GeriLaw | Robert Fleming, Tucson elder law attorney, and colleagues

NAELA, NELF, CELA, ACTEC -- What does it all mean?

All you want to do is to find a lawyer to draft a simple will and powers of attorney. You ask your friends, but no one has a referral they feel unequivocally good about. A little online searching reveals that there are any number of organizations, credentials and qualifications–but how on earth do you figure out which lawyer actually knows something about estate planning, or Medicaid eligibility, or special needs trusts, guardianship and conservatorship (or whatever your elder law problem actually might be)? Let us give you a primer so you can identify the candidates.

NAELA (the National Academy of Elder Law Attorneys) is probably the first place to look. Any lawyer in the country who does any significant amount of elder law (and that term is generally understood to include all the categories in the previous paragraph) probably belongs. There are about 5000 members, and the organization has been around for twenty years.

To belong to NAELA all you have to provide is proof that you are a lawyer and a $375 check each year. Even though the dues are not high, they serve as a low-level filter–those who sign up tend to actually work in the trenches of elder law. The organization has the best continuing legal education programs, the best camaraderie and the best sharing of any professional organization around.

There are actually several “flavors” of NAELA. Advanced elder law practitioners formed a subdivision of the organization two years ago; the Council of Advanced Practitioners (NAELA/CAP) is a highly selective group who meet separately once a year, exchange more sophisticated practice ideas and share much closer personal and professional connections.

Then there are the NAELA Fellows. Each year a small handful of NAELA members are selected to be Fellows, based on their reputations in the national and local communities, their hard work in the field, and their writing and speaking. The Fellows are the best-known, hardest-working elder law attorneys in the country–and there are fewer than 100 of them.

NAELA members who want to announce their availability for particular types of elder law work can sign up for the NAELA Experience Registry. Other than a certification that you are familiar with the area you sign up for, and payment of an annual fee, there is no requirement that you prove knowledge, experience or capability. Still, participation in the Experience Registry can be an indication of real interest in an area of elder law.

NELF (the National Elder Law Foundation) was an outgrowth of NAELA but is a separate entity. Its primary function is to operate an elder law certification program, and to grant successful applicants the CELA (Certified Elder Law Attorney) designation. CELAs must pass a full-day written exam (which has a famously low pass rate) and establish that they have real experience in the field.

ACTEC (the American College of Trust and Estate Counsel) is an entirely separate organization with some overlap but a significant difference. ACTEC Fellows (the name for all members) have to have been nominated by an existing Fellow; there is no application process and no way to sign up other than to get invited after a year-long vetting process. ACTEC Fellows tend to dress nicer, drink finer wines (not nearly as much beer) and belong to larger law firms than NAELA members.

There are, in addition, several for-profit organizations focused on estate planning and other elder law sub-specialties. Membership in any one of these may indicate that the lawyer takes the practice seriously, is trying to improve his or her skills through continuing education, and is committed enough to the practice to pay a (sometimes hefty) fee. Those organizations include the National Network of Estate Planning Attorneys (NNEPA), the American Academy of Estate Planning Attorneys (AAEPA), and Wealth Counsel. Each of those organizations has its staunch partisans; even a cursory look at their websites will illustrate that their primary focus is on their membership, rather than providing public information or referrals.

There are at least two national organizations for lawyers who practice in the special needs arena. One, the Special Needs Alliance, is a non-profit organization with an invitation-only membership structure. The other, the Academy of Special Needs Planners, is a membership group open to anyone who is interested enough in the field to pay its hefty membership fee.

In addition to all of that, your state bar association and/or Supreme Court may have created a legal specialty in estate planning, tax, elder law, or related fields–or in more than one of those. State specialization usually indicates a serious peer review process, a challenging written examination, and a higher requirement for continuing legal education to maintain the certification. Arizona, for example, provides certification for "Estate and Trust" lawyers as well as Tax practitioners, and also recognizes the CELA designation described above.

Should you demand that your new lawyer have one or more of the credentials described here? No, not necessarily–though you might ask further questions if he or she does not belong to any of these professional associations. The websites of each may give you some leads to locate experienced and competent practitioners in your area.

Robert B. Fleming
Fleming & Curti, PLC
Tucson, Arizona
www.elder-law.com
www.specialneedsalliance.com

WHETHER to avoid probate

How to avoid probate?

That question, or some variant, is usually the first one I hear from estate planning clients. The mythology about probate has taken hold of the popular imagination, and most people think that's what it is all about.

Not so. In most states (but not in all), the probate process has been modernized substantially, and the cost, time and loss of privacy are nothing like what clients have been told to anticipate. There are even (dare I suggest it) some positive things about probate, at least in some cases.

First, a little history. From the early days of the Anglo-American legal system, the probate courts, probate lawyers and the probate process itself have often been seen as rapacious. Candidly, it was a reputation not entirely undeserved--at least, not undeserved in 1966, when Norman F. Dacey's book How to Avoid Probate first electrified readers and then the legal system.

Much has changed since Dacey's book. The Uniform Probate Code, an attempt to streamline the probate process in American states, was first promulgated in 1969, and has now been adopted in whole or in part by 18 states. One of the primary problems with probate--the requirement that an executor's actions be entirely supervised by the probate judge--was stripped away, and the costs, delays and hassles were immediately and dramatically reduced.

Still, there are 32 states which have not adopted the Uniform Probate Code. Many of them have moved toward a more modern approach as the probate world has shifted around them, but holdouts still exist. One major problem, addressed by the Uniform Probate Code but not adopted in every state, is the provision of presumptively reasonable fees for the attorney and for the executor/personal representative. In states with statutory fees, the cost of probate may be more expensive by a factor of three or more in most cases.

So far I've told you that probate isn't nearly as bad as you probably think it is, but I haven't told you why you should actively embrace the probate process. Truth is, there isn't usually a good reason to want your estate to go through the probate process, though there are couple of arguable exceptions. The real issue for most clients isn't whether they want to avoid probate--it's whether they want to spend very much money or energy seeking probate avoidance.

There are, however, at least two benefits from the probate process that some clients might want to consider. In most cases both can be obtained by other means, so neither is very compelling. But they are out there:

1. Creditors claims can be cut off. One good thing that happens during the probate process is that any creditor who fails to make his or her claim within specified time limits is forever barred from suing the estate or heirs. What's the big deal? If Sears, or Visa, or the phone company, want to make claims, can't they be counted on to take whatever steps are required to perfect their claims and collect? Yes, they can--but it is not necessarily the same for individuals who might sue for personal injury, or for professional malpractice. So one group of people who ought to think about the value of probate proceedings is those who are engaged in risky behavior, including professionals like architects, doctors, lawyers and accountants.

In Arizona, and in some other states, you can publish notice to creditors and get the same debt relief available from the probate process without having to go through an actual probate. In states where that is not the case there may be a significant value to the probate process itself--but at least in Arizona I have just set up an advantage only to knock it back down.

2. Family disputes can fester outside of court, but finally get resolved in court proceedings. In other words, if your estate goes through the (admittedly nominal) supervision of the probate judge, there is a date by which all family disputes have to have been submitted for resolution. Not so with trusts and other probate avoidance techniques--ill will and feelings of having been slighted or mistreated can linger indefinitely without any legal resolution. To be clear, I am not talking here about actual challenges--those can be filed against trust administrators with as much legal authority as they can be filed in formal probate proceedings. But if you anticipate that some of your family will harbor feelings of ill will, it might be in everyone's best interests to require a court's involvement and the closure it can provide.

OK--I don't think I have convinced you that probate is so wonderful that everyone ought to rush out and initiate one. I didn't really mean to. But I maintain that the real question isn't HOW to avoid probate, it is WHETHER it is worth the additional cost and energy to do so. For most people (and here I stress "most") the answer will be a qualified yes, but it is not a foregone conclusion in every case.

Caveat: if you live in a state (like California) where statutory fees are still the norm (and especially, in California's case, with the high cost of real estate driving up those statutory fees), or in a state (like Connecticut) where the probate process is still balkanized and, well, balky, your mileage will vary. You should get legal advice from a local practitioner. For some leads, look to the membership of the National Academy of Elder Law Attorneys, or the American College of Trust and Estate Counsel, or check with your local lawyer's referral service (the American Bar Association can tell you how to contact your local organization).

Robert B. Fleming
Fleming & Curti, PLC
Tucson, Arizona
www.elder-law.com
www.specialneedsalliance.com

Congratulations, Charlie!

Charlie Robinson, elder law guru and one of the originators of the genre, and (least importantly for his otherwise impressive resume) one of the contributors here has started his own blog. You can see his first, tentative post and follow up with his work at (cleverly enough) "Charlie Robinson's Blog." Welcome to the new (OK--not all that new) century, Charlie!

Robert B. Fleming
Fleming & Curti, PLC
Tucson, Arizona
www.elder-law.com
www.specialneedsalliance.com

 

Medicare Rates for 2008

The Centers for Medicare and Medicaid Services recently announced that Medicare Part A costs will increase in 2008. Medicare Part A pays for inpatient hospital care and some nursing home care, and home healthcare. The Medicare Part A deductible amount for a benefit period will rise from $992 to $1,024 in 2008. Medicare Part A co-payments will increase from $248 to $256 per day for days 61 through 90, and from $496 to $512 per day for days 91 through 150 (lifetime reserve days) per benefit period. Co-payments for skilled nursing facilities will increase from $124 to $128 for the 21st through the 100th day per benefit period. Approximately 99% of Medicare beneficiaries do not pay a premium for Medicare Part A because they have at least 40 quarters of coverage. Some seniors and persons with disabilities younger than age 65 who have fewer than 30 quarters of coverage may obtain Medicare Part A coverage by paying a premium. The premium will increase from $410 per month in 2006 to $423 per month in 2008. For seniors with 30 to 39 quarters of coverage and certain disabled persons with 30 or more quarters of coverage, the Medicare Part A premium will increase from $226 per month in 2007 to $233 in 2008.

Medicare Part B monthly premiums are set according to a sliding scale based on income. The standard premium will rise from $93.50 per month to $96.40 per month in 2008, and it will apply to beneficiaries who file an individual income tax return with income less than $82,000, or joint return filers with income less than or equal to $164,000. For beneficiaries with individual income of $82,000, but less than or equal to $102,000, and joint filers with incomes greater than $164,000, but less than or equal to $204,000, the premium will be $122.20. Beneficiaries with individual income greater than $102,000, but less than or equal to $153,000, and joint filers with income above $204,000, but less than or equal to $306,000, will pay a $160.90 per month premium. Beneficiaries with individual income greater than $153,000, but less than or equal to $205,000, and joint filers with income greater than $306,000, but less than or equal to $410,000, will pay a $199.70 per month premium. Beneficiaries with individual income greater than $205,000, and joint filers with income greater than $410,000, will pay a $238.40 per month premium. There is a separate rate chart for married beneficiaries who file separate tax returns, and who live with the spouse at some time during the taxable year. Medicare Part B pays for visits to physicians, other outpatient care, durable medical equipment, home care, certain outpatient therapies, and drugs that cannot be administered by patients at home and are thus administered by physicians in their offices. The Medicare Part B annual deductible will increase in 2008 from $131 to $135.

Low-income Medicare beneficiaries can receive assistance with the Medicare Part B premium costs, as well as the deductibles and co-payments. These beneficiaries are called “dual eligibles” because they are eligible for Medicare, and they are also eligible for Medicaid due to their low income. For Qualified Medicare Beneficiaries (QMBs), Medicaid will pay the Medicare Part B premium, deductibles, and co-payments. For Specified Low-Income Medicare Beneficiaries (SLMBs), Medicaid will pay the Part B premium. These dual eligible beneficiaries can also receive assistance with the Medicare Part D prescription drug benefit costs.

Useful Web sites:

www.medicareadvocacy.org – Center for Medicare Advocacy Inc.

www.cms.hhs.gov/apps/media/press/factsheet.asp?Counter=2488 – Center for Medicare and Medicaid Services Fact Sheet

Andrew H. Hook, CELA

Oast & Hook, P.C.

Virginia Beach, Virginia

www.oasthook.com

How DRA 2005 Changes Every Middle Class Senior Estate Plan- Florida Version

What Every Middle Class Senior (and her Estate Planner) Must know about Medicaid Changes under The DRA

Charlie Robinson
Florida Board Certified Elder Law Attorney
Clearwater, Florida
Elderlaw@charlie-robinson.com
Copyright 2007

The Deficit Reduction Act of 2005 (DRA) was signed by President Bush on February 8, 2006. The DRA mandates major changes in Medicaid eligibility. The DRA was supposed to be effective on the day it was signed. Some states followed the effective date, others chose a different effective date, and some are still trying to figure out how to implement this new law.

Florida has adopted its DRA Compliance rule effective November 1, 2007.

In future installments on this blog, I will continue this discussion on key changes in the Medicaid rules effecting all middle class seniors.

 

Rose’s Story

In November, 2007, Rose makes an appointment to update her estate planning with attorney Tammy Trustworthy. Rose fills out the attorney’s questionnaire showing Rose rents a condo, has liquid investments of $200,000 as a result of selling her home. Rose relates to Tammy how much she enjoys sharing with her family, church and charity. Rose likes to say that it is “Nice to receive flowers when you can smell them.” Tammy asks Rose about her estate and gifting intentions.

Rose lists the following:

In December 2007 Rose plans to follow her usual habit of making a $5,000 annual gift to her church building fund to help repair some of the hurricane damage not covered by insurance.

Rose plans to give her oldest grandchild $20,000 to help her through graduate school and $20,000 to her daughter to help her purchase a modest condo.

She wants to start a college fund with $10,000 to each of her remaining 6 grandchildren

Rose gives Hospice $500 each year on the anniversary of her husband’s death.

Rose gives each of her 3 adult children and 7 grandchildren $1000 for birthdays, at Christmas, and Easter.

It doesn’t bother Rose to make those gifts because she feels good for her age and has been paying for her three year long term care insurance policy paying $100 per day that she purchased several years ago.

Tammy tells Rose about gift tax and filing returns when gifts to an individual exceed $12,000 per year.

Tammy recommends Section 529 plans to provide funds for grandchild education in the most tax-friendly way. Tammy updates Rose’s will, power of attorney, living will and health care power of attorney.

In May 2008 Rose has a stroke and ends up in a nursing home. After three years in the nursing home Rose is out of money and long term care insurance coverage.

In May 2011 Rose applies for Medicaid to pay the difference between her retirement income and the cost of her care. Rose’s Medicaid application is denied because of the asset transfers (gifts) she made to church, charity and family over 4 years in the past.

Her gifts totaling $112,500 made from December 2007 through April 2008 will disqualify Rose from Medicaid for 21.7 months starting May 2011.

Next installment will start a discussion of how attorney Trustworthy might have handled Rose’s case.

Special Needs Trusts at Stetson University

I’m just back from a four-day program in Florida on Special Needs Trusts. What an interesting, invigorating and informative experience.

The Stetson University College of Law puts on an annual Special Needs Trust program in mid-October. The two-day seminar is split into a “basics” day and an intermediate-to-advanced day. After the Stetson program, the Special Needs Alliance met for another day and a half of additional sessions.

I spoke on three different topics this year. At the basics day I joined a panel (along with fellow SNA member Lauchlin Waldoch and a Florida financial planner named Joshua Shulman) dealing with the administration of special needs trusts—from investment management to taxation to determining what purchases might be permissible under the terms of the document and the law governing special needs trusts. At the main program on Friday I gave an update on cases decided during the last year, and during the SNA meeting I joined another panel to discuss practice management issues common to law firms working in the special needs arena.

This annual program is a blast, both because I get to see some of my best friends from around the country and because I learn so much every year. For example, one speaker (architect Larry Schneider from Florida, who shared the dais with SNA member Mark Shalloway) provided a wealth of information about adaptive devices in home building, renovation or adaptation. I have always counted myself as pretty sophisticated when it comes to accessibility and related issues, but it was great to get such a concentrated dose of information on this topic. My best tip of the program: the US Department of Housing and Urban Development has its “Fair Housing Act Design Manual” online for downloading at no cost. Sweet. Want to know what threshold height you should shoot for at an exterior door? It’s there (at page 4.12). Did I mention “free”? What a great price point.

In another presentation SNA member Neal Winston and fellow Massachusetts lawyer Mark Worthington talked about the use of special needs trusts in divorce and child support settings. Very useful information, and a little off the beaten path. The bottom-line message: it is possible to award child support or alimony while preserving the recipient’s eligibility for SSI and Medicaid. The most important element is to have the court assign the payments directly to a special needs trust. This is an area of growing importance as adult children with disabilities increasingly find themselves entitled to child support payments from either or both parents.

My own “case law update” program was fun to put together—partly because this year’s crop of cases was much larger than in previous years. About twenty cases made the cut, with a third of those being trial court decisions or unreported appellate court cases. That is a significant increase over prior years, when I was often scrambling to put together a half-dozen relevant cases. I have written about the program, briefly, in our firm’s weekly newsletter.

About half of the speakers at the Stetson sessions were members of the Special Needs Alliance—including such luminaries as Mary Alice Jackson (Florida), Brad Frigon (Colorado), Stu Zimring (California), Jay Kearns (Connecticut), Mark Shalloway (Florida—and the current President of the National Academy of Elder Law Attorneys), Craig Reaves (Missouri and Kansas—and the President-Elect of NAELA), Janet Lowder (Ohio), Neal Winston (Massachusetts), Roger Bernstein (Florida), and Bernard Krooks (New York). Several of those presented more than once.

The Stetson part of the weekend is the brainchild and baby of my close friend Rebecca Morgan, law professor at Stetson. OK—she’s more than “just” a law professor. She holds the Boston Asset Management Chair in Elder Law.

A personal word: SNA member Calvin Curtis (Utah) couldn’t be there because his infant son’s kidney transplant was scheduled for a couple days before the program. Cal reports that all went well, and his son is recovering nicely. We all wish Cal and his family all the best of luck. Godspeed.

Robert Fleming
Fleming & Curti, PLC
Tucson, Arizona
www.elder-law.com
www.specialneedsalliance.com

A Wedding in the Family

Allow me a personal moment, please. Two days ago my daughter got married. My oldest daughter. Also my youngest daughter. OK—my only daughter. (I have a son, but he’s not married. Yet.)

I am as proud and pleased as a father can be. To be clear, I was very proud when she won a four-year college scholarship (OK—she did that twice, and I was proud both times). I was proud when she graduated from high school, and again when she graduated, with honors, from college. But all of those accomplishments, and the dozens of others like them, are of an entirely different character—not the least bit insignificant, but not in the same emotional league.

I like Jameson, my new son-in-law, and in fact he works in our office. He is very bright, very creative, and one of the few people I’ve ever met who is more nerdy (I mean it in a good way) than me.

I hope and trust that they will have many years of happiness together, and I suspect they will also have a few moments of irritation, a few of anxiety, and possibly even a few of unhappiness. I hope all those last are limited, and I have every reason to believe they will be. Good luck, Robyn and Jameson.

What does this have to do with elder law? Admittedly not much. It gives me a chance to reflect on how important it is for us to solve the problems facing our society as a result of the pending retirement of millions of Baby Boomers. It also reminds me why I work for a living—other, of course, than the fact that I love toiling in this particular vineyard.

OK, thanks for the indulgence. Now back to work.

Robert Fleming
Fleming & Curti, PLC
Tucson, Arizona
www.elder-law.com
www.specialneedsalliance.com

Special Needs Planning is a Specialty

This afternoon I was reading my email messages from a very sophisticated Estate Planning list serve. A member of the list serve asked what type of trust should be created for a disabled client who received a $500,000 inheritance. The responses to this message said the parents had to create a Special Needs Trust (SNT) and it was too late to do any planning.

I was surprised that there was no discussion of the extent of the client's disability, the client's age or whether the client received any needs based public benefits such as SSI, Medicaid or Section 8 Housing. Frankly the authors of the messages did not seem to understand the differences between Third Party SNT's and first Party SNT. These messages revealed that even sophisticated Estate Planning attorneys are not necessarily prepared to counsel persons with disabilities and their families.

Frankly persons with disabilites and their families need comprehensive counsel to develop a plan that will address the the following issues:

• Special Needs Trusts and Wills
• Medicaid, SSI and Entitlement Program Eligibility
• Estate, Trust and Tax Planning for Individuals with Disabilities and their Families
• Financial Planning and Legal Assistance for Individuals with Disabilities
• Conservatorship, Guardianship and Advance Directives
• Assistance with Personal Injury/Medical Malpractice Settlements
• Trust and Estate Distributions and Fiduciary Accountings
• Tax Planning
• Estate and Trust Administration

Persons with disabilities and their families should seek specialists in disability planning for counsel in developing a comprehensive plan. Where do you find these specialists? I suggest they should seek a member of the Special Needs Alliance, www.specialneedsalliance.com. The SNA is a national alliance of experienced lawyers specializing in disability planning. This is not a organization that any one can join by paying a fee. Membership is by invitation only.

Andrew H. Hook, CELA, CFP

Oast &Hook, PC

Offices in Virginia Beach and Portsmouth, Virginia

www.oasthook.com

Interstate conflicts in guardianship

Facts:

Grandma lived her entire life in Tucson. She has been widowed for 20 years, and is now in her late 80s. She has three children, two of whom live in Tucson and one in California.

Grandma's oldest granddaughter lives in Arkansas, where her husband is stationed in the military. Six months ago she came to Tucson to visit Grandma, got into a fight with her uncle (who lives a couple blocks away from Grandma and has been, in his mind, keeping an eye on her and helping take care of her) and ended up loading Grandma and most of her personal possessions up and taking her to Arkansas.

Son insists that his niece has kidnapped Grandma. Granddaughter insists that Grandma wanted to move, and was tired of being bullied by her son. Grandma herself tells visitors that she loves her granddaughters house, likes having a separate apartment, is enjoying Arkansas but does miss having contact with her two Tucson children. No comprehensive medical evaluation has been completed since the move, but Son points out that Grandma was diagnosed as early stage dementia by her Tucson doctor, and says that he is worried that the move--and the change in treating physician--might endanger his mother's health.

Law:

Generally, guardianship proceedings must be commenced where the proposed ward resides. Some states add a provision allowing the guardianship to be initiated in the state where the ward can be found. Conservatorship (guardianship of the property) generally must be initiated in the state where the ward resides, but may be appropriate in a state where property is located.

Assuming Son wants to initiate a guardianship proceeding, can he do so in Tucson? Does he first have to show that Grandma lacked the capacity to change her residence--that she didn't really understand that she was moving to another state, or that she wasn't able to agree to the move?

There is also a principle known in the law as forum non conveniens, under which a court may decline to take jurisdiction even though it could, because it would be inconvenient for the litigants. Applying this doctrine, the Tucson courts might rule that, thought they could hear the guardianship and/or conservatorship proceeding, it would be more convenient to have an Arkansas court decide the matter. After all, the key question will be Grandma's capacity and understanding of what is going on around her, and however she got there it is now easier for Arkansas participants to produce evidence on that subject than it is for Tucson residents.

The Practice:

We are seeing more and more of these cases recently. I'm not sure what it is, but suddenly allegations of kidnapping (almost always countered with allegations of neglect or even abuse) are common in our practice. What has changed? We have been a highly mobile society for decades, even generations. In fact, Grandma--born and raised in one place, and living her entire adult life there--is now very much the exception. But that doesn't explain the recency of the phenomenon.

These battles are often--but absolutely not always--really about money. Once control of the finances gets settled, it is amazing how often both sides back off and agree to any reasonable resolution of the living and care arrangements. But perhaps that's just my jaded inner lawyer talking.

Who should hear Grandma's case? Generally speaking we believe that the court where Grandma is staying should have first dibs on the case--even in the fact of arguments that she never really chose to live there. Yes, it is true that we need a system that does not encourage kidnapping for tactical advantage (it hasn't been all that many years since we all began outlawing similar practices in child custody cases). We have been involved in cases where the relative who grabbed Grandma turned out to be endangering her life with bad care, or (and more commonly) stealing her money as fast as can be. But still, the local court where she is now located will have a better handle on how to solve those problems and clearer authority to deal with them.

Theory Meets Practice:

A current case in our office demonstrates the problems with that simplistic analysis. Bruce used to live in Minnesota, and still has a home there. He hasn't been to the home in years, however, and also owns a home in Tucson. He is clearly a Tucson resident, and we have been appointed as his guardian and conservator in a Tucson proceeding.

Minnesota has (or so we have been told) a recent history of guardians selling property to cronies at steeply discounted prices. So even though there is an Arizona judge looking over our shoulder, Minnesota insists on having a separate proceeding, complete with a repeat of all the due process protections afforded to Bruce in his Arizona proceeding, before allowing Minnesota property to be sold.

Well, that's annoying but not really that bad, you might argue. Too much due process is better than not enough. And if we're behaving properly, why would we object to having another judge--one who isn't dazzled by our local reputation--look over our shoulder.

There are 7,000 reasons why the duplicate Minnesota proceedings are wasteful. That's how much we have been advised (by our Minnesota lawyer) it will likely cost to get permission to sell the property. Oh, and as the market continues to slip, assume we won't get authority to sell for at least several nail-biting months.

The Solution:

We need a reasonable approach to these cases. We need an interstate agreement on how to handle wards who have ties to (and possibly property in) more than one state. We need something like the Uniform Child Custody Jurisdiction and Enforcement Act, which addressed the similar problem facing many families in (and after) divorce proceedings. That Act made clear that the central issue was the welfare of the child, and that the legal system ought to be focused on that rather than solely on the sometimes arcane rules of jurisdiction and venue.

Robert B. Fleming
Fleming & Curti, PLC
Tucson, Arizona
www.elder-law.com
www.specialneedsalliance.com

The best film on aging?

It's not a category in the Academy Awards. For those of us who spend most of our waking hours dealing with issues surrounding the aging process, it might not even seem like the most attractive way to spend our leisure time. But I'm curious: what is the "best" movie about the aging process--or, if such a thing even exists, about elder law itself?

To be a really good movie on the subject, the fact of maturity should be a central theme. Well, "maturity" may not be the best word here--it suddenly occurs to me that a few folks are likely to suggest Harold and Maude (1971). I, of course, have a few suggestions for the category myself:

Something's Gotta Give (2003), As Good As It Gets (1997) and About Schmidt (2002) seem to me to be the Jack Nicholson triptych on aging. What talent the guy has--he is equally convincing as the aging lothario, the aging compulsive and the aging retiree.

Speaking of aging actors playing, well, aging characters, a little-watched gem from 2000 starring Sean Connery gets high marks in my book. Finding Forrester is a sweet-but-not-sappy multi-generational bit, complete with redemption and hope for the future.

Clients of mine recently told me they wanted their will to include "the inheritance speech" given by John Wayne in McLintock! (1963). I had to confess I didn't know what they were talking about. I went out and bought the movie (it was cheaper and easier than renting it) and am working on getting the speech transcribed. It's a bit of a slapstick movie--with John Wayne, no less--but when he tells his daughter that he's not leaving his entire estate to her because it will be good for her and her husband-to-be to have to do (and earn) something on their own, it definitely becomes an elder-law-related movie. Not great art or theater, but an odd, politically-incorrect and therefore interesting entry in the polling.

Has anyone ever shown aging with more style than Katherine Hepburn and Peter O'Toole in The Lion in Winter (1968)? I really need to update my top-10-ever movies to include this one.

Anyway, what I'm looking for here is some other suggestions. What movie(s) about aging did you think were particularly engaging, moving, uplifting, frightening? Which actor(s) most epitomize aging with grace and dignity, or refusing to go gently, or the reverse of either--in their roles or, for that matter, their personal lives? Let me hear your suggestions--I need to expand my 64-movie-long Netflix queue. For that matter, I need to push past my stagnant 1601 movies rated. Give me a hand here, please.

Robert B. Fleming
Fleming & Curti, PLC
Tucson, Arizona
www.elder-law.com
www.specialneedsalliance.com