the designated beneficiary’s blindness or disability and help that person maintain or improve health, independence and quality of life. For example, they can include housing, education, transportation, health, prevention and wellness, employment training and support, assistive technology and personal support services and other expenses.
In general, an ABLE account is not to be counted in determining the designated beneficiary’s eligibility for many federal means-tested programs, or in determining the amount of any benefit or assistance provided under those programs, although special rules and limits apply for Supplemental Security Income (SSI) purposes.
The proposed regulations, available today for public inspection at www.federalregister.gov, provide guidance to state programs, designated beneficiaries and other interested parties on a number of issues. For example, the proposed regulations explain the flexibility the programs have in ensuring an individual’s eligibility for an ABLE account. They also indicate that the IRS will develop two new forms that ABLE account programs will use to report relevant account information annually to designated beneficiaries and the IRS — Form 1099-QA for distributions and Form 5498-QA for contributions.

Until the issuance of final regulations, taxpayers and qualified ABLE programs may rely on these proposed regulations.

The IRS welcomes comments. Comments must be received by Sept. 21, 2015, and may be submitted electronically, by mail, or hand delivered to the IRS. A public hearing is scheduled for Oct. 14, 2015, at the IRS Auditorium, 1111 Constitution Ave. NW, in Washington. See the proposed regulations for details on submitting comments or participating in the public hearing. More information can be found at Tax Benefit for Disability: IRC Section 529A.

Happy Memorial day!

This Memorial Day, we pause and reflect on our freedoms, and on those whose sacrifice keeps us free.​  Not all our veteran friends survive their service, and it is especially painful for those who have lost a loved one.  But, for everyone who serves, and on behalf of those who love someone in our military … THANK YOU!​

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