In this series of blogs with regard to guardianship in Pennsylvania, I have discussed the nature and process of guardianship of the person.   The guardian of an incapacitated has general and specific legal obligations and duties to the incapacitated person.  The general obligations include:  bringing lawsuits on their behalf in the case of injury; assertion of the rights and interests of the incapacitated person; respect for the wishes and preferences of the incapacitated person; participation, where appropriate in the development of a plan of support services to meet the incapacitated person’s needs; and encouragement of the incapacitated person to participate in the management of his or her personal affairs, if feasible. 

Specifically, the guardian must file a yearly report with court attesting to the following:

  • the current address and type of placement of the incapacitated person;
  • any major medical or cognitive problems experienced by the incapacitated person since adjudication or the last annual report;
  • a brief description of the incapacitated person’s living arrangements and the services the incapacitated person receives;
  • the opinion of the guardian as to whether guardianship should continue, be terminated or modified;
  • the number and length of times the guardian visited the incapacitated person in the past year;

A guardian may be compensated financially for serving in the guardianship position.  The guardian must obtain the court’s approval for a fee and the compensation comes from the incapacitated person’s assets.

The age of majority in Pennsylvania is 18.  This means that at age 18, not only can an individual legally vote and drink alcohol, he or she has the right to make legally binding decisions on his or her own behalf.  This is true regardless of whether or not an individual has a disability.  However, if a person is unable to make decisions for him or herself as a result of an injury or for any other reason, the court may be petitioned to judge the person to be “incapacitated” and appoint a guardian to make decisions for that person.  Guardianship is usually sought when a person with limited or impaired intellectual functioning needs a guardian to protect the incapacitated person’s well-being or to file a lawsuit on his behalf.  The law of Pennsylvania defines an incapacitated person as, an adult whose ability to receive and evaluate information effectively and communicate decisions in any way is impaired to such a significant extent that he is partially or totally unable to manage his financial resources or to meet essential requirements for his physical health and safety.

Once a person has been adjudicated incapacitated, a court may appoint a “guardian of the person” and/or a “guardian of the estate” for an incapacitated person who lives in Pennsylvania and/or an incapacitated person who has property in Pennsylvania. Any qualified individual, corporate fiduciary, non-profit corporation or county agency may serve as guardian, with the court’s approval.  Often the appointed guardian is a relative of the incapacitated person, however, when no other person is willing or qualified to serve, a guardian support agency may be appointed to the court. The guardian must not have interests that conflict with the incapacitated person.The application to appoint a guardian is referred to as a Petition, which must be filed with the clerk for the Orphan’s Court in the county where the incapacitated person resides. A judge will review the Petition at a hearing where testimony must be presented from an expert who is qualified in evaluating individuals with incapacities.

Many attorneys in Pennsylvania handle guardianship matters before the Orphan’s Courts of the Commonwealth.  These attorneys can guide the Petitioner through the process which, although not complicated, may seem overwhelming to a non-lawyer. Please contract Stark & Stark in regards to any questions you may have.

What is “Means Testing” in terms of Medicare?  “Means Testing” is the method used by Medicare to determine what you pay for your Medicare, Part B and Part D coverage.  Medicare, Part B covers doctor fees, outpatient care, physical therapy and some home health care.  Medicare, Part D covers prescription drugs.

The thresholds are the same for both Parts B and D.  If you file your federal income tax as “married/joint,” and your yearly income is $170,000 or higher, you will pay a higher premium than those couples whose joint income is less than $170,000 per year.  If you file your federal income tax as a single person, the threshold for the higher premium is $85,000 per year. 

For those taxpayers over age 65, with income greater than the threshold amount, the amount you pay for your Part B and Part D coverage will increase depending upon your income up to the upper limit of $428,000 in income for married/joint filers and $214,000 in income for single filers. 

Threshold levels are currently frozen through 2019.

Leslie A. Mitnick is a member of Stark & Stark’s Yardley, PA office, concentrating in Accident & Personal Injury Law. For more information, please contact Ms. Mitnick.

These days, many people are still working past age 65, the age at which you can start receiving health insurance coverage through Medicare.  If you are one of these people, and are covered by your employer’s health insurance plan, you may think there is no need for you to sign up for Medicare.

You would be wrong.  Provided that you have had Social Security and Medicare taxes deducted from your wages, Medicare hospitalization insurance, known as “Part A”, is free.  If you work for a company that has more than 20 employees, your hospital bills first go to your company-provided health insurer for payment.  If some amount of the bill is not covered by this private insurer, the bill goes to Medicare as a secondary payer. 

If you work for a small company that has less than 20 employees, your hospital bills first go to Medicare, then to the private insurer as a secondary payer.   

However, if you don’t sign up for Medicare, Part A, you may have to pay the Medicare portion of your hospital bill. 

Medicare, Part B, however, which covers doctor fees, outpatient care, physical therapy and some home health care, is not free.  If you are covered by your employer’s insurance plan, you don’t want to start Part B while you are still covered by the private insurer – that is you don’t want to sign up for Part B until you retire.  You need to sign up for Part B within eight months of the date you retire or your Part B premium will cost you 10% over what it would have been had you signed up in that eight month retirement window.
 

Leslie A. Mitnick is a member of Stark & Stark’s Yardley, PA office, concentrating in Accident & Personal Injury Law. For more information, please contact Ms. Mitnick.

Every year you postpone claiming your Social Security retirement benefits, up to age 70, you add 8% per year to your base amount.  What does this mean?  If your full Social Security retirement age is 66, and you delay receiving benefits until you are age 70, you can collect 132% of your primary amount plus the intervening annual cost-of-living adjustments.  This may result in an increased monthly benefit of several hundred dollars for the rest of your life. 

In addition, if you are older than your full retirement age when you start receiving your Social Security benefits, you may be entitled to up to six months of retroactive benefits in one lump sum.

There is one downside to electing to take a lump sum retroactive payment of your benefits, however. While some of your Social Security benefit may be taxable, you must include the taxable part of a lump sum payment as part of your income when you pay your income tax for the year in which you received the lump sum.  The amount of your benefit which is taxable varies depending upon your total income for any calendar year.  If you receive income from an IRA or a 401K plan, you may have to pay tax on anywhere from 50% to 85% of your total Social Security benefit amount.

Leslie A. Mitnick is a member of Stark & Stark’s Yardley, PA office, concentrating in Accident & Personal Injury Law. For more information, please contact Ms. Mitnick.

U.S. News and World Report recently published an article noting that the Social Security Administration has promulgated the following new rules and features which take effect in 2013:

1.    The temporary payroll tax cut expired at the end of 2012.  That means that workers who previously paid 4.2% of their income into Social Security have resumed paying 6.2% of their earnings in 2013, up to the cap of $113,700 in earnings.

2.    The increase in the payroll cap to $113,700, means workers who earn more than this amount, will not pay social security taxes on any wage earned above $113,700.

3.    Social Security is offering more on-line services.  It is now possible to do the following on-line:   claim your Social Security payments, check your Social Security statements, get an estimate of your Social Security monthly benefit amount, change your address, or change direct-deposit information.  For many people, this eliminates any need to actually make an appointment at a local Social Security office.

4.    Social Security offices are reducing the number of hours they are open each week.  Social Security offices have been closing 30 minutes earlier each weekday since November 19, 2012, and beginning January 2, 2013, all offices are closing to the public at noon every Wednesday.

5.    As of March 1, 2013, the Treasury will no longer mail paper checks to Social Security Recipients.  Social Security will require that all payments be directly deposited into a bank or credit union account, or onto a prepaid Direct Express Debit MasterCard.  The MasterCard option is available for benefit recipients who do not have a bank account.

6.    Individuals who take early retirement benefits (people between the ages of 62 and 66) and who continue to work can now earn up to $15,120 in 2013 before benefits are withheld.  After you earn $15,120, Social Security will withhold $1 in benefits for every $2 you earn.  If you turn 66 in 2013, you can earn up to $40,080 before Social Security with withhold $1 in benefits for every $3 earned.

7.    Social Security recipients did receive a small cost-of-living increase for 2013.  The average Social Security benefit increased by $21 per month over the monthly amount each recipient received in 2012

Leslie A. Mitnick is a member of Stark & Stark’s Yardley, PA office, concentrating in Accident & Personal Injury Law. For more information, please contact Ms. Mitnick.

Social Security is reporting an overall increase in average hearing processing times to nearly a year in 2013.   That means, if you file an appeal of the initial denial of your Social Security Disability Claim or Supplemental Security Income Claim, it may take you a year or more to get your case heard by a Social Security judge.

In addition, Social Security reports that the number of appeals is up and that disability examiners are denying a higher percentage of claims at all levels of the process. 

Although a claimant may represent himself or herself at a hearing, your odds of getting a “fully favorable opinion,” which means approval of your claim, from a Social Security judge, are much better if you are represented by an attorney specializing in this area of the law.  If your initial claim is denied, you have 60 days to file an appeal and request a hearing.  At this point in time, you should contact an attorney to explain the appeal process and represent you at your hearing.

Leslie A. Mitnick is a member of Stark & Stark’s Yardley, PA office, concentrating in Accident & Personal Injury Law. For more information, please contact Ms. Mitnick.

The Social Security Administration has made changes to the retirement earnings test for 2013.  This test only applies to people who have taken early retirement and are under their full retirement age.  One out of two exempt amounts applies depending upon the year you reach your full retirement age.
         
For people younger than the full retirement age of 66 in 2013, the annual exempt amount is $15,120.  That means that for $2 earned over $15,120, Social Security will deduct $1 from your benefit amount.

For people who reach the full retirement age of 66 in 2013, the annual exempt amount is $40,080.  That means that for every $3 earned over $40,080, Social Security will deduct $1 from your benefit amount.

There is no limit on earnings for individuals who reached full retirement age before 2013.  These retirees will not have any benefits withheld regardless of how much money they earn.

Leslie A. Mitnick is a member of Stark & Stark’s Yardley, PA office, concentrating in Accident & Personal Injury Law. For more information, please contact Ms. Mitnick.

The large demographic of Americans known as “Baby Boomers”, are starting to retire.  Several retirement trends have become noticeable as the Boomers replace their parents as retired senior citizens. 

1.  More retired Americans are retiring in foreign countries, many of which offer year-round warm weather and lower cost of living which many retirees find appealing. These countries include Belize, Costa Rica, and Mexico, all of which are a simple plane ride away from most U.S. cities.

2.  Many Boomers see retirement as the opportunity to start new businesses and new careers.  As Boomers expect to live substantially longer than their parents, many are interested in continuing to work, but in a business of their own choosing.  Along with this trend, Boomers are more likely to rely on new technologies which involve using the internet, social media, and self-publishing.

3.  Boomers are assuming more financial support for their aged parents, and more child-rearing responsibilities for their adult children.  It is not all that unusual these days for multi-generational families to again be living under one roof where costs and chores can be shared. 

4.  Fewer Boomers are planning the traditional Florida or Arizona retirement. Boomers are attracted to smaller cities with large universities, access to good health care, affordable housing and an active arts community.  For many Boomers, proximity to their children and grandchildren remains a prime consideration.
 

Leslie A. Mitnick is a member of Stark & Stark’s Yardley, PA office, concentrating in Accident & Personal Injury Law. For more information, please contact Ms. Mitnick.
As a lawyer I receive many calls from clients who have lost a loved one as a result of an accident or possibly medical negligence. In order to properly analyze whether there is a viable lawsuit, it is necessary to review the relevant medical records. Generally after someone passes away, the only individuals who have the power to act on behalf of a decedent are the personal representatives, administrators or  executors who apply to the Register of Wills and are approved to act on behalf of the decedent.
 
There is an exception however with regard to obtaining medical records which can be found in 28 Pa. Code Sec. 115.29 which reads as follows:
 
“Upon the death of a patient, the hospital shall provide, upon request, to the executor or, in the abscence of an executor, the next of kin responsible for disposition of the remains, access to all medical records of the deceased patient.”
 
As a result of this statute, the family of a decedent who wishes to investigate the viability of a lawsuit, and needs the medical records to do so, can obtain the records without filing a formal request with the Register of Wills.
 
Edward Shensky is a Shareholder and member of Stark & Stark’s Yardley, PA office, specializing in Accident & Personal Injury Law. For more information, please contact Mr. Shensky.