Why We Do What We Do

I just finished a pretty good book called Start With Why by Simon Sinek.  (It’s a little repetitive and he disses on Apple some, but other than that, it’s pretty good)  It’s the book that spun off from his very popular TED talks appearance of the same title.  If you haven’t seen the video, you should, it’s pretty good. I put the link at the end so you can watch it AFTER you read my post.  🙂

This book got me thinking not just for myself but for my practice, “why do we do what we do?”.  Is it the money?  I don’t think so.  I made more money as a Physical Therapist than I did as an attorney for all but the most recent years.  Is it just a job?  No way.  There are easier ways to make a decent living than fighting the the State most of the time.  Why do I do this?  The reason I do this is that I am a “helper” at heart.  That’s why I loved my job as a Physical Therapist.  I loved to discharge people that had started with much pain, dysfunction or inability to do what they wanted and see them now be able to get back to a life to which they were accustom.  It was a great feeling.  Now, I get to work with families that are typically in the final decades or maybe years or months of their life and they have come to me to make sure what they have worked so hard for their entire life is going to first, be protected and second, go to who they want it to go to.  That is a HUGE responsibility and one that I will never take lightly.

I remember one time a family was able to barely get the patriarch of the family into the office to see me.  Whole family was there and the father (of an Italian family) wanted to make sure his affairs were in order and that the estate would go the way he wanted it to go.  I sat their and let the gravity of what I was doing sink in for some time.  This was probably the most important decision and process this man had ever gone through and he was trusting me to make sure it happened.  Wow.

I have never worked for a firm that I didn’t own.  I have always worked for myself and done things the way I wanted them done.  I do things very different than most attorneys.  We as attorneys have a fiduciary duty to our clients.  That is a very high duty to do for the client what is in their best interest.  For the life of me, I cannot see how forcing a family through probate by doing only a Last Will and Testament for them is in any way in their best interest.  I wish someone would tell me so I would not think such bad thoughts.  I go to great lengths to make sure my clients know all the options, what option is best for them and then to do my best to make sure that happens.  Many times, the option I recommend to people IN THEIR BEST INTEREST is the cheaper option by more than half.  Both of my options are cheaper than the option they will typically get from most other attorneys but out of the options that do good things for them, in the vast majority of the cases, it is the cheaper option.

Why do I do what I do?  To make sure the people that built this country, literally, the roads, the buildings, the economy, get good competent and ethical advice that is in their best interest.  That makes me feel good when I go to sleep each night.  I know that I have done well for people.

Then when  a family is facing long term care expense, I am able to save half in the worst case scenario and with a married couple pretty much all of the estate.  Families come into me thinking they are going to lose everything and walk out knowing they will lose very little.  What better job is there than that?  This, and knowing that their loved one is going to get the care they need and have the money to pay for it.  Seriously, it doesn’t get better than that.  That’s why I do what I do.

I know this, but does my staff?  I think so but I don’t know.  I’m going to go person to person and talk to them and find out, why they work in this firm.  It should be interesting.  I will post the results.

Now, here is the link to the video.  I trust you read this rather than cheated and skip down here.  🙂

https://www.youtube.com/watch?v=sioZd3AxmnE

Going to the Hammer Store

What if there were a store that only sold hammers.  When you go to the store with your particular problem, the answer was “you need a hammer”.  You might have a nail that needs to be driven, so, yes, you are in the right place.  But what if you needed to change a tire.  ”Oh, yes, you need a hammer.  Just bang those nuts till they come loose”.  What if you need to mow your yard?  ”Yep, this hammer will do the job”.  What?  You need to get the back off of your watch.  ”Absolutely, this hammer will work”.  Ridiculous, right?

Well, I am writing this in response to a “financial services” person that I heard is saying bad things about me since I did not agree to do an “exclusive relationship” with him/her, meaning, I send him/her all my clients and he/she sends me all of his/hers.  The problem with this (and a few other) “financial” services provider is that they work in the hammer store.  Their hammer though is an annuity.  It’s amazing how this “advisor’s” solution to every financial situation is an annuity.  It really doesn’t matter what your problem is, an annuity is the fix.

Why is this?  Annuities pay really good commissions.  ”But wait Todd, the advisor told me that there was no fee.  She said when I get my statement, you will see that all of the money was deposited into the account”.  That is true.  However, the person who sold you this got a commission of near 10% and possibly 15%.  Where did that money come from?  The company paid them.  If you notice (and listen or ask the right question) there is a surrender charge for the next number of years where you will lose a certain percentage of the investment if you want your money back.  Usually, the numbers of years of the penalty for cashing in is the percentage amount the advisor got of your investment.  So, if you cannot get to your money (all of your money, not the 10% they brag about) for 10 years, your advisor most likely got a 10% commission of what you gave them.  The company is not going to lose money.  They know that they will get that commission back if you cash in early.  They will invest your money to make back that 1% per year commission and get significantly more than the 1%.  That’s how they make money.

People (and these advisors) sometimes get upset when I charge maybe $7500 to save them hundreds of thousands of dollars which require me to do many months of work, but that is because they are writing me a check directly.  However, if you gave your annuity salesman $100,000, there a good chance he or she made that much off that sale, basically for filling out an application.  What if you invested a few hundred thousand?  Commissions could easily reach tens of thousands of dollars.   The commission on other products is not nearly as lucrative since your money is not locked away for a period of time.  Now you see why they work in the hammer store?

I’m not saying all annuities are bad.  There is one particular annuity we use in Medicaid planning but it’s not used as an investment but as a huge exemption in the Medicaid policy that is dictated by Congress.  This is the ONLY annuity that works with Medicaid.  If your advisor tells you that the annuity they are selling you prior to the need of Medicaid will protect you from Medicaid, please have them call me and discuss this.  The DHS policy does have some language that would make you think that annuity payments are not counted, but that is not how it works.

I don’t sell financial services.  There may be a time when you do need an annuity but I think that is only after you have been given all of the options of the different financial devices available with legitimate pros and cons of each.  When an “advisor” i.e. annuity salesman, answers every question with “you need this annuity” just think of the hammer store and wonder, “am I driving a nail or am I needing to change my tire?”.

My take on D-Day as an Elder Law Attorney

My take on D-Day, as an elder law attorney. I studied this day in history, I watched the movies about it. But until you shake the hand and look into the eyes of a man that was there, that those eyes saw buddies he was just sitting beside on a boat mutilated, you really don’t appreciate what they went through. Almost without fail, they will not talk about it. I have gotten a few comments out of a few of my clients, but not many. I never served in our military and that is one of numerous regrets. I know our guys now are going through some ugly stuff now. There is something special about these VERY brave men that walked off that boat into water and then onto a beach with tremendous amount of death and destruction going on around them. If you know one, please shake his hand and say thank you on any day, but particularly on this day.

“So why should I believe you?”

I get this question periodically.  My case manager got it again this week on a phone call of someone calling to see if we can help them.  My case manager gave this lady some basic information about what Medicaid lets you keep and still qualify.  His information was different than the information she got from another attorney.  Therefore, since two attorneys are telling her different information (and I’m assuming this attorney was a long time attorney she had dealt with) then “why should she believe us?”.

It’s difficult to answer that question on the phone.  In my conference room, I have all of my diplomas and my recognition for different qualifications I have to answer such questions.  Our ethical rules do not allow me to compare myself to other attorneys, but I feel that I can distinguish my qualifications from those of a different attorney.

I truly have faith in the designation of being a Certified Elder Law Attorney.  Having been on the board of the National Elder Law Foundation (www.nelf.org), the certifying board for Certified Elder Law Attorneys nationwide, I feel confident that we do a good job of certifying who should carry that designation.  We are constantly under barrage by those who do not pass the test to lower the standards of the test so more people qualify.  I resoundingly refuse to do so.  The test that is given has been verified and I think it does a good job of weeding out the people who truly know the many different areas of elder law and can state that knowledge.  Our goal is to make sure that we can refer a client to another CELA and know that they will get good solid ethical advice about elder law.

I proudly admit that I don’t know much about most areas of the law.  I apparently knew enough to pass the bar, but I do not know those areas now as well as I did back then.  However, the area that I practice, I know that area very well.  All of my continuing legal education is on elder law issues.  My advanced education after law school was in elder law when I received an LL.M in Elder Law from Stetson University in Florida.

So, I am not saying I am better than any attorney.  When someone ask me why they should believe me or my staff when we tell them something, credentials and experience should go a long way.  Elder Law is all we do.  My office has completed more than 3000 Medicaid applications.  I think I know what Medicaid lets you keep and what they will make you spend.  If you have questions, please call us.

Helping further the cause of Elder Law nationally

I’m very humbled but glad to announce that I have been elected Vice President of the National Elder Law Foundation Board of Directors. If you know me, you know that I am pretty simple. I studied hard in school and worked hard to get anything that I got. Becoming an attorney was a struggle with small children at home and working full time. As you probably know, I practiced general practice for a year and hated it. I knew that I needed to either go back to Physical Therapy or figure out some other area of the law on which to focus. My career as a PT had always focused on the elderly. I did some research and discovered that there was the area of the law that focused on working with the elderly. I jumped in with both feet.

In most areas of the law, most attorneys are willing to assist you to get started. That was not the case with elder law. I learned this pretty much by myself. Once I got into it, I learned that elder law is one of the few areas that allow for an attorney to specialize and to become certified. I then set my sights on becoming a Certified Elder Law Attorney. There was only one in the state at the time (he was very helpful when I asked, by the way) and I wanted more than anything to become the second.

Having practiced for 5 years and having done what I thought was needed to sit for the test, I then took the test. I did NOT pass. How dare them not pass me!!!! I was devastated at having not proven myself worthy. Looking back, I did not deserve to pass. I then really studied and then passed on my second attempt. That was one of the happiest days of my life since that designation told me that I knew what I was doing but also let the world know that I was worthy of holding the designation of Certified Elder Law Attorney. There are very few attorneys that have that designation and I knew that put me into a very small but distinguished group of attorneys in the state and nationally.

Then a few years later, I received a phone call from the then President of the Board of Directors, Steven Spano, who I respected greatly, wanting me to be on the Board. “What!!?!?! Me, Todd Whatley, a guy from Arkansas who stuttered and was made fun of as a kid, now being on this national board???” I was floored. I told Mr. Spano that would be honored to be on the board of such a great organization and to also share a board seat with the true leaders of the profession. I thought then my career goal had been met. They gave me some pretty high goals to meet regarding marketing CELA’s nationwide. I’ve done that with all of my abilities and with the help of other board members and other CELA’s throughout the country, the fruit of that is coming to light and over the next few months, that will become very obvious. When I was nominated Vice President, once again, I was highly honored and shocked.

The National Elder Law Foundation is doing some great work. We work to certify attorneys that meet the very strict requirements to carry the designation. We are currently under fire because some very good attorneys have not passed the test. The test grading is truly anonymous and the graders want to feel confident that the person they are grading knows this sufficiently well so as that they would feel comfortable referring a close friend to that person. As a grader, I have seen answers that make me feel good but then some of the answers were truly lacking. We also continuously monitor the attorneys that carry the designation to ensure that they continue to meet the requirements.

I’m not sure why I am posting this other than to let the world know that I feel so blessed to be involved with a great organization and then I am honored for that organization to see fit to put me in such a high level of leadership. I am truly grateful. Keep an eye on the NELF website (nelf.org) over the next few months. Also, tell the elderly folks and their families that you know that there are attorneys out there that know how to work with the elderly and their families. Also, it’s almost never too late to do something to help. Those attorneys that have the designation of CELA are well versed in this area of law but there are also attorneys out there that for what ever reason don’t have the designation, also know what to do, but they are harder to distinguish.

I am proud to be a CELA and am honored to work so closely with some truly remarkable people.

“I sure thought I was in the hospital” – Admission v. Observation

A decision has just come down from a Federal Judge that is not good for those on Medicare.  The case is Bagnall v. Sebelius in the US District Court in Connecticut.  What this case specifically addresses is the time when a person who is a Medicare Beneficiary goes into the hospital and stays a few days.

If you have heard me speak or read my writings, you know that in order for Medicare to pay for rehabilitation in a skilled nursing home, you have to have been admitted to the hospital for 3 full days.  This is most easily defined as 3 midnights in the hospital.  What the hospitals are doing is putting a person in the hospital under “observational status” which is NOT an admission to the hospital.  The person is in a hospital room, getting all the care they need including drugs and tests making you think you are “admitted” to the hospital.  However, you are really not admitted there.  They are “observing” you.  What is worse, the physician and the staff can tell you that  you are admitted and you are, however, the hospital has a Utilization Review (UR) Committee that can look at your file and reverse your admission as long as you are still in the hospital.  So, even if you are told you are being admitted, you need to clarify that prior to discharge to make sure you are still admitted.  There are very complicated reason they do this but it doesn’t matter to this discussion.

Why does this matter?  Two reasons primarily: 1) If you are on observational status, your Medicare Part A (Hospital coverage that pays 100% after your deductible) does not apply.  You are under Part B which is paid 80% by Medicare and the other 20% is paid by you individually or by your Medicare Supplement.  2) you do not have the requisite 3 day admission to start your Skilled Nursing Facility 100 days of rehab.  People have gone to the hospital for up to 2 weeks and then gone to rehab and incurred very significant expense thinking Medicare Part A was going to pay when they were never actually admitted to the hospital.  They then owe at least the 20% and if Medicare never really approved any of the care, you could pay the full amount.

What do you need to do?  First, read this article: http://www.medicareadvocacy.org/medicare-info/observation-status Read it all the way to the end.  The last section is probably the most important section giving some very practical advice.  This article mentions some forms that you need to be aware of in order to know what is happening.  Second, share this information with everyone on Medicare that you know so they know to be looking for this.  This is a huge issue.  Since the Federal Judge did not certify the action as a class action case, this means that every Medicare Beneficiary is going to have to go to court by themselves to correct this problem.  Third, if this happens, give us a call.  I am not a litigator but I am associated with some firms that will take this case to court to make sure the Medicare system treats your fairly.