OWCP Whistleblower!!

Here's an interesting story
http://www.propublica.org/feature/plan-to-pay-sick-nuclear-workers-unfairly-rejects-many-doctor-says-731

The Energy program is run by the same people in charge of the FECA program. Perhaps we are finally going to see things start to crack open and some accountability for the bad acts of those running this program.

The entire OWCP focus is on massaging statistics to make the program look good. There is NO focus on providing quality work.

MORE ON "THE LIVING TRUST"

In its most basic terms, the promoters of the Living Trust argue that you should transfer all of your assets to the Living Trust while you are alive. You (or you and your spouse) are the trustees of the trust and manage the trust assets for your own benefit. You can change or cancel the arrangement at any time. In sum, while you are alive nothing has really changed except that your assets are technically owned by the Living Trust, rather than by you as an individual. All of the supposed benefits of the trust come into fruition when you die. The promoters state that your assets automatically pass to your beneficiaries without the delay or expense of probate. The Living Trust also claims to ensure privacy and save thousands of dollars in attorneys fees. Finally, the promoters also mention how the Living Trust will save on estate taxes. Now I attended one seminar where a question was proposed: "Will this work if I have a home in Florida too?" The promoter responded: "Yes, we will hire an attorney in Florida to transfer title to the Living Trust, for a small additional fee, and thus you can avoid probate in Florida." But according to Florida attorney Ronald A. Jones: "The problem is that Florida law provides that a revocable trust is liable for the estate debts of the decedent; and there is a 2 year statute of nonclaim. In other words, if someone dies with a revocable trust, at least theoretically the trust is on the hook for 2 years after the person dies for any debts or claims against the person who died, and if the trustee distributes, or passes out the money to the beneficiaries before the 2 years is up, and that results in the trust not having the money to pay creditors, the trustee is liable to the creditors until the 2 years is up. However, there is an exception to this: if a probate is brought, and the estate is advertised, then the period the trust is liable is limited to 3 months after the first date of the advertisement of the estate. From a practical viewpoint, it makes a great deal of sense to bring a probate, and to close out creditors claims to 3 months after the advertisement, at least if there aren't a lot of bills to pay. Otherwise, the successor trustee would be very foolish to pay the beneficiaries if the trustee might be on the hook for 2 years. So, from a practical viewpoint, most, if not nearly all, revocable trusts in Florida wind up having a probate brought in order to close out creditors claims before the 2 years are up. If a probate is going to be brought to close out creditors claims, then there is not much point to a revocable trust for the sake of avoiding probate." Thus, my recommendation is that if you do decide a "Living Trust" is for you and you have out-of-state assets, I would consult with an "out-of-state" attorney to see if the New York "Living Trust" will work with that out-of-state asset.

THE "LIVING TRUST"

Well, the Power of Attorney is obviously a tool that may or may be helpful when considering one's "estate planning" in the event of disability. Have you read all the local ads for "Living Trusts"? This is different than the "Living Will" which typically is a document that provides instructions about your wishes concerning medical treatments or life-sustaining measures if you have a terminal condition, become permanently unconscious or are in a persistent vegetative state and lack the capacity to make or communicate those decisions. A living will "speaks" for you only when you are unable to communicate your wishes concerning health-care decisions or life-sustaining measures (many of these living wills are being replaced with statutory health care proxies, an issue to be discussed later). But recently, many of you have been hearing about "living trusts". Seminars are being sponsored by attorneys in which a presentation is made, refreshments are served and free consultations are offered. Fees can even be discussed with discounts available if you act within a certain time. Since we have been exploring the new Power of Attorney, let us now explore the "living trust". They are merely an old creature called revocable trusts. Revocable trusts have become increasingly popular in estate planning. Many people believe that by creating a revocable trust, naming themselves as trustees, and transferring their assets to the trust, they will save taxes, simplify the administration of their estates, and save money for their children or other beneficiaries. Unfortunately, these beliefs are not based in fact and are typical of the myths that surround so-called "living trusts." This will be the next topic of discussion.

FINAL THOUGHTS ON POWERS OF ATTORNEY

When representing a principal, the main disadvantage of a Power of Attorney is that it is subject to abuse: although there are now new rules requiring accounting,the use of monitors, execution rules, etc., it still does not have the same ongoing court supervision of the attorney-in-fact as there is in a guardianship. If the attorney-in-fact abuses his or her authority and acts improperly, a court may step in and take action. However, in many cases, the damage is already done, and it is difficult to undo it. Of course, you should take great care in selecting your attorney-in-fact. But I also see the great divisions it creates in families wherein one member is being made attorney-in-fact unknown to other family members. My suggestion is the following: after meeting with the principal, ascertaining their wishes and before executing a Power of Attorney, counsel should notify all family members that would receive notice under the rules regarding the appointment of a guardian. A meeting should be scheduled with all in attendance wherein the principal expresses their wishes and explains why they are executing the Power of Attorney, why a particular person was selected as attorney-in-fact, why certain powers were granted, etc. Let all family members discuss it among themselves and with the principal. Afterwards, then let the principal make their decision. Does this make the process costly? Yes, but, in the long run, it is worth it. I view the Power of Attorney as I view a prospectus for securities under federal securities laws and rules: notice and disclosure is the key!

LANDLORD & TENANT COURT: FOR LANDLORDS

As I was presented this case yesterday in Landlord & Tenant Court yesterday, I forward the advice the Judge gave to the landlord who was appearing pro se. I was representing the tenant and moved to dismiss the action on the grounds the papers were improperly served. My application was granted. Without going into details, there are probably many landlords out there who are knowledgeable, etc. and may be able to handle this process by themselves...but as the Judge advised the landlord in this case, and the following is as close as I can remember to a direct quote: "You are beginning a legal rpocess here by seeking an eviction in Landlord/Tenant Court. I am a Judge, I cannot advise you. But I suggest that before you commence a legal proceeding, you get the advice of a lawyer. Process Servers are not lawyers."

WILLFUL MISSTATEMENTS WHEN COLLECTING UNEMPLOYMENT BENEFITS

A break from Powers of Attorney, as this was a case presented to me and it highlights the importance of notifying the Department of Labor of all full-time and/or part-time employment you were engaged in, on the books or not, while you are applying for a benefits. They can find out so don't hide it. Section 594 of the Unemployment Insurance Law provides that "a claimant who has willfully made a false statement or representation to obtain any benefit ... shall forfeit benefits for at least the first four but not more than the first eighty effective days following discovery of such offense ...". It further provides that the claimant shall be deemed to have received benefits for such forfeited effective days", and that "A claimant shall refund all moneys received because of such false statement ...". Not every false statement subjects a claimant to the penalties provided in sub. sec. 594. A claimant may provide information (s)he believes to be true, which ultimately proves to be incorrect. In such instances no penalty applies. However, if it is established that the claimant was aware of the true situation, but gave false information, or purposely failed to fully disclose the facts, a determination of willful misrepresentation should be made. As the courts have held, "'willful' as used here does not imply a criminal intent to defraud but means 'knowingly' , 'intentionally' , 'deliberately' to make a false statement. (Matter of Vick, 12 AD 2d 120) Thus, for example, a claimant who places "N" in the calendar insert and certifies that "I did not work in employment or self-employment although (s)he knew (s)he had worked two days and received pay is subject to the penalty for willful misrepresentation notwithstanding that the claimant honestly misinterpreted the law and believed the work had no effect on benefit rights (Matter of Vick, 12 AD 2d 120) ". The following is a link to the Department of Labor Standards for making willful misrepresentations:
http://www.labor.state.ny.us/ui/aso/A710.htm#71021

THE ESSENTIAL RULES OF THE NEW POWER OF ATTORNEY

Here are the essentials of the new Power of Attorney Law as prepared by Joan Lensky Robert, Esq:

OVERVIEW OF TERMS AND PROVISIONS
1. Benefits from governmental programs includes governmental regulations,Social Security, military, Medicare and Medicaid.
2. Sign means any mark, including electronic signature, other than if the document will be used to record real property.
3. Statutory Major Gifts Rider (SMGR) must be SIMULTANEOUSLY EXECUTED BY PRINCIPAL AT TIME OF EXECUTION OF POA AND MUST BE INITIALED TO SHOW INTENT.
4. POA is durable unless expressly not.
5. Agent must account to a Guardian if one is appointed.
6. Agent may sign after the principal becomes incapacitated.
7. POA must be in 12 point font and contain the cautionary language and Important info language to be the statutory short form poa.
8. To be valid as to an agent, the agent must also sign. If 2 agents are to act jointly, they must both sign.
9. Other POAs may be used, but they will not be considered statutory POA. However, any POA executed after September 1, 2009 must contain a SMGR to be effective for gifts.
10. Execution of POA: By principal, before a notary, as a deed is executed in NY.
11. Agent must also sign before a Notary, in the manner that a Deed is executed.
12. Statutory Major Gifts Rider (SMGR) is signed by principal before 2 witnesses & notarized
WHAT POWERS DOES THE AGENT HAVE?
13. Powers for banking, retirement, chattel, real property and insurance do NOT include the authority to change beneficiaries or add beneficiaries if there is no SMGR.
14. If agent has a joint account with principal, the agent cannot add or eliminate joint owners or totten trust beneficiaries without SMGR.
15. New accounts may be opened with POA but they may NOT be solely in the name of the agent unless the intent is to make a gift, which may occur ONLY WITH SMGR.
16. No need to explicitly state in POA which estate or trust the agent may act upon for the principal.
17. Agent may continue tradition of gifts to individuals and charities under Personal Relationships BUT ONLY UP TO $500/YEAR without SMGR. Proposed amendments to the POA statute will clarify that the $500 annual gifts is a TOTAL of such gifts aggregated, and that no gifts may be made to the agent absent the SMGR.
18. Agent cannot make health care decisions but MAY REQUEST HOSPITAL BILLS & RECORDS AS AGENT AUTHORIZED TO MAKE PAYMENTS FOR HEALTH CARE.
19. Agent may NOT designate a third party to be the agent under a health care proxy to make health care decisions.
20. Agent may establish intervivos trust and may revoke the trust so long as that power is given in the SMGR.
HAVING THE POA HONORED
21. No third party shall refuse to honor a POA without good cause. Good cause would be the agent’s failure to provide an original or atty or court certified copy of POA, or the third party’s knowledge that there has been a referral to Adult Protective Services, or ACTUAL knowledge that principal is deceased, or incapacitated when POA is not durable.
22. Third party cannot refuse to honor POA by requiring its own form OR because time has elapsed since the document was executed OR because time lapsed between the principal’s executing the POA and the agent’s executing the POA.
23. REVOCATION OF POA: Given to financial institution at the office where accounts are located.
24. Third party may require Affidavit that POA is in full force and effect.
WHAT MUST THE AGENT KNOW ABOUT HIS/HER RESPONSIBILITIES?
25. Fiduciary duties and standard of care that agent owes to principal are set forth:
A. Must act in best interest of principal
B. No commingling of assets
C. Must keep records and be able to present them WITHIN 15 DAYS to a monitor, if appointed, or to the principal or to a coagent or successor agent or to Adult Protective Services or to a Court Evaluator, or GAL or Guardian or Conservator or to the Personal Representative of the estate of the deceased Principal.
D. Agent may be liable for breaches of fiduciary duty if proceeding is brought to compel the agent to provide records.
E. When agent engages in transaction, s/he is acknowledging that Principal is alive, and that agent has authority to engage in this transaction and has no knowledge that POA has been revoked.
26. Agent may RESIGN by giving notice to principal, successor agent, the monitor or guardian. If principal is incapacitated, agent may petition court to resign.
27. Principal may PROVIDE FOR ALTERNATE METHODS OF RESIGNATION in the POA.
28. Agent may be paid for services SO LONG AS POA SO PROVIDES.
29. Agent shall sign: AGENT as agent for PRINCIPAL or PRINCIPAL by Agent.
POTPOURRI OF PROVISIONS:
30. Principal may appoint a monitor to receive financial documents. Monitor does NOT have fiduciary duty.
31. N.Y. GOL 51510:
A special proceeding may be commenced by someone who is authorized to request records but has not received them OR to determine whether POA is valid or if Agent should receive compensation, or to remove the agent or to construe provisions of the POA or to compel a third party to honor the POA
32. POA terminates upon death of principal or its revocation.
33. Agent may no longer act if principal revokes agent’s authority or is spouse of
principal and they become divorced.
34. Principal may request information on his/her finances from agent at any time.
35. When 2 agents are appointed, it is presumed that they may act separately unless the POA is initialed ( ) My agents may act separately.
36. This POA revokes prior POAs unless it indicates that it does not.
37. If the agent is to receive compensation, the Principal must check ( )My agent shall be entitled to reasonable compensation for services rendered.
REVOCATION OF POA:
38. Written, signed and dated revocation must be delivered by the principal to the agent and to any third party that principal believes has received POA or acted upon POA.
39. If POA has been recorded, the revocation must be recorded.
40. Third party must have ACTUAL notice of revocation – recording the revocation is not actual notice to a third party.
41. Agent MUST HONOR the revocation unless the Principal is subject to a guardianship under Article 81 of the Mental Hygiene Law.
MODIFICATIONS
42. Additional provisions may be included, such as how an agent may resign.
43. If this POA is not intended to revoke prior POAs this must be indicated here.
44. Powers such as the power to waive or exercise an elective share or represent the principal’s interests in educational decisions or to express the intent to return home, often used in Elder Law planning, may be granted here.
45. The method of compensation to the attorney in fact may be indicated here.
STATUTORY MAJOR GIFTS RIDER (SMGR)
46. Must be of 12 point font
47. Principal’s signature must be NOTARIZED AND WITNESSED BY 2 WITNESSES, NEITHER OF WHOM IS A PERMISSIBLE DONEE.
48. Standard power: annual exclusion gifts to spouses, children, more remote descendants and parents (or twice that amount if the spouse will split gifts for gift tax purposes).
49. Additional power: A SPECIFIC AGENT is authorized to make the ABOVE GIFTS to him/herself.
50. If gifting above the annual exclusion amount is authorized, that must be specified. The purpose should also be specified (i.e., elder law planning, tax
planning). EX: UNLIMITED GIFT GIVING TO ALL OF MY CHILDREN, INCLUDING TO MY AGENT, ____, in order to effectuate an asset preservation plan. HOWEVER, ANY GIFTS MADE TO MY CHILDREN SHALL BE IN EQUAL SHARES… PROVIDED THAT GIFTS FOR THE BENEFIT OF MY CHILD…. SHALL BE PAID OVER TO A SUPPLEMENTAL NEEDS TRUST THAT I AUTHORIZE MY AGENT TO ESTABLISH FROM MY FUNDS.
EFFECTIVE DATE
51. September 1, 2009 for the repeal of the prior Statutory Short Form Power of Attorney
52. POAs executed properly prior to September 1, 2009 are still valid.
53. Nonstatutory POAs executed AFTER September 1, 2009 MUST STILL HAVE A SIMULATANEOUS SMGR to authorize giftgiving by the agent, and NOT ONLY GIFT GIVING TO HIM/HERSELF, BUT ANY GIFTGIVING.
54. The FIDUCIARY DUTIES are effective for POAS executed prior to September 1, 2009
55. The special proceeding may be initiated to clarify the validity of the document for POAs executed prior to September 1, 2009