April 22, 2017 by bob mason Leave a Comment

Original in Asheboro Courier-Tribune, April 21, 2017

His face glistening with butter, Bobby was rapt. One hand poised over the popcorn barrel as Eric the Viking (aka Tony Curtis) was tied to a post where either the tides or giant man-eating crabs would finish him off. This was so cool.

Summer 1958. The Orpheum Theater, downtown Omaha. Built in 1927 for the vaudeville circuit it seats 2,700. In the late 40s a cinema screen was added, probably 50 by 75 feet.

I was relishing the finest movie ever made. Ever. The Viking with Kirk Douglas, Tony Curtis, Janet Leigh, and Ernest Borgnine, had everything a kid could want.

Einar

Einar the Viking (Kirk Douglas) sported a ghastly, milky left eye. It was a terrible thing to behold. He drank his grog right out of the barrel. He and Eric didn’t get along. It had something to do with Janet Leigh, I suspected.

At some point it was time to get rid of Ragnar (Ernest Borgnine). No arrow through the heart for old Ragnar. Wolves. Bound hand and foot Ragnar was to be tossed into a pit of them – and presumably they hadn’t been fed in some time.

“You would deny me entrance to Valhalla by having me die without a sword? I must die as a Viking!” They cut his bonds, they gave him a sword, and he jumped into the pit.

Offscreen: Chomping, snuffling, and snarling sounds.

I was quivering. It just couldn’t get any better. But I was wrong.

As the story winds down Eric and Einar get into another fight (again, I suspect it somehow centered around Janet Leigh). Eric runs Einar through with a broken sword. Ow. I guess Einar, being the rougher character to the more refined Eric, had to die.

But then this: The finest scene in cinematography’s history. The Viking Funeral.

It was night. A craggy Scandinavian seashore. Lashed to some rocks, a Viking longboat awaited. A half dozen huge furry warriors carried a shrouded Kirk Douglas onboard. A full male choir sang a dirge off screen. The rest of the Vikings carried flaming torches and longbows.

I noticed Einar’s escort plop him down and make haste to abandon ship. “What is going on here?” I wondered. And then it hit me as torches arced through the night and on to the boat. I nearly choked on a kernel of popcorn as my breath caught at the sheer, yes, the sheer, beauty of it.

Then Eric lets loose with a flaming arrow and others follow. The camera cuts between a close-up of a roasting Kirk Douglas and a long shot of flaming sails as the credits roll.

I didn’t know whether to cry or wet myself. This. Was. Too. Cool.

Over the next two years my kid sister, Jimmy Bouvette, Sam Marshall, and a few other neighbor kids had plenty of opportunity for critter funerals. Living near a wooded area (perhaps the last in Nebraska until the Rocky Mountains) there were plenty of recently deceased. Enshrouded, perhaps nestled into a cigar box, they were then consigned to a two-foot-deep crypt. These were dignified affairs, complete with a prayer or two.

Then one day a few of us came upon a squirrel. Dead. His right eye looked like Einar’s left eye.

I forget whose idea it was, but Mr. Squirrel took on a new name: Einar the Squirrel. He was to be given a full Viking funeral on the nearby pond.

It wouldn’t end well.

Wrapped gently in rags, Einar was placed on the metal bottle rack of an old wooden milk box (remember those?). The box and Einar’s shroud were thoroughly doused in gasoline (I hope the statute of limitations has run on these environmental crimes).

Whoosh! The Viking milk box was cast adrift, pushed away with a long stick. Big oily flames and smoke billowed skyward. After five minutes, the box keeled over with a great steamy hiss and quickly disappeared into the deep, leaving a trail of bubbles.

We could only stare. Awestruck.

Moments later an eight inch bundle of scorched rags and fur popped up and out, landing with a splashy plop.

I don’t know what happened next, because we were all elbows and rear-ends out of there.

Bob Mason is owner of Mason Law, PC, a statewide law practice based in Asheboro devoted exclusively to solving problems for elders, the disabled and their families. A Board Certified Specialist in Elder Law, he is a two-term past chair of the Elder Law Section of the North Carolina Bar Association and vice chair of the N.C. Board of Legal Specialization. Contact: Follow Mason Law, PC on Facebook at facebook.com/masonlawpc or at masonlawpc.com.

Filed Under: Nonlegal Ramblings

April 21, 2017 by bob mason 153 Comments

Dad died 5 years ago and there is a trust under his will for Mom. Will the trust be countable if Mom goes into a nursing home?

Mom and Dad set up an irrevocable trust years ago (Bill Clinton was on his first term) and put land and some other assets in the trust. Are the assets in the trust safe?

Dad has a revocable trust (although the front page says it is a “living trust”) he set-up several years ago. How will Medicaid treat that trust?

Get Your Head Around the Rules

To understand how Medicaid treats trusts, recall that Medicaid has three types of rules that apply to trusts (and many other assets). If you really want to read about those rules, you can on this website. Also, this discussion does not address special needs trusts, which are generally a whole other matter. But in a nutshell here they are:

Medicaid has rules regarding what assets will be counted for purposes of determining whether someone will qualify for Medicaid. Some trusts will count; others won’t.
If an asset does not count, but the applicant or her spouse once owned that asset (that is, they transferred the asset out of their names), Medicaid has rules that will “punish” the applicant for transferring or releasing title to the asset.
If the asset is under the limit for qualifying for Medicaid or is not counted by Medicaid for eligibility purposes, the asset may still be available for estate recovery when the applicant dies.

Let’s take each of these general Medicaid rules and apply them to trusts.

How Does Medicaid Count Trusts?

It depends upon two things. Whether the trust is revocable or irrevocable, and whether the trust was set-up by the applicant or his spouse.

Revocable Trusts

If a trust is something like a bag to store assets in, then think of a revocable trust as a nylon mesh beach bag. Medicaid can see everything in it, and if assets are otherwise countable the trust doesn’t make any difference. That is (heh, heh) “plain to see.”

That is why most living trusts don’t do a thing for asset protection (although I do occasionally use them in advanced asset protection planning strategies).

Irrevocable Trusts

If the trust is irrevocable, things are a bit more complicated. Think of a black canvas bag with locks and buckles on it.

If either the applicant or his spouse set up the trust and there is any way (I mean ANY WAY) that any portion of the trust could be distributed to the applicant, Medicaid will count that trust portion. For example, if an irrevocable trust says that a trustee can distribute any amounts in the trust to Mom or Dad if he is in a good mood and it snows in July Medicaid will count the whole trust.

If Mom or Dad set the trust up and it says to distribute the income to Mom or Dad, but never to distribute principal to Mom or Dad (well . . . maybe the trustee could distribute principal to other people, just not Mom and Dad), Medicaid will count the income . . . but not the principal.

If the trust is irrevocable and someone other than Mom or Dad set-up the trust and put assets in the trust, Medicaid will count the trust only to the extent that the trustee MUST make a distribution to Mom or Dad. I said “MUST” . . . the trustee MAY be able to make a distribution and it won’t cause any Medicaid problems.

To recap: If Mom and Dad set up an irrevocable trust and there is any conceivable way, no matter how far-fetched, that the trustee can make a distribution: Potential Medicaid Unhappiness. If someone else set up the trust and put their assets in, and if the trustee has no legal requirement to make a distribution to Mom or Dad: Medicaid Happiness.

Trash the Rules If a Trust Under a Will is Involved

I lied. A little. The rules above do NOT apply if either Mom or Dad set up a trust under his or her will and his or her assets flowed into that trust. The trustee COULD make a distribution to either Mom or Dad (whichever one of them is left alive) and Medicaid will not count the trust. Medicaid will count the trust only to the extent that the trustee MUST make a distribution.

In other words, a trust under either Mom’s or Dad’s last will and testament is treated the same as a trust set up by some other person.

You want to know why? So do I. If you figure it out send me an email.

How Does Medicaid Treat Transfers Into a Trust?

Easy question. If the assets in the trust are countable, there is no Medicaid transfer penalty. If the assets in the trust are NOT countable under the rules above, there is a Medicaid transfer penalty.

Remember, the transfer penalty is “punishment” for transferring the assets out of your name, to a place where they cannot be counted, and then applying for Medicaid within five years of the transfer.

Once Again, What About Wills?

There is no transfer penalty if a transfer accomplished by will (including a transfer into a trust under a will).

What About Estate and Recovery and Trusts?

Another easy question. If an asset does not count because it was not available to the applicant at his option, then it certainly will not be available for estate recovery when the applicant dies.

This part actually does make sense. Assets in a revocable trust will be wholly available for estate recovery the same as if there was no trust. Assets in an irrevocable trust will be available for estate recovery only to the extent the trustee is required to distribute the assets back to the estate of the deceased applicant or to pay his outstanding claims.

For some strange reason I never drafted an irrevocable trust that way (you may now chuckle).

Filed Under: General, Medicaid, Reader Favorites, Special Needs Planning, Trusts generally Tagged With: Irrevocable trusts, living trusts, Medicaid, Medicaid Planning, transfer penalty, Trusts generally

April 20, 2017 by bob mason 7 Comments

Ever wonder how to find a good lawyer? For my friends over 100 miles from Asheboro or Charlotte, North Carolina, I’ll show you how to find a great elder law attorney. If you are within those areas, I think you can guess who I would recommend.

Much of my advice could also apply to finding ANY good lawyer (family law, criminal law, real property, and so on).

Let’s look at two factors: Technical/legal expertise and character/personality. Many folks overlook the latter, you ideally want a combination of both.

Finding a Technically Good Elder Law Attorney

You have to learn the rules of the game. And then you have to play better than anyone else.
— Albert Einstein

No one factor will control, but try to find someone with as many positives as possible.

Time as an Elder Law Attorney

How long has he or she been practicing in elder law? And how much of his or her practice is devoted to elder law? There is a difference between someone who has been practicing for 10 years with a substantial focus on elder law and someone who has been practicing for 30 years with three years in elder law.

How to find out? Ask! A good lawyer shouldn’t be offended. Look at an online bio (perhaps on a firm website). Does it look like she has her fingers in numerous pies (elder law, real estate, corporate), or is elder law or special needs law pretty much the main topic?

Ask how she came to be an elder law or special needs law attorney. How did she learn the technical skills? A mentor? Training?

Ask how many cases of the sort you have presented he has handled. Ask for a reference! Again, a good elder law attorney won’t be offended or mind.

Associations and Credentials

Find out if he is a member of the National Academy of Elder Law Attorneys (NAELA). Simply go to the NAELA website and look. There may even be a brief bio.

If the attorney is NOT a member of NAELA . . . go see somebody else. Period. NAELA is THE only national organization for elder law attorneys practicing in all areas of elder law (within elder law many attorneys may “unofficially” specialize in trusts, asset protection, housing, Social Security, and so on). If the attorney is not a member, it immediately tells me (and should tell you) that the attorney is not interested in the latest news, having ongoing conversations with colleagues, learning about the latest educational offerings, or reading any professional literature such as the NAELA News (a quarterly magazine for elder law attorneys) or the NAELA Journal (denser, law review type reading).

If the attorney is NOT a member of NAELA . . . go see somebody else. Period.

Has she earned any advanced certification? On the national level, the American Bar Association recognizes the certification by the National Elder Law Foundation (NELF). NELF maintains a searchable website. To become a certified elder law attorney (CELA) by NELF, an attorney must have practiced substantially in elder law for ten years, pass peer review, and pass a MONSTER day long exam (the last few years the pass rate has been around 25% to 50%).

I CAUTION YOU: An attorney who is NOT a CELA may be a great attorney. An attorney who IS a CELA is likely very good (although I cannot guarantee there are not a few clowns out there . . . you can weed those out . . . read below).

Under almost all state bar rules, it is permissible for an elder law attorney to public hold himself out as a CELA (as long as that is true!). Some states also have their own board certification process (similar to what the medical folks do). North Carolina DOES.

In North Carolina, the board certification process is very similar to NELF’s. The neat thing about North Carolina is that you can check out an attorney in MANY specializations. The NC Board of Legal Specialization also maintains a searchable website. Again, the same caution applies: There are many good attorneys who are NOT board certified . . . I know a significant number of very good attorneys who are not certified. On the other hand, if you are on your own in your search, a certification should give you some comfort.

How involved has she been in the organized bar? Committee work? Offices held? Articles written? This is not a “make or break” factor, but it certainly indicates commitment.

Martindale-Hubbell is a very old, very reputable lawyer rating service. They, too, maintain a searchable website. Lawyers are rated based on strictly confidential questionnaires sent out to abroad sample of the bar. Lawyers know their responses are totally confidential, so presumably honesty is assured. A Martindale “Notable” rating means the attorney is a good, competent practitioner in the eyes of her peers. A “Distinguished” rating means the practitioner is held in very high esteem. An “AV Preeminent” rating means “top of the heap” (my term) or ”old” (my wise guy 20 year old son’s term).

One thing to be cautious of: A Martindale “AV Preeminent” attorney may be an incredible criminal law attorney but not know a blessed thing about elder law (or whatever it is that you’re looking for).

Finally (maybe most importantly), if you can find an attorney you know and trust (any attorney . . . your real estate attorney or your family attorney, your next door neighbor) ask him or her for a referral . . . those are the ones who should be honest because they don’t want to be embarrassed by sending you to a clown.

Finding an Elder Law Attorney You Are Comfortable With

The Perfect Attorney is Within Your Grasp

You may find the most technically proficient attorney in the state, but if he is a creep (at least to you) you won’t be very happy.

First and foremost you should find someone with whom you are comfortable. You do not need to become best friends. On the other hand, you should not be repulsed by the person.

You will have to make that call. No amount of advice can help you with that.

Hmmm . . .

Another factor that I believe is overlooked, but very important, is how clever or imaginative the attorney is. If someone has truly mastered the rules, she can be free to improvise and to “think outside the box.”

Problem fixed!

One of the things I love about practicing is coming up with a creative solution to a knotty problem.

Speaking of creativity, here’s an idea I came up with for getting rid of old computer equipment (a particularly vexing problem). It works like a charm and is based on a deep, deep understanding of human nature (hehehehe). I captured a photo for your edification.

Finally, do not base your selection on fees. A very good attorney who knows exactly how to solve your problem will likely cost a bit more. Of course, a very inexpensive attorney (who doesn’t know what he’s doing) may, in the end, be the most expensive attorney you could find.

Filed Under: General, Miscellaneous, Reader Favorites Tagged With: Certified elder law attorney, Elder law attorneys, finding an attorney

September 14, 2016 by bob mason Leave a Comment

ASHEBORO, NC — Sept. 20, 2016: Best Lawyers^® has announced that Asheboro, NC, elder law and special needs law attorney Robert A. Mason will be included in the 2017 edition of Best Lawyers in America in the category of Elder Law. Best Lawyers^® bases its selection criteria exclusively on lawyer nominations and peer review ratings.

Mason’s selection will be listed in the December 17, 2016 regional edition of The Wall Street Journal and the January 2016 issue of Our State magazine.

Mason is the owner of Mason Law, PC, Asheboro, NC, a firm devoted to meeting the legal challenges of seniors, the disabled and their families, using an array of sophisticated legal techniques.

Mason, a Board Certified Specialist in Elder Law by the NC State Bar Board of Legal Specialization, served two terms as Chairman of the Elder Law Section of the North Carolina Bar Association, and is Vice Chair of the North Carolina Board of Legal Specialization. Mason especially focuses his elder and special needs law practice on advanced asset protection techniques, trust law issues, and special needs trusts.

Mason has a Bachelor of Science in Communications from Northwestern University, Evanston, Illinois, and a Juris Doctor cum laude from Mercer University’s Walter F. George School of Law, Macon.

Filed Under: News / Press

December 14, 2015 by bob mason 13 Comments

Gawande Being Mortal Physicians of the Victorian age had a saying, “The operation was a success, but the patient died.”

Surgeon (and best-selling author) Atul Gawande, in Being Mortal, recounts the horrible last weeks of Joseph Lazarus, the first patient newly-minted Intern Gawande disconnected from an artificial ventilator.

Incurable cancer had rapidly spread throughout Joseph Lazarus. One tumor was compressing his thoracic spine. His choices were comfort care and surgery.

More than seven hours of surgery brilliantly removed the pressure. But after 14 days in ICU, blood clots, respiratory failure, and systemic infections, the Lazarus family asked young intern Gawande to remove the ventilator. He did and listened to Lazarus’ “heart fade away.”

This is a book all caregivers should read. Written in a conversational style, it was not an easy read because it challenges and forces a look at a reality most of us would rather avoid: Our mortality.

Now surgeon (and author) Atul Gawande takes a provocative look at our entire elder care system in his book Being Mortal. Written in a conversational style, it is not an easy read because it challenges and forces a look at a reality most of us would rather avoid.

Gawande laments the medicalization of mortality. Medicine is extraordinarily successful in the treatment of curable disease, but fails to honestly address issues we all must eventually face.

In Lazarus’s case, Gawande and his colleagues easily explained the dangers of various treatment options, but failed to address the realities of Lazarus’s disease. The chances of Lazarus returning to anything like his life of just a few months earlier “were zero, but admitting this and helping him cope with it seemed beyond us.”

Gawande examines every level of the care system. Medical care suffers due to a lack of trained geriatricians (who have a totally different treatment orientation from other specialities). The problem? Money. Geriatricians make nowhere near as much as, say, surgeons. Further, geriatrics teaching programs are harder to fund than more glamorous programs.

The book criticizes many assisted living and skilled nursing facilities as marketing more to the adult children (bright, clean, smell-free) than alleviating the “Three Plagues of nursing home existence: boredom, loneliness, and helplessness.”

Harvard trained physician Bill Thomas passed up exciting offers to return home to upstate New York and become medical director of a local nursing center. Frustrated at the warehousing mentality (set times for awakening, bathing, food, recreation, bed) he took steps to enable residents to live to the best of their capabilities. Tremendous, measurable results ensued from as little as giving each resident privacy and autonomy (all to the extent possible).

After examining a number of other similar models, Gawande noted that proponents share a vision of what kind of autonomy matters most. Most people think of autonomy as being free of limitations and coercion. But another kind of autonomy – being the authors of our lives to the very end – is at the “very marrow of being human.” That later type can be addressed in various treatment settings.

Hospice could have been an available option for Lazarus. The terminally ill may have priorities other than extending their lives. Those may include minimizing suffering, strengthening relationships, being mentally aware, not being a burden, and having a sense that their life is complete. That is what hospice is about: Making every day the best day possible to focus on those priorities.

Lest anyone Be tempted to equate ideas of death with dignity with assisted suicide or euthanasia, Gawande bemoans the fact that in those places where assisted suicide is legal, particularly in Europe, in spite of “legal safeguards” the use of that option has increased dramatically as people choose the “fast lane” out. The problem is that this avoids the goals of a good life to the very end. The Dutch, for example, have devoted very little tp palliative care and hospice-type options – and why should they when “other options” are available?

Near the close of the book, Gawande tells of his daughter’s beloved piano teacher. Imbued with an indomitable spirit and love for her students, she had rapidly spreading cancer. She was given an aggressive treatment option that would extend her life by months (but with a debilitating physical toll) or hospice. She chose hospice and went home.

Gawande told his tearful daughter there would be no more lessons. A few days later the phone rang. It was the piano teacher. She did what she loved; she taught piano until four days before her death at home a few weeks later.

Being Mortal: Medicine and What Matters in the End
by Atul Gawande
Metropolitan, 282 pp., $26.00

Filed Under: General, Miscellaneous, Nursing Homes Tagged With: Gawande review

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