August 6th Interactive Gathering on The Conversation Project

 

denver elder law

DBG Japanese Garden Stream

 

I recently received an invitation for an event at The Denver Hospice (at their corporate headquarters) and wanted to share it with the community.  I have blogged previously about the importance of having a conversation about end of life wishes (and also the need for documents based on that conversation – like a health care power of attorney and advance directives) as well as The Conversation Project and so this cause is near and dear to me.  I won’t be able to attend this event, but know it will be well facilitated by Laurel Okasaki-Cardos, community educator at the Life Quality Institute.  If you are interested in participating, please email Laurel at lokasaki@lifequalityinstitute.org to get more information or RSVP.  You can also call her at 303-398-6259.

In case you can’t attend the gathering at the Denver Hospice on the 6th, Laurel offers these interactive gatherings for groups of seven or more people – free of charge – if you are interested in organizing one for your community.  Be sure to get in touch with her if you want more information.

©Barbara Cashman 2014     www.DenverElderLaw.org

The Colorado Probate Code: Compensation and Cost Recovery Act

Swallowtail at Chatfield

Swallowtail at Chatfield

 

Last week I attended the quarterly meeting of the Colorado Guardianship Association, of which I am a member. The CGA is a nonprofit that is a multidisciplinary group of attorneys, professional fiduciaries (like the folks who serve as trustee, agent under a financial power of attorney, agent under medical power of attorney, etc.), professional guardians, as well as others involved in the provision of services for elders and disabled adults.  We have had some good programs and attorneys receive continuing legal education credit for attending, in addition to meeting with other professional with whom we have much in common and where we can discuss best practices.

The presentation was given by the Hon. C. Jean Stewart, the retired judge of the Denver Probate Court and the current president of the National College of Probate Judges.  It was a great topic (even if it might sound technical) and Judge Stewart is an excellent presenter.

Since I am rather fond of Rudyard Kipling’s “six serving men” (from The Elephant’s Child, one of the Just So Stories) – also sometimes referred to as the “five W’s” (one man short obviously) I will use them to illustrate the components of the statute.   The first serving man is “what.”  In case you’re wondering, the cite for the statute is Colo. Rev. Stat. §15-10-601.   Part six is titled Compensation and Cost Recovery.

Second, I’ll look at “where” – this is in the Colorado probate code,  and so it concerns fiduciaries (the “who”) serving in proceedings in probate court including estates of decedents, trusts, protected persons, principals (makers of powers of attorney) and others under the Colorado Probate Code (CPC).  So that is where we consider the context for this act among the components of what might be identified as “who:” it concerns an  “estate” (whether a decedent’s estate, trust, or another person whose affairs are subject to the CPC); in which a “fiduciary” is the recognized actor on behalf of the entity or person (estate); and finally, section 601 goes on to define by way of illustration what a “governing instrument” for purposes of this section might be. These definitions really reflect both the who and the where – in what type of proceeding is the fiduciary acting.

So, to cut to the chase, this statute essentially addresses HOW fiduciaries are paid. Helpful to note here is the new JDF form for use in trusts & estates filings in the Colorado Judicial system which pertains to the application for probate, like the JDF 910 for example, which now has two separate inquiries regarding compensation – one for compensation of the personal representative and for the counsel of the personal representative.

Next up is the “why” – which was one of the most important messages of Judge Stewart’s presentation.  The reason why attorneys and fiduciaries need to be familiar with this statute: to establish and maintain transparency so people know how much things are going to costs; and to give a baseline for how to determine reasonableness.  Section 603 of the statute addresses quite a few relevant factors in determining the reasonableness of compensation and costs charged to or paid by an estate.  What struck me about the message regarding transparency was that it could ease many of the concerns around our system of simplified probate in which sometimes persons take advantage of the lack of judicial supervision.  In fact, some of us who represent fiduciaries in our practice (say for example, a client who is personal representative of an estate) include language in our engagement letters regarding fiduciary malfeasance and its consequences on our continued representation.

Finally, I’ll wrap up with the last serving man here – “when.”  This involves among other things a consideration of when a family member fiduciary can expect to be paid for his or her work for an estate.  This concerns the concept of providing a benefit to the estate – which is an idea that applies to both professional and nonprofessional (family member) fiduciaries.  What I found particularly interesting here was our presenter’s assumption that family member fiduciaries are presumed to be performing their work as fiduciaries for the love and affection of/for the family member.  This had interesting implications for several of us as there seems to be a shifting consensus regarding the payment of family members for their work.

What I particularly enjoyed about the presentation was that it pointed out there are no easy answers with this statute and that if we are to assess the value of another person’s work we need to consider the previously mentioned transparency along with the importance of clarifying expectations by having a conversation or setting forth processes which will be followed.

©Barbara Cashman  2014   www.DenverElderLaw.org

You’re only old once or. . . mindful aging as spiritual practice?!

Swan at Lough Gur

Swan at Lough Gur

In case you’re wondering, yes, I have a copy of the Dr. Seuss book “You’re Only Old Once!” in my office waiting room. What, you say your kids have never read that one to you?  In case you’re wondering, yes Dr. S was OLD when he wrote it, and it was released in 1986 on Mr. Geisel’s 82nd birthday.  It is a fanciful “day in the life” of an elder American.  I wouldn’t say it has the same level of incisive social commentary as my Dr. S. faves including The Sneetches (about the stupidity of racial discrimination), The Zax (about the wisdom of integrative negotiation) or The Butter Battle Book (about the craziness of MAD – mutually assured destruction, that Cold War relic we somehow managed to survive). But that might just be because I haven’t read this book to my kids at least fifty times.  (Maybe they can read it to me in a couple more years, if I haven’t misplaced it by then.) My other Seuss favorites are numerous  – oh, I don’t have the space for a discussion of Yertle the Turtle or Horton Hears a Who. Maybe in another blog post though.

If you’d rather listen to someone else reading the book (with the pictures of course) check out this youtube video of it. Okay, back to the aging and April Fool’s theme . . .  I am always [as a baby-boomer] struggling with coining a term for the special form of forgetfulness, cognitive compromise, dementia, whatever[!]  that affects those of us who are elder law attorneys of a certain age.  I think I remember writing a blog post once about dementia being contagious.. . .  So here goes.  A colleague and I were recently discussing our experiences with mental health challenges.  I thought this topic would make a great blog post topic, particularly for April Fool’s.  Here are a few suggested additions I propose for the DSM-VII:

Attention Surplus Disorder (ASD) –  sometimes mistaken for OCD and often referred to as “nervous Nellie” syndrome, this occurs when a person’s quality of life is threatened when their sleep is interrupted by the looming prospect of overdue library books, and their vision is impaired by hyperfocus on the physical meaning of the dark circles under the eyes or formation of crow’s feet on the face of their partner.

De-mentation – this condition is practically reaching epic proportions as nearly all Americans have “smart phones” which means that as our phones become progressively smarter with the latest technology, we, the operators of our smart phones, get dumber all the time.  For example, when was the last time you actually remembered someone’s mobile phone number (without having to look it up on your smart phone)????

Displasia – pronounced “dis-place-yeah.”  This behavior is characteristic of the opposing spectrum of the obsessive-compulsive disorder, basically it is evidenced by a person spending exponentially more than the average forty-five minutes per day looking for a particular paper on their desk or some place in their office.

Paranoid Cybercosis —  is a 20th century and present day phenomenon, the disorder based on a vaguely formed conspiracy theory that yes, just like in all the great sci-fi movies of the last millennium,  the machines are out to get us.

Reduplicative paramnesia – the belief, delusional at least 50% of the time, that a location or place has been duplicated and exists in another place at the same time.  For older adults, this can sometimes involve time travel that is otherwise known as “déjà vieux” and sometimes confused with “déjà vu.”

Stendhal syndrome (I remember him from my French class in college) is a psychosomatic illness  that can strike when a person is exposed to a large amount of beautiful things or breathtaking scenery in a short time.  If we have spent our entire lives merely surviving and tolerating our existence, beauty can be quite upsetting!

Trichotillomania – this is exceedingly rare in those of us of a certain age, because as my grandmother once explained to me, when you get old, there isn’t as great a need to shave anymore.  This one is the urge to pull one’s hair out, basically from any area of the body that still manages to grow hair.

So, you’re maybe wondering . . .  what’s this link between humor and spirituality?  I haven’t read this book, and I didn’t know the Jesuits had a lock on this, but in 1989 James Martin, SJ, published Between Heaven and Mirth: Why Joy, Humor and Laughter Are at the Heart of the Spiritual Life.  On a similar note, here’s a link to a PBS Frontline interview with Rev. Jennifer Brower, a Unitarian minister. Her premise is that the aging process affects spiritual life as a result of the developmental process of aging.  I discovered there is even a Journal of Religion, Spirituality and Aging! Who knew?

So let’s hear it for April Fool’s Day and the glorious and pervasive myth of the fool, Loki, trickster, clown, and all those other wise fool names, mythological and archetypal.  Here’s to Coyote’s medicine, may it lighten our hearts, increase our wisdom and bring us clarity of sight.

©Barbara Cashman  2014   www.DenverElderLaw.org

 

Personal Property in Estate Proceedings

Ancient Arches

Ancient Arches

Many people have heard about the “small estate affidavit” but in fact it’s not an estate at all.  It’s an affidavit that can be completed by a successor of the decedent in order to collect probate assets which do not exceed $64,000.  (This is the 2014 year of death amount.)  A successor can be a surviving spouse, a child or other family member, and also a personal representative named in a will. Besides the limitations on the amount which can be collected using an affidavit, it cannot be used if there is real property involved.  The Colorado State Judicial website has the form and instructions here.  You can’t use an affidavit and also have an open probate for a decedent.  The Colorado probate code sections applicable to the affidavit are found at Colo. Rev. Stat. 15-12-1201 and 1202.  An affidavit can be used to simplify the collection of probate assets, or those assets titled solely in the name of the decedent.  Ten days must pass before the affidavit can be signed.  There are good public policy reasons for this waiting period.  The time period for an application for informal probate with a will, however, is only five days after the decedent’s death.

Okay, I mentioned “probate” property . . .  what’s the difference between probate and nonprobate property?  In a nutshell, nonprobate property passes automatically to a survivor by the way the asset is titled (as in joint tenancy) or if it is an asset that has a beneficiary designation.  Probate property, very broadly, is property that was held by the decedent that didn’t pass to a survivor via nonprobate means (or those means failed) or was titled solely in the decedent’s name.  There are many assets now that are commonly held that are nonprobate assets like IRA accounts, real property held in joint tenancy, and so on.  The lines that distinguish between probate and nonprobate property or assets can change or be modified by the asset’s owner – either by action or inaction.  When people come in to talk to me about estate planning and we draft a will, it is after a process of identifying assets and categorizing them as probate (which typically pass via a will) or nonprobate.

So back to the affidavit . . . the person making the affidavit, known as an affiant, is treated much like a personal representative in their presentation of the affidavit to third parties.  The personal representative is the person who is in charge of administering a decedent’s probate estate.  The challenge here is that the statutory language is silent on how someone goes about recovering property that was improperly distributed by an affiant.

Sometimes it is best, given all the circumstances at play, that an estate not be opened for a decedent.  The affidavit to collect assets can be very helpful in this regard.  But remember that the Colorado DMV prefers that you use their form available here and not the one in the state judicial website if a car is involved in these circumstances.

So, what about your personal property,- your stuff – in the probate context when there is a will and an estate opened? Colorado law, like that of many other states, provides something called a “memorandum disposition of tangible personal property.”  Okay, so what’s the difference between tangible and intangible personal property?  When you think tangible, think stuff – like china cabinet contents, mementos that hold emotional value (many people tend to fixate on the financial value of the item.  Intangibles are things like digital assets, and those are a bit more complicated.  The nice thing about the memorandum disposition is that is a document that can be easily changed and updated and can be incorporated by a person’s will be reference to it.  This allows for flexibility in deciding to whom your personal property will be given as what you have, get rid of, and acquire changes over time.

In addition to the memorandum disposition, there are creative ways in a will to divide up personal property.  Personal property can of course be mentioned specifically in a will as a devise of a particular thing to a particular person, and it can be given as a gift to a class of people like children or grandchildren, and there are many other ways of dividing the property if a division isn’t made prior to the person’s death.  These could include a private or a family auction, depending on the nature of the property and considering the emotional value of the items in relation to the financial value.  Many people writing an estate plan focus on the financial value of  the property when it is more often the emotional value that is most dear to the surviving loved ones.  Just another reason for a person to share the stories that go with those mementos, so that the stories get handed down along with the particular item.

Making plans for the disposition of your personal property can make a personal representative’s and your surviving family members lives much easier.  Don’t forget to include those plans as part of a comprehensive estate plan.

©Barbara Cashman  2014   www.DenverElderLaw.org

December 10th is Colorado Gives Day!

Marble Snow

This year’s tagline for Colorado Gives Day is “Give Where You Live.”  Many of us want to make a difference in our community and sometimes we think about this in terms of the perceived biggest impact –like  helping out the poorest of the poor on a global scale, like with The Heifer Project.  There are many such worthwhile causes to support, but Colorado Gives Day is about supporting local charities that help the local community.  That kind of giving makes a different connection within a closer community. Giving money and time to causes we support tends to make us happier, more engaged people – that has been established by many studies.  The bigger issue is whether happier people give or giving makes people happier.  The causal relationship there hasn’t really been established by those studies, but does it really matter?  Giving is a way of showing gratitude for what we have and generosity of spirit in sharing.  Every wisdom tradition I am familiar with gives a central place to charity, to sharing what we have with those who are in need.

One meaning of charity comes from the Hebrew word tzedakah, which means justice or righteousness, based on the idea that our possessions, like our persons, are not really our own but are lent to us, entrusted to us for safekeeping.  That safekeeping could be considered like a trust, where the person in possession of those worldly goods is more like a trustee, charged with a duty of giving to those in need.  In Buddhism, giving is essential and is recognized as part of basic human goodness.  Giving to others can be a means of transcending the limitations of the self.  I like the emphasis on giving as a two-way street, that giving is only made possible when someone is able to receive a gift.  The act of giving itself requires a community of at least two persons – a giver and a receiver.

Charitable giving is a special kind of giving in this regard as it is one that is typically given without expectation of reward.  Perhaps this is the basis from which the happiness arises.  So often our expectations get in the way of our enjoyment of life and plans for happiness.  Maybe giving for its own sake is its own perfect reward in this way.  The broad definition of charity involves giving not just of money but of time and also a certain reservation of judgment about others’ situations.

Maybe giving financial support to a local charity can accomplish all of these things in ways that far away charitable or relief efforts cannot.  I am not suggesting answers here – only questions!

Last year I suggested three charities I am familiar with from my work with elder and disabled communities.  Once again, ColoradoGives.org has a really helpful website to help you pick a charity to support by “giving where you live.”  Check it out here.

I donate some of my volunteer lawyer time to Metro Volunteer Lawyers, so I think they’re a great cause to support.  Click here to donate to them. I am one donation short of being a five-gallon donor at Bonfils Blood Center, but many people who want to donate are unable to, so you can support them financially here.  Finally, the Life Quality Institute is a local nonprofit that provides important educational and outreach services about palliative and end of life care that can ease a person’s physical, emotional and spiritual pain associated with the end of life.  You can find out more or donate to them here.

One nonprofit I didn’t previously know about – weecycle – is the beneficiary of a local attorney’s fundraising effort.  You can read and watch a video about Carlos Migoya’s Charitable Beard on SoloinColo here (and you can see for yourself that yes, his beard is of biblical proportions!) .  Give the search capabilities at www.coloradogives.org  a try – you can donate to local dance companies, a homeless and runaway youth shelter, educational foundations, food banks, the range is wide in purpose and is statewide.

©Barbara Cashman 2013     www.DenverElderLaw.org

New Case Law Shows Teeth in Uniform Power of Attorney Act for Breach of Agent’s Duties

 

Irish Arches

In an opinion published 11/7/13, the Colorado Court of Appeals ruled on substantial questions relating to the Uniform Power of Attorney Act (UPOA) as it relates to an agent’s duties and the types of activities which a power of attorney (POA) authorizes.  In People v. Stell, 2013CA0492,   the Court of Appeals reversed and remanded with directions a case involving a criminal indictment of an agent who was acting under a POA.  This decision has wide and beneficial implications for principals who have executed  POAs and whose agent are acting in their own self-interests,  are converting their principal’s assets for the agent’s use or otherwise stealing from them.  Here’s a sketch of the factual background of the case. Thanks to Vicki H. for sharing this case with me!

The principal (referred to as “victim” in the opinion) executed a POA in 2009 in Virginia.  Both Virginia and Colorado have adopted the UPOA so, even though the statutory cites vary, the law is substantially the same.  In the POA, the Principal named as agent his son, the defendant Stell.  While acting as agent under the POA, Stell wasted no time liquidating all of principal’s bank accounts, CDs, a 401K account, a piece of real property and the timber sold from that land – to the tune of $453,928.81.  The following year, Stell proposed that the principal place other assets into a trust so they would be protected from creditors.  The trust document that principal signed at his agent Stell’s direction did not name the principal as beneficiary of such trust and so, principal was permanently deprived of the use and benefit of that property.  In October 2010, principal terminated the POA and asked the Denver District Attorney’s office to investigate.  As a result of such investigation a nine-count indictment was drawn, eight counts for theft and one count of conspiracy.  The appeal of the trial court’s ruling is based on the dismissal of counts 1, 2, 4 and part of 3 – relating to the authority of the agent Stell to transfer principal’s property as agent under the POA.  In its dismissal of those counts, the trial court ruled that because the agent Stell had authority under the POA to do anything with the principal’s property that principal could do with it, that Stell couldn’t commit theft against his principal.  The Court of Appeals soundly rejected this line of thinking.

The POA is a document that confers broad powers, but it is no license to steal.  In this criminal case, the Court of Appeals examined carefully the fiduciary duty owed by an agent to his principal under the UPOA.  Citing a Virginia Supreme Court decision, the Court of Appeals stated that “powers of attorney are strictly construed.”  (Opin. at para. 17) Going further, the court ruled that the expansive language in a POA should be interpreted narrowly and should be construed in light of the surrounding circumstances.  It soundly rejected the argument that, because a POA typically gives a broad grant of authority, it could somehow give an agent the authority to misbehave, commit theft and otherwise breach fiduciary duties owed as a consequence of the nature of the principal-agent relationship.

The fact that a POA contains a broad grant of agent authority does not mean that an agent is nonetheless duty-bound (as in an agent’s fiduciary duty, as described in the UPOA) to exercise authority in acting as agent in the utmost good faith, loyalty, and other duties owed.  The Court of Appeals rejected that trial court’s reasoning that a broad grant of authority to the agent implied that an agent’s actions that were in violation of the fiduciary duties owed were somehow still “authorized” because agent was acting under a POA.  In paragraph 21 of the decision, the Court of Appeals identified the factual questions appropriate for a jury’s determination of whether an agent under a POA was acting within or outside of his or her scope of authority as determined by agent’s fiduciary duties.  They included the following questions of whether agent acted: (1) in accordance with principal’s reasonable expectations and consistently with the principal’s interests and intent; (2) in good faith; (3) loyally for the principal’s benefit; and (4) with the care, competence and diligence ordinarily exercised by agents in similar circumstances.  In reversing and remanding the counts of the indictment dismissed by the trial court, the Court of Appeals gives an indication that the days of the POA as a “license to steal” for noncriminal law purposes are over.  This is an important development for Colorado – for both the new mandatory reporting of financial exploitation law(read my post about that law here ) as well as the ability of exploited elders and other at-risk persons to recover funds  improperly taken from them by an agent under  a POA.  It gives more protection for principals who have been taken advantage of by their agents to establish that the agent’s conduct was improper and to strengthen the ability to recover such funds that were improperly used or converted for the agent’s exclusive benefit.

©Barbara Cashman 2013     www.DenverElderLaw.org

Don’t Miss the 2013 Denver Senior Law Day on Saturday, July 27th!

The Colorado Bar Association, of which I am a proud member, and Continuing Legal Education in Colorado, Inc. and the Denver Bar Association will be hosting the 15th Annual Senior Law Day in Denver on July 27 at the Denver Mart (formerly Denver Merchandise Mart).  Senior Law Day is a huge draw for the public, with lots of informative presentations and booths and plenty of coffee for early risers.  For this year’s event, there are more than thirty informational workshops offered for the public and each person attending will take home a 2013 Senior Law Handbook.  You can register for this event here.

If you can’t make it to the event, you will be able to read chapters to the Senior Law Handbook online at www.seniorlawday.org .  I am a legal sponsor of this event, which is an important public service for seniors and their families.  Sean Bell, Esq., is once again the editor of the well written and informative Senior Law Handbook.  In addition to the sponsors, there will be many exhibitors in attendance.

A new feature of this year’s event will be an “Ask a Lawyer” opportunity during the event that is sponsored by Metro Volunteer Lawyers (MVL).   MVL is an important community resource for people with low incomes.  Its mission is: “To bridge the gap in access to justice by coordinating the provision of pro bono legal services by volunteer lawyers within the Denver Metro Area to people who could not otherwise afford legal services for their civil legal issues.”  Over the years I have provided my services to people through this important and worthwhile program.  As a new feature of Senior Law Day, attendees can sign up for a 15-Minute Ask a Lawyer Session with an attorney that will be limited to Trust and Estate and Elder Law issues.

Don’t miss this informative and accessible way to find out more about legal issues and related matters facing seniors in Colorado!

The Affordable Care Act (ACA) and the Self-Employed or Small Business Owner: Interview with Shira McKinlay, Esq.

  For this post, I was lucky enough to be able to interview my colleague Shira McKinlay about the ACA.  I wanted to know about the ACA’s impact on small businesses. Shira knows her stuff and I thank her for this timely and informative post.

Barb: Can you describe the biggest positive and perhaps negative changes affecting small businesses?

Shira: Probably the biggest positive change of Health Care Reform for small businesses is the small business tax credit.  Small businesses may qualify for this tax credit if the business has less than 25 employees, pays average annual wages below $50,000 and provides health insurance to its employees.  Through 2013, the tax credit will be up to 35% of premium contributions.  Beginning in 2014, the amount increases to 50% for small businesses that purchase coverage through Health Insurance Marketplace (or the “Exchanges”).

Even small businesses that do not qualify for the small business tax credit should benefit from being able to purchase coverage through the health care Exchanges.  Colorado’s Exchange, Connect for Health Colorado , may offer small employers better, more transparent choices and potentially more affordable coverage for their employees for coverage beginning January 1, 2014.  The Colorado Exchange is expected to open for enrollment October 2013.  Of course, until the Colorado Exchange is up and running, we will not know the exact impact it will have.

As for the negative impact, fully insured small employer plans are subject to some additional requirements (such as requiring plans to cover all Essential Health Benefits, setting maximum deductibles) to which large-employer plans and self-insured plans will not be subject.  However, employers with less than 50 full-time employees are exempt from Employer Shared Responsibility provisions of Health Care Reform, and still are not required to provide any coverage if they so choose.

Barb: What are the biggest changes for self-employed types?

Shira: I would say that two of the biggest changes for this group would be the required coverage for individuals as well as access to the health care Exchanges.

Self-employed individuals will be required to comply with the Individual Shared Responsibility provisions of Health Care Reform, beginning in January 2014.  Individuals will be required to have minimum essential coverage, qualify for certain exceptions, or pay a tax penalty that is the greater of a flat dollar amount or a percentage of taxable income.  Although the initial tax penalty is quite small ($95 for 2014), the penalty increases to $325 in 2015, $695 in 2016, and annually thereafter based on a pre-determined formula.

Access to the Exchanges will offset some of the burden of the Individual Shared Responsibility requirements.  The Exchanges will offer core packages of benefits to individuals and, as mentioned before, small businesses.  In addition, if a self-employed individual decides to get coverage through an Exchange, premium tax credits may make such coverage more affordable.  The availability and amount of such tax credits will be dependent on household income.

BarbAny big picture observations about the legislation and the opportunities it creates for small business?

Shira: A lot is going to depend on the success of the health care Exchanges.  If the Exchanges work as planned, small businesses and self-employed individuals will have access to quality health care at affordable prices.  However, until we hear the costs of the plans offered on the Exchanges, and until we see that the Exchanges are up and functioning, it is difficult to say how small businesses and individuals will be impacted.

At a recent presentation, one of the members of the Board of Directors of Connect for Colorado stated that the Colorado Exchange will be up and running smoothly on October 1.  After hearing him speak, I have high expectations, at least for the Colorado Exchange.

On the other hand, the federal Exchange (available for the states that chose not to run their own health care Exchange) does not seem to be faring as well.  It was originally expected that small businesses would be able to offer their employees a choice of health plans through the federal Exchange starting in 2014.  Instead, this plan-choice option has been delayed for the federal Exchange, and small businesses opting for coverage under the federally-run Exchange will be limited to offering a single plan to their employees until 2015.

If the Exchanges function as planned, this could offer exciting opportunities to small businesses and individuals.  Individual entrepreneurs who are debating going out on their own for fear of losing their employer-provided health care may now be able to make that jump.  Small businesses may be able to provide affordable health care to their employees with the help of the small-business tax credit.

Barb: Thanks for your insights Shira – any concluding comments? 

Shira:  You are very welcome.  2014 is going to be a big year for health care!  Until we see exactly how the Exchanges are going to work, predictions are only guesses.

Shira McKinlay is an attorney with extensive employee benefits experience.  She has advised businesses on employee benefit and ERISA compliance and opportunities, as well as performing audits and reviews of health and welfare plans.   In her practice, Shira has provided advice on design and documentation of health and welfare arrangements and has drafted and developed plan communication materials, including summary plan descriptions, summaries of material modifications and required participant notices.  Shira has been active in helping companies comply with, and strategize for, changes brought on by the Affordable Care Act (health care reform).  She has assisted with the implementation of HIPAA regulations for group health plans.  Shira also counsels companies on issues related to FMLA, as well as benefit plan matters that arise in mergers and acquisitions.  She is director of Denver Compensation & Benefits, LLC, a compensation, benefits and retirement plan consulting firm. The firm’s professionals, which consist of both attorneys and CPAs, practice exclusively in the compensation, retirement plan and benefits area and have experience dealing with complex issues for employers of all sizes.

Business Succession Planning for Breakfast

 

 

Last Thursday morning I attended a breakfast program hosted by The Denver Foundation at the J.W. Marriott.  The program was entitled “Beyond Tax Law: Non-tax Aspect of Business Succession Planning” and was presented by Stephan Leimberg.  I have been going to these breakfast programs for several years now and they always feature excellent speakers and timely topics.  The Denver Foundation also hosts the monthly meetings of The Women’s Estate Planning Council of which I am a member.

So – what about Leimberg’s presentation?  It was pretty snappy and hit home the focus that attorneys and other professional advisors need to consider and take to heart when dealing with small businesses – especially family businesses: focus on the tax and other technical aspects of business succession and exclude family and relationship dynamics at your (and the family business) peril!

In his materials, Leimberg presented some eye-opening facts – for example that one-third of the Fortune 500 is family-owned and that family businesses purchase more than $1 Trillion of goods and services annually.  Part of the presentation was about identifying the traits of the family businesses (about 55% of business are family controlled) that have been successful and how they managed and successfully manage to bridge the family/business divide.

In a family business context, there is not only the business future at stake but also the functioning of the relationships of the family members – both inside and outside the business context.  Part of Leimberg’s presentation focused on the reality-based aspects of a business:

will a business die with its owner?

should the family risk running the business?

on what is the success of the business dependent?

is there a strategy in place to overcome inertia?

What about all those different hats?  I will make reference here to “hats” thinking of DeBono’s six hat parallel thinking….

    • WHITE: facts and information
    • RED: feelings and emotions
    • BLACK: critical analysis of logical flaws
    • YELLOW: positive logic applied to seek harmony or benefits
    • GREEN: new idea or perspective, creativity
    • BLUE: the big picture

Edward  DeBono, Six Thinking Hats: An Essential Approach to Business Management (1985: Little, Brown) His idea for parallel thinking is that the brain can be “sensitized” to think in broader ways.   Okay, what also comes to mind is a kid lit fave of mine: Caps for Sale, by Esphyr Slobodkina  (remember the cap peddler and the mischievous monkeys?).

I thought Leimberg’s numbers about how many family businesses have done succession planning were a bit high.  Perhaps this is because of the relative size of the family business he was looking at.  When I presented at the CBA/CLE program “Advising Small Companies” in February  I looked at figures for small businesses that were akin to estate planning numbers for parents of young children – the vast majority of both groups, who are in greatest need of succession or estate planning – have nothing in place.  The Small Business Administration has some helpful resources available here.   What I covered in my February CLE presentation were “the four D’s”:

          • Detour
          • Dissolution
          • Disability
          • Death

Things don’t always go as planned!

“I feel as if I were a piece in a game of chess, when my opponent says of it: That piece cannot be moved.” 

Soren Kierkegaard

My main focus at that CLE  presentation was on discussing techniques to motivate clients who are focused on the success of their businesses to think beyond survival mode and make a plan for the unplanned and the inevitable.  For a definition of business succession planning, I used Louis Mezzullo’s (American College of Trust and Estate Counsel President) definition: “Planning for the orderly transfer of the management and the ownership of a business to new managers and new owners to avoid a liquidation of the business as well as unnecessary taxes and other expenses, and in a manner that carries out the family’s nontax objectives.”

Bottom line for my takeaway of Leimberg’s presentation – the importance of getting family business clients to really start thinking about succession planning (estate planning for a business) and its importance from a strategic point of view.  I liked this approach, which emphasizes relationship dynamics in the success or failure of a business – whether it is a family business or a small business that is not family owned.  Following a course according to a strategy is always preferable to reacting to an unforeseen event or an emergency.

©Barbara Cashman     www.DenverElderLaw.org

April is Donate Life Month – Do You Have a Heart?

Of course you have a heart! This title is about whether you have one of those little hearts with a “Y”  in the center on the front of your Colorado Driver License . . .

This is what it’s for!

This month Donor Alliance is hosting events statewide to publicize this year’s National Donate Life Month.  Check out one of the events here .  You can also see some activities of Donate Life Colorado (the namesake for the Colorado license plates ) on Facebook here .  Of course, it isn’t just about organ donation, there are plenty of related activities for this month.  In light of the recent tragedy in Boston, it is important to remember that there is something many of us can do to help someone in need – donate blood!  In the metro area there are several Bonfils Blood Centers that make donating easy (almost painless, in fact) and on their website  you can find out if there is a blood drive that can make your donation even simpler.  In my experience, there are better snacks and goodies at those blood drives . . . . . !

Bonfils has their own marrow donor program, but I am registered through DKMS as a donor.  Some years back at Film on the Rocks  (when Talladega Nights was playing at Red Rocks), DKMS was recruiting, so a cheek swab and an interview later, I’m signed up.  I even got contacted two years ago as a potential match for a patient.  I wasn’t able to donate because the patient wasn’t in a position to receive a donation.  These can be very tricky matches from a timing perspective for the patient, which makes it even more imperative to have lots of registered donors available.  You can visit the DKMS Americas website for more information In case you’re wondering about DKMS, it stands for the German – Deutsche Knochenmarkspenderdatei (bone marrow donor) Center, which began in 1991 when a young woman, critically ill from leukemia and in need of stem cell transplant was in need of a match for a donation.  DKMS USA was founded in 2004 and has been involved in stem cell donation to battle blood cancers – cancers such as leukemia, lymphoma and myeloma.

So why donate?  Here are some quick facts about blood donation:

  1. 4.5 million Americans will a need blood transfusion each year.
  2. 43,000 pints: amount of donated blood used each day in the U.S. and Canada.
  3. Someone needs blood every two seconds.
  4. Only 37 percent of the U.S. population is eligible to donate blood – less than 10 percent do annually.
  5. About 1 in 7 people entering a hospital need blood.
  6. One pint of blood can save up to three lives. PS This is the amount of a donation at a blood bank.
  7. Healthy adults who are at least 17 years old, and at least 110 pounds may donate about a pint of blood – the most common form of donation – every 56 days, or every two months. Females receive 53 percent of blood transfusions; males receive 47 percent.
  8. 94 percent of blood donors are registered voters.
  9. Four main red blood cell types: A, B, AB and O. Each can be positive or negative for the Rh factor. AB is the universal recipient; O negative is the universal donor of red blood cells.
  10. One unit of blood can be separated into several components: red blood cells, plasma, platelets and cryoprecipitate.

Find more facts about blood donation here .

So . . . .  why donate? It is a gift of life for someone in need, it is a way to help others.  It is also a way of showing gratitude for good health that many of our community members do not enjoy.  Have you ever known someone who required a blood transfusion?  Most of us have and we are grateful that the blood was available at their time of need.

It’s easy enough to do.  first you determine whether you are eligible.  If you are, you will have your blood pressure, pulse and blood count (hemoglobin level) measured.  The next step is that needle in your arm to donate the blood.  When you are finished, you get a snack and perhaps a colorful bandage.  Pretty simple and definitely not too time-consuming.  Whole blood donors can give as often as every six weeks.  Because of the number of people who need blood and the relatively smaller number of people who can donate, you might decide to donate on a regular basis.  But every little bit helps.  In the U.S., someone needs a blood transfusion every 2-3 seconds.  Keep in mind that most of us will need a blood transfusion at some point in our lives.  Don’t wait till an emergency to wonder if the blood you or a loved one e might  need will be available.  Your donation this month will help ensure the adequacy of the blood supply.  Okay, if you still need a little YouTube inspiration, watch this clip about a mom of triplets whose life was saved a transfusion.   Okay, this last bit is for the legal part of this post, don’t forget to make advance arrangements with the correct legal documents to state your wish to be an organ donor.

©Barbara Cashman     www.DenverElderLaw.org