Wisconsin Legislature Considers Online Notarization

The next time you need to execute a document in the presence of a notary public, you may be able to find one online!

Assembly Bill 293 and Senate Bill 317 (introduced June 13 and July 10, 2019, respectively), if passed by the Wisconsin Legislature, would allow a Wisconsin notary public to become commissioned as an “online notary” who is authorized to notarize legal documents online.  Pursuant to the Bills, online notarial acts must be accomplished via communication technology, such as videoconferencing, which allows the notary to communicate in real time with the affiant.  Both Bills would permit online notaries in the State of Wisconsin to notarize the signatures of individuals present anywhere in the United States, not just within the State.

One concern regarding these Bills is whether or not they should authorize the online notarization of estate planning documents such as wills, trusts, marital property agreements, durable powers of attorney, and health care powers of attorney, given that many of these documents must be signed by one or more witnesses, in addition to being notarized.  The Bills, as written, do not presently exclude estate planning documents from online notarization.

If you have any questions on this topic, please contact Lin Law LLC at (920) 393-1190.

To pay or not to pay… to what state does my Trust pay taxes?

In a recent U.S. Supreme Court decision, North Carolina Department of Revenue v. Kimberly Rice Kaestner 1992 Family Trust (“Kaestner”), the Court held that a State may not tax the income earned by a trust based solely on the state of residence of the trust’s beneficiaries.

Kaestner concerned a trust established by Kimberly Rice Kaestner’s father, a New York resident, for the benefit of Kimberly and her three children, who were North Carolina residents during the tax years at issue.  North Carolina attempted to tax income earned by the trust for the 2005-2008 tax years based on a North Carolina law authorizing the State to tax any trust income “for the benefit of” a state resident.

However, the trust itself was subject to New York law, the trustee was a New York resident, and the trust’s assets were managed by a custodian in Massachusetts.  The fact that the trust’s beneficiaries were North Carolina residents was, therefore, the trust’s sole link to the state.  Finally, the language of the trust gave the trustee complete discretion over distributions of income and principal, and no income was distributed to Kimberly or her three children during the tax years in question.

The Court struck down the North Carolina statute, holding that it was an unconstitutional violation of the Due Process Clause of the Fourteenth Amendment.  The Due Process Clause limits the States’ authority to impose taxes to those that “bear a fiscal relation to protection, opportunities and benefits given by the state.”  In the context of a tax premised on the residency of a trust’s beneficiary, the beneficiary in question “must have a degree of possession, control, or enjoyment of the trust property or a right to receive that property.”  The Court held that, because Kimberly and her three children did not receive any income from the trust during the relevant tax years, nor did they have the right to demand any such distributions, the trust lacked the requisite minimum contacts with the state of North Carolina.

While the Court’s holding in Kaestner is undoubtedly a “win” for grantors, trustees and trust beneficiaries, the holding is very narrow and fact-specific, and therefore provides limited guidance with respect to other state income tax regimes.

If you have any questions on this topic, please contact Lin Law LLC at (920) 393-1190.

Fireside Chats During the Holiday Season

As the holidays approach and families gather together, topics like long-term care and estate planning are likely to be the last thing on your mind.  However, the holidays are the perfect opportunity to discuss these difficult issues with your loved ones.  For older relatives, it is important to discuss whether he or she has planned for future incapacity and/or assisted living or nursing home care needs.

In addition, if you and your older family members already have existing advance health care directives and powers of attorney for finance in place, the holidays are a good opportunity to ensure that your health care agents understand your wishes with regard to end of life care, and that your attorneys-in-fact have a good understanding of your finances, or that they know where to find that information if and when they need it.

If you and your family will be gathering together for the holidays, remember that the most difficult conversations are often the most important, and that when it comes to long-term care and estate planning, the earlier you begin planning, the better.

If you have any questions on this topic, please contact Attorney Emily E. Ames at eames@llattorneys.com or (920) 393-1190.

Disclaimer: The information in this blog post is provided for general informational purposes only, and is not intended as legal advice from Lin Law LLC or the individual author.  Please consult an attorney licensed to practice law in your jurisdiction for information regarding your individual situation. 

Medicare vs. Medicaid: Do you know the difference?

When speaking about public benefits, people often confuse Medicare and Medicaid.  After all, they do basically the same thing, right?  Not exactly…

Medicare is available to all individuals age 65 and older, in addition to chronically disabled individuals of any age, irrespective of resources (i.e., assets).  It is federally administered and beneficiaries are often responsible for co-pays and premium payments.  Medicare has four parts, each providing distinct benefits:

1.       Part A (Hospital Insurance) – provides coverage for hospital costs and related

          services (e.g., skilled nursing facility care, home health care, and hospice care).

2.      Part B (Supplementary Medical Insurance) – provides coverage for physician services

          and certain outpatient services that are not covered by Part A.

3.      Part C (now known as Medicare Advantage) – provides expanded coverage beyond

         Parts A and B.

4.      Part D (Voluntary Prescription Drug Benefit) – provides prescription drug coverage

          through private insurance companies.

Medicaid, commonly referred to as Medical Assistance (MA), receives federal funding but is administered by the individual states.  Unlike Medicare, Medicaid is a needs-based program, and beneficiaries are subject to strict financial eligibility requirements.  Medicaid covers a broad range of health services, but is primarily known for providing long-term care (i.e., nursing home) coverage.  Individuals may be eligible for both Medicare and Medicaid, and receive benefits from both programs at the same time.

If you have any questions on this topic, please contact Attorney Emily E. Ames at eames@llattorneys.com or (920) 393-1190.

Disclaimer: The information in this blog post is provided for general informational purposes only, and is not intended as legal advice from Lin Law LLC or the individual author.  Please consult an attorney licensed to practice law in your jurisdiction for information regarding your individual situation. 

Is your child turning 18? Consider suggesting that he or she execute a durable power of attorney and advance healthcare directives.

As your child prepares to begin college or enter the workforce, estate planning is likely the last thing on his or her mind—or yours.  However, there are numerous situations in which young adults can benefit from executing basic estate plan documents.  For example, should a child be in an accident and become disabled or incapacitated, even temporarily, his or her parents may not be able to act on the child’s behalf without court approval.  Alternatively, the child may be out of the country (or simply out of town) and require his or her parents to do something as simple as signing a lease or sending money to the child from his or her bank account.

A Durable Power of Attorney for financial matters, if activated, allows a parent or other individual designated by the child to act on the child’s behalf with respect to most financial and/or business matters.  Similarly, a Power of Attorney for Health Care authorizes the child’s agent to make medical decisions on his or her behalf, including decisions regarding medical consent and life support issues.  Further, a HIPAA Authorization provides the child’s parent or other designated individual access to the child’s healthcare and treatment information.

For these reasons, we strongly recommend that all adults, even those who have just turned 18, execute a Durable Power of Attorney, Power of Attorney for Health Care, and HIPAA Authorization for Release of Protected Health Information.

If you have any questions on this topic, please contact Attorney Emily E. Ames at eames@llattorneys.com or (920) 393-1190.

Someday, Even Your Estate Plan Will Be Electronic

In today’s day and age, most transactions may be accomplished electronically.  However, there is still one field where old-fashioned pen and paper is typically still required: Trusts and Estates.  Given the sensitivity of estate planning documents, difficulties in authentication, and the potential for data loss or hacking, many people would be (rightfully) hesitant to create or store such documents electronically.  Despite these obstacles, interest in electronic wills and other estate planning documents has increased in recent years.

The Uniform Electronic Transactions Act (UETA) of 1999, setting forth nationwide rules for electronic transactions, has been adopted in 47 states (including Wisconsin) and the District of Columbia.  The Electronic Signatures in Global and National Commerce Act, passed by Congress in 2000, allows the use of electronic records and signatures in interstate commerce.  However, both Acts specifically exclude application to the creation and execution of wills, codicils, and testamentary trusts.

Currently, Nevada and Indiana are the only states to have enacted legislation explicitly authorizing electronic wills (although, electronic wills have been successfully admitted to probate in other jurisdictions under the harmless error doctrine).  Efforts to pass similar legislation in Florida, Arizona, New Hampshire, and Virginia have been unsuccessful.

In late 2017, the National Conference of Commissioners on Uniform State Laws (NCCUSL) formed a Committee for Electronic Wills.  According to the NCCUSL website, the Committee will “draft a uniform act or model law addressing the formation, validity and recognition of electronic wills.”  See http://www.uniformlaws.org/Committee.aspx?title=Electronic%20Wills.  In addition, the Committee will consider expanding its mission to address other estate planning documents, including advance medical directives and powers of attorney for health care and finance.

It will be years, or even decades, before electronic wills and other estate planning documents become commonplace, but the trend is clear: someday, even your estate plan will be electronic.

If you have any questions on this topic, please contact Attorney Emily E. Ames at eames@llattorneys.com or (920) 393-1190.

Dying to Help, and Helping to Die?

In June, a bill was introduced in the Wisconsin State Senate called the “Compassionate Choices” bill. The bill proposes to create a new chapter 156 in the state statutes that would, essentially, allow for physician assisted suicide under certain conditions. The bill is modeled after laws in Oregon, Washington and Vermont (and similar bills have been passed or proposed in 23 other states, plus Washington D.C.). Advocates for these bills feel that people who are suffering should be able to choose for themselves whether they live or die. Opponents feel life is precious and should be preserved at all costs.

The bill creates a statutory form called: “Request for Medication Authorization to End My Life In a Dignified Manner”, which people use to make the request for their physician to prescribe them medication to end their life. The bill requires the patient to follow several steps in order to have the medication administered. 1) the patient must be of sound mind, be 18 or older, and have a terminal disease (defined as incurable and will cause death within 6 months); 2) the individual must orally ask their doctor; 3) Within 15 days of the oral request, must make a request in writing (by filling out a form similar to the statutory form mentioned above), however it cannot be done until a consulting doctor (someone other than the attending physician) examines the patient to confirm that the patient has a terminal disease, is not incapacitated and is making a voluntary and informed decision; 4) After the written request, the patient must again orally request the medication. The request can be revoked at any time.

The bill defines the responsibilities and immunities for physicians when a patient makes this request. The doctor must 1) determine if there is a terminal disease, the patient is not incapacitated and is making the request voluntarily; 2) inform the patient of the diagnosis, risks/results of taking the medication, and alternatives; 3) refer the patient to counseling if the doctor believes the patient may be suffering from a psychiatric/psychological disorder including depression; 4) Ask that the patient notify his or her next of kin (it is not required that the patient do it, but the doctor must ask them to); 5) Inform the patient that the request can be revoked; 6) prior to filling the prescription must ensure the patient followed the steps required by the patient, that more than 48 hours have passed since the 2nd oral request, and that the decision is an informed one; 7) The physician must document the requests, the determinations made in (1), the determinations of the consulting physician, certify that the patient was informed the request could be revoked and a certification that all steps were properly taken; 8) The doctor may refuse to fulfill the request but must make a good faith attempt to transfer the patient to another physician to fulfill the request.

A doctor cannot be charged with criminal, civil or unprofessional conduct for: 1) failing to fulfill a request (except it is unprofessional to not refer the patients care), 2) filling a request, 3) failing to act on a revocation unless they have actual knowledge.

Finally, the bill states that requesting the medication does not constitute attempted suicide and taking the medication does not constitute suicide.

This is a truly fascinating piece of proposed legislation, and one that I presume will either die quietly without a vote, or be subjected to a great amount of protest and scrutiny. Any time someone’s life or death is involved, politics becomes emotionally (and often religiously) charged, even though the reasons for outrage aren’t always clear cut. In addition, the bill was proposed by democratic senators in a republican controlled legislature, with a conservative governor. The likelihood of success seems small.

Aside from the politics, the bill creates many hoops that someone would need to jump through (which makes sense), and creates several potential timing issues that would limit a patient from doing everything correctly in order to be prescribed the medication. Other problems I see with the bill being utilized is the requirement that the patient be competent. I’m not a medical professional, but in the vast majority of cases where someone has a terminal illness, the person is not competent, which would automatically remove the ability to do this. Obviously, an incompetent person should not be making important decisions, but I do think an extension to this bill would involve added terminology to Health Care Powers of Attorney or Declaration to Physicians that would invoke this right. I would also think that most people in this situation, even if competent, would be suffering from some form of depression, which would apparently prevent their wishes from being granted. Due to the nature of the bill, I do think the writers did a pretty good job of trying to cover all of their bases. The decision to take one’s life is not something that should necessarily be easily or quickly done. Whether the bill accomplishes what it seeks to, or if it becomes law, is something we will have to wait to see.

A Trumpcare Update

A few months back, I posted an article about possible changes to the health care system (specifically changes to Medicaid), and the changes to the Affordable Care Act, that had been proposed by President Trump. Many things have changed since that time, including the passage of ACHA by the House of Representatives. This week, it appears that the Senate is prepared to vote on the “Better Care Reconciliation Act of 2017”, which is the Senate’s version of health care reform. Given the fast-changing political climate, it is very possible that by the time you read this, the information will be outdated, but I think it is interesting to follow the possible course of what I believe is the program upon which most drastically effects more people in the United States than any other (Medicare is vitally important as well, and is also affected by this bill, but it is outside of the scope of this article. Medicare is also available to everyone over a certain age, where Medicaid affects almost entirely the poor, elderly and disabled).

The Senate plan would reduce federal spending on Medicaid by approximately 26% by 2026, and the overall plan would result in approximately 22 million less people being insured (about 5 million of which are on Medicaid). Medicaid covers nearly 20% of all Americans, 40% of all children and disabled and over 60% of all nursing home residents. It also pays for almost 50% of all births and long term-care (which includes things like in-home care, assisted living, etc.). The problem with Medicaid to many is that the spending by the federal government is open-ended and based on the number of enrollees in each state. Currently, Medicaid can cover as many people as are eligible, but naturally when more people are covered, it costs more. What the Senate plan will do is place a cap on the amount the federal government will spend, regardless of how many people actually need it. The spending caps would be set at the rate of inflation, which is about half of the rate of the growth of need for Medicaid, which is mostly based on the fact that the overall population is aging. Many of these changes won’t become effective for a number of years, or will be phased in, but in the next ten years the amount of spending on Medicaid will be reduced by $772 billion dollars. The end result is that states will face more pressure to provide health care for less people. The change would force states to drastically change Medicaid qualification rules, which will make planning very difficult for individuals that may or do already require long term care. It’s also likely that states will need to trade quality of care for lower costs.

It is unknown right now what the final changes to the program will be. As someone that is keenly aware of how the aging population is using the program, I know that there are some cases where great planning can put a person in a position to rely on Medicaid to provide for their long-term care, even if at some point it would’ve been possible for them to pay their own way. However, those cases are actually very rare. Most people are shielding such a small amount versus the actual cost of care that these proposed changes are extremely aggressive. There are things that could be done to change qualification rules (and are done all the time) to close “loopholes” or make qualification more selective. Those changes could be done without fundamentally altering the program that could well affect many helpless individuals.

Over the River and Through the Court to Grandmother’s House We Go

A recently decided Wisconsin Supreme Court case has made it easier (slightly) for grandparents, great-grandparents and stepparents to receive court-ordered visitation of their grandchildren, great-grandchildren or step-children. The case of In re Marriage of Meister, 367 Wis. 2d 447 (2016) removed a previously held rule that a grandparent, great-grandparent, or stepparent needed to prove a parent-child relationship in order to secure visitation rights under Wisconsin Statute §767.43(1). The statute provides that certain people can apply to a court for visitation rights of children. Previously, the court had decided that parents, grandparents and stepparents needed to prove a parent-child relationship. The Meister court decided on a different statutory interpretation, deciding that only “other persons” needed to prove a parent-child relationship, and the clause did not apply to grandparents, great-grandparents or stepparents. The ruling makes sense from a statutory interpretation and legislative history standpoint.

I mentioned earlier that this ruling made it only slightly easier for grandparents to be granted visitation rights. This is because in general, family law is not at all black and white. Of all areas of the law I’ve ever practiced in, family law is the least predictable and most prone to case-by-case analysis and guesswork. Proving a parent-child relationship, especially when each parent-child relationship varies by family, was not typically the biggest hurdle grandparents faced when trying to get visitation of their grandchildren. There are two other monumental hurdles. First, there needs to be evidence that a set visitation schedule with a non-parent is in the child’s best interest. Second, when determining the best interest, the court must give special weight to a fit parent’s opinions regarding the child’s best interest as part of any best interest determination. This requirement was first determined by the U.S. Supreme Court in Troxel v. Granville: “The Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.” 530 U.S. at 66, 120 S.Ct. 2054.

The Meister case was interesting for two reasons. First, the grandchildren, not the grandmother, were the ones that appealed. The concurring opinion noted that had the issue been brought up, the case would have been dismissed because the grandchildren didn’t have standing to appeal. The grandchildren do not have a right to ask the court to be granted grandparent visitation under this statute, so they could not appeal a ruling that denied it. The issue was not addressed by either party, and thus the court didn’t address it. Second, the grandmother actually passed away before the appeal was filed. Generally, when this happens, the case is moot (meaning there is no reason to decide it, because nobody will benefit from the ruling), and the appeal would be dismissed. However, the parties allowed the case to move forward because it is an issue that is constantly in front of courts on grandparent visitation cases. What we don’t know is whether the grandmother in this case would have actually been granted visitation or not. This case didn’t actually grant the grandmother visitation, and wouldn’t have even if she had still been alive. It merely decided she didn’t need to prove a parent-child relationship. The circuit court would have needed to decide if it was in the children’s best interest after giving special weight to the parent’s opinion.

Practically, unless there is a serious problem with one or both parents, a grandparent still has a difficult time making a case that their view of what is in a child’s best interest is correct versus a parent. In addition, a grandparent needs to consider whether their personal feelings, and set time with their grandchildren, are more important than their relationship with their own child, or their child’s spouse. I’ve never seen a case like this where the family came out on the other side unscathed. In my experience, the best interests of the child are almost never served in a courtroom.

TRUMPCARE?

Donald Trump is set to be inducted as the 45th President of the United States on January 20, 2017. One of the things he has pledged to do is repeal the Affordable Care Act (aka “Obamacare”). The actual plan is currently unknown, but it can be safely assumed that something will change. The Affordable Care Act is a tremendously complex set of legislation and executive orders, and trying to discuss every aspect of what might change is a fool’s errand. I want to touch on possible changes to Medicaid. Medicaid is the program whereby the state, with the assistance of the federal government, provides health care for those that cannot afford it. In Wisconsin, it takes on many forms in its subprograms (e.g. Badgercare, Family Care, Institutional Long Term Care, etc.).
President Trump may be proposing to change a portion of Medicaid to provide “block grants”. Essentially, instead of the Federal Government directly funding a portion of Medicaid on an as needed basis, it would provide a specified amount of funds to each state each year, and the state would administer the programs alone. Because the federal government currently pays more for Medicaid than the state typically does, there are fears that the funds would be mismanaged by the states, or that states will pass more stringent laws to limit Medicaid eligibility. If that happens, it would likely create a gap where people who need and can’t afford health care also can’t receive it at a free or reduced cost because they don’t qualify. Proponents say that giving states autonomy will help them to reduce overall healthcare costs. Time will tell what effect any possible changes may have.