Trial Courts Have the Ability to Declare a Marriage Void After

Fall/Winter 2013
State Bar of Wisconsin
Elder Law Section
Vol. No. 23 Issue No. 3
In this issue...
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Chair's Column: Keeping Score on Estate Recovery and Divestment Changes
- Effective Dates, Applicable Dates, Implementation Dates, and Repeals
Get to Know Your Local Elder Benefit Specialist and the Guardianship
Support Center
Trial Courts Have the Ability To Declare a Marriage Void After the Death of
One of the Parties to the Marriage
Hospitals Are Also Invested in Ending the Use and Abuse of the Medicare
Observation Versus Inpatient Status Hospitalization Coverage
Determinations
Eight Advance Care Planning Lessons That Took Me Thirty Years to Learn
Tech Tips: Document Portability
Odds and Ends
Volunteers Needed for 2014 Mock Trial – Deadlines Approaching
Thank You, PINNACLE Authors
Smarter Tools to Market Your Practice
Chair's Column: Keeping Score on Estate Recovery and Divestment Changes Effective Dates, Applicable Dates, Implementation Dates, and Repeals
Roy Froemming
Froemming Law Office, Madison
Submitted: Nov. 3, 2013 Revised: Nov. 26, 2013
On June 30, 2013, Gov. Scott Walker signed the FY 2013-2015 state
budget bill into law as 2013 Act 20, with a general effective date of July 1,
2013. Despite efforts by the Elder Law and Family Law sections to draw
attention to the illegality, overreach, and poor policy contained in the
provisions on estate recovery and divestment proposed by the Department
of Health Services (DHS), all of the provisions were included in Act 20 as
originally proposed, with the exception of part of the treatment of life
insurance. However, § 9318 of Act 20, created by a last-minute
amendment to the budget drafted at the request of Sen. Mary Lazich,
provided that DHS could not implement any of the divestment and estate recovery changes
in the budget bill until it had submitted “one or more proposals” for implementation to the
legislature’s Joint Committee on Finance (JCF) and had received Joint Finance approval for
implementation.
On September 4, 2013, DHS short-circuited that planning process by writing a letter to JCF
asking for authorization to implement all of the estate recovery and divestment provisions in
Act 20, despite the fact that DHS presented no implementation plans. DHS presented its
rationale for seeking approval for immediate implementation of the law in its letter of
September 4, 2013. The letter is posted on the Elder Law Section page of the State Bar
website (look for “Legislation” in the Section Members File Cabinet: Estate Recovery and
Divestment Letter to JCF dated September 4, 2013) along with letters sent to JCF by the
Elder Law and Family Law sections and a paper completed by the Legislative Council staff
for JCF which thoroughly analyzes the fiscal and policy effects of the changes and how the
changes present potential conflicts with federal law (See 2013 Wisconsin Act 20 DHS 9-1813 Estate LFB Paper).
JCF adopted a motion on September 18, 2013, authorizing DHS to implement most, but not
all, of the Act 20 provisions, but JCF kept the implementation delay in effect for specific
provisions of Act 20 related to the following:
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treatment of transfers of exempt resources as divestments
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treatment of loans under promissory notes as divestments; actions to void certain
real estate transfers
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authority for DHS to record “requests for notice” concerning transfers of real
property
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the obligation of trustees to give notices and reports to DHS regarding living trusts
where a Medicaid recipient is the settlor and to pay claims made by DHS
The JCF vote was 10-6, with Sen. Lazich and Sen. Sheila Harsdorf joining the four
Democrats in opposing approval of DHS’s request.
Following the JCF action, behind-the-scenes negotiations went on between concerned
legislators, DHS and the governor’s office. These were largely in response to concerns
raised by corporate trustees, title insurance companies, realtors, and farmers about the
impact on their interests, but also appear to have been in response to the legal and policy
issues raised by the State Bar and described in the Legislative Council memorandum to JCF.
As a result, major changes to the Act 20 provisions were included in a bill to adopt a
modified version of the Uniform Trust Code as a new Wisconsin Trust Code (WTC),
introduced as Senate Bill 384. On November 14, 2013, SB 384 passed both houses of the
Legislature, with two amendments, Senate Amendments 1 and 2. Read SB 384 and the
amendments. Because the governor’s office was involved in the negotiations that led to SB
384, there is little chance that he will veto the bill. On December 5, the governor’s office
confirmed that the bill would be signed into law on December 13, 2013. The bill is not
subject to the line-item veto power.
SB 384 repeals the estate recovery and divestment provisions that were not approved by
JCF and makes additional changes to the estate recovery and divestment provisions as
follows:
Transfers of excluded resources. The bill repeals the changes to Wis. Stat. §
49.453(2)(a) and (b) made by Act 20 that would have allowed DHS to penalize the transfer
of assets, even if the assets would be exempt under 42 USC 1396(p) from being counted as
resources. (This applies, e.g., to permit transfers of exempt cars and furniture without
penalty, but not to permit transfers of homes.)
Estate recovery from the estates of surviving spouses. SB 384 repeals the provisions
in Act 20 that would have extended the definition of property of a decedent Medicaid
recipient to include property in which the recipient had a marital property interest at any
time within five years before the recipient applied for the public assistance program, or
during the time that the recipient was eligible for Medicaid (or one of several related public
assistance programs). This means that recovery from the property of a surviving spouse, at
the time of his or her death, will be limited to property in which the recipient spouse had an
interest at the time of his or her death, to the extent of that interest. In addition, the bill
provides that the presumption that property in the estate of the recipient spouse is marital
property will match the presumption in Wis. Stat. Ch. 766 (The Marital Property Act), and
deletes the requirement that rebuttal of the presumption be made by clear and convincing
evidence.
Provisions affecting real estate transfer. SB 384 repeals Wis. Stat. § 49.4962, created
by Act 20, which would have allowed DHS to bring court actions to void certain “fraudulent”
transfers of real estate. Also repealed was the new Wis. Stat. § 49.848, created by Act 20,
which would have authorized DHS to record a notice of potential claim (really a lien) on real
estate belonging to Medicaid recipients.
Trust reporting and state claims on trusts. SB 384 repeals Wis. Stat. § 701.065(5),
created by Act 20 § 227, which created reporting requirements for trustees of living trusts
and special needs trusts created by Medicaid recipients and an estate recovery claim against
such trusts. SB 384 also repeals changes that would have required pooled trusts to turn
over to the state 70 percent of any remainders in accounts at the death of the primary
recipient.
Promissory note change. SB 384 repeals Wis. Stat. § 49.453 (4)(c), created by Act 20,
which would have allowed DHS to treat purchase of a promissory note as a divestment if
“the debtor is a presumptive heir of the lender or in which neither the lender nor debtor has
any incentive to enforce repayment.”
Spousal hardship exception. SB 384 requires DHS to waive the application of estate
recovery against the non-probate property and estate of a deceased recipient's surviving
spouse if estate recovery would create an undue hardship in that case.
Expanded definition of financial institution. SB 384 repeals provisions of Act 20 that
would have the expanded definition of "financial institutions" required to provide information
to DHS as part of its Asset Verification System.
Meanwhile, DHS issued BEO/DFS Operation Memos 13-38 and 13-39, to implement the
provisions of Act 20, which were approved for implementation by JCF in its September 18 th
motion. (These memos are on-line at http://www.dhs.wisconsin.gov/em/ops-memos/2013.)
These memos provide information on how DHS plans to handle some of the issues of initial
applicability and retroactivity. However, they now need to be read in light of SB 384, as
they include provisions relating to parts of the law which will be repealed when SB 384 is
signed.
Ops Memo 13-38, issued November 7, implements provisions of Act 20 related to
divestment and counting of assets. The memo provides that the expanded divestment
provisions of Act 20 will first apply to transfers made on or after September 18, 2013.
However, the memo also provides that applications, renewals, and change reports
processed and confirmed prior to November 1, 2013, will continue with eligibility under the
old rules unless there are specific instructions in the policy descriptions below to apply the
new policies at a later date.
Ops Memo 13-39, issued November 12, implements provisions of Act 20 related to estate
recovery. It provides that the new estate recovery provisions will only apply to recipients
who receive services or die on or after the July 1, 2014.
Where we stand. In determining when (or if) the Medicaid provisions of Act 20 will be
effective, and what transactions they will apply to, people will need to look at five different
sources:
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The effective dates of the various provisions of the law, contained in Act 20, § 9418. In
general, these state that the provisions changing the divestment rules were effective
July 1, 2013, and the provisions expanding estate recovery were effective October 1,
2013.
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The initial applicability of the various provisions of the law, contained in Act 20 § 9318,
which determines the earliest date on or after which event or transaction had to occur,
in order to be governed by the Act 20 provisions.
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The implementation delay, contained in Act 20, § 9118(6i), and then modified by the
Joint Finance committee motion of September 18, 2013.
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The provisions of SB 384, repealing or modifying many of the divestment and estate
recovery changes in Act 20.
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The actual implementation and applicability dates in Ops. Memos. 13-38 and 13-39 (and
future operations memos) containing DHS policy implementing the changes.
At the time of this writing, here is the status of the major estate recovery, divestment, and
spousal asset provisions in Act 20:
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Transfers of excluded resources. Changes to Wis. Stat. § 49.453(2)(a) and (b)
made by §§ 1059 and 1060 of Act 20 would allow DHS to penalize transfers of
assets, even if the assets are exempt under 42 USC 1396p from being counted as
resources. Implementation by DHS was delayed by Act 20 and not authorized by JCF
in its September 18 motion. The changes are expected to be repealed by SB 384.

Promissory note change. Wis. Stat. § 49.453 (4c) (c), created by Act 20 § 1063,
allows DHS to treat purchase of a promissory note as a divestment if “the debtor is a
presumptive heir of the lender or … neither the lender nor debtor has any incentive
to enforce repayment.” Implementation by DHS was delayed by Act 20 and not
authorized by JCF in its September 18 motion. It is expected to be repealed by SB
384.
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Transfers by a community spouse. Wis. Stat. § 49.455(5)(d), created by Act 20 §
1066, imposes a divestment penalty on an institutionalized spouse if his or her
community spouse makes a transfer for less than fair market value within five years
after the institutionalized spouse becomes eligible for Medicaid. Under Act 20, it was
effective July 1, 2013, and applicable to transfers that occur after that date. It was
approved for implementation by JCF on September 18, and will not be repealed by
SB 384. Ops. Memo 13-38 provides that this will apply to transfers made after
September 18, 2013 (the date of the JCF motion), but only if the determination is
made after November 11, 2013. Determinations made before November 1 will
continue under the old rules. (It is not clear what happens to determinations made
November 1-10, 2013.)
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Partial cures. Wis. Stat. §49.453(8)(a)1., as modified by Act 20 § 1064, provides
that the total value of a divested amount must be returned in order for the
divestment to be considered cured. (This is an attempt to eliminate “half-a-loaf”
planning.) It was approved for implementation by JCF on September 18, and will not
be repealed by SB 384. Ops. Memo 13-38 provides that it will apply to penalty
periods that have a start date after November 11, 2013.
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Date of commencement of penalty period. Wis. Stat. § 49.453(3)(ag), created
by Act 20 § 1062, starts the penalty period for divestments by ongoing recipients on
the first day of the month after notice of the penalty has been given. (This is an
attempt to provide time for notice to be given before the penalty period starts.) It
was approved for implementation by JCF on September 18, and will not be repealed
by SB 384. Ops. Memo 13-38 states that it will apply to penalty periods with start
dates after November 11, 2013.
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Disclosure of spousal assets. § 49.455(5)(e), created by Act 20 § 1067, purports
to allow DHS to deny Medicaid eligibility to an institutionalized spouse, if the
community spouse does not provide information on income and resources “to the
extent required under federal law.” It was approved for implementation by JCF on
September 18 and will not be repealed by SB 384. Under Act 20, that section was
effective July 1, 2013, but Ops. Memo 13-38 provides that it will apply to
applications dated November 11, 2013, or later. However, it also provides that
spousal impoverishment rules will be applied at time of the next renewal, in cases
where spousal impoverishment rules were not applied in the original determination.

Expansion of estate recovery to nonprobate assets. Under Act 20, the
provisions extending estate recovery to nonprobate assets of institutionalized
Medicaid recipients are effective for deaths occurring after October 1.
Implementation was approved by the September 18 JCF motion, and these
provisions are not repealed by SB 384. However, Ops Memo 13-39 provides that
they will only apply to recipients who die or receive services after July 1, 2014, and
that they will not be implemented until notice is given to potentially affected
Medicaid recipients. Senate Amendment 1 to SB 384 modifies the language to
provide that these provisions apply to interests held in revocable trusts, but do not
apply to interests held in irrevocable trusts.
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Expansion of estate recovery to estates of community spouses. Under Act 20,
the provisions extending estate recovery to the estates and nonprobate assets of
surviving community spouses are effective for deaths of community spouses
occurring after October 1. Implementation was approved by the September 18 JCF
motion, and these provisions are not repealed by SB 384. However, Ops Memo 1339 provides that they will only apply to recipients who die or receive services after
July 1, 2014, and that they will not be implemented until notice is given to
potentially affected Medicaid recipients. As discussed above, SB 384 modifies the law
so that estate recovery will only apply to assets in which the institutionalized spouse
held an interest at the time of his or her death, to the extent of that interest, and
that the presumption that property is marital property will follow the presumption
created in Wis. Stat. Ch. 766.
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Provisions affecting real estate transfers. Wis. Stat. § 49.4962, created by Act
20 §1197, allows DHS to bring actions to void certain transfers of real estate. Wis.
Stat. § 49.848 created by Act 20 §1221, authorizes DHS to record a notice of
potential claim (really a lien) on real estate belonging to Medicaid recipients.
Implementation of these provisions was not authorized by JCF and they are expected
to be repealed by SB 384.

Trust reporting and state claims on trusts. Wis. Stat. § 701.065(5), created by
Act 20 § 2270, creates reporting requirements for trustees of living trusts and special
needs trusts created by Medicaid recipients, and an estate recovery claim against
such trusts, with unclear limits. The changes also require pooled trusts to turn over
to the state 70 percent of remainders in accounts at the death of the primary
recipient. Implementation of these provisions was not authorized by JCF and they
are expected to be repealed by SB 384.
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Determination of community spouse’s MMMNA: Wis. Stat. § 49.455(8)(d) 2.,
created by Act 20 § 1069, provides that the amount of resources to be transferred to
a community spouse to raise his or her income to the level of the Minimum Monthly
Maintenance Needs Allowance will be based on the cost of a single premium lifetime
annuity that would produce the needed additional income. Ops Memo 13-38 provides
that this will apply to applications dated November 11, 2013, or later.
Thanks are owed to the many Section members who have worked to analyze the new laws
and their effects, and to contact legislators and policy-makers. The Section was the first to
raise concerns about the legality and practical effects of the changes (see chart in Section
Members File Cabinet), and was effective in keeping the issues alive and alerting other
stakeholders to the problems. Much of the credit for the introduction of the implementationdelay amendment goes to John Schober, a Section member, former legislator and a
constituent of Sen. Lazich. Much of our analysis of the legality of the law (put together
originally in large part by Carol Wessels, Peter Walsh, and Bruce Tammi) was picked up
in the Legislative Council memo, and the conflicts with federal law may explain the
administration’s willingness to consider major changes in the law in SB 384.
The Board will continue to work for repeal of the problematic provisions that remain, and
especially those that threaten marriages, families, farms, and small businesses. We as a
Section are in a unique position to see how these changes operate and how they affect real
people, and it will be essential, going forward, that we show the unseen costs of the
changes, and in particular that we identify individuals affected by the changes and bring
those individual stories to the attention of legislators and policy-makers.
People wanting to learn more about potential legal challenges and planning strategies
should request the materials created for the September 27, 2013, State Bar of Wisconsin
PINNACLE® program “Legal Issues of the Aging.” Another good source for explanation and
analysis of the various provisions of Act 20 is Carol Wessels’ blog, Wessels Elder Law.
The Legal Issues of the Aging” program will be Webcast on Dec. 23, Jan. 7, and Jan. 27. It
is also available as an ondemand seminar through Dec. 31, 2014.
Viewers should be careful to note that at the time this CLE was presented, many of the
changes discussed above had not occurred and, thus, the materials will be dated in some
respects.
Top
Get to Know Your Local Elder Benefit Specialist and the Guardianship Support
Center
Kate Schilling
Legal Services Manager
Greater Wisconsin Agency on Aging Resources (aka GWAAR), Madison
Submitted: Sept. 30, 2013
Wisconsin’s Elder Benefit Specialist (EBS) Program is a statewide legal
services program that offers public benefits counseling, assistance, and
legal advocacy to consumers age 60 and older. Primarily located in county
aging offices or in Aging and Disability Resource Centers (ADRCs), benefit
specialists have extensive training, and their casework is supervised by
elder law attorneys. Program focus areas include Medicare, Medicaid, Social
Security benefits, FoodShare, housing, health insurance claims, and
consumer law (collection issues, scams/fraud, and some small claims
cases). EBSs provide a wide range of advocacy services to seniors of all
income levels at no charge; however, they do not provide legal advice in the areas of
Medicaid divestment planning, estate planning, tax law, bankruptcy, foreclosure, class
actions, litigation (aside from ALJ hearings), family law, criminal law, or SSDI appeals.
Cases in these areas are referred to private attorneys.
The legal supervision for the Elder Benefit Specialist program is housed at the Greater
Wisconsin Agency on Aging Resources, Inc. (GWAAR) office in Madison, Wisconsin. Last year
GWAAR created the Elder Law & Advocacy Center which comprises the Benefit Specialist
supervising attorneys, the Guardianship Support Center, and a grassroots Advocacy & Public
Policy coordinator. Attorney Kate Schilling manages the legal services within the Elder Law
& Advocacy Center. She is a member of NAELA, the Elder Law Section, and the Public
Interest Law sections of the State Bar. Attorneys Rosa Plasencia, Meghan Teigen, and John
Kivisaari round out the staff of Benefit Specialist supervising attorneys serving 65 counties
in the state.
The Guardianship Support Center (GSC). The Wisconsin Guardianship Support Center
provides legal information to both consumers and professionals on issues related to
guardianship, protective placement, and advance directives. The GSC is managed by
attorney Susan M. Fisher who responds to questions on the toll-free helpline or via email.
The GSC provides outreach in the community and distributes numerous consumer
publications on guardianships and powers of attorney which can be found at gwaar.org.
Contact the GSC at (855) 409-9410 or [email protected].
Current Initiatives. The GWAAR Elder Law & Advocacy Center (ELAC) recently partnered
with the State Bar of Wisconsin on a pro bono initiative for seniors. GWAAR elder law
attorneys met with low-income seniors at the Sauk County ADRC on August 27, 2013, to
help them prepare basic wills and POAs. Our first event was an enormous success and we
assisted 30 clients. Future events will be held on a quarterly basis, and volunteer attorneys
from the private bar will be sought to assist us.
Additionally, the ELAC recently began collaboration with Wisconsin Supreme Court Chief
Justice Shirley S Abrahamson on elder justice issues. A taskforce will likely be created to
carry out the primary focus areas: creating uniformity in guardianship actions around the
state, encouraging education and training for guardians and agents under POAs, and
recommending courtroom accommodations for seniors.
Success story – A Family Care MCO (Managing Care Organization) reduction in service
hours case was recently referred to the local EBS office for assistance with the appeal. The
client was a quadriplegic who required in-home care throughout the day and night. The MCO
felt that overnight staffing was unnecessary as the staff was not continually performing
tasks throughout the night. However, the EBS and supervising attorney were able to provide
evidence regarding the client’s medical and person care needs overnight, and the ALJ ruled
against any reduction in services. This victory was especially meaningful as it kept the client
living in her own home with her dog and out of a nursing home.
Another success story – A couple came into their local EBS office for assistance following
the Medicare denial of an ambulance ride. Medicare denied coverage of the ambulance ride
even though the client was 94 years old, had leg pain, and was too weak to stand or walk.
By collecting medical records from the ER and the client’s doctor, the EBS was able to show
that transportation by any other means was contraindicated due to his medical condition.
The client’s appeal was ultimately successful, and Medicare applied the proper coverage to
the $800 ambulance bill.
[Editor's note: There is some confusion as to the current home of the Guardianship Support
Center and the EBS Legal Supervision Program (other than Senior Law and Judicare which
both continue in their present locations) and the Medicare Part D Prescription Helpline.
These programs were formerly staffed and managed by the Coalition of Wisconsin Aging
Groups (CWAG). Unfortunately, confusion continues, in part, due to numerous publications
and website listings that include outdated contact information. I encourage any of you with
the outdated publications to update them with the correct and current contact information.]
The current contact information (as of December 2013) for these programs is as follows:
Guardianship Support Center (GWAAR): Call: (855) 409-9410 Email: [email protected]
Legal Supervision of the EBS Program in all Wisconsin Counties except Milwaukee,
Waukesha, Washington (Senior Law) and Wisconsin’s Indian Tribes (Indian Law Center of
Wisconsin, Judicare): GWAAR contact Attorney Kate Schilling at [email protected]
Senior Law (Milwaukee, Waukesha, and Washington counties): (414) 278-1222
Indian Law Centre Wisconsin Judicare: Contact Sunshine Lemieux at (800) 472-1638.
Medicare Part D Prescription Helpline - Board on Aging and Long Term Care (BOALTC):
Contact 1 (855) 677-2783
Top
Trial Courts Have the Ability to Declare a Marriage Void After the Death of One
of The Parties to the Marriage
Trevor C. Lippman
O’Neil, Cannon, Hollman, DeJong & Laing S.C., Milwaukee
Submitted Sept. 3, 2013
In Mudlaff v. McLeod, 2013 WI 76, the Wisconsin Supreme Court recently
took up the issue of whether a court retains the ability to declare a
marriage void after the death of one of the parties to the marriage. A fiveto-two majority held that a court has the authority under Wis. Stat. Ch.
765. In so holding, the Court reversed the Washington County Circuit
Court’s ruling, which had concluded that an annulment was the only
method to void a marriage, and Wis. Stat. Ch. 767 prohibited annulment
posthumously. The Court held that a court retains the ability to declare a
marriage void from the onset of the marriage under Wis. Stat. Ch. 765. A
brief summary of the asserted claim helps put the significance of the Court’s opinion in
context.
Nancy and Luke Laubenheimer were married 30 years until the time of Luke’s death in
2001. Luke brought three children into the marriage. Nancy acted as their mother but never
legally adopted them. In 1999, Nancy executed a will leaving the bulk of her estate to
Luke’s children. Nancy never altered the will subsequent to Luke’s death or before her own
death in February of 2009.
Some years after Luke’s death, Nancy started seeing Joseph McLeod. He came to live with
Nancy at some point before 2007. Nancy suffered a stroke in January of 2007. From that
time until her death in February 2009, Nancy also suffered from hypertension, insulindependent diabetes, and renal failure. McLeod’s presence did not help Nancy’s condition. As
early as March 2007, a nurse assigned to care for Nancy indicated that Nancy admitted
McLeod “[got] ‘rather upset’ at times, and that [the nurse was concerned McLeod was] not
allowing [Nancy] to get the care she required.” Nancy ended up eventually having another
stroke and was admitted to the hospital. On October 1, 2008, two physicians signed a
Statement of Incapacitation concluding that Nancy “was unable to receive and evaluate
information effectively or to communicate decisions.” The hospital transferred Nancy to a
nursing facility on October 13, 2008.
On November 3, 2008, McLeod removed Nancy from the nursing facility and married her
without informing any of Nancy’s family, friends, doctors, or social workers. The plaintiffs
claim that McLeod removed Nancy from the nursing home to marry her at a time when she
was legally incompetent in order to secure Nancy’s property upon her death. The Court
appointed Nancy’s cousin and sister as temporary guardians of Nancy’s person and estate,
respectively, in January of 2009. Nancy died on February 5, before an annulment action
could be commenced on her behalf under Wis. Stat. § 767.313. As a result, McLeod became
the sole beneficiary of Nancy’s estate. Shortly thereafter, attorney Gregory Mager of O’Neil,
Cannon, Hollman, DeJong & Laing S.C. filed a petition for determination and proof of
heirship in probate court under Wis. Stat. § 863.23 on behalf of the aggrieved heirs to
challenge the validity of the marriage between Nancy and McLeod. The issue eventually
made its way up to the Wisconsin Supreme Court.
The Court relied heavily on a 2001 Court of Appeals case in reaching its decision. (See Ellis
v. Estate of Toutant, 2001 WI App 181, 247 Wis. 2d 400, 633 N.W.2d 692) Toutant held
that there is a fundamental distinction between the annulment of a marriage and a judicial
declaration that a marriage is void. McLeod argued the legislative changes to the annulment
statute in 2005 stripped the Court of its power to declare a marriage void. “There is no
evidence that the legislature sought to curtail a court’s power to address fraud, mistake,
and other exigencies in a disputed marriage in order to ‘declare rights, status, and other
legal relations.’… Limiting a court’s power to address these issues would effectively shut off
declaratory remedies for parties in an estate action.”
The Court also distinguished between marriages that are void and marriages that are
voidable. A void marriage is “an absolute nullity from its very beginning and cannot be
ratified.” A voidable marriage “may subsequently ripen into an absolute marriage, and is
considered valid and subsisting until annulled by judgment of a court of competent
jurisdiction.” The Court held that a void marriage is challengeable after the death of one of
the parties as opposed to a voidable marriage. The Court further found that “[t]he death of
an incompetent party to an alleged marriage makes it impossible for the parties to ratify the
marriage if the party remains incompetent from the time of marriage until death.”
Finally, the Court found that a declaratory judgment is the mechanism by which courts are
entitled to decide such cases. This is because the Uniform Declaratory Judgment Act
“explicitly provides standing for interested parties in an estate action.” The Court looked to
the policy behind the act: “McLeod would have us hold that the legislature intended that an
incompetent decedent’s estate or an aggrieved party is simply out of luck - that an
incomplete annulment action cannot be converted into an action to declare the marriage
void. Troubling scenarios can be avoided by an option to declare a marriage void after the
death of one of the parties, either directly or in a collateral proceeding.”
The Court made it clear it was not taking a position on the merits of the case before it.
However, the Court did give attorneys some guidance moving forward. The Court said the
validity of the marriage is a rebuttable presumption, and a court can invalidate a marriage
upon the showing of clear and convincing evidence. Importantly, the Court noted that
Nancy’s “capacity to enter into marriage is somewhat analogous to a person’s capacity to
make or revoke a will.” The Court goes on to list three cases to assist attorneys in this
endeavor: (1) Schultz v. Lena, 15 Wis. 2d 226, 112 N.W.2d 591 (1961), (2) Brandon v.
Hagen, 264 Wis. 269, 58 N.W.2d 636 (1953), and (3) Smits v. Valley, 202 Wis. 434, 232
N.W. 845 (1930).
The Supreme Court’s decision upholds Wisconsin’s long recognized policy to “promote the
stability and best interests of marriage and the family” by allowing consideration of a
spouse’s legal competency at the time the marriage commenced after the spouse dies.
Petitioning the circuit court to find that a marriage was void from the onset after one of the
spouses has died may provide a useful tool for elder law attorneys representing aggrieved
heirs under an egregious set of facts.
[Editor's note: Attorney Lippman thoroughly footnoted and annotated this article. For ease
of reading and publication, the notes were incorporated into the article and eliminated when
simply reciting a previous reference. I maintain a copy of the fully referenced piece and will
provide a copy to anyone who would like the fully referenced copy. Any irritation a reader
experienced due to lack of citations is my responsibility alone.]
Top
Hospitals Are Also Invested in Ending the Use and Abuse of the Medicare
Observation Versus Inpatient Status Hospitalization Coverage Determinations
Julie A. Short
Haskins Law LLC, Madison
Submitted Nov. 6, 2013
[Editor’s note: The opinions expressed in this article are solely those of the author and are
not to be imputed to any other member of the Elder Law Section or its Board.]
Recently, a federal judge in Connecticut dismissed a lawsuit filed by the
Center for Medicare Advocacy challenging the Medicare coverage
determination practice of labeling the hospitalization of a Medicare
beneficiary as "observation care" versus inpatient care. The significance of
this, as many elder law practitioners know, is that if a beneficiary does not
have his or her hospitalization stay characterized as “inpatient” for at least
three days before being admitted to a skilled care facility, the subsequent
cost of the stay at the skilled care facility will not be eligible for Medicare
coverage at all.
Medicare can cover in full, and/or in part, up to 100 days of skilled nursing facility care.
With that care costing as much as $260 or more per day, a loss of this Medicare benefit can
be financially catastrophic for a beneficiary and his or her family. Many of us have received
the distraught phone call from a Medicare Beneficiary whose skilled nursing home stay has
been denied Medicare coverage even after that beneficiary was in the hospital for longer
than three days. Unfortunately there is very little that can be done to prevent our clients
from receiving this unpleasant surprise.
From the perspective of a hospital, The Observation versus inpatient status question
significantly complicates an already difficult discharge process. Quickly finding a post-acute
rehabilitation facility willing to take a patient with limited financial resources when Medicare
coverage will not be available is a challenge. Coordinating a safe and effective discharge has
become increasingly important to hospitals recently, since a hospital may also be financially
penalized by Medicare which can withhold reimbursement for patients who are readmitted
to a hospital within 30 days of a discharge, if Medicare determines that the readmission
would have been prevented by the hospital, if different care and or discharge procedures
had been used. This policy is one attempt to address the problem that approximately 20
percent of Medicare beneficiaries are readmitted within 30 days of discharge, and these
readmissions have been estimated to cost the American public >$15 billion per year. (See
Medicare Payment Advisory Commission (MedCAP). Report to the Congress: Creating
Greater Efficiency in Medicare. (This is 297-page report may take several minutes to
download.)
In the Connecticut case, the Center for Medicare Advocacy, representing 14 Medicare
beneficiaries, sought to eliminate the observation classification, or in the alternative, to
require hospitals to tell patients when they are under observation status and to create a
clear appeal process that observation patients could use to challenge Medicare's coverage
decision.
Currently there is no requirement for a hospital to provide an Advance Beneficiary Notice
(ABN), or any other form of notice, to a beneficiary indicating that his or her hospital stay
will not be deemed an inpatient stay. One function of an ABN is to make it clear to a
Medicare beneficiary that the care they are receiving may not be covered by Medicare. The
ABN also relieves the care provider of liability, in that a beneficiary cannot assert that he or
she had no reason to know that the care he or she was receiving was not covered by
Medicare. ABNs are routinely used nursing homes when beneficiaries are discharged from
Medicare coverage when the SNF believes the beneficiary no longer needs skilled care or
has exhausted their coverage during a spell of illness.
The Connecticut court dismissed the case, essentially deferring to the Department of Health
and Human Services’ (DHHS) power as an agency to determine Medicare Procedure. The
position taken by DHHS in the Connecticut case and other similar cases is that hospitals
have the responsibility to determine whether or not patients are to be admitted or to
receive care under observation or inpatient status. On first impression, one would assume
that the hospital would be happy to have the power to make these determinations, but a
review of a lawsuit filed by the American Hospital Association illustrates why hospitals do
not want this responsibility and why they, too, have been harmed by CMS’s use of
observation status in its coverage determinations to deny coverage and payment. See The
American Hospital Association, Et Al., V. Kathleen Sebelius, Case No. 1:12-cv-1770-CKK,
U.S. District Court of the District of Columbia.
Why would a hospital care if the coverage billing was done as inpatient or outpatient status?
In both cases the hospital is paid by Medicare. The difference is that observation cases are
paid under Medicare Part B, and inpatient cases are paid under Part A. The problem with
this is that when a hospital submits a claim under either Part A or Part B, it cannot be sure
that its coverage determination will be upheld by CMS. Despite the representation made by
DHSS in the Connecticut lawsuit referred to above, that DHSS allows hospitals and doctors
to determine the status under which patients should be admitted to the hospital, CMS still
reviews these determinations and often disagrees with the hospital's decision. If a patient is
admitted to the hospital as an inpatient, with billing and coverage to be paid for under Part
A, but CMS feels that the patient should have been admitted under observation status,
rather than as an inpatient, Medicare will not pay for the patient’s inpatient costs.
CMS cannot directly process all of hundreds of millions of claims it receives each year, so it
contracts with private insurance companies to perform coverage determinations. Part of this
review involves the submission of these claims to Recovery Audit Contractors (RACs) for
review. RACs, which became a permanent fixture in the Medicare regulatory landscape in
2006, are private entities that audit payments made to providers. RACS are paid on a
contingency basis; thus, they tend to focus their efforts on high dollar claims, and these are
most often hospital claims. The more mistakes an RAC finds in high dollar claims, the more
they are paid. From 2003 to 2006, when the use of RACs was subject to a trial
demonstration period, RACs found that more than 41 percent of the “errors” discovered
were due to care provided in the “wrong” setting (inpatient vs. outpatient).
Hospitals must submit a claim within a year of the service in order to receive Medicare
reimbursement; however, the period for RAC review does not appear to have any limit. It is
not uncommon for a hospital to be subject to review many years after the care was
provided. The result is that if the RAC determines an error was made (inpatient care
provided rather than outpatient), it may be too late for the hospital to re-bill the claim. The
hospital is forced to repay CMS for the Part A benefits received by Medicare, but it cannot
re-bill under Part B. The natural result of this is that hospitals afraid of a fraud
determination by a RAC submits claims under Part B to ensure payment rather than billing
under Part A, with the risk that a future RAC review will not support an inpatient admission
determination, and the hospital will be left without any reimbursement at all. The author
has had legal counsel for a hospital confirm this fear to her in a case in which I was trying to
convince the hospital to submit a Part A claim via a demand bill.
In October 2013, CMS issued a new rule to address this apparent inequity regarding
Medicare’s hospital reimbursement policy. This rule has been referred to as the “Two
Midnight” rule. The “Two Midnight” rule, also known as the “benchmark” rule, is meant to
limit RAC redetermination in cases in which the medical records clearly demonstrate, and a
physician clearly states, that the inpatient admission order was made because the physician
expected the patient to require a stay that includes a period of at least two midnights. The
Two Midnight Rule does not change the three-day inpatient hospitalization requirement in
order for a beneficiary to receive Part A coverage for SNF care post-hospitalization, but it
will allow hospitals to bill and receive payment under Medicare Part A.
One problem that remains, even after implementation of the Two Midnight Rule is that even
though the hospital will be allowed to re-bill Part A denials under Part B, it can only do so in
the first year after the service has been provided. Given the timing of RAC reviews, which
may occur years after the service has been provided, as discussed above, this essentially
gives the hospital no meaningful remedy in cases where a review by RAC takes place after
the first year following the date of service.
From the point of view of advocates working with beneficiaries who discover the observation
status problem, perhaps hospitals, and more importantly physicians, will now be more
willing to join with the beneficiary in supporting an appeal of the inpatient status denial. If
an advocate is contacted about this issue while a beneficiary is in the hospital, the advocate
should, especially in cases to which the two midnight presumption applies, advocate for the
hospital to submit the claim under Part A, with assurance an appeal will be pursued if there
is a denial. The advocate should remind the hospital that Medicare Part A coverage is a key
component to the ease of the hospital to find appropriate post hospital care. The efficacy of
this remains to be seen, however, since hospital billing staff are reluctant to push these
issues due to the fear of allegations of fraud and RAC review.
The bottom line is that the only real solution for all involved is to get rid of the three-day
inpatient hospitalization rule altogether. A legislative effort to do just this is pending in the
House of Representatives (H.R. 1179) and Senate (S.569). This proposed legislation states
that all time in a hospital, whether inpatient or outpatient, is counted to determine Medicare
coverage for SNF care. The legislation has not been objected to by any national organization
and has 106 congressional so-sponsors and 24 senate co-sponsors as of October 30, 2013.
(Per information supplied by the Center for Medicare Advocacy).
Perhaps now that both care providers and care recipients clearly have a vested, joint
interest in eliminating the three-day standard, this archaic policy can finally be removed. In
the meantime, beneficiaries and hospitals need to join forces in asserting their review rights
in Medicare appeals to support physician inpatient determinations so that beneficiaries can
receive the benefits to which they are entitled and the medical expertise of physicians and
hospitals can be supported, and not thwarted, by the threat of a punitive and biased auditor
review that is focused upon second guessing the physician's judgment for financial gain.
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Eight Advance Care Planning Lessons That Took Me Thirty Years to Learn
Charles P. Sabatino
Director of the Commission on Law and Aging
Reprinted from BiFocal, A Journal of the ABA Commission on Law and Aging, Vol. 34, Issue
6 with their express permission.
From the time I began work as a young lawyer in a senior citizens law project in 1979
through more than 25 years at the ABA Commission on Law and Aging, one ever-present
challenge in the field of aging has been how to ensure that the care individuals receive at
the end of life is the care they want and expect. Advance care planning is a key tool for
reaching that goal. (I use the term “advance care planning” because that’s the core process
in which advance directives are merely one tool.) A lot has changed over the years, and
research, law, policy, and practice experience have nudged me toward a perspective I’d like
to share in the form of eight advance care planning lessons. This list may be of interest to
you both personally, as you consider your plans for the future and professionally, as you
reflect on the role that lawyers play in the planning for others. And, if I’ve learned anything
in my career, it’s that the only constant is change. These lessons will continue to evolve
with changing medical science, health systems, and social mores.
1. Most Advance Directives Aren’t Worth the Paper on Which They Are Written
I’ve written about the shortcomings of advance directives elsewhere (see, e.g., The
Evolution of Health Care Advance Planning Law and Policy, 88 Milbank Q. 211 (2010)), so
here let me just give a very simplified summary of the research literature. Only a minority
of adults takes the time to create a health-care advance directive, and they generally use a
standardized form that doesn’t provide much useful clinical guidance. Even after completing
a directive, a patient cannot be confident that it will be followed. Health care providers
typically don’t know that the directive exists, or if they know, it’s not in the medical record
or easily accessible in the record. Agents acting under a health-care power of attorney
typically have inadequate knowledge of the principal’s goals and wishes and are too often
unprepared to act as an effective surrogate decision maker.
2. The Real Legal Task of Advance Care Planning Is Appointing and Informing a
Health Care Agent
The authority of an agent to act for an incapacitated principal didn’t exist at common law. It
is a power created by statute, so understanding and following the legal requisites of state
law is important. However, everything else is a communication task, not well accomplished
through legal documents. Yet, the documentation of treatment instructions – usually in the
form of a living will – has been the focus of most legislative and public attention.
In the popular mind, creating a living will to communicate treatment wishes in the face of
serious, and eventually fatal disease, is the most important legal task in advance care
planning. The creation of state “living will” laws going back to the 1970s has given the
public, and sometimes the bar, the mistaken belief that you must use a particular legal
document to express your future health-care wishes, but that is not the case. Statutes did
not create the right to have one’s wishes honored. That right originates in both
constitutional and common law principles. More importantly, treatment-specific instructions
just don’t work well, except for persons facing fairly known and imminent decisions. We lack
a crystal ball to tell us what challenges we will face in our final days. Having a surrogate
decision maker is far more valuable, but only if the surrogate is adequately informed and
educated.
3. Ambivalence is Our Middle Name
Not only do we have a right to change our mind, we often do so. In one study of 189
community-dwelling elders with advanced chronic conditions, researchers found that when
participants were asked about their willingness to risk physical disability in order to avoid
death, almost half changed their minds over a two-year period, and almost half changed
their minds about their willingness to risk cognitive disability. And those participants whose
health varied over time were somewhat more likely to have inconsistent trajectories. See
Terri R. Fried et al., Stages of Change for the Component Behaviors of Advance Care
Planning, 58 J. Am. Geriatrics Soc’y 2329 (2010). These results shouldn’t be surprising to
anyone. Most of us are ambivalent about the prospect of dying, and our deeply held human
inclination to hang onto life, even through a progressive decline, often means that we are
willing to redraw the line at which enough is enough. A doctor colleague of mine captures it
best with what he tells me is an old Spanish proverb: The bull looks different from inside the
ring.
4. Advance Care Planning Has Stages
As our lives change, so does the nature of advance care planning. Planning is just as
important for a young, healthy Freddie at age 18 as it is for a Frederick at age 85 who has a
serious progressive chronic condition. Freddie isn’t likely to think about end-of-life priorities
and goals, but Freddie can and should think about who he wants to make decisions for him
were he to become temporarily or permanently indisposed.
By the time Freddie reaches his 40s or 50s, he will likely have had personal or family
experiences with chronic illness or death and dying; at that stage, his more seasoned values
and priorities can be a part of his advance care planning discussion. Frederick, on the other
hand, is in a position to be very specific about his preferences, priorities, and treatment
decisions – that is, if someone takes the time to talk meaningfully with him. We know that
the likelihood of engaging in advance care planning is directly proportional to age, but the
need is just as high at all ages.
5. The Best Trait in a Health-Care Agent: A Drive to Research Relentlessly
Anyone who has counseled clients about naming a health care agent knows that a
relationship of true love and intimacy doesn’t necessarily translate into a relationship of
good surrogate decision making. Sometimes that person is too emotionally invested to
make objective decisions. I used to emphasize most strongly the need for an agent to be a
strong advocate for the patient’s preferences in the face of resistance, but I’ve concluded
that even more important is a drive to know and discover. The ideal agent should want to
understand a client’s values and thinking as thoroughly as possible, and he or she should
also be inclined to approach medical decisions as a research task. What are the facts and
options, and how do values and goals lead to a choice in that circumstance? This is not PhDlevel research; it is often informed common sense.
Some excellent handbooks for health care agents are available, but, as a short course, I
have found that the following four questions, suggested by Dr. Pat Bomba, a nationally
recognized geriatrician, can bring needed clarity to any critical decision an agent must
make. (See Patricia A. Bomba, Marian Kemp & Judith S. Black, POLST: An Improvement
Over Traditional Advance Directives, 79 Clev. Clinic J. Med. 457, 459 (2012))

Will the proposed treatment make a difference?

Do the burdens of treatment outweigh its benefits?

Is there hope of recovery? If so, what will life be like afterward?

What does the patient value? What is the patient’s goal of his or her care?
6. An Advance Directive Does Not Equal a Plan of Care
Formal legal documents have an aura of authority about them that doesn’t always stand up
to scrutiny. Advance directives are an example. Even if a directive is perfectly clear about a
particular decision (e.g., “Under no circumstances do I want anyone to attempt resuscitation
if my heart or breathing stops.”), it is not a medical order and may never see the light of
day in the medical record. Consider what drives behavior in hospitals and other institutions.
It is doctor’s orders and standard clinical protocols. Advance directives simply don’t
integrate well with current hospital practice. Moreover, even if the treating physician is
aware of your directive, every state permits health-care providers to raise conscience
objections and refuse compliance, as long as required notice and some level of assistance in
transferring to another provider is given.
Some very insightful clinicians in Oregon in the 1990s began to think about how to bridge
this gap between the treatment goals and wishes of seriously ill patients and medical orders
that actually govern care and treatment. The effort gave birth to the Physician Orders for
Life-Sustaining Treatment (POLST) program. POLST programs have developed in more than
a third of the states under a variety of names: Medical Orders for Life-Sustaining Treatment
(MOLST), Physician Orders for Scope of Treatment (POST), Medical Orders for Scope of
Treatment (MOST), and others. They all have in common four important tasks:

A discussion takes place between the treating physician and patients with advanced
progressive illness, or their surrogate. The discussion explores the range of end-oflife care treatment options and seeks to discern the wishes of the patient in light of
his or her current condition. If the patient has an advance directive, it is relevant and
potentially helpful to this discussion, but the POLST program is available to all
patients with advanced illness regardless of whether they have previously engaged in
advance care planning.

The patient’s wishes are incorporated into a set of doctor’s orders recorded on a
highly visible, standardized POLST form that serves as a cover sheet to the medical
record or is easily accessible in the electronic health record.

Providers must ensure that the POLST form travels with the patient whenever he or
she transfers from one setting to another.

Providers comply with POLST across care settings and reevaluate the orders with the
patient or surrogate as appropriate.
POLST programs are taking hold in the majority of states and represent a real sea change in
learning how to elicit and honor patient preferences and goals of care. A substantial
research base shows that POLST substantially improves the documentation of patient
preferences in the medical record and compliance with them at the end of life. A research
bibliography on POLST can be found at http://www.polst.org/educational-resources/resource-
library/
However, the beating heart of POLST, as well as its Achilles heel, is the quality of the
conversation between provider and patient. Of course, this is true of all forms of advance
care planning. Developing valid and feasible quality measures to ensure the quality of these
conversations is still a work in progress.
7. Good Advance Care Planning Requires More Than Just Better Education – It
Requires System Change
Health care delivery in the United States is extremely complicated and fragmented. While
medical orders and standard clinical protocols may drive what happens in a particular
setting, many more factors affect quality of care across the continuums of time, place, and
disease. As patients and their agents travel across these continuums, they too often find
little support in making good decisions, and are left on their own to navigate a maze of care
providers, settings, and confusing information. POLST offers one paradigm for improving
care planning for those with advanced progressive illnesses. Better education of health care
providers and the public is also essential; however, person-centered care and care planning
across the age span also requires fundamental system change.
Doing the right thing has to be built into the system. At least one health system in the
Midwest has figured out how to do this with advance care planning: Gundersen Lutheran
Health System in La Crosse, Wisconsin. The Gundersen system covers 19 counties and has
6,300 employees. They have built advance care planning into the system design, ensuring
that all adults encounter advance care planning opportunities multiple times, at different
times, and in a way that is appropriate for their stage of life. Staff members are trained in
advance care planning skills, and the health care system goes outside hospital walls to
educate and engage the community in advance care planning. Finally, the systems put in
place are subject to a process of continuous quality improvement.
As a result, data from a retrospective study of deaths across all settings in La Crosse
County, Wisconsin, during a seven-month period revealed that 90 percent of the deceased
individuals had an advance directive. Of those with an advance directive, it was available in
the medical record 99.4 percent of the time. In addition, 67 percent of decedents had a
completed a POLST form at the time of death. (Bernard J. Hammes et al., A Comparative,
Retrospective, Observational Study of the Prevalence, Availability, and Specificity of
Advance Care Plans in a County That Implemented an Advance Care Planning Microsystem,
58 J. Am. Geriatrics Soc’y 1249, 1252 (2010)).
With respect to conformity of treatment to preferences, the study found that expressed
preferences regarding CPR and hospitalization were consistent with treatment in 99.5
percent of the cases. These outcomes far surpass any similar measures seen elsewhere.
While Gundersen may be smaller than many health systems, less urban, and more
homogenous, the results are still astounding and demonstrate that it is possible to fashion
effective advance care planning environments. La Crosse has set a high bar, but it’s one
that makes me extremely optimistic about the future of advance care planning.
8. Lawyers Will Continue to Have an Important, Though Changed, Role in
Advanced Care Planning
Almost every general practitioner, estate planner, and family law attorney includes advance
directives in their armament of products. Unfortunately, advance directives are often a stock
add-on, produced in rote fashion, and signed with minimum explanation. This is somewhat
understandable, given that meaningful counseling about goals of care, values, and
treatment options is time intensive and, thus, likely cost-prohibitive for most clients.
A better role for lawyers is that of provocateur and facilitator. There are many good advance
care planning tools and workbooks now available that can be given to clients to jump-start
their thinking, provoke meaningful conversations with family and clinicians about future
medical decision making, and educate future surrogate decision makers about their role.
For a list of tools and resources, see the webpage of the ABA Commission on Law and
Aging: www.ambar.org/HealthDecisions. The tools can also become additional, important
documentation of the individual’s thinking, values, priorities, and wishes. These
conversations don’t come easily, but with your encouragement and some tools to help them
along, clients are more likely to engage in the process effectively. Then you can customize
their advance directive – a document that they will now understand to be part of a
continuing conversation, not the end of a discussion.
Conclusion
In the end, the mantle of responsibility for tough decisions falls on the shoulders of the
patient, agent, family or friends, and health care providers. Good advance care planning is
good person-centered care. And good person-centered care is the Holy Grail of health
reform, long-term care, and end-of-life care. I’m 30 years and eight lessons into my quest
for this ideal and am cautiously encouraged by what I have seen so far.
Charles P. Sabatino is the Director of the Commission on Law and Aging. This piece was
originally published in Experience, Volume 23, Number 1, 2013. © 2013 by the American
Bar Association. Reproduced with permission. All rights reserved. This information or any
portion thereof may not be copied or disseminated in any form or by any means or stored in
an electronic database or retrieval system without the express written consent of the
American Bar Association.
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Tech Tips: Document Portability
Greg Banchy
Banchy Law Center LLC, Eau Claire
Submitted Sept. 29, 2013
Most of us have, at one time or another, run into the situation where a
client or colleague sends us a document electronically, but when we
attempt to open it, all we get is a non-helpful message filled with a lot of
technical jargon that an incompatibility exists which has prevented our
program of choice from opening it. Without getting overly technical, the
reason for this has to do with the way programs such as Word,
WordPerfect, and other “word processing” software store their data (the
documents being created).
Each program has its own propriety format for storing data. The format includes what we
type in plus a lot of invisible “codes” that turn on/off various features such as underlining,
bolding, indenting, etc. For the most part, the format of the data is entirely different from
program to program (e.g., Word to WordPerfect), and for the most part they are
incompatible. You can tell which program created a document, but not necessarily the
version of the program, by looking at the “extension” used in its name. For example, Word
documents all end with “.doc” or “.docx”, whereas WordPerfect documents commonly end in
“.wpd”.
Simply renaming a document (e.g., from “document.wpd” to” document.docx”) will not
solve the problem. The word processor will give the user a non-descriptive error message
about the document being corrupt and will not be able to open it. Incompatibilities may also
exist as a result of the choice of platform used to create the documents – e.g, PC vs. Mac.
To make matters even worse, it is even possible to have incompatibilities between different
versions of the very same program. So, for example, if you create a document using Word
2010, you may experience difficulty viewing or editing it with your older Word 2003. Most
programs offer what is known as “backward compatibility” – that is, the ability to open a
document created by an older version of a program. This would, for example, allow a Word
2010 user to open and manipulate a document created using Word 2003. The reverse may
or may not be true because it is difficult to ensure forward compatibility. Often it will work
to some degree, but certain formatting might not function properly or might produce
unpredictable results.
Most programs offer what are known as “viewers.” When installed, viewers allow users to
view a document created by a word processor like Microsoft Word but will not allow editing.
For example, if you go to: http://www.microsoft.com/en-us/download/details.aspx?id=4,
you will be able to download a viewer to open, but not edit, Microsoft Word documents.
Most programs also offer a means for converting documents to another format. For
example, within Microsoft Word, the capability exists to convert and then open WordPerfect
documents; however, it changes the internal formatting, making it unusable in WordPerfect.
In some versions of Word this requires installing a converter, which is usually packaged with
the installation software but not installed by default. These mostly work but can also
sometimes produce formatting anomalies that must be corrected manually (e.g., inserting
“spaces” instead of tabs at the beginning of lines).
Years ago, in an effort to find a way to allow program data to travel from platform to
platform, (to make it “portable”), Adobe developed a means for storing data that could be
read on any platform with the use of its reader – in a sense making the data platform
independent. Their “portable document format” – commonly known as a “PDF” - could be
created on any computer and read on any other computer. Most word processors have builtin tools for “publishing” to a common format such as PDF. This allows files to be easily
shared with others but may limit the person receiving the file the ability to edit the
document. This is actually preferable in some cases where you don’t want the document
changed, just viewed. Most courts, which either accept or mandate the use of electronic
documents (e.g., Federal District Courts), require the submissions to be in PDF format.
Troubleshooting. Documents created in almost every environment (e.g., Windows, Mac,
etc.) typically have two-part names – the name given by the user followed by an extension
(typically a “dot” (“.”), followed by 1-4 characters, such as “.docx” for Word documents).
That said, one would think it would be fairly easy to determine what program created the
document, which would then tell the user what program, viewer, or converter would be
needed to work with it. Unfortunately, it is not always that easy.
Certain environments, such as Windows 7, hide the extension part of the name by default.
So a document named “smithprobatebrief.docx” – a Word document – might show up in the
file list as simply “smithprobatebrief.” The extension is there; it is just hidden. If it is
hidden, you may not be able to tell what program created it. In Windows 7 this behavior is
controlled by options included in the “control panel.”
To unhide the extension, go to the control panel (the Windows “ball” in the lower left-hand
corner of the screen), then choose “Control Panel.” Select “Folder Options,” then select the
“View” tab along the top, and then unselect “hide extensions for known file types” under
“Files and Folders” in Advanced Settings. The example file, which was listed as
“smithprobatebrie,f” will now appear as “smithprobatebrief.docx,” and you know what you
have to do to open it. I find it convenient to keep this setting unselected at all times. In
general, it is just easier to know what types of files you are working with.
The bottom line is that there is no one-size-fits-all solution to this problem, but it can be
worked around in most cases. Understanding how the document was created or last stored
(including the name and version of the software) and choosing the right tools to view and/or
convert it to a format which can be understood by the word processor on your computer is
where it all starts.
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Odds and Ends
The 16th Annual WINEALA Elder Law Workshop for 2014 (Focus on Planning Post
Act 20) will be held on Jan. 30-31, 2014 at Chula Vista Resort in the Wisconsin Dells.
Registration will be online. An email with the announcement and registration information will
be sent out via both the Elder Law Section and the WINEALA electronic mail lists. The basic
program will be open for non-lawyer registrants. The advanced program is only open to
attorneys. Register.
Social Security has published its FACT SHEET for 2014 Benefits. The COLA is going
up 1.5 percent. The new SGA (Substantial Gainful Activity thresholds amount for SSA
Disability is $1,070/mo for non-blind applicants and $1,800/mo and the earnings permitted
during a trial work period (TWP) is $770/mo.
The Medicare Part B Premium for most beneficiaries (income < $85,000) will be $104.90.
GWAAR is working on a publication of a book for consumers about benefits for
individuals who are aging and or disabled. GWAAR received a small contribution from the
Elder Law Section (ELS) for this publication. GWAAR will include a resource guide that will
list attorneys who are members of the ELS. The State bar will not permit use of its section
membership list. The only way to have your name and contact information included in this
resource is to send it to Kate Schilling at GWAAR by Dec. 20, 2013. When you send her this
information make it clear that it is for the purpose of being included in this publication. If
you wish to have your contact information included in this resource guide, please sent it to
[email protected]. If you do not want your information shared, please also notify
Kate so she can be sure to prevent an inadvertent listing.
IT Savvy Section Member Volunteer Needed. The Elder Law Section seeks a volunteer
to serve as liaison between the section and the State Bar regarding managing the content of
the Elder Law Section Member's Page. The volunteer will review submissions for suitability
and will assist in the classification and organization of submissions in various
folder/cabinets. The volunteer needs to have beyond a basic understanding or Elder Law in
order to be able to properly identify and categorize submissions. Submissions are
anticipated to include proposed forms, fair hearing decisions, and other educational and
informative materials. Advertising and promotional materials are not to be submitted.
Interested volunteers should contact [email protected].
New Ops Memo released on Nov. 25, 2013, adjusting MEH for 2014 SSA COLA
Effective Jan. 1, 2014. Some of the revisions include:

The Categorically Medically Needy Income Limit will be $2,163 (2013 $2,130)

The maximum CSAS will be $117,240 (2013 $115,920)

CS Income Allocation will be $2,931 (2013 $2,898)
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Volunteers Needed for 2014 Mock Trial – Deadlines Approaching
The State Bar of Wisconsin is hosting the National High School Mock Trial Championship
from May 8 to 10. Many attorneys and judges are needed to judge a few rounds. To qualify
as a judge during the national championship, volunteers must have experience judging
at least two rounds of mock trial in the past five years.
A great way to get some judging practice is by volunteering at a regional competition on
Saturday, Feb. 8 at statewide locations, or the State Semifinals on Sunday, March 9 in
Madison.
The deadline to volunteer for the regional and state tournaments is Jan. 17. The Deadline to
volunteer for the national tournament is April 18.
Don’t miss this opportunity to promote the legal profession and learn more about
Wisconsin’s impressive mock trial program.
Click here for registration details, an entry form and general mock trial information.
To volunteer, contact the State Bar Public Education Program Manager at
[email protected] or (800) 444-9404, ext. 6191.
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Thank You, PINNACLE Authors
State Bar of Wisconsin PINNACLE® thanks the following Elder Law Section members for their
contributions of time and expertise over the last six months:
Wisconsin Attorney’s Desk Reference – Margadette Demet, Margaret Wrenn Hickey,
Jack D. Longert, John C. Mitby, Heather B. Poster
PINNACLE also wishes to acknowledge the invaluable contributions of Keith Christiansen,
a contributor to Marital Property Law in Wisconsin, and to extend our condolences to his
family. He passed away on Oct. 20, 2013.
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Smarter Tools to Market Your Practice
Effectively market your firm’s services with the State Bar of Wisconsin’s Consumer Pamphlet
Series. Each pamphlet answers commonly asked questions, defines concepts and basic
terms in plain English, and describes the need for and role of an attorney. Consumer
pamphlets provide valuable information while positioning your firm as an expert advisor.
They also save lawyers time by answering clients’ basic questions.
Get online and get noticed by licensing content for use on your firm’s website, to improve
your position in search results and drive traffic to the site. Or use print brochures with new
clients or prospects by displaying them in your office, distributing them during community
events, or donating copies to your local library or community organization.
The State Bar offers approximately 20 titles, but those most relevant to an elder law
practice may include:
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Durable Powers of Attorney (print|online)
Health Care (print|online)
Marital Property (print|online)
Probate (print|online)
Revocable Living Trusts (print|online)
Wills/Estate Planning (print|online)
Print pamphlets are available in packets of 50. State Bar members receive discounts on
pamphlets: one packet is $20; 2-10 packets are $18 each; 11 or more packets are $16
each. Six- and nine-pocket display racks also are available.
Electronic licenses are $75 per year for each title. For more information, visit the Consumer
Pamphlet Series online license page on WisBar.
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Elder Law Section Board
Section leadership welcomes your feedback; contact Elder Law Section Board members.
Email the editor, Julie A. Short, at [email protected].
Elder Law Journal of Wisconsin is published by the State Bar of Wisconsin, 5302 Eastpark
Blvd., Madison, WI, 53718-2101.
(800) 728-7788
http://www.wisbar.org/forMembers/Groups/Sections/ElderLawSection/pages/home.aspx,
Author Submission Policy