<?xml version="1.0" encoding="iso-8859-1"?>
<rss version="2.0">
  <channel>
    <title>Elder Law News</title>
    <link>http://ocelderlaw.org/blawg/</link>
    <description>Elder Law News</description>
    <language>en-us</language>           
    <generator>Nucleus CMS v3.32</generator>
    <copyright>Â©</copyright>             
    <category>Weblog</category>
    <docs>http://backend.userland.com/rss</docs>
    <image>
      <url>http://ocelderlaw.org/blawg//nucleus/nucleus2.gif</url>
      <title>Elder Law News</title>
      <link>http://ocelderlaw.org/blawg/</link>
    </image>
    <item>
 <title>Man hit by fraud struggles to clear his name</title>
 <link>http://ocelderlaw.org/blawg/index.php?itemid=85</link>
<description><![CDATA[By Mary Frances Gurton Staff Writer<br />
San Gabriel Valley Tribune <br />
 <br />
PASADENA - Tommie Brown said he worked hard, paid his bills on time and kept his credit clean all his life, only to fall victim this year to a $350,000 mortgage fraud scheme. <br />
<br />
The longtime Pasadena resident said he became aware of the scam after a mortgage lender who had befriended him used his personal information to purchase two homes in Georgia unbeknownst to him. <br />
<br />
&#8220;I went to purchase a used car in El Monte last July,&#8221; said Brown, 60, sitting in the dining room of his modest Pasadena home. &#8220;When they ran the credit check, I found out there are loans in my name on two houses in Georgia.&#8221; <br />
<br />
Embarrassed and uninformed as to how to handle the problem, Brown said he has yet to contact police and avoids calls from creditors at Washington Mutual and other financial services corporations asking for payment on the notes. <br />
<br />
&#8220;I told them I had no part in stealing the money,&#8221; said the retiree, who spent 27 years in the shipping and receiving department of a local Vons market. &#8220;I just want to get through this and come out the way I was before.&#8221; <br />
<br />
Various types of identity fraud, ranging from bait- <br />
<br />
and-switch scams, pyramid schemes, variable annuity sales, online escrow fraud and charity scams, are perpetrated against seniors each year - and are continually evolving, according to experts. <br />
<br />
In 2005, there were 8.9 million identity theft cases reported nationally, with about 1 million of those in California, said Melanie Bedwell of the Department of Consumer Affairs. <br />
<br />
Seniors are especially vulnerable, according to Petra Niles, director of the Elder Abuse Prevention Program at Wise Senior Services in Santa Monica. <br />
<br />
&#8220;On a day-to-day basis, we get several calls on all kinds of cases,&#8221; said Niles. &#8220;This is happening all over the state.&#8221; <br />
<br />
Niles said it is common for perpetrators to build relationships with numerous seniors, all the while testing for those who may be easy prey for a tried-and-true scam. <br />
<br />
&#8220;When they see they are pliable,&#8221; she said, &#8220;then they move in.&#8221; <br />
<br />
In Brown's case, a mortgage lender he says worked for a firm in Long Beach helped him with an earlier investment, he said. <br />
<br />
When she later asked him to sign some loan documents, he did not know he would be at financial risk, he said. Representatives from the companies that issued the now-defaulted loans are calling him for payment. <br />
<br />
&#8220;I feel stupid for trusting her,&#8221; said the bifocaled Brown, who said he has owned his current house on North Hudson Avenue since 1983. &#8220;I think she did it before and got away with it.&#8221; <br />
<br />
Calls to the mortgage broker's telephone were not answered. <br />
<br />
Niles also said that, although it is common for victims like Brown to feel ashamed and not want anyone to know what happened, it is important for them to &#8220;cross-report&#8221; to concerned agencies. <br />
<br />
&#8220;He needs to report this so they can get an investigation going,&#8221; she said. <br />
<br />
Public Outreach Specialist Jacqueline Wiley-Sistrunk of the California Department of Corporations agreed. <br />
<br />
&#8220;He needs to file a complaint with our agency,&#8221; she said, &#8220;There are always problems with predatory lending, and it is especially an issue with seniors.&#8221; <br />
<br />
Meanwhile, Brown said he did not know what to do. <br />
<br />
&#8220;I just ignored it and hoped it would disappear,&#8221; he said, &#8220;but I want to do what's right.&#8221; <br />
<br />
<br />
]]></description>
 <category>Elder law</category>
<comments>http://ocelderlaw.org/blawg/index.php?itemid=85</comments>
 <pubDate>Sat, 13 Jan 2007 10:40:43 +1400</pubDate>
</item><item>
 <title>New Law in Affect to Protect California’s Seniors California Bankers Association Offers Tips to Help Protect Seniors From Fraudsters</title>
 <link>http://ocelderlaw.org/blawg/index.php?itemid=84</link>
<description><![CDATA[SACRAMENTO &#8212; With the enactment of SB 1018 (Simitian), which requires all bank employees to report all suspected cases of elder financial abuse going into effect today, the California Bankers Association has compiled a list of tips to help consumers be more vigilant in keeping seniors safe. <br />
<br />
“More and more, California’s seniors have become the targets of unscrupulous fraudsters who want nothing more than to part seniors from their hard-earned money,” said CBA president and CEO Janet W. Lamkin. “While law enforcement, along with California’s financial institutions, work hard to make sure that suspected cases of elder financial abuse are reported and investigated, we want to remind all Californians that we all have a role to play in keeping our seniors safe.” <br />
<br />
Elder financial abuse is a somewhat unique crime in that, oftentimes, it is a member of the family, close friend or caregiver who ends up perpetrating the crime, making it that much more difficult to detect. <br />
<br />
commercial, industrial and community banks and savings associations<br />
 <br />
CBA encourages all Californians to look out for these common elder financial abuse schemes: <br />
Misappropriation of income or assets – Fraudster obtains access to an elder’s Social Security checks, pension payments, checking or savings account, credit card or ATM, or withholds portions of checks cashed for an elder. <br />
Charging excessive rent or fees for service – Perpetrator charges an elder an excessive rent or unreasonable fees for basic care services such as transportation, food, or medicine. <br />
Obtaining money or property by undue influence, misrepresentation, or fraud – Perpetrator coerces an elder into signing over investments, real estate or other assets through the use of manipulation, intimidation or threats. <br />
Pigeon drop – Perpetrator claims to have found a sum of money and offers to split it with an elder provided the elder first withdraws an amount equal to his or her share as a sign of good faith. <br />
Fake accident ploy – Perpetrator convinces an elder that the elder’s child has been seriously injured or is in jail and needs money for medical treatment or bail. <br />
Telemarketing and mail fraud – Perpetrator persuades an elder to buy a valueless or nonexistent product, donate to a bogus charity or invest in a fictitious enterprise. <br />
Fake prizes – Perpetrator tells an elder that he or she has won a nonexistent prize and either asks the elder to send a check to pay the taxes on this nonexistent prize or obtains the elder’s credit card or checking account number to pay for shipping and handling charges for the prize. <br />
Unsolicited work – Perpetrator arrives unexpectedly at an elder’s residence and offers to perform work for a reasonable fee; after starting the work, the perpetrator insists that the elder pay more than originally agreed before the work will be completed. <br />
CBA reminds all Californians that if they believe that a senior they know and care about is being targeted with one of these fraud schemes, they should contact their county’s Adult Protective Services agency immediately and report it. <br />
<br />
Information about CBA <br />
Established more than 110 years ago, the California Bankers Association (CBA) is one of the largest state banking trade associations in the country. CBA leads the way in developing relevant educational and legislative solutions to some of California’s more pressing financial and banking issues, including adult financial empowerment, identity theft, financial privacy, and financial elder abuse. CBA’s membership includes more than 300 of California’s ]]></description>
 <category>Elder law</category>
<comments>http://ocelderlaw.org/blawg/index.php?itemid=84</comments>
 <pubDate>Sat, 13 Jan 2007 10:31:43 +1400</pubDate>
</item><item>
 <title>Identifying &#x201C;safe&#x201D; drivers with dementia not easy</title>
 <link>http://ocelderlaw.org/blawg/index.php?itemid=80</link>
<description><![CDATA[January 06, 2007   <br />
 <br />
NEW YORK (Reuters Health) - No available in-office test can reliably differentiate safe from unsafe drivers among individuals with dementia, Canadian researchers report. Currently available tests that assess cognitive ability, they say, cannot be used in a standardized fashion in doctor's offices.<br />
<br />
&#8220;There is a reason why (physicians) are struggling with the evaluation of fitness-to-drive in their patients,&#8221; Dr. Frank J. Molnar from University of Ottawa told Reuters Health. &#8220;There appears to be an unintentional gap between the analytic approaches that driving researchers are comfortable using and have been trained to do (e.g., multivariate analysis) and the needs of clinicians for short, rapidly interpretable assessment tools that the researchers analytic approaches will never yield.&#8221;<br />
<br />
Molnar and colleagues performed a comprehensive literature search in an effort to review evidence regarding in-office cognitive tests that might identify dementia patients who can drive safely and those who cannot.<br />
<br />
They found 16 studies that met their inclusion criteria, including six that used history of crash, four that used driving simulator test results, and six that used on-road assessments as measures of driving safety.<br />
<br />
None of the studies reported cutoff scores, which is a real problem, the investigators explain. The researchers also found a great deal of inconsistency between the test results and driving outcome measures.<br />
<br />
In his practice, Molnar said he uses screening tests recommended by medical associations like the American Medical Association and the Canadian Medical Association and then asks himself if he would want to be a passenger if this person was driving.<br />
<br />
Next, he looks for other signs that may indicate the patient is unsafe to drive. For example, if a patient has difficulty with simple activities, such as shopping, banking, cooking or hobbies, there is cause for concern.<br />
<br />
&#8220;If the person has dementia and I feel they are still safe to drive for a short period, I advise them to start planning for driving cessation in the future and then decide when I should retest them,&#8221; Molnar continued. &#8220;Generally, 6 months is felt to be the upper limit of time for reevaluation.&#8221;<br />
<br />
&#8220;I advise family members to call me immediately if there are any concerning signs of significant cognitive change,&#8221; he continued. When it is still not clear if a person is safe to drive, Molnar refers then for specialized testing.<br />
<br />
SOURCE: Journal of the American Geriatrics Society, December 2006.<br />
]]></description>
 <category>Elder law</category>
<comments>http://ocelderlaw.org/blawg/index.php?itemid=80</comments>
 <pubDate>Sat, 13 Jan 2007 10:03:17 +1400</pubDate>
</item><item>
 <title>Pastor accused of killing man, 85, for his millions - DEC 2, 2006</title>
 <link>http://ocelderlaw.org/blawg/index.php?itemid=79</link>
<description><![CDATA[<blockquote><div>&#8220;Pastor accused of killing man, 85, for his millions<br />
Police say he plotted double car crash<br />
A FORMER pastor in California has been arrested on suspicion of killing an 85-year-old man in a scheme to inherit his trust fund.<br />
02 December 2006<br />
<br />
A FORMER pastor in California has been arrested on suspicion of killing an 85-year-old man in a scheme to inherit his trust fund.<br />
<br />
Doug Porter, 55, was detained at a checkpoint near San Diego on Monday as he tried to re-enter the US from Mexico. He was charged with attempted murder, elder abuse and theft.<br />
<br />
Porter was the pastor at Hickman Community Church - located about 24km east of Modesto - when he met and befriended Mr Frank Craig.<br />
<br />
Mr Craig had up to US$4 million ($6.2m) in stocks and real estate left to him after a brother, Mr JC Craig, died in in 1998.<br />
<br />
The elderly man asked Porter to help him build an agriculture-themed museum to showcase farm equipment he had acquired over the years.<br />
<br />
The Modesto Bee, a local newspaper, reported that Porter agreed and soon gained control of Mr Craig's finances.<br />
<br />
In 1999, Mr Craig made changes to his trust fund. He excluded his two sisters and replaced them with Porter as the trustee and Hickman Community Church as the new heir.<br />
<br />
The paper added that Porter set up a board to build the museum but Mr Craig soon became frustrated about the lack of progress.<br />
<br />
TWO CAR CRASHES<br />
<br />
Police investigators said they believe Porter had intended to kill Mr Craig in two car crashes in order to inherit the latter's trust.<br />
<br />
In the first accident in March 2002, both men were in Porter's pickup when it veered off the road and struck an oak tree.<br />
<br />
Porter, who was driving, escaped with minor injuries but Mr Craig was seriously injured.<br />
<br />
In April, 2004, Mr Craig was again the passenger and Porter the driver when the latter's pickup veered into a canal.<br />
<br />
This time, Mr Craig died. Again, Porter escaped death.<br />
<br />
The sheriff's department began investigating after friends voiced their suspicions about Mr Craig's death.<br />
<br />
They claimed that within days of Mr Craig's death, Porter began removing items from the latter's home.<br />
<br />
Eight months later, Porter sold Mr Craig's 6.9-ha ranch for more than US$400,000.<br />
<br />
He then used US$469,000 of Mr Craig's money to buy property for the church, including land where the museum was supposed to have been built.<br />
<br />
Porter resigned from the church in Hickman last year 'to protect the church from further negative focus', according to an ad the church placed in a local newspaper. - AP.&#8221;</div></blockquote><br />
<a href="http://newpaper.asia1.com.sg/printfriendly/0,4139,118550,00.html?">Pastor accused of killing man, 85, for his millions - DEC 2, 2006</a>]]></description>
 <category>Elder law</category>
<comments>http://ocelderlaw.org/blawg/index.php?itemid=79</comments>
 <pubDate>Tue, 5 Dec 2006 15:47:17 +1400</pubDate>
</item><item>
 <title>Dementia Awareness Information</title>
 <link>http://ocelderlaw.org/blawg/index.php?itemid=78</link>
<description><![CDATA[<blockquote><div>&#8220;Dementia Awareness Information<br />
<br />
Several caregivers have shared with me their frustration with trying to get the person with Alzheimer's to bath. This is one of the more challenging activities of daily living that the care provider encounters as the disease progresses. Plan the bathing time when they used to take one, i.e. the first thing in the morning or just before going to bed.<br />
<br />
Here are a few practical things to consider about preparing the bathroom: Have the bathroom at a comfortable temperature; Run the hot water so that when the person is ready for the bath he or she doesn't have to wait for the hot water; Have the towels and toiletries article ready; Unplug the electric razor, hair dryer, etc., and put them out of sight; Use a shower stall if possible instead of a tub for it is easier to get in and out of a<br />
<br />
shower; Use a shower chair so that the person doesn't have to stand, for bathing and keeping one's balance can be a challenge. Also it is easier to assist them if necessary if they are seated; Turn the water on and have it adjusted because they may have forgotten how to do this; Purchase and install a hand held shower spray head - having the water hit you in the face can be scary for a person with dementia. They or you will have better control of the water if it is hand held; Have all the clean clothes in the bathroom beforehand have a towel for yourself, just incase you need an extra towel; Have the phone close by;<br />
<br />
When everything is ready that is needed for bathing then gently approach the person and calmly take them into the bathroom. Assist them as needed to<br />
<br />
remove their clothes and get them into the shower or tub. Assure them that you are they only to assist as needed. Don't take control of the bathing; let him or her do as much as they can for themselves. The elderly do not need to have a daily bath usually for this can dry out their skin. Plan two or three baths a week if bathing is a challenge for both of you. If you say &quot;Let's go and take a bath,&quot; they understand that you are going to get into the shower with him or her, so if this is not your intention, don't say &quot;Let's go and take a bath.&quot; Instead, say &quot;It's time for your bath.&quot; You may not want to give them too much notice that this is the task at hand because they may resist taking a shower then.&#8221;</div></blockquote><br />
<a href="http://www.unionsentinel.com/news/2006/0420/Community/056.html">Dementia Awareness Information</a>]]></description>
 <category>Elder law</category>
<comments>http://ocelderlaw.org/blawg/index.php?itemid=78</comments>
 <pubDate>Tue, 5 Dec 2006 13:54:03 +1400</pubDate>
</item><item>
 <title>Fishupdate.com: Mediterranian diet may reduce risk of dementia by up to 40 percent</title>
 <link>http://ocelderlaw.org/blawg/index.php?itemid=77</link>
<description><![CDATA[<blockquote><div>&#8220;Mediterranian diet may reduce risk of dementia by up to 40 percent<br />
Published:  21 April, 2006<br />
<br />
EATING a &quot;Mediterranean-style&quot; healthy diet may significantly reduce the risk of developing Alzheimer's disease, a study has suggested. The BBC reported that US researchers looked at the diet and health of 2,200 people over four years, and the more people kept to a Mediterranean diet, the less likely they were to develop Alzheimer's, according to the Annals of Neurology study. Alzheimer's experts said the research added to evidence that a healthy diet could have a protective effect. The Mediterranean diet - rich in fruit, vegetables and cereals with some fish and alcohol and very little dairy and meat - has been cited as being generally good for health for some time. The researchers from the Columbia University Medical Center assessed participants' neurological health, and noted their dietary habits. Their food intake was given a &quot;Mediterranean Diet score&quot; of between zero and nine. During the course of the study, 262 people were diagnosed with Alzheimer's disease. The researchers accept their findings relied heavily on people's memories of what they ate, but said a tested dietary assessment technique had been used. Dr Nicholas Scarmeas, who led the research, reportedly said: &quot;Higher adherence to the Mediterranean diet is associated with a reduction in risk for Alzheimer's disease.&quot; Professor Clive Ballard, director of research at the UK's Alzheimer's Society, reportedly said: &quot;This large study in a leading journal adds to the growing weight of evidence that diet and lifestyle are very important risk factors for Alzheimer's disease.<br />
<br />
&quot;It makes an important contribution by suggesting that a strong adherence to a healthy diet can reduce the risk of developing Alzheimer's disease by as much as 40%, emphasising the importance of healthy eating.&quot;&#8221;</div></blockquote><br />
<a href="http://www.fishupdate.com/news/printpage.php/aid/4354/Mediterranian_diet_may_reduce_risk_of_dementia_by_up_to_40_percent.html">Fishupdate.com: Mediterranian diet may reduce risk of dementia by up to 40 percent</a>]]></description>
 <category>Elder law</category>
<comments>http://ocelderlaw.org/blawg/index.php?itemid=77</comments>
 <pubDate>Tue, 5 Dec 2006 13:50:48 +1400</pubDate>
</item><item>
 <title>UPI.com: Social contact guards against Alzheimer&apos;s</title>
 <link>http://ocelderlaw.org/blawg/index.php?itemid=76</link>
<description><![CDATA[<blockquote><div>&#8220;Social contact guards against Alzheimer's<br />
By Alex Cukan<br />
Staying in contact with family members and friends offers a protective effect against the damaging effects of Alzheimer's disease, find Chicago researchers.<br />
<br />
Physicians at Rush University Medical Center in Chicago say while other studies have shown people with more extensive social networks were at reduced risk of cognitive impairment, this study is the first to examine the relations between social networks and Alzheimer's disease pathology.<br />
<br />
Researchers studied elderly people without known dementia participating in the Rush Memory and Aging Project, an epidemiological and clinicopathological study of aging and Alzheimer's disease that involves over 1,100 volunteers across northeastern Illinois. Brain autopsies were done at the time of death and post mortem data was available for analysis from the first 89 people, according to the study published online in The Lancet Neurology.<br />
<br />
&quot;Many elderly people who have the tangles and plaques associated with Alzheimer's disease don't clinically experience cognitive impairment or dementia,&quot; said Bennett. &quot;Our findings suggest that social networks are related to something that offers a 'protective reserve' capacity that spares them the clinical manifestations of Alzheimer's disease.&quot;&#8221;</div></blockquote><br />
<a href="http://license.icopyright.net/user/viewFreeUse.act?fuid=MjM2NDUz">UPI.com: Social contact guards against Alzheimer's</a>]]></description>
 <category>Elder law</category>
<comments>http://ocelderlaw.org/blawg/index.php?itemid=76</comments>
 <pubDate>Tue, 5 Dec 2006 13:46:37 +1400</pubDate>
</item><item>
 <title>California&#xB4;s Elder Abuse Protection Act</title>
 <link>http://ocelderlaw.org/blawg/index.php?itemid=74</link>
<description><![CDATA[Article by Steven D. Wasserman and Sunny S. Pucci<br />
<br />
On August 29, 2005, Governor Arnold Schwarzenegger signed legislation holding California banks and other financial institutions liable if they fail to report suspicions of financial elder abuse, effective beginning January 1, 2007. The legislation is part of a nationwide trend to increase oversight of our country&rsquo;s aging population by those who deal with elders.<br />
<br />
A. California's Elder Abuse Protection Act<br />
<br />
In 1982, California enacted the &#8220;Elder Abuse and Dependent Adult Civil Protection Act.&#8221; The objective was to put into effect a statutory framework that would institutionalize reporting obligations for those who are in a position to see, and therefore possibly prevent, various types of abuse to the state&rsquo;s growing population of elders. The Act, as amended, required &#8220;health care practitioners, care custodians, clergy members, and employees of county adult protective services agencies and local law enforcement agencies to report known or suspected cases of abuse of elders and dependent adults. . . .&#8221; (California Welfare and Institutions Code &sect; 15601(a).) Abuse of an elder was defined to include physical abuse, neglect, abandonment or other conduct causing physical or mental suffering, as well as financial abuse. (W&I Code 15610.07(a).)<br />
<br />
Financial abuse was defined to occur when a person or entity &#8220;takes, secretes, appropriates, or retains real or personal property of an elder or dependent adult to a wrongful use or with intent to defraud, or both,&#8221; or assists any person in such conduct. (W&I Code &sect; 15610.30(a)(1).)<br />
<br />
B. What California's Recent Legislation Means For Banks<br />
<br />
When the Financial Elder Abuse Reporting Act of 2005 was amended to include financial institutions as mandated reporters, it raised a number of issues for the banking industry. The Act provides that a financial institution&rsquo;s officers or employees who suspect financial abuse of an elder, whether through direct contact with the elder or dependent adult or review of financial records and transactions, are required to report the suspected abuse immediately by telephone, or as soon as possible, and by written report within two days. (W&I Code &sect; 15630.1(d)(1).)<br />
<br />
In the case of persons not having direct contact with the elder, the reporter&rsquo;s belief that financial abuse is taking place may be based &#8220;solely on the information before him or her at the time of reviewing or approving the document, record, or transaction.&#8221; Further, the reporter&rsquo;s suspicion is limited to concerns arising within the scope of the reporter&rsquo;s employment or professional practice. The Act does not state that a reporter having direct contact with an elder has a duty to investigate. Whether a reporter with direct contact must ask questions, or may rely solely on information then available is unclear.<br />
<br />
An allegation by an elder or dependent adult, or any other person, that financial abuse has occurred will not trigger the reporting requirement (1) if the mandated reporter is not aware of any corroborating evidence, and (2) if, in the reporter&rsquo;s professional judgment, he or she reasonably believes that financial abuse has not occurred. (W&C Code &sect; 15630.1(e).)<br />
<br />
C. What Potential Liabilities Does The Legislation Create For Financial Institutions?<br />
<br />
The statutory scheme provides that a failure to report financial abuse shall be subject to a civil penalty of up to $1,000. (W&I Code &sect; 15630.1(f).) If the failure to report is willful, the penalty can range up to $5,000. The penalties are payable by the employer of the individual who failed to make the report. (W&I Code &sect; 15630.1(f).) Civil penalties may be sought only by the attorney general, district attorney or county counsel. (W&I Code &sect; 15630.1(g).) The statute in effect disclaims the notion of &#8220;private&#8221; attorneys general seeking to levy penalties.<br />
<br />
The legislation provides absolute immunity to reporters both by express grant of immunity (W&I Code &sect; 15634) and by reference to the judicial and official proceeding privilege set forth in Civil Code &sect; 47(b) (W&I Code &sect; 15630.1(i). The legislature recognized that reporters would be disinclined to contact agencies if they could be subject to civil liability to those people, be they elders, dependent adults or the persons allegedly committing financial abuse, who were the subjects of the report. In the event that a claim nevertheless is made against a reporter, he/she may apply for up to $50,000 reimbursement for attorneys&rsquo; fees incurred in defending against any such claim.<br />
<br />
The legislation does not provide for a private civil action for damages: &#8220;Nothing in the Financial Elder Abuse Reporting Act of 2005 shall be construed to limit, expand, or otherwise modify any civil liability or remedy that may exist under this or any other law. (W&I Code &sect; 15630.1(g)(2).) The legislation does not preclude suit based on other legal theories, however, and time will tell how California courts interpret the limitation on remedies in the Act.<br />
<br />
D. What Is A Financial Institution To Do?<br />
<br />
The banking industry must turn its attention to how best to deal with these new obligations. Training programs which sensitize officers and employees, most importantly those at the retail level, to signs of financial abuse are imperative. This includes making sure that employees know what to look for, and understand when and how to report, including the very short timeframes for making the required oral and written reports.<br />
<br />
The statute provides little guidance: &#8221;&rsquo;[s]uspected financial abuse of an elder or dependent adult occurs when a person who is required to report . . . observes or has knowledge of behavior or unusual circumstances or transactions, or a pattern of behavior or unusual circumstances or transactions, that would lend an individual with like training or experience, based on the same facts, to form a reasonable belief that an elder or dependent adult is the victim of financial abuse . . .&#8220; W&I Code &sect; 15630.1(h). Transactions in unusual amounts or frequency, withdrawals or transfers by caregivers, and implausible explanations for transfers or payments are all potential red flags.<br />
<br />
These reporting requirements move financial institutions closer to the &#8221;know your customer&#8220; requirements applicable to the securities industry. It is not enough for banks to execute transactions while looking for technical indicators of impropriety. Rather, they must now take a qualitative approach to those transactions, reflecting not only upon who is making withdrawals from accounts, but how frequently, in what amounts and for what purported purposes. Whether this assessment is done by enhanced across the board training at the retail and supervisory levels or by making &#8221;elder and dependent adult accounts" subject to the supervision of specially trained personnel is something for financial institutions to consider. However, banks are now their elders&rsquo; keepers and should take advantage of the twelve months remaining before the legislation becomes effective to determine how they will attempt to comply.]]></description>
 <category>Elder law</category>
<comments>http://ocelderlaw.org/blawg/index.php?itemid=74</comments>
 <pubDate>Sat, 15 Jul 2006 11:33:35 +1500</pubDate>
</item><item>
 <title>Tips for planning an estate</title>
 <link>http://ocelderlaw.org/blawg/index.php?itemid=72</link>
<description><![CDATA[Figuring out how to plan your estate can be a big job. Here are some common questions and answer that may help you.<br />
<br />
What is an estate plan?<br />
<br />
An estate plan is a systematic plan for the accumulation, conservation and distribution of an estate. A good estate plan minimizes taxes and accomplishes the owner&rsquo;s goals efficiently and effectively. When the owner dies, the estate plan distributes the estate with minimum administrative costs. The sooner an estate plan is made, the more effective it can be.<br />
<br />
Should I have a will if I don&rsquo;t have children?<br />
<br />
Everyone should have a will, including you and your spouse. Believing that everything the two of you own will pass automatically to the surviving spouse when one of you dies is a risky proposition. Your property could be distributed according to the state&rsquo;s inheritance laws instead of going directly to the surviving spouse.<br />
<br />
Should I set up a trust, or do I even need one?<br />
<br />
It depends on the size of your estate and the purpose of the trust. If your estate is under the current estate tax exemption amount ($2 million for 2006 through 2008, and $3.5 million for 2009) and small enough to qualify for quick and inexpensive probate in your state, you might not need one. However, a trust can help you avoid a court hearing if you become incompetent or unable to provide for yourself, or if you want to provide for grandchildren, minor children, or disabled relatives. What happens to my 401(k) account when I die? If you designated beneficiaries when you signed up for a 401(k) account, they receive the money in your account when you die. Otherwise, your estate automatically becomes the beneficiary. If your beneficiary is your spouse, he or she has most of the same options that you would have if you were leaving your company to take another job.<br />
<br />
Can I settle a small estate without hiring a lawyer and going through probate?<br />
<br />
If someone dies with very few assets; particularly if they had no real estate, life insurance, or other valuables, their assets might not need to go through probate. If you are the executor, you might be able to track cash and other assets yourself, without a lawyer or court supervision.<br />
<br />
If I leave my entire estate to my spouse, what happens if we die at the same time?<br />
<br />
Leaving your entire estate to your spouse can create problems if you both die at the same time or within a short period of time. To avoid problems, include a simultaneous death clause in your will to pass your property directly to your surviving heirs or to trusts for their benefit.<br />
<br />
Do I need to worry about federal estate taxes?<br />
<br />
Unless your estate is valued at more than $2 million in 2006, you don&rsquo;t need to worry about federal estate tax. The $2 million threshold is in place for 2006 through 2008; it rises to $3.5 million for 2009. The estate tax is completely repealed in 2010.<br />
<br />
How will the value of my estate be determined when I die?<br />
<br />
The value of your estate will generally be the market value of all your assets as of the date of your death. These will include your home and any rental property you might own, securities and other investments, retirement funds, and all your personal possessions. Your estate also includes forgiven debts, interests in a closely held business and even any pending income tax refund. The value of your estate will be reduced by amounts you owe, burial expenses, the cost of settling the estate and assets you leave to charity.<br />
<br />
Is life insurance subject to federal estate tax?<br />
<br />
If you die owning a life insurance policy, the proceeds go into your taxable estate. But there is no federal death tax if your estate is worth less than $2 million. Likewise, if your estate goes to your spouse or if you gave your policy to your children in a trust, your estate will pay no taxes. Note that the proceeds will be taxed to your estate if you die within three years of making the gift.<br />
<br />
How can I use trusts to make sure my beneficiaries use their inheritance wisely?<br />
<br />
To make sure that an inheritance is used wisely, set up a trust in your will (called a testamentary trust). These trusts are a good idea if you have elderly beneficiaries with special needs or a relative who might be untrustworthy with money. You can require such beneficiaries to get their money from a trustee, who exercises more discretion, rather than giving the money outright in your will. Or, you can use a spendthrift trust, in which your instructions to the trustee carefully control how much money is released from the trust and at what intervals. That way, you can keep an irresponsible beneficiary from going through all the money at once.<br />
<br />
Source: The News Tribune staff, MSN Moneycentral]]></description>
 <category>Elder law</category>
<comments>http://ocelderlaw.org/blawg/index.php?itemid=72</comments>
 <pubDate>Sat, 15 Jul 2006 11:15:43 +1500</pubDate>
</item><item>
 <title>Foundations versus trusts</title>
 <link>http://ocelderlaw.org/blawg/index.php?itemid=71</link>
<description><![CDATA[Using a foundation as part of your wealth management strategy provides additional protection and peace of mind not available with trusts.<br />
<br />
Foundations are one of the most overlooked and yet most effective forms of asset protection that you can put in place which, like all good investment vehicles, are designed to save you money without costing you the earth.<br />
<br />
Trusts have a number of restrictions which limit their ability to provide you with comprehensive asset protection.<br />
<br />
Time limits<br />
Most trusts have time limits. If your intention is to secure your assets in perpetuity then using a foundation is your best choice. You have the option of creating a fixed lifetime for the foundation but you can also set up your foundation to continue indefinitely.<br />
<br />
Management<br />
Foundations and trusts have very different structures. Using the foundation structure means that trustees can be changed very easily and at little or no cost. Changing trustees of a trust can be a time consuming and expensive exercise.<br />
<br />
Control<br />
When assets are placed into trust, the trustees legally own the assets, which is not something that everyone is comfortable with. Assets in a foundation are owned by the foundation which can be controlled entirely by you.<br />
<br />
Asset protection<br />
Unlike trusts, foundations are based on civil law and not common law so they are much harder to challenge and overturn than trusts, an important feature in planning for wealth preservation. Unlike trusts, foundations cannot be completely unwound for trivial reasons.<br />
<br />
In particular, trust law affords no protection against creditors. Foundations do provide protection for the Founder and beneficiaries. For this reason, they are a useful protection tool for the personal assets of those whose work is subject to penal litigation action and awards.<br />
<br />
Foundations will not entertain challenges resulting from disputes over wills.<br />
<br />
Leaving your estate in the form of a foundation provides a very effective and protected, lasting legacy. Such arrangements also avoid probate. Locating such estate planning vehicles offshore can also help to legitimately avoid tax.<br />
<br />
Forced Heirship<br />
One particular issue affected by this level of asset protection is forced Heirship.<br />
<br />
By transferring assets into a foundation, it is possible to avoid the forced Heirship laws of those countries which permit a will to be challenged and overturned if it does not meet with minimum statutory legacy requirements. Foundation legislation does not recognise such laws.<br />
<br />
Why not just use an offshore company?<br />
Transfer of shares, either by a living shareholder or on the death of a share holder, can result in a tax charges. Since a foundation has no shares, this cannot arise.<br />
<br />
Common questions about foundations<br />
<br />
1. Can foundations be set up in every country?<br />
To date only a small number of countries have enacted laws allowing for the establishment of foundations.<br />
<br />
2. How well regulated are these countries?<br />
Countries which permit the establishment of private foundations comply fully with international protocols regarding money laundering, drug trafficking and terrorism. But beyond these categories of criminal activity they maintain strict client confidentiality.<br />
<br />
3. Will my money be safe in the country of establishment of the foundation?<br />
These countries are politically stable and well established world recognised offshore financial centres. However as with offshore companies, foundation bank accounts and other and other foundation assets can be located anywhere in the world.<br />
<br />
4. What about tax?<br />
The countries where the foundations are established do not tax foreign sourced income and even some locally sourced income, such as bank interest, is free of tax. Assets located outside of the establishing country will usually be located in another offshore and tax-free financial centre.<br />
<br />
5. Can I still make use of other traditional investment vehicles if I place my money to a foundation?<br />
Investment vehicles can be used by many different classes of investor including individuals, companies, trusts and foundations. Foundations are particularly useful in multi generational tax planning since they can be created to run in perpetuity.<br />
<br />
6. What about confidentiality?<br />
As with individual investors, if you want to invest your foundation assets safely and securely, this is best done through an investment vehicle offered by a brand name financial institution located in an OECD group 1 country. These institutions require the same information regarding the source of wealth from foundations as they do for individuals. However, once invested, the foundation enjoys the same tight confidentiality rules and regulations as any other private investor, in particular no financial reporting to the home countries of investors and beneficiaries. In addition, the establishing country of the foundation will have its own secrecy laws, thereby ensuring complete confidentiality and asset protection.<br />
<br />
7. What does it all cost?<br />
Some jurisdictions charge a large amount to set up and run on top of hefty legal fees, whilst others are much more affordable. It is possible to set up a foundation for around $1,000 with annual running costs of even less.<br />
<br />
8. How rich do I need to be to set up a foundation?<br />
This will depend on the establishing jurisdiction chosen. But the minimum estate necessary for setting up foundations is less than you might think and anyone with the capital to invest into the best offshore investment vehicles would have access to foundation structuring.<br />
<br />
9. Aren&rsquo;t foundations supposed to be not-for-profit entities?<br />
Foundations are not permitted to be used directly as a vehicle for commercial activity. But they can engage in banking activities which include, the holding of bank deposits, shares, bonds, mutual funds etc, provided that the purpose is for the benefit of beneficiaries.<br />
<br />
10. Can corporations make use of foundations?<br />
Yes. The foundation cannot actively be engaged in commercial activity but it can at as a holding entity, holding the shares/stock of a company or companies, which would usually be offshore.<br />
<br />
Foundations and property<br />
Foundations are able to own property. This is important for multi-generational tax planning as the ownership of the property remains unchanged. This provides continuity of enjoyment of the property and also a useful shelter from taxes.<br />
<br />
Avoidance and evasion<br />
It is the task of tax collecting authorities to extract all of the tax to which they are legally entitled. It is your right to part with no more money than you are legally obliged to pay, which for some expatriates is nothing.<br />
<br />
Foundations can help you to legitimately avoid significant amounts of tax and ensure that your worldly goods are distributed as you intend.<br />
<br />
Helping an investor to financially restructure into an investment vehicle via a foundation requires careful planning. Your choice of investment location, foundation country of establishment, intended use of foundation assets, nationality of beneficiaries and Founder are all crucial and interlocking factors in the design of your solution.<br />
<br />
]]></description>
 <category>Planning</category>
<comments>http://ocelderlaw.org/blawg/index.php?itemid=71</comments>
 <pubDate>Mon, 12 Jun 2006 13:10:57 +1500</pubDate>
</item>
  </channel>
</rss>