Want A Life Estate? Do it NOW

There has been a lot of discussion amongst ourselves here at Lubinski, Reed & Klass, S.C. and among other elder law attorneys, around the State as to how best advice our clients interested in planning for nursing home assistance in light of the changes to estate recovery in Wisconsin. How these new rules affect one of the more popular planning tools in medical assistance, life estates, has been a major topic.

The State of Wisconsin Department of Health Services has released a memo indicating that, amongst other things, life estates created ON OR AFTER August 1, 2014 would be subject to Estate Recovery.  Generally, this means that the State will value the life estate as of the date of death of the life estate holder and be reimbursed for the medical expenses it paid of behalf of that person and/or that person’s spouse up to the value of the life estate.  As the memo is written, this rule will not apply to life estates created before August 1, 2014.

There is a small window of opportunity for people that wish to make a gift of their home and retain the right to live there by using a life estate, without this new recovery rule applying.  There are still many unanswered questions regarding these estate recovery rules.  A life estate is not a good plan for everyone.  If you are interested in looking into this further, contact an experienced elder law attorney as soon as possible.

The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation.

Pursuant to the rules of professional conduct set forth in Circular 230, as promulgated by the United States Department of the Treasury, nothing contained in this communication was intended or written to be used by any taxpayer for the purpose of avoiding penalties that may be imposed on the taxpayer by the Internal Revenue Service, and it cannot be used by any taxpayer for such purpose.  No one, without our express prior written permission, may use or refer to any tax advice in this communication in promoting, marketing, or recommending a partnership or other entity, investment plan or arrangement to any other party.

Wisconsin’s New Medicaid Law: A Word of Caution

The latest state budget, signed into law in June, included a number of important changes to Wisconsin’s Medicaid Program.  Rather than totally reinventing the wheel, I want to provide a link to the excellent series of blog posts written by an attorney in southern Wisconsin, which explains various parts of the new law.

This a very complex topic, so most people who don’t have hands on experience with Medicaid are probably going to have a difficult time understanding why the law change is so important. I would like to leave you with this piece of advice: If you or your spouse, or your parents are on Medicaid, are in need of Medicaid now, or might need it in the future, it is vital that you contact an attorney who understands this area of law. There are new procedures in place that affect one’s ability to sell a home, which were not in place previously. In addition, the new Wisconsin laws seem to require that if a Medicaid applicant wants to transfer the family farm or other business to a family member, it must be done with a cash sale at fair market value, in order to pass muster. Doing things incorrectly can have even more wide-ranging and long lasting effects than before, so contacting an attorney who can deal with these issues has never been more important.  It is possible that much of this new law will be struck down if challenged in court, which will only further confuse planning in the future.

The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation.

Pursuant to the rules of professional conduct set forth in Circular 230, as promulgated by the United States Department of the Treasury, nothing contained in this communication was intended or written to be used by any taxpayer for the purpose of avoiding penalties that may be imposed on the taxpayer by the Internal Revenue Service, and it cannot be used by any taxpayer for such purpose.  No one, without our express prior written permission, may use or refer to any tax advice in this communication in promoting, marketing, or recommending a partnership or other entity, investment plan or arrangement to any other party.

 

What Can I Do With All This Stuff?

In our landlord-tenant practice, a question that inevitably comes up in nearly every eviction action is: “The tenant left a bunch of things in the apartment.  Can I sell it?  Can I throw it out?  What can I do with all this stuff?”

Prior to April 1, 2012, and the passing of 2011 Wisconsin Act 143, the answer was one that landlord’s did not like to hear.  Landlords were required to hold the tenant’s property for at least 30 days after providing a written notice to the tenant.

After the new law, as long as the tenant is provided with notice in writing (presumably in the lease, or an addendum to the lease), the landlord does not need to store the property and can dispose of it at their discretion immediately.  If this notice is not in the lease signed by the tenant, the old way of storing property would still apply.

It is now easier for landlords to remove abandoned personal property from their premises and re-lease them, assuming language is included in the lease to provide for the disposal of personal property.

 The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation.

Pursuant to the rules of professional conduct set forth in Circular 230, as promulgated by the United States Department of the Treasury, nothing contained in this communication was intended or written to be used by any taxpayer for the purpose of avoiding penalties that may be imposed on the taxpayer by the Internal Revenue Service, and it cannot be used by any taxpayer for such purpose.  No one, without our express prior written permission, may use or refer to any tax advice in this communication in promoting, marketing, or recommending a partnership or other entity, investment plan or arrangement to any other party.

Wisconsin Passes Youth Sports Concussion Law

 The Wisconsin Legislature has passed a long overdue law dealing with head injuries and concussions in youth sports.  This issue has come to the forefront recently, especially due to the news coverage of similar issues in the NFL, and its huge popularity.

In most cases, this law will protect student athletes even though there are no punishments in place for people who violate it. Most coaches probably already remove players from games with suspected concussions.  One would hope that the desire to win in something as ultimately inconsequential as high school sports would not cloud a coach’s judgment on what to do if he or she suspected a head injury. 

The law does not address, and I’m not sure how it could address, the issue of athletes, and their viewpoint surrounding these injuries.  A major issue with head injury prevention is the athlete wanting to appear “tough” and refusing to come out of a game or practice, thereby exposing themselves to further damage.  Players will often be afraid of losing playing time if they are injured in this way. Coaches and administrators can give athletes all the pamphlets they want describing the dangers of concussions, but the culture of sport probably needs to change before all athletes would willingly take themselves out of a game, and admit to having concussion symptoms.  

The law is well intended, and is certainly a start.  Coming from a guy that had his “bell rung” a few times, I’m glad this is being addressed.

 The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation.

Pursuant to the rules of professional conduct set forth in Circular 230, as promulgated by the United States Department of the Treasury, nothing contained in this communication was intended or written to be used by any taxpayer for the purpose of avoiding penalties that may be imposed on the taxpayer by the Internal Revenue Service, and it cannot be used by any taxpayer for such purpose.  No one, without our express prior written permission, may use or refer to any tax advice in this communication in promoting, marketing, or recommending a partnership or other entity, investment plan or arrangement to any other party.

Unemployment “Waiting Week” in Wisconsin

I have been questioned on more than one occasion by clients concerning what has been termed “The Waiting Week” for unemployment benefits.  “Waiting Week” is a new law that took effect on January 1, 2012, and was included in 2011 Wisconsin Act 32.  In short, the law requires that someone applying for unemployment benefits for the first time in a calendar year must wait one week before receiving payment.  The claimant will not receive a payment for the first week.  The claimant loses that week of pay each year unless they reach the maximum benefit amount, which is unchanged.

The Wisconsin Department of Workforce Development has a helpful frequently asked questions page on this topic.  It is important to note that you still need to apply immediately in order to collect benefits after your waiting week is up.

 The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation.

Pursuant to the rules of professional conduct set forth in Circular 230, as promulgated by the United States Department of the Treasury, nothing contained in this communication was intended or written to be used by any taxpayer for the purpose of avoiding penalties that may be imposed on the taxpayer by the Internal Revenue Service, and it cannot be used by any taxpayer for such purpose.  No one, without our express prior written permission, may use or refer to any tax advice in this communication in promoting, marketing, or recommending a partnership or other entity, investment plan or arrangement to any other party.

Burglars Beware! : “The Castle Doctrine” in Wisconsin

I’m going to step out of the realm of taxes and pass along an interesting new law in Wisconsin.  On December 7, 2011, Gov. Scott Walker signed  2011 Assembly Bill 69, or as it is commonly known, “The Castle Doctrine”. 

This bill changes the rules relating to the use of force that is intended or likely to cause death or great bodily harm when defending against home intrusions.  The old rule was that in any situation, in order for the use of force intended or likely to cause death or great bodily to qualify as “self-defense”, the person using the force had to believe that the force was necessary to prevent death or great bodily harm to themselves or another person.  It is important to note that this type of force could only be used to defend people, and that deadly force could not be used otherwise. 

The new law creates a presumption that use of force intended or likely to cause death or great bodily harm is necessary to prevent death or great bodily harm (a person acted in self-defense) if: 1)  The person against whom the force was used was in the process of unlawfully and forcibly entering the actor’s residence, the actor was present in the residence, and the actor knew or reasonably believed that an unlawful and forcible entry was occurring; and 2) The person against whom the force was used was in the actor’s residence after unlawfully and forcibly entering it, the actor was present in the residence, and the actor knew or reasonably believed that the person had unlawfully and forcibly entered the residence. 

To put this into layman’s terms (which is the purpose of this blog), a man is entitled to “defend his castle”.  If someone breaks into your home while you are there, you can use any means necessary to stop it.  There are exceptions to this rule if you are also committing a crime while the break in takes place or using the house to further criminal activity, and if the person entering the home is a police officer.

Is the “Castle Doctrine” a good thing?  It will take awhile for the full ramifications to be realized, but there are certainly arguments on both sides of the issue.

 The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation.

Pursuant to the rules of professional conduct set forth in Circular 230, as promulgated by the United States Department of the Treasury, nothing contained in this communication was intended or written to be used by any taxpayer for the purpose of avoiding penalties that may be imposed on the taxpayer by the Internal Revenue Service, and it cannot be used by any taxpayer for such purpose.  No one, without our express prior written permission, may use or refer to any tax advice in this communication in promoting, marketing, or recommending a partnership or other entity, investment plan or arrangement to any other party.