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The Supreme Court of South Carolina recently found that a man who helped a friend with her will engaged in the unlawful practice of law even though he merely filled in the blanks on a generic will form. (Franklin v. Chavis, S.C., No. 26251, Jan. 22, 2007).

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            The Case of the Too-Helpful Insurance Agent:  Filling in a generic will form for a friend or family member may seem like a simple task, but be careful -- it could be considered the unlawful practice of law. The Supreme Court of South Carolina recently found that a man who helped a friend with her will engaged in the unlawful practice of law even though he merely filled in the blanks on a generic will form. (Franklin v. Chavis, S.C., No. 26251, Jan. 22, 2007).

 

            Annie Belle Weiss asked Ernest Chavis, an insurance agent, to prepare her will. Mr. Chavis used a "Quicken lawyer disk" to generate a generic will on his computer. He filled in the blanks per her instructions and brought it to Ms. Weiss to sign. Ms. Weiss's grandniece's objected to the distribution under the will, which left most of Ms. Weiss's estate to her nephew by marriage and named Mr. Chavis as the personal representative of her estate.

 

            The Supreme Court of South Carolina found that Mr. Chavis engaged in the unlawful practice of law. According to the court, Mr. Chavis did more than act as a mere "scrivener" (someone who prepares a document on someone else's instructions). The court noted that the fact that Mr. Chavis prepared the will for no charge was irrelevant. Because he engaged in the unlawful practice of law, the court sanctioned Mr. Chavis and ruled that he could not receive any fees for his service as personal representative of the estate.

 

            New Federal Law Changes Annuity Rules:  The recently enacted Tax Relief and Health Care Act of 2006, includes several "technical corrections" to the Medicaid provisions of the Deficit Reduction Act of 2005 (DRA).  One was made to the annuity rules in the DRA's transfer-of-asset provisions.

 

            The DRA requires that Medicaid long-term care applicants name the state as the remainder beneficiary of annuities in which they have an interest, in an amount equal to what the Medicaid recipients receive in coverage from the state. The DRA provided that the remainder rights of the states were equal to the amount paid on behalf of an "annuitant" - who could be the spouse who remained at home.  The recently enacted Tax Relief bill replaced this word with the term "institutionalized individual."

 

            Thus, if a wife of a nursing home resident purchases an annuity, under the DRA, she must name the state as the remainder beneficiary for her own potential benefits.  Under the recent change under the Tax Relief bill, she now may have to name the state as the remainderman for her husband's care instead. The change is retroactive to February 8, 2006.

 

            President Helps Family Care Givers: President Bush signed a bill in January making it easier for an estimated 50 million families caring at home for adults and children with special needs to find respite care. The Lifespan Respite Care Act provides $289 million over five years for states to train volunteers and provide other services to families.  Respite care can come in many forms, from tutoring autistic children to helping feed and dress an elderly parent to transporting someone to a doctor's appointment.

 

            While $289 spread over five years for fifty states is wholly insufficient funding, the Lifespan Respite Care Act is a step in the right direction.  In effect it recognizes the selfless sacrifices made by millions of family care givers - sacrifices that save this country countless more than $289 million every year.  It also holds out the possibility that family care givers may eventually receive more significant help.

 

            Richard Habiger is an elder law attorney.  You may contact him at 618-549-4529 or Richard@HabigerElderLaw.com.

 

 


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