members in the news naela news...phenomenon in-volves the aesthet- ... well established firms...

Retaining Assets andObtaining Benefits Too:Medicaid Planning PostBlumer and RobbinsBy Dana Carroll, Esq.In this issue...

President’s Message ............... 3

A Pyrrhic Victory ......................... 5

Executive Director’sReport ..................................... 12

V O L U M E 1 6 � I S S U E 1

FEBRUARY 2004

N A T I O N A L A C A D E M Y O F E L D E R L A W A T T O R N E Y S

NEWSNEWSNAELANAELA

(continued on page 8)

IntroductionDetermining financial eligibility

for Medicaid long-term care benefitsproves especially challenging whenthe applicant is married. How can astate fairly determine how much acouple can financially contribute tothe institutionalized spouse’s care?What constitutes sufficient assetsand income for the communityspouse? In 1988 Congress passed theMedicare Catastrophic Coverage Actin an effort to protect the communityspouse from poverty and destitutionwhen faced with paying for a spouse’snursing home care. States respondedin various ways, establishing differ-ing asset and income thresholds andmethods for funding the communityspouse’s minimum monthly mainte-

nance needs allowance (MMMNA).Participating states have employed

two methods for meeting the communityspouse’s MMMNA: the income-first ap-proach, which uses the institutionalizedspouse’s monthly income to supplementthe community spouse’s income, and a re-source-first approach, which allows thecommunity spouse to retain additionalmarital assets to generate sufficient incometo meet her MMMNA. The resource-firstapproach provides the community spousewith greater financial security, since sheis not forced to depend almost entirelyupon the institutionalized spouse’smonthly income to meet her needs.

Elder law practitioners have long ar-gued that funding the communityspouse’s MMMNA with the institution-

NAELAMembersin the NewsNAELA was mentionedas a resource In:� “Our Picks for the Top Places

to Find Financial Advice”published in the November10, 2003 edition of The WallStreet Journal.

NAELA Members inthe News Include:

� William J. Browning, CELA,was quoted in “Groups SeeFloods of Inquiries for LivingWills,” which was publishedin the October 27, 2003edition of USA Today.


2 NAELA News • February 2004

ØBairds Publishing(FULL PAGE INSIDEFRONT COVER)

NAELA News • February 2004 3

President’s MessageBy William J. Browning, CELA

(continued onpage 4)

William J. Browning

In 1990, there were very few elderlaw attorneys and this area of law wasrelatively unknown. In the past decade,Elder law has become an acknowledgedspecialty area of law both by the barand the general public. This recogni-tion is due to substantive work doneby NAELA members and and to theirincreased marketing efforts.

In my travels during this past year,I noticed that marketing by elder lawattorneys has become increasingly ag-gressive. Though I have not actuallysurveyed the membership, I suspectthat the more crowded the market, themore aggressive themarketing. The ques-tions, which I raise inthis column are notintended as condem-nation of marketingefforts or to passjudgment on anyparticular marketingeffort. I can onlyhope that it raisestroubling questions.

The first ques-tion raised by thisphenomenon in-volves the aesthet-ics of an elder lawpractice. Many law

firms, big andsmall are mar-keting theirservices. Thelarger estab-lished firmssponsor events or radio or televisionprograms, while the personal injuryfirms are more inclined to aggressivelymarket on television, radio, and withprint advertising. The personal injurybar is perceived as being less profes-sional, due to their aggressive market-ing efforts. So how do we, as elder lawattorneys, wish to be perceived by our

fellow lawyers?After reviewingsome of the ad-vertising gener-ated by some el-der law attor-neys, it is appar-ent that some ofthese ads may beviewed as “un-professional” byother members ofthe traditionalbar.

Aggressivemarketing, com-

The NAELA News is published by theNational Academy of Elder Law Attorneys, Inc.

1604 N. Country Club Road � Tucson, AZ 85716-3102520/881-4005 � 520/325-7925 Fax � www.naela.org

Articles appearing in the NAELA News may not be regarded as legal advice. Thenature of elder law practice makes it imperative that local law and practice beconsulted before advising clients. Statements of fact and opinion are the responsi-bility of the author and do not imply an opinion or endorsement on the part of theofficers or directors of NAELA unless otherwise specifically stated as such.

Publications Chair ............................................... Edwin M. Boyer Esq., Sarasota, FL

Editor .............................................................. Judith Grimaldi, CELA, New York, NY

Communications Director .................................... Jihane K. Rohrbacker, Tucson, AZ

Graphic Designer ....................................................... Kristin L. Hager, McKinney, TX

© Copyright NAELA 2004

The personal injurybar is perceived as

being lessprofessional, due to

their aggressivemarketing efforts. Sohow do we, as elder

law attorneys, wish tobe perceived by our

fellow lawyers?

Board of Directors2003-2004

P R E S I D E N TWilliam J. Browning, CELA

Columbus, OH

P R E S I D E N T - E L E C TStuart D. Zimring, Esq.North Hollywood, CA

V I C E P R E S I D E N TLawrence E. Davidow, CELA

Islandia, NY

T R E A S U R E RDonna R. Bashaw, CELA

Laguna Hills, CA

S E C R E T A R YAlfred J. Chiplin, Jr., Esq.

Washington, DC

P A S T P R E S I D E N TBernard A. Krooks, CELA

New York, NY

E X E C U T I V E D I R E C T O RLaury A. Gelardi

Tucson, AZ

M A N A G I N G D I R E C T O RDeborah J. Barnett

Tucson, AZ

D I R E C T O R S

Elizabethanne (Betsy) M.Angevine, Esq.

Whittier, CA

Edwin M. Boyer, Esq.Sarasota, FL

William J. Brisk, CELANewton Center, MA

Craig A. Gordon, CELATucson, AZ

Andrew H. Hook, CELAPortsmouth, VA

Barbara S. Hughes, Esq.Madison, WI

Jo-Anne Herina Jeffreys, CELAHoboken, NJ

Morris Klein, Esq.Bethesda, MD

Ruth A. Phelps, CELAPasadena, CA

Craig C. Reaves, CELAKansas City, MO

Aimee P. Rudman, CELACherry Hill, NJ

G. Mark Shalloway, CELAWest Palm Beach, FL

Stephen J. Silverberg, CELAEast Meadow, NY

Daniel O. Tully, Esq.Bristol, CT

Lauchlin T. Waldoch, CELATallahassee, FL

C O N S U L T A N T S

Brian Lindberg, Public PolicyWashington, DC

Hugh K. Webster, Legal CounselWashington, DC


President’s Message(continued from page 3)

bined with the sale of insurance prod-ucts (particularly annuities) may furtherdiminish our image. While I am aware ofthe revenues generated by the sale ofsuch products, I believe that we will asa group pay a price.

I believe that it is in our collectivebest interest to be part of the traditionalbar. If not for the efforts of the New YorkBar Association, the “Granny Goes toJail” legislation might still threaten eachof us. We should not discount the re-spect given to the bar associations bythe judiciary and the state legislatures.In many states, the bar associations, andparticularly the probate and trust sec-tions of those state bar associationshave been valuable to us as elder lawattorneys, both as referral sources andin lobbying at the state level. My ownexperiences in the Ohio State Bar Asso-ciation have been uniformly positiveboth in my development as an attorneyand in helping me shape legislation at thestate level. Will our marketing efforts orthe sale of insurance products harm ourrelationship with the traditional bar?

Secondly, how do we wish to beperceived by the public? The public isclearly more open to advertising. How-ever, when advertising becomes unpro-fessional, we are all tarnished by thatadvertising. If another attorney in yourarea broadcasts a radio advertisement,which is boastful and borders on un-professional, you are affected by thatadvertisement. We have all heard clientsor other professionals joke about theadvertising by personal injury attor-neys. Yet we all know personal injuryattorneys who are of the highest orderof professionalism and ethics. They areunfairly grouped with those who havestepped over that invisible line. Manywell established firms advertise andthose advertisements fittingly are con-servative and very professional. Arethey effective? We as a group will bejudged by our respective communities,based upon a number of criteria, includ-ing the type of marketing employed byelder law attorneys in our locale.

The third question, which haslargely been ignored, is: will advertis-ing by elder law attorneys affect publicpolicy? If an elder law attorney posts abillboard on a major highway, or uses

mailbags for advertising, state legis-lators and officials administering theMedicaid program will likely either seethe billboard or receive the mailbagadvertisement. Does the advertisinglead them to believe that wealthy citi-zens may easily become eligible forMedicaid? Does the advertising takea negative tone towards state officialsor indicate that the state agency is dis-honest? If that is their perception, allof our efforts to steer public policyare unlikely to be effective. If we arenot careful, it could be even worse.We could become the target of stateand local officials. Steve Moses hasalready started a smear campaign tomake elder law attorneys the target—aggressive or boastful advertising mayverify Moses’ charges against us.

NAELA has worked very hard toproject a professional image. TheNAELA Professionalism and EthicsCommittee chaired by GregoryFrench, CELA is in the process ofdrafting a series aspirational goals,which may help give us all some guid-ance in a wide range of issues, includ-ing marketing. These internal effortsare important to NAELA and all whopractice elder law.

In today’s business world, mar-keting is part of every professionalbusiness. While we can rightfully

claim that some of our marketing effortsprovide a valuable “public service” wemust also admit that marketing is for ourfinancial benefit. In the bigger picture, wemust strive to balance our marketing sothat we do not harm our profession orcause the erosion of public confidence inelder law attorneys.

NAELA is an organization with manynew members who are just entering intothis calling. Many are struggling and be-lieve that their success depends not ontheir technical expertise, but rather on theirability to market. The traditional model forpractice development operates upon thepremise that it will take most attorneysfive to ten years to develop the technicalexpertise to practice without significantsupervision. It is my belief that the knowl-edge base for a competent elder law attor-ney is greater than in most other areas ofpractice. If elder law attorneys are to main-tain the respect of the traditional bar, thepublic and public officials, I believe thatwe must raise the median level of exper-tise substantially and de-emphasis prac-tice development. If our marketing effortsprogress so that we rival the personal in-jury bar, our collective reputation and ourpublic policy positions will be negativelyaffected. Will the short-term financial gainjustify the damage done to our reputa-tions and the public policy?

MassachusettsNAELA Chapter Honors

Past PresidentThe NAELA Massachusetts chapter recently renamed the NAELA Se-

nior Award as the Arthur Stavisky Award for Service to Seniors in honor ofArthur Stavisky, who was a founding member of the chapter and an activemember of NAELA almost from its inception. Arthur was chapter presidentin 2002, but his term was cut short by illness, which took his life in October,2003. Starting in 2003, the chapter voted to make a donation in the name ofStavisky Award recipients to the charity of the honorees’ choice. The firstrecipient of the Stavisky Award was George Ruboy, also a founding memberand the first treasurer of the chapter. Arthur’s widow, Judith Stavisky, pre-sented the first Stavisky Award to George.

The chapter also presented the Outstanding Chapter Member Award toMark Worthington, Esq., acknowledging his tremendous contribution ofsingle handedly creating a chapter website. You can see the results ofMark’s work at www.manaela.org.


A Pyrrhic VictoryBy Jerome Ira Solkoff, CELA

sity and, thus, hadbeen licensed inConnecticut. Heagreed to awaitfees until and if Maxwas restored to hissmall wealth. Thedoctor found Maxemotionally andphysically frail butmedically competent to handle his finan-cial affairs.

Judith and I did not want Max to goback to Connecticut to face grilling byRobert’s attorneys. Indeed, Max was frailin health. Thus, armed with the doctor’sreport I contacted a local guardianshipcourt judge.

After Judith and cleared the way,our judge telephoned the Connecticutjudge. They worked out a plan. If ourlocal court would find Max competent,the Connecticut court would cancel theConservatorship and have Robert returnall assets.

I also was able to have Max receivehis old-age Social Security pension in-stead of it going to Robert by contact-ing the local Social Security Administra-tion office.

Our local court selected anotherpsychiatrist and an attorney to examineMax and report back to the court as tohis competency. Both agreed to awaitfees until and if Max received his mon-ies. Both agreed that Max was compe-

tent. Thus, on mo-tion, after notice ofhearing sent toRobert, our Floridacourt made an orderto competence.There is no such“competency” pro-ceeding in Floridabut we created oneas equity required.

After muchcourt battle in Con-necticut handledby Judith, Robert

using five successive attorneys tothwart our efforts, the Connecticut courtquashed the Conservatorship, orderedRobert to account and pay back all funds.Lo and behold, Robert had spent it all.

Thus, Judith worked out a paymentplan over several months. Max got hisassets totaling about $120,000, Judithreceived frees far less than her time, ex-pertise and talents were worth and alldoctors, etc. were paid. I got the satis-faction that Max now was independent,got back his dignity and “macho” im-age, and could pay his bills.

Max is terribly alone. His diabeteshas caused his legs to fail him and nowhe sits by the television set as his onlysocial outlet. Never a social animal, Maxhas no friends to count on.

Robert and his wife never speak toMax and Robert has forbade his sonfrom contacting his grandfather. Ill,homebound, lonesome, Max has his dig-nity and money, but it was won at a ter-rible social cost.

� Rebecca Morgan was quoted in “A Future inAging,” in the November 10, 2003 edition ofThe Tampa Tribune.

� Julian Zweber was quoted in the November 2003edition of AARP Bulletin, in “A New Squeeze onNursing Home Aid.”

� “Medicaid Cost Recovery Studied” published in the November 16, 2003edition of The Dallas Morning News, featured Bernard Krooks, CELA,and Renee Lovelace, CELA.

� William Browning, CELA, Richard Davis, Esq., and Michael Millonig,CELA, were the only listed attorneys under the Elder Law practice areain the Ohio Super Lawyers 2004 Guide.

NAELA Members in the News(continued from page 1)

Max came to me in 1999, age 89,bow-legged and physically frail. At 5 feet8 inches he was never an imposing fig-ure and he certainly is not now.

He stated that he wanted help ingetting his only child, Robert, to returnall assets and income Robert had taken.

A holocaust survivor, Max settledin Hartford, CT, with is wife, and workedfirst as a tailor and then opened a smallhaberdashery shop. When his wife diedhe sold the business and moved to livealone in a Florida condominium, keepinghis modest Hartford home as a summerretreat.

After several years in Florida, Maxgrew ill and went back to Hartford forthe necessary operation to be close tohis only child. While he was recuperat-ing at his Hartford home, Robert com-menced Conservatorship proceedings inthe Connecticut court system and wasnamed Conservator. Robert proceededto control Max’s income and assets. AllMax retained was his small German WarReparation monthly check and a smallFlorida bank account.

Max moved back to Florida to livealone. Robert sold Max’s Hartford homeand pocketed the proceeds. Further-more, Robert never came to Florida tosee dad. It was only after telephonicpleas that he would, seldom, send smallamounts of money to Max. Max did nothave enough funds to pay for his con-dominium maintenance, his health care,care expenses and food on his plate.Thus, Max came to me for help.

I agreed to help him pro bono pub-lico and contacted NAELA memberJudith Hoberman, Esq. of Connecticut,to look into the proceedings there. Sheagreed to await fees until and if the courtallowed same or Max had received hisassets.

Despite pleas from Judith and me,Robert refused to stop the Conservator-ship and release the funds back to Max.Indeed, he even attempted to have Max’sFlorida driver’s license canceled, whichwas not done after law enforcement of-ficers here found him competent.

I took Max to see a local psychia-trist to confirm my opinion that Max wascompetent to handle his own affairs.That doctor had taught at Yale Univer-

Max came to me in1999, age 89, bow-

legged and physicallyfrail. At 5 feet 8 inches

he was never animposing figure and he

certainly is not now.


P A I D A D V E R T I S E M E N T

NAELA Announces Availability of TwoSymposium Tuition Scholarships

The National Academy of Elder Law Attorneys proudly an-nounces two Vivian Cohn Smith Scholarships for Patient Advo-cacy to be awarded for attendance at the 2004 Symposium in HiltonHead, SC.

The scholarship was established through the NAELA Me-morial Fund in memory of Vivian Cohn Smith. It is a needs-basedscholarship, covering tuition and room at the 2004 Symposium.The scholarship, which will be awarded annually, is available toelder law attorneys who are unable to afford to attend a NAELASymposia, and who would use the training to assist and advocateon behalf of the disabled and incapacitated.

The Vivian Cohn Smith Scholarship for Patient Advocacywas made possible through the generous donations made inVivian’s name to the NAELA Memorial Fund by Vivian’s familyand friends; Needham, Mitnick & Pollack, plc; and other individu-als and law firms. Vivian, the sister of NAELA Fellow Helen CohnNeedham, CELA, passed away in November 1997 after a 10-yearfight against breast cancer. She learned the value of patient advo-cacy from her own experience–Vivian was a disability worker forthe state of North Carolina and saw her role using what she hadlearned as a patient to advocate on behalf of others.

Application ProcessThe applicant must send a statement to NAELA(no more than one page long) that explains thefollowing:� Applicant’s current job/position and

involvement in elder law.� Why the applicant needs the scholarship.� How the applicant would apply the training

received at the symposium to her/his advocacyon behalf of patients.

Selection ProcessThe family of Vivian Cohn Smith will review allapplications and determine to whom to grant thescholarship.

Deadline for ApplicationAll applications must be submitted no later thanMarch 15, 2004. Applications must be sent toBridget Jurich, NAELA, 1604 N Country Club Rd.,Tucson, AZ 85716-3102.

More comprehensive than ever, the new edition of the NGAAgency Directory is intended to reveal the types of individu-als and agencies who are NGA members and to inform youabout the services and products they offer. NAELA MemberRate: $65.00 each (Regular NGA Member Rate: $95.)

To order contact:

Terri Anthony at (520) 881-6561 orat: [email protected]

Special Offer to NAELA Members!

Order the National Guardianship Association’s AgencyDirectory TODAY and receive a special discounted rateavailable to NAELA Members for a limited time!


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Wisconsin Departmentof Health and FamilyServices v. Blumer

In February of 2002, the SupremeCourt weighed in on the debate. In a 6-3 decision authored by Justice Ginsburg,the Court concluded that Wisconsin’sincome-first approach, which dependedupon the assumption that “communityspouse’s income” as used in 1396r-5(e)(2)(C), can be interpreted to includepost-eligibility transfers of income fromthe institutionalized spouses, as permit-ted by 1396r-5(d)(1(B).2 The Court didnot, however, address which sources of

the institutional-ized spouse’s in-come could beused to meet thec o m m u n i t ys p o u s e ’ sMMMNA.

Robbins v.DeBuono

Case law fromNew York hasproved rather pre-scient in this area.Four years earlierthan the U.S. Su-preme Court’s de-cision in Blumer,the New YorkCourt of Appealsconcluded thatthe income-firstmethod did notoffend MCCA.3

In 2000 the U.S.Court of Appeals,Second Circuit,was called uponto determinewhich sources ofincome New Yorkcan deem avail-able to the com-munity spouse in

order to meet her MMMNA To date,the Second Circuit is the only circuit tohave specifically addressed this issue.4

Nova H. Robbins sued the Depart-ment of Health’s Commissioner in aneffort to retain excess assets, arguingthat when the state attributed herhusband’s pension and social securityincome to her so that she could meet

Retaining Assets andObtaining Benefits Too:Medicaid Planning PostBlumer and Robbins(continued from page 1)

her MMMNA, it violated not MCCA butrather the anti-alienation provisions ofthe Employee Retirement Income Secu-rity Act (ERISA) and the Social SecurityAct (SSA). The Robbins Court deter-mined that such attribution did, in fact,violate SSA but not ERISA.

42 U.S.C. § 407 provides that anindividual’s right to Social Security ben-efits are not transferable or assignable,nor are any of the moneys paid or pay-able “subject to execution, levy, attach-ment, garnishment, or other legal pro-cess...” The Department of Health’s at-tempt to deem Mr. Robbin’s social secu-rity fell within the ambit of “legal pro-cess” and, as a consequence, violatedthe anti-alienation provisions of SSA.

The Court also found, however, thatthe language of ERISA, 29 U.S.C.1056(d)(1), did not sweep so broadly asto preclude a beneficiary from alienat-ing or assigning benefits rather, the pro-hibition was directed only at the planadministrator; a position bolstered bythe Treasury Secretary’s interpretationthat 29 U.S.C. 1056(d)(1) only applied toa “right or interest enforceable againstthe plan...”5

In the end, the Second Circuit’s de-cision (the U.S. Supreme Court deniedMrs. Robbin’s petition for certiorari in20016) did not permit Mrs. Robbins toretain excess assets, since her husband’spension was sufficient to meet the short-fall in her MMMNA. But for other com-munity spouses, whose spouses’ incomeconsists primarily or only of social se-curity income, the Robbin’s decision of-fers a strong basis for retaining excessmarital assets. In effect, the RobbinsCourt held that when a communityspouse lacks sufficient monthly incometo meet her MMMNA and where the in-stitutionalized spouse’s non-social se-curity income is insufficient to make upthe shortfall, the community spouse mayretain excess marital assets. That deci-sion created a third, hybrid, method forfunding the community spouse’sMMMNA.

But there’s one further issue thatremains open. What happens when, byinitially excluding the institutionalizedspouse’s social security income in or-der to retain excess assets, those excessassets still do not generate sufficient in-come to meet the community spouse’sMMMNA? May a portion of the insti-

alized spouse’s income first, rather thanallowing the community spouse to re-tain excess assets, will eventually re-sult in the impoverishment of the com-munity spouse. An income-first policyleaves the community spouse withfewer assets and, since much of the in-stitutionalized spouse’s income may de-crease or even stop upon death,1 ulti-mately less income. Unlike the re-source-first ap-proach, an income-first policy leads toa financially precari-ous outcome, oneseemingly at oddswith the intent andspirit of MedicareCatastrophic Cover-age Act of 1988(MCCA).

MCCAC o n g r e s s

passed MCCA in re-sponse to concernsthat the communityspouse, if strippedof all assets andwithout access tothe institutionalizedspouse’s income,would fall below thepoverty level. Par-ticipating statesmust comply withMCCA’s require-ments regarding theminimum allocationof resources and in-come. Section 1396r5(e)(2)(C) specifi-cally provides that acommunity spousemay seek, through an administrative fairhearing, an adjustment to her resourceallowance in order to meet herMMMNA. MCCA proved silent, how-ever, on the method of funding the com-munity spouse’s MMMNA and states,like Wisconsin, have interpreted MCCAto permit an income-first approach tomeet the shortfall.

Congress passed

MCCA in response

to concerns that the

community spouse,

if stripped of all

assets and without

access to the

institutionalized

spouse’s income,

would fall below the

poverty level.



tutionalized spouse’s social security in-come then be used to meet the short-fall? And, if so, how is it that that wouldnot also violate the anti-alienation pro-visions of the Social Security Act?

Voluntary Transfers andPayee Representatives

Retaining the maximum availableassets while alsopreserving the rightto receive an insti-t u t i o n a l i z e dspouse’s social se-curity income relieson tenets: first,MCCA specificallyauthorizes that a in-s t i t u t i o n a l i z e dspouse’s incomemay be used to as-sist the communityspouse in meetingthe MMMNA7

and, second, SSAcase law consis-tently makes thedistinction be-tween existing andfuture benefits andvoluntary versusinvoluntary trans-fers.8 In short, anindividual or hispayee representa-tive has the right touse Social Securitybenefits to promote the “beneficiary’sbest interest,” which may include sup-port for a dependent spouse.9

If an individual is unable tomanage his affairs an entity or personcan apply to be his payee representa-tive. Once certified by SSA, the payeerepresentative, a fiduciary, has a dutyto act in the best interests of the benefi-ciary. Often, for administrative ease andconvenience (e.g., an applicant’s socialsecurity income is used to fund his pa-tient pay amount), an institutionalizedspouse may name the nursing home asthe payee representative. In caseswhere the community spouse relies or

Retaining Assets andObtaining Benefits Too:Medicaid Planning PostBlumer and Robbins(continued from page 8)

may need to rely in the future on theinstitutionalized spouse’s social secu-rity income do not name anyone otherthan the community spouse as the payeerepresentative, otherwise, you risk thepossibility that the pay representativewill elect to use the funds to support orpay someone other than the communityspouse.10

ConclusionAlthough rejecting social security

initially and then later requesting a por-tion of those benefits creates a para-dox, it is one that can be easily explainedand justified. When seeking an increase

in the communityspouse’s resourceallowance analyzethe institutional-ized spouse’ssources of incometo determine if, byexcluding socialsecurity income,additional assetsmay be retained. Ifyou’re in a juris-diction not boundby Robbins, pro-vide the fair hear-ing officer a copyof that decision, asit should be per-suasive. ButRobbins will notnecessarily endthe debate — par-ticularly if circum-stances are suchthat even with ex-cess assets yourclient still needs aportion of the insti-

tutionalized spouse’s social securityincome to meet her MMMNA or, in theeven more alarming circumstance, whereby using all sources of the institutional-ized spouse’s income, many of which ter-minate upon death, the state has effec-tively assigned the widow or widower toa lifetime of poverty. That will require youradvocacy skills.

Admitted in Connecticut, New Yorkand Massachusetts, Dana Carroll hasfocused her practice on estate andlong-term care planning and estateand trust ligitation. She received herlaw degree from the University ofConnecticut School of Law.

Endnotes

1 Income from SSDI, combinedSSI, retirement plans andpensions may decrease orterminate entirely upon thebeneficiary’s death.

2 534 U.S. 473 (2002)

3 In the Matter of Eileen Golf, 91N.Y.2d 656 (1998)

4 Robbins v. DeBuono, 218 F.3rd197 (2d Cir. N.Y. 2000). TheU.S. Supreme Court and othercircuits have addressed theanti-alienation provisions ofSSA but not in the context ofincome first. See, e.g., Bennettv. Arkansas, 485 U.S. 395(prisoners’ SS benefits couldnot be attached by the state);Crawford v. Gould 56 F.3d1162 (9th Cir. 1995) (California’spractice of taking patient’s SSbenefits, without consent,violated §407).___________________.

5 26 C.F.R § 1.401(a)-13(c)(1)(i)(ii).

6 Robbins v. Novello, 531 U.S.1071 (2001); the Court alsodenied the Commissioner’sappeal, Novello v. Robbins, 531U.S. 1071 (2001).

7 §1396r-5(d)(1)(B)

8 See, e.g., Lopez v. WashingtonMutual Bank, 2002 U.S. App.Lexis 24344 (9th Cir.) (agree-ment to have social securitybenefits directly depositedallowed the bank to recoverfunds it paid for plaintiff’soverdrafts and overdraft fees).

9 See, e.g., Fetterusso v. NewYork, 898 F.2d 322 (2nd Cir.1990) §407 is designed toprotect beneficiaries “and theirdependents from the claims ofcreditors.”

10 See e.g., Ecolono v. Dept. ofHealth and Mental Hygiene, 137Md. App. 639, 769 A.2d 296(2001) (payee representativemay exercise discretion andapply benefits to the cost ofcare.)

In short, an

individual or

his payee

representative has

the right to use

Social Security

benefits to promote

the “beneficiary’s

best interest,” which

may include support

for a dependent

spouse.


Survey – Do NAELAMembers Embrace LTCInsurance?By Charles P. Sabatino, Esq.

Long-term care insurance hasevolved over the years into a highlytouted resource for individuals to em-ploy in planning for long-term careneeds. Yet there is very little data de-scribing the frequency or nature of useof LTC insurance in the practice of elderlaw. In order to fill that data void in part,the Public Policy Committee conducteda web-based survey of NAELA mem-bers in August and September, 2003, togather information about the extent towhich members encounter and recom-mend LTC insurance to clients who seektheir counsel in long-term care planning.

A total of 86 responses were re-ceived from NAELA members who com-

pleted to online survey posted on theNAELA web site. While not a high re-sponse rate in light of a total member-ship of approximately 4000, the respon-dents did represent 25 states plus theDistrict of Columbia, and a range of prac-tice settings from urban (40%) to sub-urban (48%) to rural (10%).

When asked, “Of the clients whocome to you for lifetime planning, ap-proximately what percentage alreadyhave Long-Term Care Insurance?” 60%of respondents reported 5% or less.Table 1 below summarize the range andfrequency of responses. No respondentreported over 30% of clients with LTCinsurance already in place.

100%90%80%70%60%50%40%30%20%10%0%

60%

23%15% 1% 0%

0-5% 6-10% 11-20% 21-30% >30%

Percentage of Respondents Reporting in Each Frequency Interval

Table 1: What Percentage of Clients AlreadyHave LTC Insurance When They Come to You?

100%90%80%70%60%50%40%30%20%10%0%


Table 2: For What Percentage of Clients, WhoCome to You for LTC Planning, Do You

Consider LTCI Appropriate and Feasible?

17%

0-5% 6-10% 11-20% 21-30% 31-40%

13%20%

14% 9% 10% 15%

41-50% >50%


Chapter PresidentsArizona Chapter

Bridget O’Brien Swartz, Esq.Phoenix, AZ

(520) 884-5970California Chapter-Northern

Kathryn S. Korn, Esq.Orinda, CA

(925) 253-1136California Chapter-SouthernKathleen Whitney Rohr, Esq.

Palm Springs, CA(760) 322-9229

North Carolina ChapterJ. Gregory Wallace, Esq.

Raleigh, NC(919) 876-1400

Wendy A. Craig, Esq.Black Mountain, NC

(828) 669-0799

South Carolina ChapterFrank J. Dana, III, CELA

Greenville, SC(864) 242-0700

Colorado ChapterR. L. Steenrod, Jr., Esq.

Denver, CO(303) 534-5100Florida Chapter

Leonard E. Mondschein, Esq.Miami, FL

(305) 274-0955Illinois Chapter

Richard Habiger, Esq.Carbondale, IL(618) 549-4529

Kansas ChapterTimothy P. O’Sullivan, Esq.

Wichita, KS(316) 267-6371

Maryland/DC ChapterJason Frank, Esq.Lutherville, MD(410) 337-8900

Massachusetts ChapterHarriet Onello, Esq.

Lexington, MA(781) 862-4507

Missouri ChapterAnita B. Butler, Esq.

Kansas City, MO(816) 756-5800

New Jersey ChapterEugene Rosner, CELA

Clark, NJ(732) 382-6070Texas Chapter

Renee Lovelace, CELADripping Springs, TX

(512) 858-0707Virginia Chapter

Joan J. Corderman, CELALeesburg, VA

(540) 338-6781Washington Chapter

Janine Lawless, CELASeattle, WA

(206) 782-9535


A second question asked, “Of theclients who come to you for lifetimeplanning, approximately what percent-age do you consider LTC Insurance anappropriate and feasible product?” Theresponses, summarized in Table 2, fellfairly evenly across a range from lessthan 5% to over 50%, but with the me-dian at 20%. That is, 50% respondedthat LTC insurance was appropriate andfeasible for 20% or fewer of their clients;50% responded that it was appropriateand feasible for 20% or more of theirclients. Significantly, 15% respondedthat it was appropriate and feasible formore than 50% of their clients.

Finally, the survey asked, “Forthose whom you do not recommendLong-Term Care Insurance, what are themost common reasons for not recom-mending it?” Two reasons emphaticallystood out, as shown in the Table 3 be-low: either the client could not afford it(83%) and/or the client was not likely toqualify for medical reasons (84%). Sig-

Finding a fellowNAELA memberis a click away!

Did you know that theNAELA membership directory

is available online atwww.naela.org and is

updated on a monthly basis?

So next time you’re looking for an address, phonenumber or e-mail of an NAELA member, just go online

where you’ll find the most current information!

nificantly, no one responded that he orshe did not think that LTC insurance isa worthwhile product.

These results are, of course, lim-ited by the small sample size and self-selection of respondents.

Nevertheless, the results suggestthat elder law attorneys firmly embracethe use of LTC insurance in counselingclients in need of planning for long-termcare. They also affirm two oft-cited limi-tations of LTC insurance—it’s limitedaffordability and medical underwriting

barriers. Further research with a largersample size would be useful to exploreclient gender, age, and economic vari-ables as they relate to attorney recom-mendations for LTC insurance, as wellas key minimum elements that elder lawattorneys perceive as essential to“good” policies. As LTC insurance prod-ucts improve, it is likely that their preva-lence in long-term care planning will in-crease. Future survey snapshots suchas this will be essential in testing thatexpectation.

Survey – Do NAELAMembers EmbraceLTC Insurance?(continued from page 10)

100%90%80%70%60%50%40%30%20%10%0%


Table 3: What Are the Most Common Reasons forNot Recommending LTC Insurance to Clients?

Client can’tafford

Client won’tqualify medically

Don’t think LTCIis worthwhile

product

Other

84%

0%16%

83%


Laury Adsit Gelardi

Exciting Changes on the HorizonBy Laury L. Gelardi, Executive Director

If you were not at the DallasInstitute in November, youmissed a really good program .Chair Andy Hook and his com-mittee did a wonderful job of se-lecting timely topics and solidspeakers. Many of the criticswho firmly thought that theycouldn’t learn anything from thehotel industry, found the speakerfrom the Ritz Carlton Hotel to be

right on target in presenting ways to provide quality ser-vice as “Ladies and Gentlemen serving Ladies and Gentle-men.” They are certainly known fordoing so and NAELA strives tocontinue to be recognized in thatsame circle of quality.

The really BIG NEWS is achange in NAELA’s managementcompany. No, we have not fired any-one, no one is leaving and we aren’tclosing the Tucson office. In fact,many of us think this might be thebest of all worlds: our current man-agement company, ManagementPlus, is combining with The KellenCompany (KCO) and will now bethe second largest management company in the country.Laury Gelardi and Deborah Barnett are joining KCO asVice Presidents and will continue in their current capaci-ties with NAELA and NELF.

KCO has offices in Atlanta, New York City, Washing-ton DC and now Tucson with 135 employees managingmore than 55 associations. This is one of those instanceswhere there are definite benefits to the increased size:NAELA now has a presence in Georgia, New York, Ari-zona and our nation’s capital. NAELA now has access toprofessional public policy staff, an internal public rela-tions firm that is one of the top 50 PR firms in New York,and an internal cyber services division. NAELA will alsoreap the benefits of better rates on products and servicesthrough the increased buying power. This will allow ourboard and staff to continue to concentrate their effortson growing the association and the association’s nationalreputation.

With this expansion, The Kellen Company is mak-ing a solid commitment to expand their services intothe realm of professional societies involved in theaging network. They see NAELA as a leader in serv-ing the baby boomers, the parents and their childrenand are excited to be NAELA’s partner in providingleadership into the future. President, Peter Rush,stated, “This is an exciting time for us. NAELA willjoin KCO as one of our five largest clients and we willprovide the resources and capabilities to grow theassociation and expand the profession.”

This move will provide immediate support toNAELA in moving its 2004-2007 Long Range Plan for-

ward. With the emphasis on publicpolicy this year, professionalismand ethics next year and public re-lations the third year, the staff andmanagement company will now bepositioned to meet the growingneeds of the association in a timelyand professional manner. The ex-pansion of resources will allowNAELA to quickly access legisla-tors in many states, to access ex-perts in the areas of professionalethics and to develop a NAELAbranding program that will take

NAELA members and elder law into the next century.Another bonus comes to the staff in increased

training and opportunities for advancement, as wellas a synergy that will be unmatched. KCO has a repu-tation in the association management arena of being“one of the best.” The company is employee-ownedand each employee takes pride in offering the bestservice and leadership possible to their client asso-ciations. The depth of the staff will allow NAELA topull on a host of other professionals for ideas, assis-tance and back-up.

If you wish to check out our new managementcompany, their web site is www.KellenCompany.com.You will see that they are currently providing an arrayof services to associations and corporations. NAELAis proud to be part of a growing company that is lead-ing the way for associations to have a profound im-pact on our society.

KCO has offices inAtlanta, New York

City, Washington DCand now Tucson with

135 employeesmanaging more than

55 associations.


ØElder Law Answers—Roland has new ad(FULL PAGE)



ØIIKeyAd – New Copy Roland has, same size aslast issue

Address ChangesCeleste Wilson, ext. [email protected]

AdvertisingJihane Rohrbacker, ext. [email protected]

Billing QuestionsJanet Tite, ext. [email protected]

Board ActionLaury Gelardi, ext. [email protected]

BrochuresTerri Anthony, ext. [email protected]

CertificationLori Barbee, ext. [email protected]

ChaptersBridget Jurich, ext. [email protected]

Committee PlacementBridget Jurich, ext. [email protected]

Executive DirectorLaury Gelardi, ext. [email protected]

Experience RegistryJenifer Mowery, ext. [email protected]

FellowsDebbie Barnett, ext. [email protected]

FinancesDebbie Barnett, ext. [email protected]

Mailing QuestionsTerri Anthony, ext. [email protected]

Media RelationsJihane Rohrbacker, ext. [email protected]

MembershipJenifer Mowery, ext. [email protected]

Membership DirectoryJenifer Mowery, ext. [email protected]

NAELA News/Quarterly ArticlesJihane Rohrbacker, ext. [email protected]

Public PolicyBrian Lindberg (202-789-3606)[email protected]

Special Interest GroupsBridget Jurich, ext. [email protected]

Symposium/InstituteInformation

CLELori Barbee, ext. [email protected]

ExhibitorsPam Carlson, ext. [email protected]

PublicityJihane Rohrbacker, ext. [email protected]

RegistrationJenifer Mowery, ext. [email protected]

SpeakersPam Carlson, ext. [email protected]

Tapes/ManualsTerri Anthony, ext. [email protected]

WebsiteDebbie Barnett, ext. [email protected]

ListservVicki Kanarr, ext. [email protected]

Who’s Who on the NAELA StaffThere are often questions as to who is who on the NAELA staff. As you know, we have a staff of 19 people working for us, andeveryone is responsible for very specific things. Our offices are located at 1604 North Country Club Road, Tucson, Arizona 85716and are open from 8:00 a.m. to 4:30 p.m., Mountain Time, Monday through Friday, except holidays. The telephone number is (520)881-4005. The fax number is (520) 325-7925. We also have voice mail and therefore, you may leave messages 24 hours a day,seven days a week! To help you in your endeavor to get through the maze, we are listing who you should contact for what things:


Savethe Date!May 20-23, 20042004 NAELA SYMPOSIUMReview Course and Basics DayMay 19, 2004

Goin’ to Carolina...2004 NAELA SYMPOSIUMHilton Head Marriott–South Carolina

Planning for and ServingPersons with Disabilities

Hilton Head MarriottOne Ocean CircleHilton Head SC 29928843-686-8400 PhoneRates: $185.00 Single/DoubleCut-Off Date: April 2, 2004

Be sure to mention that you are with NAELA toreceive this special conference rate. NavigantInternational is available to assist you with yourtravel needs (800) 229-8731. Please note: Aswith all travel agencies, a service fee will apply.

FEATURING KEYNOTE SPEAKER

HARRIET MCBRYDE JOHNSONHarriet McBryde Johnson, a lawyer in

Charleston, SC, has represented hundreds ofpoor and working people with disabilities inSocial Security and civil rights cases since1985. She has been active in the disabilityrights movement for about 25 years. As a writerof fiction and non-fiction and in talks toaudiences nationwide, she explores variedaspects of disability, life, death, love, law,identity, and politics. She is the author ofacclaimed The New York Times Magazine coverstory, “Unspeakable Conversations, Or, How Ispent one day as a token cripple at PrincetonUniversity,” which describes her encounterswith Peter Singer, the bioethics philosopherwho proposes giving parents more of a say inwhether their serverely disabled newbornsshould be provided life sustaining medicaltreatment. Her memoir in stories will bepublished by Henry Holt & Co in 2005.

A nationally-known advocate and activist,her current affiliations include the NationalLawyers’ Guild Disability Rights Committee; NotDead Yet; Protection & Advocacy for People withDisabilities; and the South Carolina DisabilityPolicy Consortium. She also holds the worldendurance record (12 years withoutinterruption) for protesting the “Jerry Lewis”telethon for the Muscular Dystrophy Association.

A full conferencebrochure will be availableby the end of January,2004. For moreinformation, contact theNAELA Office at(520) 881-4005 or visit theNAELA website atwww.naela.org.


1 6 0 4 N . C O U N T R Y C L U B R O A D

T U C S O N , A Z 8 5 7 1 6 - 3 1 0 2

National Academy of ElderLaw Attorneys, Inc.TM

PRESORTEDSTANDARD

US POSTAGEPAID

TUCSON AZPERMIT NO 3178


ØGolden Lantern-From last issue


New Affinity Program OffersDiscounts to NAELA Members

The National Academy of Elder Law Attorneys (NAELA) is proud to announce its new NAELA AffinityPartner Program, providing discounts to NAELA members on software programs, office supplies and equip-ment, credit card services, and more.

The NAELA Affinity Task Force, chaired by Ronald A. Fatoullah, CELA, was formed to developNAELA partners who are willing to participate in a group purchasing program extending discounts to NAELAmembers and offering a positive member benefit from NAELA.

You can look forward to receiving information directly from these vendors, or contacting them for furtherinformation. NAELA will announce new partners as they are approved; meanwhile, we encourage you to takefull advantage of this new member service, and reap the benefits of your NAELA membership NOW!

NAELA Affinity Partners

When yousee this logo,

you can trust ourpartners to be

responsive andknowledgeable

about ourmembers’

needs!

PREMIERSOFTWAREContact: Tom Caffrey1230 Brace RoadCherry Hill, NJ 08034856-429-3010tcaffrey@premiersoftware.comwww.premiersoftware.com

Products:Installation and training ofTime Matters and ElderLaw Feature Packagesoftware for elder lawpractices.

DOCUBANKContact: Tiffany Brown,Client Services Manager109 Forrest AvenueCourtyard Suite 100Narbeth, PA [email protected]

Products:Emergency storage andretrieval service for livingwills and other advancemedical directives.

VIKING OFFICEPRODUCTSContact: Catherine Roberts950 W. 190th StreetTorrance, CA [email protected]

Products:16,000 office supplies andproducts already dis-counted up to 69%.Same day delivery in 25markets, overnight any-where delivery free onorders over $25.00. Freepickup of returns.

KONICABUSINESSTECHNOLOGIES,INC.Contact: Gene Elwell7710 Kennemar Ct.San Diego, CA 92121858-348-2207800-934-5180, ext. [email protected]

Products:Digital Copiers/Printers,Color Copiers, ColorPrinters and Fax Machines.The contact specializes inestate planning equipment.

members in the news naela news...phenomenon in-volves the aesthet- ... well established firms...

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