Monthly Archives: May 2016

Testamentary Trust Qualifies As SNT Despite Support Language

May 25, 2016

The Supreme Court of Connecticut rules that the state Department of Social Services improperly denied a Medicaid application after counting assets in a testamentary trust that should have been considered exempt because, the court holds, the trust was a discretionary supplemental needs trust, not a support trust. Pikula v. Department of Social Services (Conn., No. SC 19533, May 10, 2016).

John Pikula died in 1991, leaving behind a testamentary trust for the benefit of his daughters.  The trust gave the trustee the ability to use the trust income and principal for the daughters “as the trustee may deem advisable for [their] maintenance and support”.  In 2012, one of Mr. Pikula’s daughters, Marian Pikula, entered a long-term care facility and applied for Medicaid.  The Department of Social Services (DSS) denied Ms. Pikula’s application, alleging that the assets in the testamentary trust constituted a countable support trust.

Ms. Pikula appealed DSS’s decision, arguing that her father had intended to create a supplemental needs trust and that the discretionary language in the trust met the requirements of such a trust because Ms. Pikula could not compel payments from the trust for her support.  She was denied at an administrative level and on appeal to the trial court.  The Connecticut Supreme Court transferred Ms. Pikula’s appeal from the intermediate appellate court.

The Supreme Court of Connecticut reverses the trial court.  The court determines that “the fact that the trustee is only required to use as much income as he ‘may deem advisable’ to provide for [Ms. Pikula’s] maintenance, indicates that the testator intended for the trustee to have complete discretion in determining what, if any, of the income was to be used for [Ms. Pikula’s] maintenance.”  The court goes on the analyze the circumstances behind the creation of the trust, and it reasons that because the trust was established with a modest amount of money, it was clearly not intended to be used for Ms. Pikula’s long-term support.

For the full text of this decision, go to:

Elder Law Extra

May 25, 2016

A weekly roundup of recent elder law news and practice development articles culled from news sources around the nation.  Click on the headline to read the full article.

ELA Members in the News

May 7, 2016

Thomas D. Begley, III of Capehart Scatchard in Mt. Laurel, NJ, in “People in the News—May 2, 2016—Duane Morris,” The Legal Intelligencer, 5/2/16.

Howard Collens of Galloway and Collens, PLLC, in Huntington Woods, MI, in “New law lets some access Facebook, email of the dead,” Washington Times, 4/3/16.

Arthur Crooks of The Law Office of Arthur B. Crooks Jr. in West Dennis, MA, in “Baker proposal targets estates to pay nursing home costs,” Cape Cod Times, 4/17/16.

Ronald Fatoullah of Ronald Fatoullah & Associates in Great Neck, NY/, in “Criminal Convictions Show Need for Elder Abuse Prevention Diligence,” Financial Advisor IQ, 4/18/16.

Donna J. Jackson of Donna J. Jackson & Associates, PLLC in Oklahoma City, OK, in “Attorney Donna J. Jackson Talks Trusts and Estates at NAELA Conference,” PR Web (press release), 4/26/16.

Mitchell Kitroser of Kitroser & Associates in North Palm Beach, FL, in “State attorney marshals a team to target exploitation of elderly,” MyPalmBeachPost, 4/7/16.

Bernard Krooks of Littman Krooks LLP in White Plains, NY, in “Bernard A. Krooks Named Advocate of the Year by Arc of Westchester’s Children’s School for Early Development,” PR Web (press release), 4/25/16.

Frederick Misilo of Fletcher Tilton PC in Worcester, MA, in “Worcester firm wins MassHealth appeal for deceased client,” Worcester Business Journal, 4/20/16.

W. Wayne Walston of Beers Mallers Backs & Salin, LLP in Fort Wayne, IN, in “Wayne Walston receives recognition,” Mansfield News Journal, 4/20/16.

Elder Law Extra

May 7, 2016

A weekly roundup of recent elder law news and practice development articles culled from news sources around the nation.  Click on the headline to read the full article.

Leveraging Facebook and LinkedIn to Generate Leads and Referrals, Part 1: Facebook

May 7, 2016

stephen-fairley_smWe all know about Facebook and LinkedIn, but are you aware of their huge potential to help expand a law practice? In a fast-paced and information-packed webinar that is the fourth in ElderLawAnswers’ marketing funnel series, law firm marketing expert Stephen Fairley explained how to leverage both these social media platforms to generate leads and referrals.

Fairley, who is the founder and CEO of The Rainmaker Institute, which specializes in marketing and lead conversion for small- to medium-sized law firms, told his listeners that using Facebook and LinkedIn has the potential to “radically transform” the way elder law attorneys practice law, generate and convert leads, and get referrals.  He said that Facebook is a great way to connect with potential clients, while LinkedIn can be a key to building referral relationships.

In Part 1 of this two-part article on Fairley’s webinar, we present his recommended strategies for using Facebook to generate client leads.  Part 2 will cover how LinkedIn can be a referral goldmine.

Using Facebook to Get Hundreds of Qualified Leads a Month

Fairley began by noting Facebook’s incredible reach – 162 million active users in the U.S., which translates into three-quarters of the nation’s adult population using Facebook on at least a monthly basis.  More than 400,000 Facebook users will die this year (not as a result of using Facebook, Fairley hastened to add).  How many of the survivors will need a probate attorney?   How many other users know someone who may soon need nursing home care?  “If you can define a target market, you can find those people on Facebook,” Fairley said, citing a Hubspot study that 67 percent of business-to-consumer companies have acquired a client from Facebook.

Fairley listed six ways to find clients using a firm’s Facebook page: promote your firm’s achievements, drive traffic to your firm website, post on Facebook regarding current events and articles of interest, get more Facebook reviews, remarket visitors to your website, and get more leads using Facebook’s version of pay-per-click, which he thinks is better than Google’s.

1. Promote your firm’s achievements. Anytime you have any kind of success, be it being named a Super Lawyer or getting a community award, Fairley said you want to promote it on Facebook.  But first, he said you need a very clear, concise and compelling statement, one sentence that says “this is what I do for my clients.” He gave the example of a tax attorney he has worked with who had never gotten a lead off of Facebook until he started using one simple sentence to describe his practice: “I represent taxpayers who owe money to the IRS.”  Shortly thereafter, the attorney posted news of client success stories, starting with a client who had owed $199,000 but settled with the IRS for $500.  The calls and leads started pouring in.

2. Drive traffic to your firm website. Fairley contended that website traffic can be increased from 30 to 50 percent by inviting Facebook visitors to click on links that take them to destinations on a firm’s website such as blog posts or landing pages.

3. Post on Facebook regarding current events and articles of interest. Discussing current events on Facebook shows prospective clients that you are keeping current.  Any time there is a topical story about your practice area, you need to pick it up. “Not all of it; you don’t want to become a TMZ,” Fairley said, “but you want to have enough so to where people know that you’re relevant and up to date on current events.”

4. Get more Facebook reviews. Facebook reviews are a relatively new phenomenon.  People are rating lawyers on the Internet all the time, and Fairley said the research shows that people are going to believe other people’s opinions of you, whether it’s true or not.  At the same time, people are three times more likely to leave a negative review than a positive one.  “You can give the best service the best results, you can do everything perfectly but somebody’s not going to be happy with you,” Fairley said.  So you need to get some positive reviews out front to offset the inevitable negative ones.  Ask your clients to review you on Facebook, in addition to on LinkedIn and Avvo.  Fairley counseled against spending a lot of time on Yelp, which he said has a “real problem” with its rating system.

Fairley urged his listeners not to be shy about asking for Facebook reviews, noting that one of his clients posts a link in their e-newsletter saying “To give us a review on Facebook, click this link.”

An audience member asked whether Facebook reviews might violate his or her state’s bar rules.  Fairley answered that Facebook is a third-party website that the lawyer does not own or control.  Anyone can post, so it’s no different from Yelp or Avvo.

5. Remarket visitors to your website. This is one of the cheapest, most cost-effective ways to get more clients, Fairley said.  “Remarketing” is when, for example, you check the price of an outdoor grill on Amazon and very soon start seeing ads for it on other sites you visit. Similarly, when someone visits your website but doesn’t do anything else (which is the case for between 97 and 99 percent of site visitors), your ad will show up when they go to another site, including Facebook, which has its own platform just for remarketing.  The ad will follow the potential client around on Facebook for a long time, and Facebook’s charge is not high, Fairley said.

“This is something that is a no brainer; this is something that you should be doing right now,” he stressed. He cited the oft-quoted marketing statistic that it takes an average of seven to ten “touches” before a prospect feels comfortable with you.  Fairley said that the average user is now spending 8.3 hours a month on Facebook – more time than they spend reading their email.

6. Get more leads.  Fairley’s last strategy for using Facebook is to generate leads through its pay-per-click program, which he believes is superior to Google’s.  He said that it is “very difficult” to make good money on Google’s pay-per-click unless you have “a really smart person” on staff who is using “really smart software.”

Fairley believes that Facebook, by contrast, is easier to use, much more advanced, and less expensive.  Whereas Google knows a few things about an individual (IP address, city and state, browser history, keywords searched for), “Facebook knows everything about you,” he said.  This wealth of information can be used to narrowly target ads.  For example, Facebook can profile people who might need nursing home planning.  An elder law firm can send Facebook its client list and ask Facebook to find prospects who have the exact same characteristics as that group of people.  “It’s a very, very cool tool,” Fairley said.  “It’s amazing how you can slice and dice the data on Facebook.”

Google’s pay-per-click has other liabilities as well, Fairly contended.  He said Facebook’s cost per lead is cheaper than Google’s cost per click, which is rising.  Also, with Google your competition can see everything you’re doing, while with Facebook your ads can be hidden from your competitors.  Finally, click fraud — when a person or computer program clicks on an ad simply to generate a charge — is a problem with Google but nonexistent with Facebook, at least for the moment.  While Facebook’s conversion rate is generally lower than on Google’s pay-per-click, “with the lower cost per lead, the numbers are in your favor,” Fairley said.

Fairley’s webinar is part of an ongoing series of webinars titled “The Elder Law Marketing Funnel.”  For more information about the funnel and to view past or upcoming webinars, click here

To view Fairley’s hour-long webinar, click here

Estate of Resident Who Fraudulently Qualified for Medicaid Not Unjustly Enriched

May 7, 2016

An Oregon appeals court holds that an adult foster care facility that accepted a Medicaid recipient is not entitled to damages from the recipient’s estate for unjust enrichment after it was determined that the recipient qualified for Medicaid based on fraud. Larisa’s Home Care, LLC v. Nichols-Shields (Or. Ct. App., No. 172, April 27, 2016).

Isabell Prichard named her son as agent under a power of attorney, and he used the power of attorney to transfer funds to himself. Ms. Prichard’s son then applied for Medicaid on her behalf, neglecting to mention the transfers in the application. The state approved Ms. Prichard’s Medicaid application and she moved into an adult foster care facility as a Medicaid patient. Ms. Prichard’s son was eventually tried criminally for the fraudulent transfers and required to pay a compensatory fine to Ms. Prichard’s estate.

After Ms. Prichard died, the adult foster care facility filed a claim against her estate for unjust enrichment, arguing that because of the fraud, Ms. Prichard unlawfully obtained Medicaid benefits, so the facility was paid less than it would have been under a private pay rate. The trial court agreed that the estate had been unjustly enriched and awarded the facility $48,477. The estate appealed.

The Oregon Court of Appeals reverses, holding that the estate was not unjustly enriched. According to the court, the facility “had no expectation of being paid the private-pay rate because it accepted [Ms.] Prichard as a Medicaid client and was under contract with the state to be paid the contracted rate.” The court notes that the facility “is essentially blaming the estate for the bad acts that [Ms. Prichard’s son] committed, and asking that the estate be punished as a consequence.”

For the full text of this decision, go to: