Grandparent Visitation Rights

Almost a decade ago, I wrote an article on a decision of the United States Supreme Court on the issue of grandparent visitation rights.  In some instances, when a married couple divorces, the divorce literally tears the family apart.  A husband and wife who were at one time madly in love now cannot stand one another.  In some cases, one or both ex-spouses struggle to invent ways to get under the skin of the other.

In the process, the young children of the former couple are often hurt, as are other members of the extend family.  For instance, a grandparent who had a close relationship with their minor grandchild may be forbidden the right to see the grandchild by the custodial parent.

There are also instances where a married couple who are happily married seek to foreclose a relationship between a grandparent and their minor child, for whatever reason.  In some cases, there may be justification for the denial of visitation between the grandparent and the minor child.  In other cases, the denial may have no logical justification at all; the denial may even be for purely vindictive reasons.

In 2000, the United States Supreme Court addressed the issue of grandparent visitation rights in a case entitled Troxel v. Granville.  In 2003, the Supreme Court of New Jersey addressed grandparent visitation rights in a case entitled Moriarty v. Bradt.  In essence, a grandparent who seeks visition with a grandchild over the objection of the parents of the child must prove that the deprivation of visitation between the grandparent and child is harmful to the child.

There is currently pending in the New Jersey Legislature a bill that will codify the Troxel and Moriarty decisions.  If the bill becomes a law, the law will outline the standards that a grandparent must satisfy in order for a court to establish a schedule of visitation between the grandparent and the minor child over the objection of the child’s parents.  The bill is pending in the Assembly; the bill’s number is A2945.

Quite frankly, the pending bill adds nothing to the current body of law.  The two supreme court decisions referenced above already outline the standards that a grandparent seeking visitation must satisfy.  While the bill will do no harm, I do not believe it will do any good either.  It simply reiterates what everyone in the know already knows.

Tort Reform

I had some free time this Christmas Eve, and I wanted to write a brief blurb on an issue that bothers me every time I hear it.  I do not profess to know what the solution is to healthcare costs in the United States.  Healthcare costs are about 18% of our $15.6 Trillion dollar economy.

Someone, I forget who, said the United States government is essentially an health insurance program with an army because of the extent to which the federal government’s budget is devoted to the armed forces and health insurance, through the Medicare and Medicaid programs.  I thought that was a funny analogy, but true.

It is clear that something must be done to both rein in healthcare costs and to acheive a higher level of care for the money we put into the industry.  In short, as with any trillion-dollar industry, there is waste.  A lot of savings could probably come from cutting back on the amount of waste there is in the system.

One of the perennial solutions that is posed to resolve the skyrocketing cost of health insurance is tort reform.  Tort reform is a phrase that is bandied about so often that you would think the majority of Americans actually know what a tort is.  Being a lawyer and talking to people all day about legal issues, I realize that the majority of Americans do not know what a tort is and do not know what the implications of tort reform are.  I think the phrase tort reform sounds smart, so if a politician says “We need tort reform.  We need to cut out these fat-cat lawyers,” Americans who align themselves with that politician’s ideology say to themselves “Hell, ya, that’s what we need.  Let’s get rid of those lawyers.”

A “tort” is a civil redress for an injury; stated otherwise, when you are hurt by someone (for instance, in a car accident or because they performed a surgery incorrect and caused you damage), you have the right to sue that person in court and obtain money damages for your injury.  Torts are what personal injury attorneys work with in their practice.  A disclaimer:  I am not a personal injury attorney.

So, how does tort reform work?  It could work in a number of ways, but here’s an example:  A State might pass a law that says if a resident is injured by a physician as a result of the physician’s negligence, the resident can recover no more than a set dollar figure for that injury.  For instance, the law might set a cap of $750,000 that the injured person can recover.  No matter what the injury, the victim can only recover $750,000.

That sounds reasonable right?  With a law such as that, the professional liability insurance companies that insure physicians can insure physicians at reasonable prices because the insurance companies know that there is a hard-cap on their damages in any given case.  Physicians pay less for insurance, and so the argument goes, the physicians will charge the patients less because the physicians’ overhead is lower.  This is trickle-down economics.

Putting aside that trickle-down economics is a joke that the rich have played on the not-rich for about three decades now (the physicians will simply have lower overhead but will charge the same amount to the patients thereby making more of a profit), tort reform can be very bad for the person who was injured.

Here’s an example of which I have firsthand knowledge.  A client came to me several years ago.  He and his wife were originally from New Jersey but moved to Virginia.  They were in their forties and had two children under the age of 10 at the time.  The wife had elective surgery to remove a bunion.  As the result of the surgeon’s negligence, the wife had a stroke.  She spent the remainder of her life in a nursing home and died several years later, leaving her young children motherless and her husband without his wife.

Virginia had enacted tort reform that limited the physician’s liability to a maximum of $750,000.  There is no question that the physician was negligent in this case.  He admitted he was negligent, but the family only received $750,000 for their loss.  The loss of a young mother.  The loss of a young wife.  Sound good to you?  If so, then you should write your senator and congressman and tell them you want tort reform.  But before you do that, imagine that you were that woman.

Do you think $750,000 justly compensated you for the fact that you would spend the remainder of your short life in diapers in a nursing home and never be able to interact with your family again?  What about the fact that the $750,000 ends up going to pay the nursing home, so your family nets nothing from the recovery except for the fact that they lost you?  Sounds good, huh?

No, it doesn’t.  It’s asinine.  People should stop mentioning it.  Legal fees aren’t at the heart of the United State’s $3 trillion dollar a year healthcare costs.  Reducing legal recoveries and legal fees will not result in physicians charging less.  Reducing legal recoveries only results in people not receiving just compensation for their injuries.


Season of Giving

It’s the Season of Giving, and some of my clients are thinking about giving money to their family members.  As I have said in the past, no single issue garners more attention from more of my clients than gifting.  My client will ask: “We can only gift $10,000 a year, right?”

I’m never quite sure what the client believes will happen if they gift over the amount they believe they can gift.  And, by the way, that “amount” varies from $10,000 to $14,000 a year, depending upon how informed the client is.

These amounts that clients mention to me are what is technically called the annual exclusion gift amount.  Over the past decade, the annual exclusion gift amount has increased from $10,000 a year to $14,000 a year.  The annual exclusion will continue to increase as time passes because it is indexed for inflation.

But what does the annual exclusion amount really mean?  To understand that question, you have to understand the basics about gift tax.

The United States government imposes a tax on all gifts from one individual to another.  New Jersey does not impose a gift tax.  (It is my understanding that some states also impose a gift tax, but not New Jersey, and since I only practice law in New Jersey, I only worry about New Jersey law.)

The fact that the United States imposes a gift tax on all gifts that an individual makes may sound scary; however, that rule has an exception so big that it is truly a situation in which the exception swallows the rule.  Every person receives a $5,000,000 exemption from gift tax.  This exemption, like the annual exclusion amount, is indexed for inflation.  Currently, a person can gift $5,250,000 without paying gift tax.

Let’s pause here for a moment.  Do you have $5,250,000 in assets?  Most people do not, and if you do not, you never have to worry about paying gift tax because you could gift every single asset that you own and never pay gift tax.  You have to gift more than $5,250,000 in order to ever have to worry about paying gift tax.

If that weren’t enough, there are certain additional exclusions to federal gift tax.  One of those additional exclusions is the annual exclusion gift amount.  In other words, the annual exclusion amount, currently $14,000, isn’t a limitation on the amount a person can gift tax free; it is an enhancement to an already large ($5,250,000) lifetime exclusion.

The annual exclusion exception to gift tax permits every taxpayer to gift $14,000 a year to an unlimited number of people without reducing their lifetime exemption amount, currently $5,250,000.  A married couple can gift twice the annual exclusion amount, or $28,000, to an unlimited number of people without reducing their lifetime exemption amount.  There is no requirement that the person who receives the gift be related to the person making the gift.

So, Mr. and Mrs. Smith could gift $28,000 to each of their children, each of their children’s spouses, each of their grandchildren, and every friend they have or every person they ever met without reducing their $5,250,000 life exclusions.  Mr. and Mrs. Smith each receive a $5,250,000 lifetime exemption from gift tax, so between the two of them, they could gift $10,500,000 without paying gift tax.

If Mr. Smith were to gift $15,000 to one of his children in one year, he would reduce his lifetime exemption from $5,250,000 to $5,249,000.  But unless the Smiths were to gift more than $10,500,000, they would never, under any circumstance, have to worry about gift tax.

So, feel free to give this Christmas Season.

Storing What’s Important

Where do I keep my estate planning documents?  It’s a question I get a lot from clients, and it’s an important question.

It is very important that every person over the age of eighteen have the three basic estate planning documents—a last will and testament, a financial power of attorney, and an advanced healthcare directive.  When you are over the age of eighteen, no person other than you can make decisions (healthcare decisions, financial decision, residential decisions) for you.  Not your spouse.  Not your children.  No one.  You are the only person who can make decisions for you.

And typically, we think that’s a good thing.  We don’t want other people making decisions for us.  We value our autonomy, but when we cannot make decisions for ourselves because of physical or mental infirmities, we typically would want our loved ones (our spouse, our children) to be able to make decisions for us.

For this reason, most elder law attorneys, such as me, recommend that you sign a last will and testament, a financial power of attorney, and an advanced healthcare directive.  Most clients will name their spouse as their primary agent and their children as their secondary agents.

If the client engages the services of an experienced elder law attorney, I am rather confident that their estate planning documents will be well-drafted.  By well-drafted, I mean that the client’s estate planning documents will be drafted in such a way that their family member can make any decision the family member needs to make for the client if the client needs someone to make decisions for him.

But what if the family cannot find the client’s estate planning documents?  It’s great to have well-drafted estate planning documents, but the documents are of no value if the people who need the documents cannot find the documents.

When a client engages my services, I will give the client two original financial powers of attorney and two original advanced healthcare directives.  I recommend that my clients give their physician a copy of their advanced healthcare directive so the document can be entered as part of their medical record.  If the client goes to the hospital, I recommend that the client bring the advanced healthcare directive with them, so the document can be entered into their records with the hospital.

The financial power of attorney should be provided to the banks where the client has accounts and to the brokerage firms where the client has accounts.  In this way, the financial power of attorney can be entered as part of the client’s records; moreover, if the financial institution has their own power of attorney document that the financial institution wants its clients to sign, this issue can be brought up and the financial institution’s power of attorney can be signed by the client.

As for the Will, I will offer to retain the original Will for the client in my offices.  If the client asks me to retain the Will, I provide the client with a copy of his Will.

Many clients will ask “What if something happens to you?”  While the question is a bit disturbing to me, it is a fair question.  (And since I spend my days asking clients who they want to get their money if they die, I have to concede that my clients should get to ask me the same basic question.)

If something were to happen to me, then my office would have to either give back all the Wills or give the Wills to another experienced elder law attorney who would have to inform the client that he/she has the original Will.

It typically is not advisable to put your estate planning documents in a safe deposit box unless multiple, other family members are named on the box and can access the box without your consent.

Informed Medical Decisions: A Matter of Life and Death

We’ve all heard of a “living will.”  It’s that document that says you don’t want to be on a respirator.  When asked, some peoples’ immediate reaction is, “Oh, ya, that allows them to pull the plug on me.”

Yet, recent changes to the laws governing the privacy of your medical information may prevent your family or friends from making an informed decision for you.  In a prior column I discussed the Health Insurance Portability and Accountability Act of 1996, commonly known as “HIPPA.”

Although the law was passed in 1996, the regulations implementing the law did not come into effect until April of 2003.  And those regulations have many health care providers—hospitals, doctors—confused and hesitant to share any medical information with third-parties.

To a large extent, the fact that health care providers cannot share your medical information with others is a good thing.  I’d like to think my medical information was confidential.  For instance, I wouldn’t want a drug company calling me up at 8 p.m. telling me that they have some drug that will help me with that little problem I discussed with my doctor today.  I’d like to keep my little problem between my doctor and me.  (I actually don’t have a little problem; this is just a hypothetical.  No, really.  I don’t.)

But sometimes you would want your information shared with other people.  For instance, let’s say you are a well-organized person and you had a lawyer draft an “advanced health care directive” for you.  An advanced health care directive is a document that says how you would want to be treated if you were unable to make medical decisions for yourself (that is, a living will) and that appoints someone (called your “health care agent”) to make medical decisions for you, if you cannot (that is, a health care power of attorney).

Let’s further assume that you suffer a stroke and are comatose in a hospital.  Your health care agent comes to see you at the hospital.  Introduces himself to your doctor, and your doctor says, “What should we do?  We might have to place your father on a respirator.  Should we?”

Your agent has your advanced health care directive with him.  The directive says that you don’t want to be placed on a respirator, but your agent isn’t quite willing to give up on you.

So, your agent asks, “If we place my father on a respirator, is he going to stay like that or might he come off the respirator someday?”

“Good question,” says your doctor, “but I can’t share your father’s medical information with you because of this new federal law called HIPPA.”

Now this hypothetical may or may not happen in the real world.  I’d like to think that for such a grave decision, when a close family member presents a properly executed advanced directive, that a doctor would share as much information with the agent/family member as would be needed to make an informed decision.  But in the months following the enforcement of the HIPPA regulations, you can never be too sure of what information a health care provider will or will not disclose.

The best remedy is to draft specific language dealing with HIPPA and the disclosure of medical information into your advanced health care directive.  By properly crafting the wording of the document, you can ensure your agent’s access to information that is vital to his proper decision-making process.

The federal government may create specific exceptions in the law that will allow health care providers to share information with agents named in properly executed advanced directives, but I think it unwise to wait on government action.