Category Archives: Elder Law

SCAM ALERT: Jury Duty

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The Federal Trade Commission has hundreds of calls about a new scam in which people received calls from fake ‘court officials’ about jury duty. In the calls, scammers claimed to be court officers, accused people of skipping jury duty and said they had to pay a fine immediately or face arrest.
The scammers take several approaches at trying to separate you from your money. People reported that some scammers acted like ‘nice guys.’ They offered to ‘review the file’ or said ‘you have a clean record’ and could just ‘make things right’ by paying the fine with a reloadable card. Others took the ‘mean guy’ role. They berated people for ignoring their mail, claimed to be holding an arrest warrant, and told listeners ‘don’t you dare hang up until you buy that reloadable card and read me the code.’ A few extra-greedy scammers told people the first reloadable card ‘didn’t go through’ and demanded a second payment.
The National Center for State Courts says court officers will never call or email you and require payment for failing to appear for jury duty. If you get a summons for jury duty and don’t go, you might get a letter telling you to come to court on certain date to explain why you missed jury duty. If someone asks you to pay a fine for missing jury duty, hang up and call your local court or law enforcement department.

To learn more about this and other scams, go to the web site for the Federal Trade Commission.

* The information contained in this Blog is intended for general information and educational purposes only and does not constitute legal advice or an opinion of counsel.

FINRA Approves Rule to Help Prevent Elder Abuse

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The Financial Industry Regulatory Authority (FINRA) announced that its Board of Governors approved a rulemaking item to help firms better protect seniors and other vulnerable adults from financial exploitation. The proposal would allow a firm to place a temporary hold on a disbursement of funds or securities and notify a customer’s trusted contact when the firm has a reasonable belief that financial exploitation is occurring.
The proposal would amend FINRA’s customer account information rule to require firms to make reasonable efforts to obtain the name and contact information for a trusted contact person upon opening a customer’s account.
In addition, the proposal would create a new FINRA rule permitting firms to place temporary holds on disbursements of funds or securities, from the accounts of investors aged 65 or older where there is a reasonable belief of financial exploitation. The proposal would also apply to investors 18 and older if they have mental or physical impairments that render them unable to protect their own interests and there is a reasonable belief of financial exploitation.
This new FINRA rule would not create a duty to place temporary holds on disbursements. Rather, it would provide firms with a safe harbor when they exercise discretion in placing temporary holds on disbursements.
FINRA plans to issue a Regulatory Notice soliciting comment on this proposal within the next several weeks.
On April 20, 2015, FINRA launched a toll-free senior hotline – 1-844-57-HELPS – to provide older investors with a supportive place to get assistance from knowledgeable FINRA staff related to concerns they have with their brokerage accounts and investments. To date, FINRA has received over 1500 calls on issues including how to find information on their brokers, calls from children of deceased parents trying to locate assets or having difficulty moving assets from a brokerage firm, concerns from seniors ranging from routine poor service complaints to routine sales practice issues at firms, and fraud raised by a senior and/or child on behalf of senior investors.
For more information go to FINRA.

* The information contained in this Blog is intended for general information and educational purposes only and does not constitute legal advice or an opinion of counsel.

National Drug Take Back Day

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Saturday, September 26, 2015 is National drug take back day. The California Medical Association (CMA) is encouraging the public to turn in unused or expired medication for safe disposal. On this day, hundreds of locations throughout California will be accepting and properly disposing of unused prescription drugs, including controlled substances. Proper disposal of unused prescription drugs helps prevent abuse and keeps pharmaceuticals out of landfills and waterways.
This one-day event will provide patients with free, anonymous collection of unwanted and expired medicines. During previous Take Back events over the past five years, 4,823,251 pounds, or 2,411 tons, of drugs were collected nationwide.
In addition to providing a safe, convenient and responsible means of disposal, the event also aims to educate the general public about the potential for abuse of these medications.

 
According to the CMA:

-Most abused prescription drugs come from family or friends. You can help by properly disposing of your unused medications!

-Unused or expired prescription medications are a public safety issue, leading to accidental poisoning, overdose, and abuse.

-Pharmaceutical drugs can be just as dangerous as street drugs when taken
without a prescription or a doctor’s supervision.

-The majority of teenagers abusing prescription drugs get them from family and friends – and the home medicine cabinet.

-Unused prescription drugs thrown in the trash can be retrieved and abused or
illegally sold. Unused drugs that are flushed contaminate the water supply.

-Proper disposal of unused drugs saves lives and protects the environment. Take back programs are the best way to dispose of unused and expired medications.

-Hundreds of collection sites in California will be able to accept all medications, including controlled substances, on September 26, 2015. For a collection site near you visit the Drug Enforcement Agency website or call (800) 882-9539.

-Other facilities collect some medications (non-controlled substances) throughout the year. For a collection site near you visit Cal Recycle.

* The information contained in this Blog is intended for general information and educational purposes only and does not constitute legal advice or an opinion of counsel.

Lottery Scams: You (haven’t really) won!

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At least once a week and sometimes as frequently as once a day, I get calls from clients and potential clients about lottery winnings. Often, by the time they seek legal advice, their money is gone. The Federal Trade Commission has been actively working to stop the lottery fraud and scams, but new ones emerge much more quickly than old ones are shut down. However, the ftc.gov website is a good resource for checking out the latest information on known scams and for reporting new ones. I have included an article from their website below.
You (haven’t really) won!
by Lois Greisman
Associate Director, Division of Marketing Practices, FTC
For years, we’ve been hearing about lottery scams: the imposter who convinces you that you’ve won the lottery (you didn’t) – and all you have to do is pay some fees to collect your millions (you won’t). And for years, we’ve been hearing about lottery scams that originate in Jamaica, where telemarketing lottery scams became a cottage industry in some parts of the island.
Here at the FTC, we’ve helped criminal law enforcers investigate these types of cases. I’m happy to report that our sister agency, the Department of Justice, recently extradited a Jamaican man on charges that he was part of an international lottery scheme targeting older adults in the U.S. He’s the first person to be extradited in this kind of case.
Here’s the story:
According to the indictment, a 28-year-old Jamaican man, Damion Bryan Barrett, called people in the U.S., spoofing phone numbers to make it look like the calls came from the U.S., and often claiming they were calling from the IRS or Federal Reserve, or a well-known sweepstakes company. Barrett, the indictment says, told people they had won cash and prizes – which they could collect if they sent up to thousands of dollars in “fees.” Then, Barrett and his colleagues allegedly told people to send money to middle-men in southern Florida, who sent the money on to Jamaica. But, says the indictment, not a single person actually got any money from their – ahem – winnings.
If he’s convicted, Barrett faces prison time, a fine, and mandatory restitution to the victims of his scam. But whatever happens in court, this extradition shows how serious the Department of Justice and its law enforcement partners are about cracking down on people who try to defraud American consumers. That’s good news for all of us.
Meanwhile, if you get a call or email that you’ve won something, follow this advice: never send money. And report the call or email so we can help in the fight against these scammers.

* The information contained in this Blog is intended for general information and educational purposes only and does not constitute legal advice or an opinion of counsel.

SCAM ALERT: Tech Support Scams

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Last Sunday I was awakened by an early morning phone call from Tech Support at Microsoft. They were calling to alert me to a problem on my computer. Fortunately, I knew this was a scam and hung up the phone, but many people have been fooled by scammers who are calling them to get them to purchase security software or to gain access to their computers, personal information, or credit card numbers. The Federal Trade Commission has recently brought action against several of these phony tech support companies, including: New York-based Pairsys, Florida-based Inbound Call Experts (ICE) and Florida-based Vast Tech Support , for misrepresenting that they found security or performance issues on consumers’ computers. Unfortunately many of the scammers are still operating.
What can you do to avoid similar tech support scams?
• Don’t give control of your computer to someone who says they need to activate software. Instead, look carefully at the software instructions to learn how to activate the software yourself.
• Don’t give control of your computer to someone who calls you out of the blue claiming to be from tech support. Instead, hang up and call the company at a number you know to be correct.
• Never provide your credit card information, financial information, or passwords to someone who claims to be from tech support.
• Learn how to protect your computer from malware.
What if you think you might be a victim of one of these tech support scams?
• If you paid for bogus tech support services or software with a credit card, then call your credit card company to reverse the charges.
• If you think someone may have accessed your personal or financial information, then learn more about how to lower your risk for identity theft.
• Get rid of malware that the fraudsters may have installed. Download legitimate security software and delete anything that it finds as a problem.
• Change any passwords that you gave out. If you use the same passwords for other accounts, then change those too.
• If you think you may be a victim of a tech support scam, report it to the federal Trade Commission.
To learn more about these types of scams and how to protect yourself, you may want to review the full article at the Federal Trade Commission.

* The information contained in this Blog is intended for general information and educational purposes only and does not constitute legal advice or an opinion of counsel.

NAELA Summit

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imageI have spent the last three days in Newport Beach at a NAELA (National Academy of Elder Law Attorneys) summit meeting. While the program was set up as classes hosted by a speaker/moderator, the summit has been interactive. Questions have been posed In the sessions and the audience responds with electronic devices to give an immediate poll of the opinions of the attendees, at which point members of the audience can choose to stand up and be heard on their ideas and views.
It has been interesting to see how the laws of the different states vary greatly on the issues and how other attorneys have overcome problems that we are also facing in California. I will be coming home with ideas and tips to improve our documents and help our clients solve practical problems from special needs trust administration, retirement benefits quandaries, and powers of attorney.

* The information contained in this Blog is intended for general information and educational purposes only and does not constitute legal advice or an opinion of counsel.

Accounting Is Not Only Important – It’s Mandatory

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Imagine how you would feel if you walked into your bank, asked for a summary of your account activity and the bank told you that it had no idea how much money was in your account or how it had been spent. Of course, this doesn’t normally happen because the bank has a fiduciary duty to account for your money and it takes that job very seriously. Unfortunately, too many trustees of special needs trusts or those who oversee funds for people with special needs don’t even know that they have a duty to account for the funds they manage, let alone perform that duty correctly.

All trustees, representative payees, guardians and conservators are required by law to keep track of funds under their control. In California all guardians and conservators are required to provide court accountings directly to the court for approval. Additional if a trust was established by the court in a conservatorship or guardianship, the trustee must account to the court.
Likewise, the Social Security Administration mandates yearly accounting by representative payees handling other people’s funds. In some cases, typically when a trust is not established by a court, the trustee has a duty to account that is spelled out in the document or by state law. But in all cases, the person with the fiduciary duty has to keep track of the money under her control, just like a bank.

Trust and guardianship accounting does not have to be difficult since, in quite a few cases, the trustee, conservator or guardian only has to worry about one or two bank accounts. This type of cash accounting is basically the same as keeping a balanced check book. The trustee, conservator or guardian simply records all transactions and makes sure that they match the monthly bank statement. Typically after the first year, the trustee, conservator or guardian itemizes all of the transactions and provides a report to the beneficiary and possibly the court explaining how the funds were spent and how much money remains. If court approval is not required, the trust beneficiary or his guardian typically has a certain period of time to object to the account before it becomes final.

The same principles apply to trustees accounting for larger pools of money, although in those cases the trustee usually has to account for investment gains and losses as well as typical expenditures. If the trust is large, it makes sense to hire an attorney or accountant to make sure that the accounts are properly prepared because they can get tricky if multiple investments are involved.

Although the accounting process is simple, it is surprising how few non-professional fiduciaries actually do it correctly (and even some professionals fall down on the job). Every year there are dozens of cases from across the country where trustees, conservators and guardians are removed from their positions because they can’t explain what happened to the funds under their control. In some cases, this is because the trustee, conservator or guardian actually looted the trust or guardianship/conservatorship account, but in many cases the person in the position of responsibility simply didn’t keep track of what was going on, either because he was too busy or he didn’t know that he needed to account for the funds under his control. When this happens, the trustee could possibly be sued or even go to jail.

Aside from the fact that a trustee or guardian has a duty to the person with special needs to account for his money, accounting also protects the trustee or guardian. Once an account becomes final due to court approval or the passage of time without objection by the beneficiary, no one can come back and sue the trustee for mishandling the funds that were accounted for, so long as the account was not fraudulent. If the trustee doesn’t file an account, she doesn’t get that important peace of mind.

If you’ve been named as the trustee of a special needs trust or as the representative payee, guardian or conservator of a person with special needs, you need to talk with your special needs planner immediately about accounting. It’s one of the most important duties you have.

 

* The information contained in this Blog is intended for general information and educational purposes only and does not constitute legal advice or an opinion of counsel.

 

Seniors and Marriage

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There are a number of concerns for seniors who are considering remarrying. Pension, health insurance, social security benefits, and alimony are among the many financial concerns that need to be addresses when making the decision to marry. there are also the issues with inheritance and the characterization of the separate property of each spouse. The Deseret News published a really good article that covers many of the issues that need to be considered.

When financial concerns hinder even seniors from a trip down the aisle | Deseret News National.

In California, individuals over 62 years of age also have the option of registering as domestic partners with the Secretary of state, which afford them the same protections and benefits as marriage in the state of California. Registered domestic partnerships are not recognized under Federal law. To learn more about California registered domestic partnerships, see:

http://www.sos.ca.gov/dpregistry/

* The information contained in this Blog is intended for general information and educational purposes only and does not constitute legal advice or an opinion of counsel.

Charitiy Fraud Alert

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The County of Santa Clara District Attorney’s office recently issued a fraud alert in relation to giving to charities after a disaster. The Federal Trade Commission also urges you to be on guard against scam artists who try to take advantage of someone else’s tragedy, as they see a rise in this type of fraud after natural disasters.

If you’re donating money to a charity, here’s how to make sure your dollars go to the causes you support.
• Donate to charities you know and trust. Find a charity with a track record of dealing with natural disasters. Be alert for charities that seem to have sprung up overnight in connection with current events. Check out the charity with the Better Business Bureau’s (BBB) Wise Giving Alliance, Charity Navigator, Charity Watch, or GuideStar.
• Designate the disaster. Charities may give the option to designate your giving to a specific disaster. That way, you can ensure your funds are going to disaster relief, rather than a general fund.
• Ask if a caller is a paid fundraiser, who they work for, and what percentage of your donation goes to the charity and to the fundraiser. If you don’t get a clear answer — or if you don’t like the answer you get — consider donating to a different organization.
• Don’t give out personal or financial information — including your credit card or bank account number — unless you know the charity is reputable.
• Never send cash: you can’t be sure the organization will receive your donation, and you won’t have a record for tax purposes.
• Find out if the charity or fundraiser must be registered in your state by contacting the National Association of State Charity Officials.

* The information contained in this Blog is intended for general information and educational purposes only and does not constitute legal advice or an opinion of counsel.

Health Law Requires Medicare To Cover Dementia Evaluation

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For those persons over 65, who are covered by Medicare, health law now requires Medicare to cover a screening for cognitive impairment during an annual wellness visit. Usually, this is done with a 30 question test called the mini-mental.  the test takes about ten minutes to complete. The experts can still not agree as to the value of the test being routinely administered to the general population. According to an article recently published by the Kasier Health News, ” The risk of dementia increases with age: its prevalence is 5 percent in people aged 71 to 79, rising to 37 percent of those older than 90. Mild cognitive impairment has many definitions, but the term generally refers to people whose impairment isn’t severe enough to hamper their ability to manage their daily lives. By some estimates up to 42 percent of people older than 65 have it. Mild cognitive impairment is a warning sign, but it may not progress to Alzheimer’s disease, says Dean Hartley, director of science initiatives at the Alzheimer’s Association. ”

To read the full article, go to:

Health Law Requires Medicare To Cover Dementia Evaluation – Kaiser Health News.

* The information contained in this Blog is intended for general information and educational purposes only and does not constitute legal advice or an opinion of counsel.