Lawyers With Purpose

Within Inches Of Success

How do you know whether you are traveling down the wrong road and need to turn around, or are within inches of success and need to keep going?

The closest Krispy Kreme to my house and office is approximately 15 minutes away without traffic, and I wanted fresh, hot donuts before work. With rush-hour traffic heading into Atlanta, the travel time is no less than 30 minutes one way. I only live two miles from my office. Therefore, I was making a deliberate choice to spend at least an hour in traffic for a donut.

I knew the route, but I have no geographical sense. After I passed a Dunkin’ Donuts, which I did not want, and had not yet seen Krispy Kreme, I began to doubt myself. Had I gone too far? Did I miss it? Should I turn around? In a split second I did a very unsafe u-turn. While driving, I looked up the address of the Krispy Kreme on my iPhone and input it into my GPS, which prompted me to do another u-turn.

Upon reaching the point of my first u-turn, I could see that the Krispy Kreme was less than a block away – visible from where I actually turned around. I did not see it previously because I was so frantic about whether I had gone too far, and about “wasting” any more of my precious time. Whereas, in reality, doubting myself took me even longer to obtain my goal.

So, how do you know when to keep going or to turn around? Unless you have a crystal ball, you don’t. But, you can assess the situation to make a sound decision. Ask yourself these five questions:

1. How badly do you want to achieve the goal? How important is the goal to you?

   -- If it is your life dream, you may want to keep going regardless of all factors. But if it is just another “interest,” then you may want to cut your losses and focus on more productive interests. In this case, I REALLY wanted a donut!

2. How much time and effort have you already invested, and how much more are you willing to invest, even if all efforts have ended in failure?

   -- Have you spent only a few months pursuing this goal, or has it been years? From the outset, how much time did you envision it would take to achieve the goal? Have you given it enough time? I knew that it would take 30-45 minutes to get to Krispy Kreme. I was willing to spend up to an hour and a half to get the donut.

3. What are the negative consequences of going forward with the current plan?

   -- Will you be investing more time and money into achieving the goal? Is it affecting other people around you? Is it preventing you from reaching other goals you have? When I set off to get my donut, I knew I had no appointments that morning and could take until lunchtime. Now, obviously I did not want it to take all morning, but even if it did it would have no direct negative impact.

4. Are you making short-term decisions based on immediate pain reactions or long-term decisions based on research, data and experience?

   -- Be mindful as to why and how you are making your decision to keep going or to turn around. If you are making the decision because of the immediate pain you are in and are disregarding the huge reward at the end to eliminate the current pain, you may want to step back and see if there is any other way (short of turning around) to minimize the pain (i.e. if you are short on money, how can you generate it otherwise or cut expenses). As they say, “No pain, no gain.” Remember, short-term pain is worth pushing through. Chronic pain calls for treatment (changing the plans).

5. If you turn around, will you always regret that you didn’t go forward?

   -- You live with your success, your failures and your decisions. How will this decision affect you? Will it roll off your back because tomorrow is another day, another plan, another opportunity, or will it sit inside you, eating at you and tainting everything else you do? In my decision to turn around the first time, I was still in pursuit of my donut dream. I was not going to give up until I had it. I would have driven that road, making unsafe u-turn after u-turn, until I had it in my watering mouth.

However, I recently made a decision for one of my businesses where I said to myself, “I will invest a certain amount of money for the next two months. If this does not return the results I want, I will not invest any more money or time into it.” Well, those months were September and October of this year and as of October 31, I will be satisfied with my decision to walk away and follow a different road to success. (To be clear, the business is not my law firm or Lawyers With Purpose).

Where are you on your road? Are you just enjoying the scenery without knowing or caring where you end up? Do you need to turn around or keep going to achieve the success you seek?

As for me, now that I have had my donut I will be pursuing other goals.

Victoria L. Collier is a Veteran and Certified Elder Law Attorney, Fellow of the National Academy of Elder Law Attorneys, Co-Founder of Lawyers With Purpose LLC, and author of “47 Secret Veterans’ Benefits for Seniors—Benefits You Have Earned … but Don’t Know About.”

Financial Abuse of Elders & Other At Risk Adults - Part One

The Crime of the 21st Century

The financial abuse of elders, and other at-risk adults, is a societal plague that impacts persons in all social classes and economic strata: from a childless spinster living alone in her government subsidized studio apartment, to Brooke Astor in her opulent Park Avenue home surrounded by “caring” family members. The annual financial loss by victims of elder financial abuse is estimated to be $2.9 billion, a 12% increase from the $2.6 billion estimated in 2008. Women are twice as likely as men to be victims of elder financial abuse. Most victims are between the ages of 80 and 89, live alone, and require some level of assistance with health care, other activities of daily living, or home maintenance. Victims of elder abuse have a 300% higher risk of death when compared to those who have not been abused.

A 2011 study by the U.S. Government Accountability Office estimated that 14.1% of non-institutionalized older adults had experienced physical, psychological or sexual abuse, neglect or financial exploitation in 2010. Other studies estimate that one in six adults over the age of 65 has been the victim of a financial crime. Upwards of 5 million American adults over the age of 65 have been victims of elder abuse in all its forms. The “dehumanization of victims that takes place in the process of financial abuse . . . . creates an avenue to further victimization . . . . [T]he interrelationship between financial, physical, sexual and emotional victimization of elders is undeniable.” See The MetLife Study of Elder Financial Abuse: Crimes of Occasion, Desperation and Predation Against America’s Elders (hereafter referred to as the “2011 MetLife Study” (available at http://www.metlife.com/assets/cao/mmi/publications/studies/2011/mmi-elder-financial-abuse.pdf).

In the weeks ahead, we will investigate the scope and definition of elder financial abuse and exploitation; commonly cited reasons for this societal plague; the perpetrators of elder financial abuse; the detection and reporting of elder financial abuse; the remedies typically available where elder financial abuse has occurred; and finally, preventative measures that can be taken to forestall or eliminate elder financial abuse. 2013 is “The Year of Elder Abuse Prevention” (sponsored by the Federal Administration on Aging). I look forward to educating our blog readers – and the multi-disciplinary allied professionals who serve our elders – in the weeks ahead, which is a critical first step towards stemming the rising tide of elder abuse.

Kristen M. Lewis, Esq., Member of the Special Needs Alliance and Fellow of the American College of Trust and Estate Counsel,

Know The Five Key Trusts

We’ve seen a lot of changes in trusts for estate planning solutions over the last 20 years. Prior to 1993 there were basically two types of trusts; revocable living trusts to avoid probate and provide for asset management in the event of disability, and irrevocable trusts to prevent any unnecessary estate tax. Over the last 20 years a lot has changed, and a new genre of trusts known as iPug™ now serves 99.8 percent of Americans. iPug™ stands for Irrevocable Pure Grantor Trust. “Pure” means it is a grantor trust for income tax purposes and included in the grantor’s taxable estate. The popularity of these trusts has grown significantly since 2001, with the enactment of EGTRRA raising the federal estate tax limits to over $5 million. As a result, the number of Americans affected by estate tax is now less than one fifth of one percent.

There are three variations of the iPug™ trust: the income-only version, which we at Lawyers with Purpose call the MIT™; the control-only version, which we call the FIT®; and the third-party version, which we call the KIT®. Each of these trusts allows the grantor to be the trustee of the trust AND retain the full power of appointment to change everything and anything in the trust except that which the grantor wishes to protect. For example, in the income-only version the grantor irrevocably gives up the right to principal but retains the right to income and the ability to change all provisions of the trust, including the beneficiaries and the timing, manner and method of distribution. While this has many traditional planners on edge, my law review article “Irrevocable Pure Grantor Trust, the Estate Planning Landscape has Changed,” should calm the typical concerns. It should provide comfort that I have been using these for over 20 years and have thousands of them in the marketplace, and they have been utilized throughout the country by over 500 law firms over 13 years.

Simply, iPug™ planning does not relate to tax planning, but rather to asset protection planning.

The Uniform Trust Code, the Restatement Second and Third of Trusts and every treatise on trusts is in agreement, asset protection rules are very simple: whenever the grantor retains a right directly or indirectly (through any power of the trustee) to benefit from a self-settled trust, is also available to the creditors of the grantor. This is where iPug™ trusts are uniquely different. In the MIT™, the grantor irrevocably gives up the right to principal from the trust and cannot ever have access to the principal. Thus, because it is forbidden to be distributed to the grantor, it is blocked from access by any of the grantor’s creditors, predators or long-term care costs. Similarly, the control-only version of the iPug™ (FIT®) works exactly the same way, except that in this version the grantor retains no right to income or principal. This trust is typically used for people who do not need the assets or the income from the assets placed in it, but seeks to protect it from their creditors, predators and long-term care costs. The significance of the FIT® is that the grantor still retains full control of all assets and maintains privacy, not having to share any financial information with family or anyone else. The grantor also retains the freedom to make distributions of principal anytime during life, to any child or other beneficiary, for any purpose. The only restriction is that the grantor is prohibited in any way from transferring the income or principal to him or herself, thereby protecting it from any third-party creditors, predators or long-term care costs. Basic Asset Protection Law.

Finally, the third-party version (KIT®) is a slight variation in this trust is typically used when a client has already transferred assets to third parties (i.e. children). For example, dad and mom transferred the family farm to the kids hoping to "protect it," but not realizing that by doing so, it became subject to the kids’ creditors, predators, long-term costs and divorce. In order to protect transferred assets from the creditors, predators, divorce and long-term care costs of the transferees (children), the transferees act as co-grantors to create an irrevocable trust and fund it with the assets that had been previously conveyed. The parents can be the beneficiaries during their lifetime and upon the death of the parents, it can revert back to the children individually or in an asset protection trust designed similar to a MIT™ or FIT® to the children (now as grantors) and therefore self-settled. This provides asset protection to the parents during life but also could provide lifetime asset protection to the children as if they had done a MIT™ or FIT® themselves (after death of parents). Since a KIT® is a third-party trust, it is not within reach of the parents' predators, creditors or long-term care costs.

Perhaps the greatest untapped use of iPug™ trusts by most practitioners is for business owners. I have been successfully using these trusts with business owners for many years, and they love them when they understand how it protects them. If a business owner has a corporation or LLC, all of their personal assets are protected from the liability of that LLC or corporation, but the LLC or corporation is not protected from their personal liabilities. The corporation or LLC is an asset subject to the reach of the creditors if the liability is personal. As a result, I have many clients who opt to put their business interests into a MIT™ or FIT®. Using the MIT™ protects the business from being taken by personal creditors, predators or long-term care costs but does allow all the income from the business (which pours into the MIT™) to be distributed to the grantor. Another strategy is to use the FIT® for the business trust. This provides no income or principal to the grantor through the trust (and therefore protects it from the grantor's predators, creditors or long-term care costs) but the grantor could receive any amount of income deemed reasonable by business standards directly from the LLC or corporation.

For example, as an officer or employee of the corporation the grantor can receive a salary like any other employee. This income, however, will not be subject to his creditors and predators but could be “shut off” at any time by his resigning from the company. This provides both the benefits of retaining the right to income as well as retaining the ability to protect the income should the grantor decide differently at some point in the future. Trust planning is exciting in this new millennium, and utilizing all of the various trusts will help make us better counselors in serving our clients. I encourage you to stay abreast of all the issues related to iPug™ trusts and how they work for Medicaid eligibility, veteran’s benefits, and business protection planning.

David J. Zumpano, Esq, CPA, Co-founder Lawyers With Purpose, Founder of MPS, Founder and Senior Partner of Estate Planning Law Center.

Are You Smart Enough?

There is no question – you are smart. You completed four years of college and then another three years of law school, and you passed the bar. You’re a practicing lawyer, you attend the minimum required continuing legal education courses your state requires (if any) and you belong to a great Listserv which you feel is all the support you need.

Then why in the past month have I received the following two questions about the Veterans Pension with Aid and Attendance from very smart, reputable, established attorneys?

Question One: I created a trust for the children of a veteran. All of the veteran’s accounts, to include the accounts where all income was being automatically deposited, were retitled into the name of the trust. The veteran was not the trustee or the beneficiary of the trust. Essentially, he inadvertently assigned his Social Security benefits and pension to a trust. The trust was irrevocable. This is not permissible under federal laws. However, that was not his concern. In fact, I am not sure he was even aware of that issue. Instead, he wanted to know how that transaction would affect the veteran’s VA benefits for which he had already applied. But more importantly, how could he fix it?

Question Two: I heard that I could file an “informal claim” for benefits to lock in an effective date and then later file the complete application with all supporting documentation. The benefit of this is that the approved benefits would go back to the month after the informal claim was filed (i.e. file the informal on September 30th and benefits will be retroactive to October 1st), which means more money for the client. What I didn’t learn or realize is that the veteran actually had to be financially eligible (under the income and asset limit) BEFORE we filed the informal claim. I have about 15 pending claims in this situation. I’m freaking out, what do I do now?

The Veterans Administration requires all persons who assist veterans with a specific claim, to include “planning” to become eligible for a claim, to be accredited. To maintain eligibility, the accredited agent must take a three-hour qualifying continuing legal education course within the first 12 months of accreditation. Thereafter, only three more hours are requested every other year (every 24 months).

Clearly, based on the questions I receive daily from lawyers who do meet the mandatory minimum CLE requirements, it is not enough. In fact, the Government Accountability Office published its latest investigative report on August 30, 2013 finding that the accreditation process and training requirements are not sufficient for competent representation. See http://www.sanders.senate.gov/imo/media/doc/GAO-13-643.pdf. The VA disagrees and has no plan to make any changes.

What about you? Do you practice on the marginal side with only the minimal level of education? Are you actually harming instead of helping clients? Are you smart enough to refer to a qualified attorney or to get more training?

There are numerous training opportunities to attend, from national organizations to state bar associations to private organizations. As an example, recently I was both attending and speaking at the Veterans Advocates Group of America’s annual conference, in Washington D.C. with about 70 other attendees getting educated on VA benefits. In December I will be speaking at the Missouri Bar Association annual conference, to both lawyers and paralegals.

Lawyers With Purpose provides continuous, up-to-date training on the latest issues, laws and planning opportunities for our members through live conferences, webinars and a resource database. Additionally, we provide a two-day Medicaid, Veterans Benefits and Asset Protection Summit several times a year, with our next event in November in Syracuse, New York.

If you would like more than the minimum training, and want to learn from the national expert on VA Pension Planning, then you’ll want to attend a Lawyers With Purpose event before you unknowingly harm a trusting client.

Victoria L. Collier is a Veteran and Certified Elder Law Attorney, Fellow of the National Academy of Elder Law Attorneys, Co-Founder of Lawyers With Purpose LLC, and author of “47 Secret Veterans’ Benefits for Seniors—Benefits You Have Earned … but Don’t Know About.”

Person Centered Planning

After a period of being off-line while I developed an important new program on Financial Abuse of Elders and Other At-Risk Adults (more on that later), it’s good to be back on the Lawyers with Purpose blog. I recently became aware of a wonderful new blog called “Everyone’s Included,” the purpose of which is to share “stories that embrace the joy and power of people with disabilities.” Check it out at http://everyonesincluded.com. Everyone’s Included was created by Judith Moen, a former broadcast journalist and mother of an adult son with disabilities. This site affords families the opportunity to highlight their successes in overcoming the obstacles and fears that so often pervade their lives. For example, Judith’s post on February 22 described “Person Centered Planning” (“PCP”), a program supported by Atlanta-based All About Developmental Disabilities (“AADD”).

The PCP session was attended by her son and nine of his support team members, each of whom had an opportunity to provide insight and input into developing a roadmap for his success in the years ahead. Through a facilitated discussion, the team identified the challenges he would face and suggested practical problem-solving ideas and approaches. Each of the participants agreed to support him in the months and years ahead, and to reconvene as a group in three months “to celebrate the positive things that have happened and develop strategies to solve the negative.” To learn more about the PCP program supported by AADD, go to http://www.aadd.org.

In the weeks ahead, I’ll be sharing pearls of wisdom from my new program on Financial Abuse of Elders and Other At-Risk Adults, scheduled to be presented live to 1,000 attorneys and accountants when the Southern Federal Tax Institute meets in Atlanta October 21-25. Lawyers with Purpose will also feature a one-hour webinar on this important topic, hosted by yours truly on Monday, October 28, from 3:00 p.m. to 4:00 p.m. Mark your calendars! Registration information will be provided to members.

Kristen M. Lewis, Esq., Member of the Special Needs Alliance and Fellow of the American College of Trust and Estate Counsel.

Your Reasons Are Just Excuses

“Reasons are the cemetery of your dreams.” That’s one of my favorite quotes, shared by my first coach. Since the moment I heard it 16 years ago, I couldn’t help but have a “reason radar,” and it is specially tuned to detect the words “can’t or won’t.”

That’s what caught my attention instantly on a blog by authentic marketing master Dave Dee, whom I follow closely. Dave’s not only a marketing genius; he truly cares about his customers and provides top-notch information that changes lives.

What I love about this blog is the clarity and truth around the reasons for how one can buy a course and experience a total life transformation while another buys a course, doesn't get results and blames the "guru."

Same course. Different people. Different results.

Read on.

A Dave Dee Rant

Last week I received a comment on a post I had written from someone who basically called me a liar. You can read it here.

He didn't think I would post it but the reason I did was to make an important point that is sure to upset some people and cost me subscribers.

So be it. It's important.

The extent you accept personal responsibility will determine your level of success.

It seems that the majority of the people in society today have an entitlement and a victim mentality.

That's an ugly combination and is the formula for failure.

"I am not a success because ________" You can fill in the blank with whatever you want but it boils down to excuses.

How come one woman can buy a course and experience a total life transformation while another woman buys a course, doesn't get results and blames the "guru"?

Molly L. Hall, Co-Founder, Lawyers with Purpose, LLC, and author of Don’t Be a Yes Chick: How to Stop Babysitting Your Boss, Transform Your Job and Work with a Dream Team Without Losing Your Sanity or Your Spirit in the Process.

Congratulations Steve Wright - LWP Member of the Month

What is the greatest success you've had since joining LWP?

Our greatest success is simply the number of clients that are coming to us for assistance. These are clients I would not have been able to assist before LWP, and I certainly would not have been able to provide them assistance as effectively without the organized approach we learned from LWP.

What is your favorite LWP tool?

My favorite tool is the workshop. It took a leap of faith. My first workshop was mostly for family of my staff, and I didn't make an impressive presentation in my opinion. But I immediately saw how I could improve and it gave me confidence. We have been able to keep people coming as word spreads. In fact, my current challenge is how to most effectively focus my business development efforts. I have several insurance and financial professionals that want to be part of what we are developing. All I needed to do was implement the tools LWP provided.

How has being part of LWP impacted your team and your practice?

LWP has opened up entirely new opportunities for our practice. We are able to provide services in very specialized areas of estate planning (i.e. Medicaid planning) and do so in an organized way that allows us to think both short term and long term. This sets us apart. I am very optimistic about our future.

Your Legal Hour - September 30, 2013

Welcome to Your Legal Hour! Please be sure to scroll down below the video to access the handouts for this week's session.

Questions about the materials presented? Contact us at [email protected]

This Week's Supporting Materials

• This Week's Materials

Materials from Prior Sessions

• Overview
• Week 1 Materials
• Week 2 Materials
• Trust Summaries

Business Traveling Tips To Enhance Your Retreat

Your travel plans are made. If you’re anything at all like me, you begin throwing things in your bag the night before you travel and hope you remember the things you forgot in the morning. Hopefully you remember them. There's always someplace to grab stuff on your layover or from the shop in the hotel, right?

I've put together the following companion guide for your travels to our Enhancement Retreat in Syracuse. In my opinion, these are the things that are not negotiable and you simply can't do without. You might not find some of them along the way and they are a must:

• A self-made care package for comfort and health – (1) neck pillow; (2) plenty of water to hydrate; (3) vitamins – C & B for sure; (3) hand sanitizer.
• Book – It has to be a good one. And you must have the highlighter or pencil handy to mark it up where all the profound "ah-ha" moments are (as we say so often at LWP). If you have any good suggestions, please comment below and share.
• Goal set – Write down three things you are going to make sure you get out of the retreat. You know our agenda. What's yours? What are you going to take back to your office to implement? What do you need to move forward with where you are now? What will get you where you want to be, to make 2014 your year?
• Go for a walk – Get outside the hotel at some point in your day. When we break, get up and breathe some fresh air. Get the juices flowing! Make sure you look into the hotel gym – bring your gym clothes and Nikes – and keep a bit of your workout routine.
• Smart Phone – Fully charged, so make sure you bring that charger with you. Visit the app store before you depart and download the latest apps you need (travel support, productivity support, games). It always shocks me when I visit and see the latest. If you’re a Candy Crush player, send some lives!
• If you have some extra time, get out and do something while you're in Syracuse. The locals there say they have vineyards that will give Napa a run for their money.

We can't wait to see you and are excited for the event we have created. Kyle, Marci, Laney, Molly, Victoria, Dave and I are working overtime to make this retreat worth your travel and your time; we're committed to that. 100%. And we wouldn't have it any other way. There is nothing more powerful that you can do for yourself and your team than to make the commitment to get on a plane, get away from the office, leave it all behind and be in the room together – FOCUSED – doing strategic planning to take it all to the next level. We believe in that. We believe in you! We’ll see you soon. And, if you haven’t registered yet, then do it today. What are you waiting for? There’s still plenty of time.

What Could Possibly Go Wrong? ANYTHING!

With veterans benefits – ANYTHING! I receive emails no fewer than three times a week from lawyers saying, “I don’t understand what went wrong,” or “How do I fix this,” or “Why would the VA do or ask that?”

The latest one was from an attorney who assisted a client with long-term care planning, creating a trust wherein assets were retitled. After the repositioning of the assets, the client was referred to a veteran service organization to complete and file the application for pension with aid and attendance. The lawyer was no longer involved.

Yet a year later, the prior client calls the lawyer and says the VA is asking questions about transfers of assets within the two years prior to filing the application. The lawyer wanted to know why the VA would ask such a question. What would possibly have been entered or omitted from the application that would have triggered such a question?

Had the lawyer been familiar with the VA application process and the VA laws regarding transfers of assets, this situation would have (or should have) gone very differently.

For starters, it is critical to know the different application forms for benefits. There were THREE different initial application forms to choose between for a wartime veteran seeking pension with aid and attendance. The “old” standard form was VA Form 21-526, wherein the claimant could apply for either service-related disability compensation or non-service-related disability pension. If the claimant had ever filed a previous claim, then he could have filed the VA Form 21-527 for pension with aid and attendance. But, if he had wanted his claim “expedited” through the process, he could have filed VA Form 21-527EZ.

Although the Veterans Administration and the VA laws do not have a true “look back” period, like Medicaid, that penalizes transfers of assets, there is a law that states that if transfers are made to a person in the same household or if the claimant retains control or ownership, then the transfer will be voided and the assets will continue to be counted toward the net worth limitations. Thus, the VA can ask if there have been any transfers.

Beginning in 2011, the VA specifically included in the “instructions” of the VA application of benefits a statement that the claimant must disclose transfers of assets. But this declaration was only mandated in VA Form 21-526 and VA Form 21-527. Moreover, in VA Form 21-527, the form itself at Section VII, Item 29A and 29B specifically asks questions about transfers. If these forms are used and these blocks are left blank, the VA will then follow up and inquire.

Yet in VA Form 21-527EZ, the fully developed claim (expedited process) does not ask questions about transfers. Also, claims filed with this form go through the system much faster. The veteran service organization should have used this form to avoid a delay in processing the claim as well as to avoid all the questions about transfers.

It is not enough for a lawyer to create an asset protection plan. The lawyer, when advising about a specific VA claim, must be accredited by the VA and should also know enough about the application process to understand where the problems can arise and how to avoid or address them. Passing the ball to another without understanding the end game is dangerous to the lawyer (malpractice) and the client (denial of benefits).

This is one reason why I REALLY advocate that lawyers who engage in VA benefits planning should assist their clients with the applications in-house, pro bono as the law mandates, instead of farming them out to a VSO. It is only through personal experience that you can discover and truly know the benefits and consequences of the plan you created. When you refer the application to an outside source, you have no idea what they are doing and have no control over the process, which can totally unravel the planning. And, likely, when a problem does happen, the client comes back to you to fix it.

The best way to fix it is to be properly trained on all aspects of VA, not just the planning, and to keep it in house. Lawyers With Purpose has a VA processing system, to include application benefits software (being introduced in November) that will make it easy, efficient and cost effective for you to feel confident in maintaining control of the VA application for your clients.

Victoria L. Collier, Certified Elder Law Attorney, Fellow of the National Academy of Elder Law Attorneys, Co-Founder of Lawyers with Purpose, LLC, Co-Founder of Lawyers For Wartime Veterans, LLC, Veteran of the U.S.A.F. and author of “47 Secret Veterans’ Benefits for Seniors…Benefits You Have Earned but Don’t Know About.”