LAugust 2014 Volumeawyer 9, No. 3 www.nmbar.org
Elder Law: It’s More Than You Think It Is
The State Bar Elder Law Section’s edition of the New Mexico Lawyer focuses on how technology and social changes are affecting the elder law practice.
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2 New Mexico Lawyer - August 2014 What is Elder Law? By Laurie A. Hedrich and Johanna Pickel
f you are an attorney practicing in In 1994 the National Elder Law personal injury, family law or criminal Foundation began a national defense, you likely do not need to certifying program for elder law Iexplain the ins-and-outs of your attorneys. The National Elder practice. As an elder law attorney, the Law Foundation defined elder particulars of one’s practice are not readily law as: understood with just calling yourself an elder law attorney. Many mistakenly … the legal practice of believe that an elder law attorney must counseling and representing practice in Medicaid planning or poverty older persons and their law.1 Although some elder law attorneys representatives about the legal (2012-1 Supplement). Representing the do provide those services, the practice of aspects of health and long-term Elderly Client. Aspen Publishers. 4 elder law has evolved into a broad term care planning, public benefits, Fleming, R. B., & Davis, L. N. (2012 defined more by the client served than surrogate decision-making, Supplement). Elder Law Answer Book. the exact type of law practiced2. As stated older persons’ legal capacity, the Aspen Publishers. 5 by the National Academy of Elder Law conservation, disposition and Fleming, R. B., & Davis, L. N. (2012 Attorneys (NAELA): administration of older persons’ Supplement). Elder Law Answer Book. estates and the implementation Aspen Publishers. 6 Rather than being defined by of their decisions concerning Sabatino, C. (2012, August). The technical legal distinctions, elder such matters, giving due Longevity of Elder Law. BiFocal, p. Vol. law is defined by the client to consideration to the applicable 33. 7 be served. In other words, the tax consequences of the Sabatino, C. (2012, August). The lawyers who practices elder law action, or the need for more Longevity of Elder Law. BiFocal, p. Vol. may handle a range of issues but sophisticated tax expertise. 33. 8 have a specific type of clients— Sabatino, C. (2012, August). The seniors. Throughout the development of Longevity of Elder Law. BiFocal, p. Vol. the practice of elder law, many 33. 9 The most common legal areas that have attempted to define elder law Sabatino, C. (2012, August). The elder law attorneys focus on include practitioners as experts in the law of Longevity of Elder Law. BiFocal, p. Vol. long-term care planning, guardianship Medicaid.9 Although many elder law 33. 10 and conservatorship, advance medical attorneys do focus on Medicaid eligibility Frolik, L. A. (2003). The Developing directives, probate, and trust and estate and planning, many other elder law Field of Elder Law Redux: Ten Years planning.3 Some elder law attorneys attorneys have defined their practice in After. The Elder Law Journal, 1-14 11 focus on Medicare and other government other areas of “late life planning” or late Sabatino, C. (2012, August). The benefits, elder abuse and neglect and life issues that do not include Medicaid Longevity of Elder Law. BiFocal, p. Vol. age discrimination.4 Although there is planning.10 33. not one specific area of focus, the key connection among elder law practitioners Future of Elder Law Laurie A. Hedrich is a former chair of is the age of their clients.5 the State Bar of New Mexico Elder Law As the practice of elder law continues to Section. Her practice focuses on estate grow and evolve, the definition of an elder History of Elder Law 11 ■ planning, probate, guardianship, elder and law attorney will continue to change. business law. Most trace the evolution of elder law to ______the passage of the Older Americans Act, Johanna Pickel is an Albuquerque attorney which was signed into law by President Endnotes 1 whose practice focuses on estate planning, Johnson in 1965.6 The National Senior Frolik, L. A. (2003). The Developing Field of Elder Law Redux: Ten Years elder law, probate and trust administration. Citizens Law Center and the American She served as an assistant judge advocate Bar Association Commission on Law After. The Elder Law Journal, 1-14 2 Fleming, R. B., & Davis, L. N. (2012 general with the Air Force and is a veteran of and Aging helped develop the practice of the Iraq conflict. During her last assignment, elder law.7 In 1988, NAELA developed Supplement). Elder Law Answer Book. Aspen Publishers. she taught law at the Air Force Academy. from a group of practitioners that met 3 from various states focusing on elder law Begley, Jr., T. D., & Jeffreys, J.-A. H. issues.8
New Mexico Lawyer - August 2014 3 End of Life Care— The Ever-changing Landscape
By Laurie A. Hedrich and Johanna Pickel
ublic interest in the right of would be honored in another. In 1993, the seriously ill patients to make their Uniform Law Commissioners approved As a result of the Act, changes in how own choices about whether they the Uniform Health-Care Decisions health care is delivered and the low receive life-sustaining treatment Act (UHCDA) to unify the various number of people who completed advance P 4 has been fueled by discussions about state laws. New Mexico and five other care directives, many states are now how healthcare is provided in the United states adopted the UHCDA.5 The overall enacting legislation to legalize Physician States. A few well-publicized cases, objective of the UHCDA is to encourage Orders for Life-Sustaining Treatment involving the withdrawal of life-sustaining the making and enforcement of advance (POLST). treatments from individuals who had health care directives and to provide a lost decision-making capacity, have means for making health care decisions for A POLST is put in place after medical driven those discussions including Karen those who have failed to plan. The New personnel have a conversation with Quinlan1 in the 1970s, Nancy Cruzan in Mexico statutory form advance health care individuals who are terminally ill or have the 1980s2 and most recently the much directive is intended to assist individuals a serious illness, to create an order on the publicized case of Theresa Schiavo.3 regarding treatment preferences when they exact care the patient desires as his or her would otherwise be unable to make such end of life approaches. “POLST differs Quinlan’s family petitioned and was decisions. from an advance directive (living will or allowed to remove her from a respirator health care power of attorney) in that it is in 1976 after a ruling by the New Jersey In New Mexico, a group of an actionable medical order dealing with Supreme Court. In 1983, Cruzan was the here-and-now needs of patients—it injured in a car accident, which left her in medical and other professionals can build on an advance directive but can a persistent vegetative state. Her parents is developing a Medical Orders be created for patients without advance 8 sought to remove her feeding tube. The for Scope of Treatment (MOST), directives.” case ultimately was decided by the U.S. Supreme Court and supports that patients to be used for providing In New Mexico, a group of medical and have a fundamental right to refuse life- treatment under the authority other professionals is developing a Medical sustaining treatments. States, however, of New Mexico’s UHCDA. Orders for Scope of Treatment (MOST)9, may regulate the circumstances under to be used for providing treatment which life-sustaining treatments may be under the authority of New Mexico’s withdrawn when the patient cannot speak UHCDA. MOST is designed to be a on his or her own behalf. Although public cases about ending life- statewide mechanism for an individual to sustaining treatments6 cause quite uproar communicate his or her wishes about a Schiavo was in a persistent vegetative state in the media, most individuals still do not range of life-sustaining and resuscitative for 15 years before artificial hydration and complete advance care directives. measures, including the use of CPR, nutrition were withdrawn and she died in ventilators, administration of antibiotics, 2005. The Schiavo case differed from the The Patient Self-Determination Act7 choices regarding curative treatments Quinlan and Cruzan cases by challenging (the Act) was enacted by Congress in or comfort care measures. MOST can notions of what was thought to be settled 1990 to encourage competent adults to be used as a means of transferring the law rather than breaking new legal ground complete advance directives. Compliance known wishes of an individual from one on the right-to-die issue. The five-year with the Act requires all health care care setting to another. It is intended to battle between Schiavo’ s husband and her facilities receiving Medicare or Medicaid be honored across all treatment settings, parents about whether to maintain life reimbursement to ask patients whether including home, hospital, rehabilitation, support played out in the media, turning they have advance directives, to provide skilled nursing or assisted living facility. a very private family decision into a very information about advance directives MOST is an advance directive document public debate. Eventually, the court found and to incorporate advance directives designed to help healthcare providers in favor of Schiavo’s husband and allowed into the individual’s medical record. In honor the treatment wishes of their life support to end. the late 1990s, state legislation focused patients with serious advanced illness. on the issue of unwanted resuscitation As a result of the Quinlan and Cruzan of terminally ill patients at home or While there is considerable merit in cases, states began to enact legislation to in hospice settings with development any advance care planning that allows provide for decision makers and, in most of explicit do-not-resuscitate (DNR) individuals and their families the ability to cases, for an individual to make end-of- instructions for use outside the hospital. have a voice in the type of treatment they life decisions (i.e., living wills). There was Advance directives are not DNRs and receive or do not receive, New Mexico’s no uniformity of statutes from state to do not prevent unwanted resuscitations, form of MOST has a number of areas of state and it was unclear if a document intubations or readmission of individuals concern that should be addressed: that was prepared in one jurisdiction to the emergency department.
4 New Mexico Lawyer - August 2014 and/or POLST, MOST, MOLST registries or other electronic solutions for document completion, storage and access for health care professionals. However, determining which agency or health care system will be responsible for the registry, whether reporting will be mandatory, obtaining funding to get a registry up and running and for operations is vital to long- term success. Currently, there are no plans ■ for a New Mexico registry. ______Endnotes 1 In Re Quinlan, 355 A.2d 647 (NJ. 1976) 2 Cruzan v. Director, Missouri Department of Health, 497 U.S. 261 (1990). 3 Schindler v. Schiavo (In re Schiavo), 780 So. 2d 176, 180 (Fla. Dist. Ct. App. 2001) (affirming the trial court’s decision to withdraw feeding and hydration from Theresa Schiavo). 4 NMSA 1978, §§ 24-7A-1 to -18 • The form should specifically identify the “healthcare decision maker.” (1995, as amended through 2009). if there is an existing advance health Although only a minor variation, 5 The Uniform Law Commission care directive and, to the extent that the New Mexico UHCDA uses the also lists Alaska, Hawaii, Maine, and an individual wishes to change agents, language “my agent to make health Mississippi and Wyoming. In addition, the individual should be required to care decisions.” The language should Alabama, California, Delaware and acknowledge that the MOST revokes be consistent so it does not create any Tennessee have adopted substantially the advance health care directive confusion. similar legislation. agents. Absent such clarification, it 6 “In one way, the cases are polar is impossible to know if the person Finally, an identified barrier to the opposites: the parents of Jahi McMath filling out the form is simply listing effectiveness of both advance directives in Oakland, Calif., have fought to keep the names of family without due and MOST is inaccessibility of the their daughter connected to a ventilator, consideration of the individual’s prior documents intended to guide care. A 2004 while the parents and husband of Marlise express preferences in naming agents survey of Oregon EMTs indicated that Muñoz in Fort Worth, Tex., want to make health care decisions. the POLST form can be difficult to locate desperately to turn the machine off.” At in an emergency—with 25 percent of Issue in 2 Wrenching Cases: What to Do After • An individual should be aware that respondents indicating the last time they the Brain Dies, By BENEDICT CAREY by completing the MOST, he or she expected to find a POLST form, they were 10 and DENISE GRADY, JAN. 9, 2014, is revoking his or her prior advance unable to do so in a timely way. http://nyti.ms/1bWrnNR health care directive, and the MOST 7 Omnibus Budget Reconciliation Act. does not provide an agent as guardian. Title IV, section 4206. Congressional Therefore, even if there is not a conflict An identified barrier to the Record, October 26, 1990. with the prior advance health care effectiveness of both advance 8 Charles P. Sabatino and Naomi Karp, directive, by executing the MOST directives and MOST is Improving Advanced Illness Care: The and revoking the prior advance health Evolution of State POLST Programs, 2011– care directive, an individual may be inaccessibility of the documents 01 AARP, April 2011, at V. vulnerable to a future guardianship intended to guide care. 9 POST, MOST, and MOLST are all hearing. variants of the term POLST. 10 Schmidt TA, Hickman SE, Tolle SW • A New Mexico MOST must be and Brooks HS (2004). The Physician signed by a physician, but it should A 2008 study of nursing home patients 65 Orders for Life-Sustaining Treatment be made clear that the physician years of age or older who were transferred Program: Oregon Emergency Medical must meet with the individual to to a hospital’s emergency department Technicians’ Practical Experiences and discuss treatment options to help found that many patients arrived without Attitudes. Journal of the American the individual understand his or her their advance directive; and, when the Geriatrics Society, 52: 1430–1434. medical condition and options for advance directive was sent, it did not 11 Weinick RM, Wilcox SR, Park ER, treatment/care and to determine and always agree with other information in the 11 Griffey RT, Weissman JS. Use of Advance clarify the individual’s wishes. record, thereby limiting its use. Directives for Nursing Home Residents in the Emergency Department. Am J Hosp • New Mexico’s MOST labels an Many states have developed or are Palliat Care. 2008 Jun-Jul;25(3):179-83. individual’s healthcare agent as considering developing advance directives Epub 2008 Apr 10.
New Mexico Lawyer - August 2014 5 Cover Your Digital Assets: You May Not Own Everything
By Kate Fitz Gibbon
ost Americans today rely on the Internet for Msocial communications, information storage and for performing a range of financial activities from investments to consumer purchases. The Internet is also a repository for a significant percentage of U.S. assets: in a 2011 survey, Americans valued their Internet assets on average at $55,000.1
A digital asset is any content— textual, sound or visual— owned by an individual that is stored in digital form. In the law, the term can refer to any information created, generated, sent, communicated, received or stored by electronic means on a device or system. Examples include email accounts, websites, domain names and blogs as well as computers, tablets and other portable Practitioners need to make dealing with may not allow the contracting individual’s devices on which digital information is digital assets a standard element of estate- heirs to transfer content—or may give the accessed. Digital information assets may planning to address clients’ concerns over Internet service provider extraordinary include items of significant value such as privacy, transferability, management and rights to the content carried over the online gaming items, intellectual property distribution of digital assets. As a practical Internet even after death. including photographs, client lists and matter, this could include: other business assets. • Client instructions for account Without adequate planning when setting passwords, access and regular updates up an Internet business, an heir may be Management of digital assets may 3 • Information on Internet contacts to unable to discover passwords or find that require not only access to an account be notified in the event of death or the business website account is tied to and ownership of its digital contents, but disability. the deceased individual who contracted also its ongoing use to generate income • Instructions for continuing or closing for it rather than the business entity. A for heirs or estates. Entire businesses sites on death. new fiduciary or trustee for a nonprofit are increasingly located online: Between • Plans to realize value for digital assets. organization may be hampered in 2011 and 2012, the number of electronic • Completing beneficiary designations operating the entity. shopping establishments grew 27.4 percent for digital assets in wills or trusts. to 30,185 online businesses employing State laws largely fail to address whether 365,508 people. During the same period, Managing digital assets can be a an online account or its contents pass 77,000 brick-and-mortar businesses in the challenging task for fiduciaries, whether via will, intestacy or non-probate U.S. grew only 1.1 percent.2 acting as agent under a power of attorney transfer. State and federal laws like the for an incapacitated person or as a trustee Electronic Computer Privacy Act and A Harris Poll from March 2013 found or personal representative on death. Stored Communications Act penalize that “93 percent of Americans who Online accounts are usually created by unauthorized access to digital accounts have digital assets were unaware of or signing a “click-wrap” contract of adhesion and prevent the access necessary to misinformed about what would happen to accept a “terms of service agreement” fiduciaries. These conflicts exacerbate an to their digital assets should they die.” (hereafter TOSA). TOSA often provide already difficult situation. A few states Certainly, estate planners and other for non-transferability or termination of have tried to address post-mortem digital advisors should be prepared to counsel 4 accounts on death, despite the prevailing management and others are considering clients regarding these increasingly legal principle that a decedent’s rights legislation. (As of this writing, New important assets. under a contract may be assigned to an Mexico has not considered any such executor by operation of law. For example, legislation.) Existing legislation differs social media and photo storage accounts with respect to the types of digital assets 6 New Mexico Lawyer - August 2014 covered, the rights of the fiduciary and tangible goods or services, then additional or, in Facebook parlance, “memorialized” Cover Your Digital Assets: whether the principal’s death or incapacity guidance regarding authority to transform pages to friends only.6 While the new is covered. certain digital assets into tangible ones policy claims to honor users’ “wishes in could be useful. life,” it does not allow changes after death, You May Not Own Everything Some state laws require email providers regardless of the users’ wishes, and allows and/or other custodians of private While it is generally accepted that heirs Facebook to utilize the content of its 1.23 communications to turn over copies have an inheritable interest in the contents billion users’ public pages in perpetuity. of electronically stored information to of an online account, transferring a the estate administrator; others grant user’s private account login information Internet service providers need efficient administrators the right to take control to a successor through a digital estate mechanisms to deal with death and of, continue or terminate any accounts. planning service or by giving a list to a incapacity of clients. The legal community In some respects, state digital access laws personal representative appears to grant in New Mexico has an interest in seeing appear to assume that a digital account is the recipient full use of the account, which clients’ individual and property rights the property of the person who creates and may be a violation of the contract signed protected as well. A vigorous public debate uses it, despite what the TOSA might say. when setting up an account. Because concerning adoption and amendment However, courts have not yet interpreted estate planning is for the long term and of the UFADAA in New Mexico may ■ these laws and the statutes do not grant the services’ legal authority to manage provide that opportunity. fiduciaries any new powers not already digital assets is uncertain, a client may not conferred by the contract terms. be able to count on these services being ______available— or lawful—10, 20 or 30 years Endnotes A major change to U.S. laws governing from now. 1 Kelly Greene, Passing Down Digital digital assets is likely to take place in Assets, WALL STREET JOURNAL the near future. In 2012, the National Social media and photo (Aug.31, 2012), http://goo.gl/7KAaOm. Conference of Commissioners on Uniform 2 Online Shopping and Mail Order State Laws formed a drafting committee storage accounts may Businesses Jump 27 Percent, Census to prepare a Uniform Fiduciary Access not allow the contracting Bureau Reports, 5-29-2014, http://www. to Digital Assets Act (UFADAA), now individual’s heirs to transfer census.gov/newsroom/releases/archives/ in its final reading stage.5 The UFADDA county_business_patterns/cb14-102.html content—or may give the 3 covers not only personal representatives A Microsoft study of password usage and trustees, but also conservators and Internet service provider found that 8+ passwords were typed per agents under a power of attorney for the extraordinary rights to the day, on average, and that 4.28% of Yahoo incapacitated. The results will impact content carried over the users forgot their passwords over a three the Uniform Probate Code, Uniform month period. Dinei Florencio and Trust Code, Uniform Guardianship and Internet even after death. Cormac Herley, A Large-Scale Study of Protective Proceedings Act, and Uniform Web Password Habits, http://research. Power of Attorney Act. If adopted by New microsoft.com/pubs/74164/www2007.pdf. Mexico, the UFADAA will guarantee The UFADAA does not address whether 4 These include Connecticut, Idaho, access by fiduciaries to digital assets and the ability to use online accounts and Indiana, Oklahoma and Rhode Island, void some of the most burdensome aspects Internet-based businesses could be Nevada, and Virginia. of Internet service providers’ TOSA. particularly vulnerable to losses when 5 The most recent iteration dates the TOSA does not provide for transfer to June 6, 2014. Draft for Approval, The UFADDA authorizes fiduciary of use. There are other possibilities for Uniform Fiduciary Access to Digital access to digital property. It governs addressing this issue. Provisions for non- Assets Act, National Conference of access to digital assets and not ownership, probate transfer on death in instruments Commissioners on Uniform State Laws, leaving existing law of contract, copyright, deemed “effective as a contract” have http://www.uniformlaws.org/shared/docs/ banking, securities, agency, employment, been recognized under the Uniform Fiduciary%20Access%20to%20Digital%20 privacy and trusts in place. The fiduciary or Probate Code in the past. Legislation to Assets/2014am_ufadaa_draft.pdf. acting agent is presumed to have all access expand the concept of Transfer on Death 6 Remembering Our Loved Ones, Chris not subject to protection under other laws provisions under state laws regulating Price and Alex DiSclafani, Facebook and equal to that of the account holder bank accounts to other online assets as an Community Operations, February under a TOSA. A fiduciary may not sell added form of non-probate transfer is one 21, 2014, http://newsroom.fb.com/ or transfer rights that the original owner possible solution. news/2014/02/remembering-our-loved- could not. An account holder who wishes ones/ to retain privacy after death is required Amendments to click-wrap contracts by to make an election in the TOSA. It also digital providers could create an efficient, Kate Fitz Gibbon is a Santa Fe attorney, grants immunity from civil liability to built-in means of transferring authority advising art collectors, foundations, galleries fiduciaries who act in compliance with the over an account on death. Some email and museums as well as other clients. She UFADAA. providers including Google have already writes and lectures on law and cultural policy, created mechanisms for transfer of access and is a founding member of New Mexico The draft UFADDA does not address the on death through an opt-in in the account Lawyers for the Arts. Fitz Gibbon serves ability to transfer the actual digital assets settings. In contrast, Facebook announced on the boards of the Committee for Cultural to beneficiaries. If a digital asset cannot in February 2014 that it will maintain Policy, the ABA Art & Cultural Heritage be transferred to another individual under client’s Facebook pages “as is” instead of Law Committee and the Santa Fe Estate the TOSA, but could be transformed into restricting access to deceased users’ “frozen” Planning Council. New Mexico Lawyer - August 2014 7 Is the Tortfeasor Off the Hook? A Look at the Changing Allocations to Interested Parties in a Personal Injury Case
The couple who came to see me about the auto accident settlement By Jeanine R. Steffy had handled their personal injury matter pro se. Not What is a Secondary Payer? The only did they not Medicare Example. have assistance A while back an elderly couple came into in building a case my office looking for some help with their against the driver “estate planning,” a term I quickly learned of the other car in may not mean the same to clients as it the accident nor does to me. They told me they had received negotiating with the a small settlement for a car accident after insurance company, the husband and the insurance company but they did not went back and forth for a year on the have an attorney to numbers. I did a double take, “You made For an attorney, failure to advise them about Medicare’s interests. the claim and argued it with insurance . . . account for Medicare’s interest Now there is an amount outstanding without an attorney?” which, to some limited extent, can be can result in double damages mitigated within the administrative The zinger came when the couple showed in addition to malpractice. process. Unfortunately in this case, the me a letter from the Centers for Medicare result is still garnishment of a meager and Medicaid Services (CMS). It went Social Security retirement check. something like this: “We heard you received some money in a settlement. Give To handle the matter of future medical needs, lawyers have grown accustomed it to us.” We were looking at a $100,000 Now Add Medicaid: the Poor and settlement, but Medicare had already paid to setting up a Medicare Set-Aside Arrangement (MSA) during the lawsuit Those in Need of Long-term Care out $160,000 in medical bills related to 6 the injuries from the car accident. or settlement, a process well outlined in Medicaid also has a right to subrogation. the context of Worker’s Compensation In fact, the federal government mandates cases in guidance, or “Memos”, put out that states as the administrators of That is not all. Medicare has a right of 3 subrogation to past medical payments but, by CMS. The arrangement sets aside Medicaid recoup their payments from given the right case, it may also expect amounts received now to pay medical third parties who are liable for medical the recipient to set aside funds for future bills that will arise. Personal injury expenses. Historically, the states’ right has awards or Liability Medicare Set-Aside been limited to the amounts allocated to medical bills that will arise as a result 7 of the injuries that are the subject of a Arrangements (LMSAs) are part of medical in the judgment or settlement. settlement or judgment. The Medicare Medicare’s focus as well, although a 2011 Secondary Payer Act (MSPA) requires Memo specifically exempted cases in This is about to change. Effective October which the treating physician certifies there 2014, the Bipartisan Budget Act of 2013 Worker’s Compensation and other 4 primary sources to pay before Medicare will be no future medical needs. Other will expand the reimbursement right to is allowed to cover bills.1 If an award is than this exemption, CMS has issued very any money that comes in from a third little guidance in liability cases, unlike in party who is liable to make a payment for pending, the best that Medicare can do 8 is to make a “conditional payment” and Workers Compensation cases. Personal assistance provided by the state. seek reimbursement after the case ends.2 injury attorneys are left with the obvious The thought is that it is better for the warning that Medicare may be looming, The state is required to ramp up its efforts and use their own discretion in consulting to collect in light of the amended federal tortfeasor to pay than to put the burden 9 upon taxpayers who fund Medicare. with special needs attorneys regarding statutes. Soon it will be of little or no Notably, Medicare covers not only the Medicare’s interests. For an attorney, importance to the state just how much the elderly, but also the disabled, meaning failure to account for Medicare’s interest settlement or judgment itself allocates to can result in double damages in addition medical expenses. This opens up drastically that a personal injury lawsuit may very 5 well implicate Medicare, even when the to malpractice. the pool of opportunity, at least for now. plaintiff is not elderly. continued on page 10 8 New Mexico Lawyer - August 2014 Matt and Miss Kitty Living in By Tom Dunlap t used to be against the law to the poor other partner, help as is prudent, cohabit in New Mexico. Some but hold onto his or her savings. You know, lawyer made it his personal crusade when you are in your 70s and 80s, it’s to get that law repealed after a too late to build another nest egg. Each Iyoung man got killed in Ruidoso in estate plan (wills, trusts and stuff like that) the 1970s. Some lady’s daddy knew remains intact and separate from the other the law up there and had his daughter’s person’s estate plan. Kids are more relaxed boyfriend arrested and hauled off about their inheritance unless they are to jail for cohabitation. While they upset about cohabitation to begin with and were unloading the young man at the again, I say it’s none of their business. jail, the young man freaked and ran, kinda like Tom Robinson in To Kill a Sometimes people who cohabit late in Mockingbird. Deputy missed his aim and life worry about the surviving partner or killed the young man. Anyway, 20-30 significant other who doesn’t own the years ago, the state Legislature repealed home being tossed out in the street by the law, opening the way for “Marshal the kids in the event of the death of the Dillon and Miss Kitty” to cohabit homeowner. It can happen, but this can lawfully if they lived here today. For be remedied by the homeowner providing youngins, I’m not talkin’ about that pretty a life estate in the will for the non- boy Matt Dillon chasing down Cameron homeowner in the event the homeowner Diaz in the 1998 filmThere’s Something expenses that can quickly eat up a nest egg dies first. Doing this in the will is safer About Mary, but rather the no-nonsense, that took a lifetime to build with a prior than in a deed. The non-homeowner never law-and-order marshal of Dodge City spouse. really owns anything, can’t mortgage the from the TV classic western “Gunsmoke,” place and his or her creditors can’t really which ran for 20 years on CBS. Google it, So, to avoid all this secular grief, maybe attach anything, but he or she can stay in watch it on cable or ask your daddy. you should just live in sin because the state the home after the death of the owner, rent doesn’t care. Some of my clients begin to free, exclusively; it’s usually provided in Now I don’t want to pick a fight with perspire from the heat when we discuss the will that the occupant must maintain church people and I’m not pushing the sin part. Others may not think it’s the place, pay the taxes and utilities, keep cohabitation by seniors in lieu of a sin, but they worry about the example it insured, etc. It’s a pretty nifty way to marriage—living in sin and such late they may be setting for the grandkids help out your partner. When the surviving in life—when you might have two sets who are just studying for their First partner dies, the home automatically passes of kids, two sets of assets, etc. Rather, I Communion. Could be more complicated to the kids of the homeowner or as the just want you to be aware of some of the than it was for Matt and Miss Kitty owner’s will provides. consequences and some of the alternatives. because they only had Chester, Festus and Doc Adams looking over their shoulders Partners should probably not put both For instance, sometimes those two sets of and they could all be bribed with a free names on a car title as that can make them kids come on like gangbusters worrying beer. both liable for a car wreck. However, a about their inheritance. None of the kids’ small joint banking account or an operating business, in my opinion, but by avoiding Hence, many people these days account for groceries is not a problem, the marriage, one might circumvent some are considering commitment and passes to the surviving joint tenant family grief. Naturally, by sidestepping ceremonies. Several of my older clients automatically. Keep the account small the marriage you avoid the prospect of have used this approach. A number of because if you put all the kids’ inheritance divorce. Those who do marry should preachers are performing commitment in it, they could come at you again in their probably have prenuptials or postnuptials ceremonies. You commit before the eyes of childish role as gangbusters. This is just a (yes, you can do this after the marriage, concept of which I want you to be aware. If God, exchange vows and get a certificate ■ although somebody might have lost his/ of commitment to have on the wall for it is a sin, hey, don’t blame me. her leverage) and should consider revising the little ones to see when they visit. BUT, wills to eliminate the automatic allowance there’s one critical difference: no marriage A native of Roswell, Tom Dunlap received of $45,000 in personal and cash property license, and that means in the eyes of the his law degree from Boston University and provided for a surviving spouse in New state, no marriage. Instead of divorce, the practiced with Dick Bean for 25 years. His Mexico. One might also skip late-in-life one who owns the house can just say “Git areas of interest are elder law and elder life marriage for the purpose of avoiding outta here!” Instead of bankruptcy, the one coaching. Chair and founding member of the liability for the spouse’s debts, credit card who is not in financial trouble or is not a Roswell Commission on Aging, Dunlap was bills, auto accidents and, most important chronic gambler or didn’t get in the car president of the Chaves County Bar and vice as we get older, medical and nursing home wreck, can fake the deepest sympathy for president of the N.M. Alzheimer’s Association. New Mexico Lawyer - August 2014 9 Is the Tortfeasor Off the Hook? continued from page 8
Anyone Else and Part D” (December Struggling To Be the 30, 2005); CMS WCMSA Last Payer in Line? Memorandum “WCMSA Low Dollar Threshold” In E.J. v. Mont. (April 25, 2006); and CMS Contractors’ Ass’n WCMSA Memorandum 10 Health Care Trust , a “Use of CDC Table 1 in the child injured at birth WCMSA review process” received a settlement (May 20, 2008). due to those injuries. 4 CMS Medicare Afterward, the father Memorandum “LMSA sought to enroll his Amounts and Future child on his healthcare Medicals” (September 30, plan at work, an ERISA 2011). plan. ERISA refused to 5 42 USC §1395y(b)(2) cover the child without (B)(iii). information on the 6 42 USC §1396a(a) settlement and a Third (25). Party Reimbursement 7 Arkansas Dept. of Agreement. The trial court interpreted Medicare has a right of Health and Human Servs. v. Ahlborn, 547 the plan documents and found that the US 268, 126 S. Ct. 1752 (2006). settlement funds constituted an “other subrogation to past medical 8 BBA 2013 Section 202(b)(2) as plan” and would need to be used first for payments but, given the right it amends 42USC 1396a(a)(25)(H). any future medical expenses related to the case, it may also expect the See also Jason A. Frank, CELA, CAP settlement. The denial of benefits to the and Jack K. Beckett, Is this the Death of child was found on appeal not to be an recipient to set aside funds Ahlborn? The Self-Defeating Expansion abuse of discretion. However, the case is for future medical bills that of States’ Authority to Seek Reimbursement ongoing. will arise as a result of the Under the Medicaid Secondary Payer Act, NAELA News February/March 2014, ERISA plans generally have a right of injuries that are the subject of a available at: http://www.naela.org/Public/ subrogation, but what is interesting is that settlement or judgment. Library/Publications/Publications_Main/ in the E.J. case, the plan document made NAELA_News_Archive/NAELA_ way for a sort of a private insurance set- News_2014/FebMarch/Pub_Policy.aspx 9 aside from which future medical expenses Lawsuits are complicated. Healthcare is 42 USC §1396a and 42 USC §1396k had to be paid before the plan would pay. too, and changes in the federal system were both amended. The first outlines of healthcare and associated costs affect the type of funds from which states can Obviously, the Affordable Care Act lawsuits. A change is coming and it will collect, the second affects how the states (ACA) now affects much of what occurs mean a reallocation of settlement and are assigned rights to these funds. 10 in health insurance cases, and is affecting judgment awards and possibly fewer US Dist. LEXIS 101588 (D. Mont., ■ lawsuits in its own right. With set copays plaintiffs. Sept. 27 2010). and consistent coverage and deductibles for all, the options are to shift a case’s ______Jeanine R. Steffy is an attorney and CPA burden of medical expense to healthcare Endnotes practicing primarily in the areas of tax law, insurers under the ACA or to the plaintiff 1 42 USC §1395y(b). elder law and benefits, nonprofit law, estate by requiring a set-aside for private 2 planning and business planning. She is an 11 42 USC §1395y(b)(2)(B). insurers. This conclusion is based on the 3 See CMS WCMSA Memorandum adjunct professor at the UNM Anderson premise that the total award in a given School of Management. 12 “WCMSA FAQ’s” (July 11, 2005); CMS case will not change. WCMSA Memorandum “WCMSA
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