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		<title>From the Highest Grade Investment Counselor to the Lowliest Tipster</title>
		<link>http://lawyercolorado.net/2012/01/from-the-highest-grade-investment-counselor-to-the-lowliest-tipster/</link>
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		<pubDate>Sat, 28 Jan 2012 17:28:39 +0000</pubDate>
		<dc:creator>Frank A. Cseke</dc:creator>
				<category><![CDATA[Business Law]]></category>
		<category><![CDATA[Estate Planning]]></category>
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		<description><![CDATA[The unfortunate result of the foregoing is where many individual investors will have suffered catastrophic losses as the result of carelessness as opposed to fraud. Not all broker-dealers were engaged in fraud with these risky investments, and thus compensation may be legally insurmountable for some.
]]></description>
			<content:encoded><![CDATA[<div id="tweetbutton339" class="tw_button" style=""><a href="http://twitter.com/share?url=http%3A%2F%2Flawyercolorado.net%2F2012%2F01%2Ffrom-the-highest-grade-investment-counselor-to-the-lowliest-tipster%2F&amp;text=From%20the%20Highest%20Grade%20Investment%20Counselor%20to%20the%20Lowliest%20Tipster&amp;related=&amp;lang=en&amp;count=horizontal&amp;counturl=http%3A%2F%2Flawyercolorado.net%2F2012%2F01%2Ffrom-the-highest-grade-investment-counselor-to-the-lowliest-tipster%2F" class="twitter-share-button"  style="width:55px;height:22px;background:transparent url('http://lawyercolorado.net/wp-content/plugins/wp-tweet-button/tweetn.png') no-repeat  0 0;text-align:left;text-indent:-9999px;display:block;">Tweet</a></div><p>It has been well noted in the Federal law that:</p>
<blockquote><p>Congress enacted the Investment Advisers Act of 1940, ch. 686, 54 Stat. 847 (1940)(current version at <em>15 U.S.C. § 80b-1 to 80b-21 (1994)</em>) both to protect  the public &#8220;from the frauds and misrepresentations of unscrupulous tipsters and touts&#8221; and to safeguard bona fide investment counsel from the &#8220;stigma of the activities of these individuals.&#8221; S. Rep. No. 1775, 76th Cong., 3d Sess. 21-22 (1940), as quoted in 7 L. Loss &amp; J. Seligman, Securities Regulation 3329 (1991).</p></blockquote>
<p>(See the <em>Cigna</em> opinion in 916 P.2d 643; 1996 Colo. App. LEXIS 64; Fed. Sec. L. Rep. (CCH) P99,296; 20 BTR 255.)</p>
<p><span id="more-339"></span></p>
<p>Furthermore, the Act defines an investment or financial advisor as &#8220;&#8216;every person who for compensation gives advice with respect to securities, from the highest grade investment counselor who renders personalized service to the publisher of the lowliest tipster sheet.&#8217;&#8221; (7 L. Loss &amp; J. Seligman, Securities Regulation at 3345. See <em>Cigna</em> at 647, quoting Seligman.) These individuals are fiduciaries who owe a special duty of care to those they give advice to or have a relationship with; &#8220;[i]n general, an investment <span style="text-decoration: underline;">advisor</span> owes a fiduciary duty to his or her customers.&#8221; (<em>Paine, Webber, Jackson &amp; Curtis</em><em>  v. Adams, 718 P.2d 508 (Colo. 1986)</em>. See <em>Cinga</em> at 647, quoting the opinion in <em>Adams</em>.) Said relationship can also be established whether it is business, professional, or personal. (See <em>Cigna</em> at 646, quoting <em>Moses v. Diocese of Colorado, </em>863 P.2d 310 (Colo. 1993).)</p>
<p>Thus, there are two possible legal theories outside of the specific fiduciary breach analysis that serve those to whom the adviser owes a duty, (1) to compensate for negligence and (2) to penalize and compensate for fraud. One need only reasonably rely on the advices and recommendations of the fiduciary without further investigation, due to the special relationship of trust. (See <em>Cigna</em> at 646, quoting <em>Lucas v. Abbott, </em>198 Colo. 477, 481, 601 P.2d 1376, 1379 (1979).)</p>
<p>The central focus here is on the topic of fiduciary negligence in the context of financial advising with mortgage backed securities and CDOs.</p>
<p><strong>A. Negligence of the Fiduciary or Advisor as an Actionable Claim</strong></p>
<p>One element in assessing whether the fiduciary or advisor has breached his/her duty of care owed to an individual is the degree with which the recommended investments are or are not suitable to the needs and interests of the customer.</p>
<p>The NASD proscribes a rule for brokers and their agents to obtain essential financial information such as &#8220;the customer&#8217;s <span style="text-decoration: underline;">financial</span> status, tax status, and investment objectives, along with such other information as may reasonably be useful in making recommendations to the customer. The broker is to use this information to select suitable investments for the customer.&#8221; (See National Ass&#8217;n Securities Dealers Manual (CCH) 2152; quoted in <em>Cigna</em> at 648.) The ratio in determining suitability is based on a rational investing principle in which an individual will seek investments that minimize risks and maximize returns. (See <em>Cigna</em> at 648, quoting S. Anderson &amp; D. Winslow, Defining Suitability, <em>81 Ky. L.J. 105 (1992)</em>. ) The other measure is with respect to diversification:  &#8220;In contrast, the &#8216;modern portfolio theory&#8217; of investment emphasizes rapid and substantial return through high-risk investments. Under this theory, losses are minimized by the development of a diverse portfolio.&#8221; (<em>Id. at 649.) </em>Such a theory allows for some investments that pose high risk due to the selection of various securities: &#8220;Under this theory, a specific investment might present a significant risk of loss and still be suitable for a cautious investor, so long as the total portfolio reflects sufficient diversity to minimize the overall risk of loss. See S. Root, Suitability &#8212; the Sophisticated Investor &#8212; and Modern Portfolio Management, <em>1991 Colum. Bus. L. Rev. 287 (1991); </em>quoted in<em> Cigna at 649</em>. ) So as to determine negligence, therefore, risk in and of itself is not always of consequence, and the courts have abstained in developing a universal legal and objective standard with which to assess negligence within the context of suitability. (<em>Id</em>.) &#8220;Other considerations include the degree of diversity in the investor&#8217;s portfolio and the investor&#8217;s underlying strategy and goals.&#8221; (<em>Id</em>.)</p>
<p>What it boils down to is a factual determination of suitability in relation to the selection of an investment or series of investments under a risk-reward/goal-need framework or otherwise suitability under a properly diversified portfolio also taking into account the customer&#8217;s goals and needs. &#8220;Thus, the alleged unsuitability of the investments is a material question of fact.&#8221; (<em>Id</em>.) A central question within either framework for analysis is the &#8220;inquiry notice&#8221; received by the customer pertinent to the risk level of the investment. &#8220;Inquiry notice&#8221; allows the customer to be both aware of the risks involved in the investment as well as to be able to conduct their own due diligence, and are often provided for in the investment prospectus, subscription agreement, or other published material required of the broker by federal securities laws. (<em>Id</em>.)</p>
<p><strong>B.  Widespread Losses from Mortgage Backed Securities</strong></p>
<p>A whole host of recent claims are tied to securities fraud that took place in the aftermath of the nation&#8217;s financial crisis. Investors lost hundreds of millions and have either had to delay their retirement or sustain a lower standard of living due to the result of undisclosed risks related to mortgage backed securities tied to sub-prime mortgages. In fact, estimates reflect up to 35 percent of all mortgage securities issued in 2006 were of the  high-risk sub-prime class of investments. These were often sold to investors with an assurance of low risk and stability. However, as foreclosures ascended to crisis levels the values of these investments plummeted.  Individual and institutional investors were either duped into these or were severely misled.</p>
<p>Accordingly, fund managers, brokerages, and advisers breached their ethical and legal duties owed to investors by misrepresenting the value, risk and ultimately the suitability of these risky, and anything but conservative, investments. Many relied on the opinions and recommendations of their fiduciaries who maintained that they were making sound and appropriate investment decisions. The gravamen of a multitude of claims against these trusted individuals and their institutions they represented is fraud, an intentional misleading of another for personal or financial gain. What about the careless recommendations and sales?</p>
<p><strong>C.  Negligence and Mortgage Backed Securities and Collateralized Debt Obligations (CDOs)</strong></p>
<p style="text-align: left;">A likely defense of the advisers as well as the brokerages is that they lacked the requisite intent to defraud their investors. The defense would appear as the inability to determine the real risks from the information available to them. In other words, the fiduciary claim would be &#8220;We were as convinced of the value and risk level of these investments as any other that were of equal suitability.&#8221; Yet, there are issues with the &#8220;every thing appeared right and compliant on paper&#8221; excuse. Absent a demonstration of the intent element of fraud, it eagerly begs the question as to the standard duty of care owed to investors under a negligence theory. What did the broker-dealers do in order to evaluate and value the supposedly safe investments?</p>
<p style="text-align: left;">Naturally, the type and quality of advice one expects from their neighbor when discussing the latest hot investments is widely apart from the expectation one has of a licensed advisor with a legitimate broker. One goes to the professional for his or her expertise but also because the law imposes on such a person a duty of trust and ethical responsibility. As matter of public and fiscal policy, investors need a high level of assurance when dealing with financial advisers and their principals, or otherwise consumers will lose faith in these institutions that are a substantial part of the economy.</p>
<p style="text-align: left;">The question of negligence under the duty of care owed element hinges on the inquiry surrounding what the advisor and brokerage <em>should have known</em>. Under the Securities Act of 1933, broker-dealers are required to exercise &#8220;due diligence&#8221; or to conduct a reasonable investigation into the company whose equity they are selling and disclose to the investor their findings; however, they are not liable for not disclosing information that was not discovered in the investigation. Regulatory Notice 10-22, further, requires broker-dealers to investigate securities &#8220;they recommend in offerings made under the Securities and Exchange Commission&#8217;s Regulation D under the Securities Act of 1933—also known as private placements.&#8221; (See FINRA Regulatory Notice 10-22, <em>Obligation of Broker-Dealers to Conduct Reasonable Investigations in Regulation D Offerings</em>.)</p>
<p style="text-align: left;">Yet as to what constitutes a reasonable investigation and proper due diligence will be a determination of fact. Standard practices developed by the industry and those mandated by FINRA and the SEC govern over the minimum of what is required. One difficulty lies in examining whether the broker-dealer failed in its due diligence and was thus negligent in overlooking risky mortgage loans that were included in tranches of collateralized debt obligations and other mortgage backed securities. Consequently, the systematic &#8221;bundling&#8221; of these debt instruments, blurred by various grades, creates &#8220;plausible deniability&#8221; for the examiner.</p>
<p style="text-align: left;"><strong>D.  Conclusion</strong></p>
<p style="text-align: left;">The crux of the matter, in light of assessing negligence, comes down to the perplexing question of whether the broker-dealer knew of should have known of the inherent risks. In their due diligence, any given broker-dealer may have been &#8220;duped&#8221; or was perhaps left &#8220;unaware&#8221; based on the limited extent of their required investigation. But this is where some of the friction lies both at law and in equity as far as there being a legal remedy. A reasonable investigation into the securities being offered using either industry standard methods and/or those required by law ought to uncover flaws or risks in the process. Using the <em>Cigna</em> analysis, one is hard-pressed to see what the advisor in various scenarios fails to do, unless he or she is fully aware based on the information provided by the principal. And the same can hold for the broker-dealer that is equally unaware despite meeting its legally regulated compliance.</p>
<p style="text-align: left;">Reviewing a scenario, however, narrowed down to CDOs and the mortgage backed securities whereas bad-debt was ostensibly well obscured &#8211; and putting fraud aside - the wrongdoing or legal omission theorized very well lies in the lack of industry standards and deficient laws that since the debt crisis has moved Congress to address these with more meaningful regulation and reform. See the <a title="Frank-Dodd Act" href="http://banking.senate.gov/public/_files/070110_Dodd_Frank_Wall_Street_Reform_comprehensive_summary_Final.pdf">Frank-Dodd Financial Reform Act</a> for more information.</p>
<p style="text-align: left;">The unfortunate result of the foregoing is where many individual investors will have suffered catastrophic losses as the result of carelessness as opposed to fraud. Few broker-dealers engaged in fraud with these risky investments, and thus compensation may be legally insurmountable for some due to legal remedies that are unavailable or not clearly defined in the law. More impetus, as such, should be placed on the judiciary calling for the creation of equitable remedies to rectify and compensate losses that otherwise will have been created by a financial system once entrenched by unjust deregulation.</p>
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		<title>Is Insurance the Answer to Long Term Care Planning?</title>
		<link>http://lawyercolorado.net/2012/01/is-insurance-the-answer-to-long-term-care-planning/</link>
		<comments>http://lawyercolorado.net/2012/01/is-insurance-the-answer-to-long-term-care-planning/#comments</comments>
		<pubDate>Fri, 13 Jan 2012 17:53:50 +0000</pubDate>
		<dc:creator>Frank A. Cseke</dc:creator>
				<category><![CDATA[Estate Planning]]></category>

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		<description><![CDATA[“A new law makes the purchase of products that combine annuities or insurance policies with long-term care insurance more attractive. These "hybrid" products are gaining in popularity due to a law that went into effect January 1, 2010, making distributions from life insurance and annuities tax-free when used to pay for long-term care. The same law also allows owners of annuities or life insurance policies to exchange their old policies for long-term care insurance or hybrid policies without being taxed.”

]]></description>
			<content:encoded><![CDATA[<div id="tweetbutton313" class="tw_button" style=""><a href="http://twitter.com/share?url=http%3A%2F%2Flawyercolorado.net%2F2012%2F01%2Fis-insurance-the-answer-to-long-term-care-planning%2F&amp;text=Is%20Insurance%20the%20Answer%20to%20Long%20Term%20Care%20Planning%3F&amp;related=&amp;lang=en&amp;count=horizontal&amp;counturl=http%3A%2F%2Flawyercolorado.net%2F2012%2F01%2Fis-insurance-the-answer-to-long-term-care-planning%2F" class="twitter-share-button"  style="width:55px;height:22px;background:transparent url('http://lawyercolorado.net/wp-content/plugins/wp-tweet-button/tweetn.png') no-repeat  0 0;text-align:left;text-indent:-9999px;display:block;">Tweet</a></div><p>A recent USA Today article states that there is an increase in seniors living over the age of 90.  According to author Haya El Nasser “The number of people living to age 90 and beyond has tripled in the past three decades to almost 2 million and is likely to quadruple by 2050”.Seniors who live longer generally have some sort of disability or need help at some level of living. Sandy Markwood, CEO of the National Association of Area Agencies on Aging, indicates that the focus needs to be on being able to help these seniors live at home as long as possible as nursing home cost could rise to average $72,000 a year.</p>
<p><span id="more-313"></span></p>
<p>Long Term Care at any level, in the home, assisted living or nursing home can add a tremendous cost to seniors and their families.</p>
<p>&nbsp;</p>
<p><span style="text-decoration: underline;">Government Programs Only Pay For About 16% Of Long Term Care</span></p>
<p>&nbsp;</p>
<p>Government programs such as Medicare, Medicaid and the Veterans Administration will cover the cost of long-term care under certain conditions. Medicare will cover rehabilitation from a hospital stay or limited care at home if there is a skilled (medical) need. The Veterans Administration will cover the cost of nursing home care indefinitely if the veteran is at least 70% service-connected disabled. The VA will also cover other forms of home-based or community-based care if there is a medical need.</p>
<p>&nbsp;</p>
<p>Medicaid will cover both medical and non-medical related long-term care but in order to qualify for Medicaid a person has to have less than $2,000 in assets and income that is insufficient to pay the cost of care.</p>
<p>&nbsp;</p>
<p><span style="text-decoration: underline;">Funding Long Term Care with your Life Insurance Policy</span></p>
<p>&nbsp;</p>
<p>Drawing cash from <a href="http://www.longtermcarelink.net/a7lifeinsuranceservices.htm">life insurance</a> or changing a life insurance policy should only be done after reviewing with an expert advisor.  Loss of the policy and death benefit could prove to be a detriment.  If, however you have accumulated cash in a life insurance policy and no longer need the coverage you may consider using the cash for long term care or purchasing a LTC rider to your current policy.</p>
<p>&nbsp;</p>
<p>New insurance products are being developed to cover both life insurance and long term care insurance. <a href="http://www.elderlawanswers.com/Resources/Article.asp?ID=8176">ElderLawAnswers</a> reports:</p>
<p>&nbsp;</p>
<p>“A new law makes the purchase of products that combine annuities or <a title="Powered by Text-Enhance" href="http://www.elderlawanswers.com/Resources/Article.asp?ID=8176##">insurance</a> policies with long-term care insurance more attractive. These &#8220;hybrid&#8221; products are gaining in popularity due to a law that went into effect January 1, 2010, making distributions from life insurance and annuities tax-free when used to pay for long-term care. The same law also allows owners of annuities or life insurance policies to exchange their old policies for long-term care insurance or hybrid policies without being taxed.”</p>
<p>&nbsp;</p>
<p>Combination sales which include life insurance, annuities and traditional long-term care coverage are becoming popular with insurance companies and may prove a method of financing long term care.  Investigate closely, however to find what exactly will be covered.  Some policies do not cover home care costs or complete costs of nursing homes.</p>
<p>&nbsp;</p>
<p><span style="text-decoration: underline;">Long Term Care Insurance Funding for All Long Term Care Needs</span></p>
<p>&nbsp;</p>
<p>The first long-term care policies were offered about 40 years ago. These were primarily nursing home-only policies designed to take over when Medicare rehabilitation ran out. They were not the comprehensive benefit policies we see today.</p>
<p>&nbsp;</p>
<p><a href="http://www.longtermcarelink.net/a7insurancequotes.htm">Long Term Care Insurance</a> policies today are greatly diversified in their coverage.  Home care, nursing home costs, adult day care, physical therapy, skilled and non-skilled nursing care are some of the services covered.  Policies vary in price and what they cover.  There is also a very restricted qualification of physical and mental heath to get a policy.  Purchasing a policy at a younger age makes it easier to qualify and also provides cheaper premiums. It is best to consult with a <a href="http://www.longtermcarelink.net/a7insurancequotes.htm">long term care insurance professional</a> about the type of policy that fits your needs and budget.</p>
<p>&nbsp;</p>
<p><span style="text-decoration: underline;">Veterans Aid and Attendance Pension Benefit</span></p>
<p>&nbsp;</p>
<p>Though not an insurance policy, the <a href="http://www.veteransaidbenefit.org/aid_and_attendance_pension_benefit.htm">VA Pension Benefit</a> should be mentioned as a way to pay for long term care needs.  A veteran or spouse of a veteran who served during a period of war can receive money, up to $2,019 a month, to pay for long term care medical expenses, home health care, and assisted living cost.  A qualified <a href="http://www.longtermcarelink.net/ref_veterans_consultants.htm">Veteran Consultant</a> can help you determine if you qualify for this benefit.</p>
<p>&nbsp;</p>
<p><span style="text-decoration: underline;">Pre-Need Burial Insurance</span></p>
<p>&nbsp;</p>
<p>One might ask what <a href="http://www.longtermcarelink.net/a7funeralpreplanning.htm">Pre-need burial insurance</a> has to do with long term care. The purpose of preneed life insurance is to set aside funds for your funeral, before the need arises.<br />
It is an insurance policy that covers the cost of the predetermined expenses of a funeral, cremation or burial.  It gives the purchaser the opportunity to preplan the services and peace of mind in having it paid for.  This is usually an insurance policy that pays at time of death for these expenses. There are many insurance companies that offer these packages as well as funeral homes.</p>
<p>&nbsp;</p>
<p>The saddest cases of long term care needs we hear are:</p>
<p>&nbsp;</p>
<p>“Mother can no longer live alone and she has no money to go live in a care facility.”</p>
<p>&nbsp;</p>
<p>“ Is there someone that can come help me take care of my wife?  We live on our Social Security and I can not pay what home care costs.”</p>
<p>&nbsp;</p>
<p>“Father died last night and we have no money to bury him, what do we do?”</p>
<p>&nbsp;</p>
<p>It is important to make the necessary arrangements to cover long term care and end of life costs.  There is no government program that will cover all those needs. The <a href="http://www.longtermcarelink.net/">National Care Planning Council</a>at www.longtermcarelink.net strives to educate people about long term care services and encourages the planning that needs to be done to prepare for future costs and needs.</p>
<p><span style="font-size: small;"><span style="line-height: normal;"><br />
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		<title>Working with Elder Parents in Planning Financially for their Long Term Care</title>
		<link>http://lawyercolorado.net/2012/01/working-with-elder-parents-in-planning-financially-for-their-long-term-care/</link>
		<comments>http://lawyercolorado.net/2012/01/working-with-elder-parents-in-planning-financially-for-their-long-term-care/#comments</comments>
		<pubDate>Sat, 07 Jan 2012 17:12:57 +0000</pubDate>
		<dc:creator>Frank A. Cseke</dc:creator>
				<category><![CDATA[Estate Planning]]></category>
		<category><![CDATA[Wills and trusts]]></category>

		<guid isPermaLink="false">http://lawyercolorado.net/?p=308</guid>
		<description><![CDATA[Decisions about how care will be paid for, who will be responsible for managing the estate as well as how the long term care will be given can cause stress and contention among family members.]]></description>
			<content:encoded><![CDATA[<div id="tweetbutton308" class="tw_button" style=""><a href="http://twitter.com/share?url=http%3A%2F%2Flawyercolorado.net%2F2012%2F01%2Fworking-with-elder-parents-in-planning-financially-for-their-long-term-care%2F&amp;text=Working%20with%20Elder%20Parents%20in%20Planning%20Financially%20for%20their%20Long%20Term%20Care&amp;related=&amp;lang=en&amp;count=horizontal&amp;counturl=http%3A%2F%2Flawyercolorado.net%2F2012%2F01%2Fworking-with-elder-parents-in-planning-financially-for-their-long-term-care%2F" class="twitter-share-button"  style="width:55px;height:22px;background:transparent url('http://lawyercolorado.net/wp-content/plugins/wp-tweet-button/tweetn.png') no-repeat  0 0;text-align:left;text-indent:-9999px;display:block;">Tweet</a></div><p>You may be taking care of elderly parents now or looking at that possibility in the near future. According to a report from USATODAY/ABCNews/Gallup Poll, 41% of baby boomers are helping take care of elderly parents by providing personal help or financial assistance or both.</p>
<p><span id="more-308"></span></p>
<p>If financial planning and long term care planning have not been done previous to the need for care, the burden falls on the caregiving family member. Decisions about how care will be paid for, who will be responsible for managing the estate as well as how the long term care will be given can cause stress and contention among family members.</p>
<p>It is best for parents and all family members to be involved in planning for future financial needs. The financial resources being used today could change drastically with the occurrence of a stroke, illness or onset of dementia. In order to plan financially for long term care, you need to know what the costs are now and what they will be in the future.</p>
<p>Every year MetLife does a survey of long term care costs. Their 2010 survey shows that the average daily rate for private nursing home is $229 which is up from $219 in 2009. Assisted living monthly base rate cost rose to $3,293 in 2010 from $3131 in 2009. Home health aids average $21 an hour.</p>
<p>Planning financial needs can be very difficult, considering you do not know when long term care will be required or how long it will be needed. You can determine what will be needed in certain living situations. Staying in your home for care will require Professional Home Care assistance, travel accommodations to doctor appointments, help with shopping, meals, medical supplies and medication and possibly a 24-hour attendant. Even if a family member is doing most of the care, eventually professional care will be required or a move to a nursing home facility will be necessary.</p>
<p>When evaluating your present income and assets consider how they would work for future needs.</p>
<ul>
<li>What are my care options?</li>
<li>What type of long-term care can I afford?</li>
<li>Do I have long term care insurance?</li>
<li>Are there assets I can sell?</li>
<li>If I stay at home how will I pay for care?</li>
<li>Do I have to sell the house to pay for other living arrangements?</li>
<li>Are there other financing alternatives?</li>
<li>Do I have life Insurance or the means to pay for a funeral and burial?</li>
<li>Will my spouse be cared for financially?</li>
<li>Should I do Medicaid planning?</li>
<li>Do I have the legal documents that may be needed?</li>
<li>An article by Thomas Day, Director of the National Care Planning Council, titled “Paying the Cost of Care,” reviews some of the financial options that can be used.</li>
</ul>
<p>“Tangible assets that might produce enough income to pay for long term care might include investment property such as rentals, commercially leased property, land, a farm, second home or a business&#8230;&#8221;</p>
<p>&#8220;Some individuals are heavy into real estate and short on cash. If the intent was to cash out of the investment at some future point, then a sale is warranted. But, it seems a shame to sacrifice in early years to establish an investment only to throw it away to long term care. It would make more sense to use income from the investments to buy long term care insurance.&#8221;</p>
<p>Long term care insurance is one option for paying for care. Long term care insurance helps pay for the care you need when you can no longer care for yourself. It can protect your family&#8217;s financial future and your own investments. There are qualifications that need to be met with health and age. This type of insurance is more expensive the older the person and almost impossible to get if age related illness has already occurred.</p>
<p>Senior Financial Planners, Elder Law Attorneys and Veteran Benefits Consultants can assist you in evaluating your needs and future planning.</p>
<p>Senior Financial Planners are expert in working with seniors and their families to set up long term care plans. They usually work with an Elder law Attorney and Care Manager (Professional) to give you all options and resources for care.</p>
<p>Elder Law Attorneys help with Medicaid Planning and Asset protection as well as legal documents needed for final requests.</p>
<p>If staying in your home is a desired option, a Reverse Mortgage can supply the funds to pay for home care.</p>
<p>Another option for veterans who served during a time of war is the Aid &amp; Attendance Benefit. This benefit provides extra income up to $2,019 to help pay for home care, assisted living and medical costs. It will also pay for widows or widowers of the Veteran. To learn more about qualifications for these benefits contact a Veteran Benefit Consultant in your area.</p>
<p>Knowing your needs and financial resources is paramount before making any long term care decisions. Working together, both parents and family members can ease the stress and burden of elder care needs.</p>
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		<title>Not Another Spam Email! Can I Sue for Unwanted Emails?</title>
		<link>http://lawyercolorado.net/2011/12/not-another-spam-email-can-i-sue-for-unwanted-emails/</link>
		<comments>http://lawyercolorado.net/2011/12/not-another-spam-email-can-i-sue-for-unwanted-emails/#comments</comments>
		<pubDate>Wed, 21 Dec 2011 15:30:12 +0000</pubDate>
		<dc:creator>Frank A. Cseke</dc:creator>
				<category><![CDATA[Business Law]]></category>
		<category><![CDATA[News]]></category>

		<guid isPermaLink="false">http://lawyercolorado.net/?p=249</guid>
		<description><![CDATA[Either way beware or be advised, there is a federal law known as the CAN-SPAM Act which sets rules for commercial emails. It gives recipients the right to stop receiving email messages and it provides for penalties when a sender violates the rules. The penalties can be costly: each email found in violation can be subject to civil fines up to $16,000.]]></description>
			<content:encoded><![CDATA[<div id="tweetbutton249" class="tw_button" style=""><a href="http://twitter.com/share?url=http%3A%2F%2Flawyercolorado.net%2F2011%2F12%2Fnot-another-spam-email-can-i-sue-for-unwanted-emails%2F&amp;text=Not%20Another%20Spam%20Email%21%20Can%20I%20Sue%20for%20Unwanted%20Emails%3F&amp;related=&amp;lang=en&amp;count=horizontal&amp;counturl=http%3A%2F%2Flawyercolorado.net%2F2011%2F12%2Fnot-another-spam-email-can-i-sue-for-unwanted-emails%2F" class="twitter-share-button"  style="width:55px;height:22px;background:transparent url('http://lawyercolorado.net/wp-content/plugins/wp-tweet-button/tweetn.png') no-repeat  0 0;text-align:left;text-indent:-9999px;display:block;">Tweet</a></div><p>You open an email only to find yet another solicitation for some product or offer, the latest and greatest pill or business opportunity, and check the box to delete. Maybe you opened the email and discovered a link in which you can opt out of receiving any further emails. Annoyed yet? Perhaps if you are the type with the <em>No Solicitation</em> sign on your front door you are incensed and irate when you check your emails.</p>
<p><span id="more-249"></span></p>
<p>On the other end you may be a business that uses emails to promote your product or service. Either way beware or be advised, there is a federal law known as the CAN-SPAM Act which sets rules for commercial emails. It gives recipients the right to stop receiving email messages and it provides for penalties when a sender violates the rules. The penalties can be costly: each email found in violation can be subject to civil fines up to $16,000.</p>
<p>The CAN-SPAM Act is, moreover, crystal clear. It covers all commercial messages, defined as “any electronic mail message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service,” and it includes email that solicit content or products on commercial websites. The law includes <em>all</em> emails, even those to customers that have a previous business relationship with the sender; whereas, for example, a new product-line may be announced to previous buyers.</p>
<p>The Federal Trade Commission is in charge of promulgation and enforcement of the Act. If you go to <a title="Federal Trade Commission" href="http://ftc.gov" target="_blank">FTC.gov </a> you can find out more. The sender needs to be aware of a few salient points. For your convenience, here are some helpful guidelines from the foregoing source:</p>
<blockquote><p>CAN-SPAM&#8217;s main requirements:</p>
<p>1. <strong>Don’t use false or misleading header information</strong><span style="font-family: CG Times,CG Times; font-size: small;"><span style="font-family: CG Times,CG Times; font-size: small;"><strong>.</strong> Your &#8220;From,&#8221; &#8220;To,&#8221; &#8220;Reply-To,&#8221; and routing information – including the originating domain name and email address – must be accurate and identify the person or business who initiated the message. </span></span></p>
<p>2. <strong>Don’t use deceptive subject lines. </strong><span style="font-family: CG Times,CG Times; font-size: small;"><span style="font-family: CG Times,CG Times; font-size: small;">The subject line must accurately reflect the content of the message. </span></span></p>
<p>3. <strong>Identify the message as an ad. </strong><span style="font-family: CG Times,CG Times; font-size: small;"><span style="font-family: CG Times,CG Times; font-size: small;">The law gives you a lot of leeway in how to do this, but you must disclose clearly and conspicuously that your message is an advertisement. </span></span></p>
<p>4. <strong>Tell recipients where you’re located.</strong> <span style="font-family: CG Times,CG Times; font-size: small;"><span style="font-family: CG Times,CG Times; font-size: small;">Your message must include your valid physical postal address. This can be your current street address, a post office box you’ve registered with the U.S. Postal Service, or a private mailbox you’ve registered with a commercial mail receiving agency established under Postal Service regulations. </span></span></p>
<p>5. <strong>Tell recipients how to opt out of receiving future email from you.</strong> <span style="font-family: CG Times,CG Times; font-size: small;"><span style="font-family: CG Times,CG Times; font-size: small;">Your message must include a clear and conspicuous explanation of how the recipient can opt out of getting email from you in the future. Craft the notice in a way that’s easy for an ordinary person to recognize, read, and understand. Creative use of type size, color, and location can improve clarity. Give a return email address or another easy Internet-based way to allow people to communicate their choice to you. You may create a menu to allow a recipient to opt out of certain types of messages, but you must include the option to stop all commercial messages from you. Make sure your spam filter doesn’t block these opt-out requests. </span></span></p>
<p>6. <strong>Honor opt-out requests promptly. </strong><span style="font-family: CG Times,CG Times; font-size: small;"><span style="font-family: CG Times,CG Times; font-size: small;">Any opt-out mechanism you offer must be able to process opt</span></span><span style="font-size: small;">-</span><span style="font-family: CG Times,CG Times; font-size: small;"><span style="font-family: CG Times,CG Times; font-size: small;">out requests for at least 30 days after you send your message. You must honor a recipient’s opt</span></span><span style="font-size: small;">-</span><span style="font-family: CG Times,CG Times; font-size: small;"><span style="font-family: CG Times,CG Times; font-size: small;">out request within 10 business days. You can’t charge a fee, require the recipient to give you any personally identifying information beyond an email address, or make the recipient take any step other than sending a reply email or visiting a single page on an Internet website as a condition for honoring an opt-out request. Once people have told you they don’t want to receive more messages from you, you can’t sell or transfer their email addresses, even in the form of a mailing list. The only exception is that you may transfer the addresses to a company you’ve hired to help you comply with the CAN</span></span><span style="font-size: small;">-</span><span style="font-family: CG Times,CG Times; font-size: small;"><span style="font-family: CG Times,CG Times; font-size: small;">SPAM Act. </span></span></p>
<p>7. <strong>Monitor what others are doing on your behalf.</strong> <span style="font-family: CG Times,CG Times; font-size: small;"><span style="font-family: CG Times,CG Times; font-size: small;">The law makes clear that even if you hire another company to handle your email marketing, you can’t contract away your legal responsibility to comply with the law. Both the company whose product is promoted in the message and the company that actually sends the message may be held legally responsible.</span></span></p>
<p>&nbsp;</p>
<p>&nbsp;</p></blockquote>
<p>An important factor to look at when analyzing the email is its primary purpose. The three types of information are:</p>
<p>• Commercial content – which advertises or promotes a commercial product or service, including content on a website operated for a commercial purpose;</p>
<p>• Transactional or relationship content – which facilitates an already agreed-upon transaction or updates a customer about an ongoing transaction; and</p>
<p>• Other content – which is neither commercial nor transactional or relationship.</p>
<p>A compliance guide for businesses detailing the rest is found on the <a title="FTC Consumer Protection" href="http://www.ftc.gov/bcp/index.shtml" target="_blank">FTC website</a>. So, word to the wise, check the rules before starting your next email campaign.</p>
<p>There is also vindication for the consumer, and it may be obtainable through your local small claims court. More and more annoyed recipients of spam emails are taking their cases to the small claims courts and winning awards under the federal and state laws. In many instances the company (if it can be found and service of process with complaint and summons can be achieved) never appears and a default judgement is granted. Because collecting the judgement may be difficult due to the evasiveness of the defendant, it would be beneficial first to make sure that you have a viable target for your lawsuit. Or, at least make sure you have a business address in the United States in which you can find registrations for the business with the secretary of state or county clerk. You may be able to find at least an assumed business name registration. Keep in mind some emails are coming from overseas and to collect a judgement will be unlikely.</p>
<p>&nbsp;</p>
<p>&nbsp;</p>
<blockquote><p><strong>For More Information</strong></p>
<p>The FTC works for the consumer to prevent fraudulent, deceptive, and unfair business practices in the marketplace and to provide information to help consumers spot, stop, and avoid them. To file a complaint or to get free information on consumer issues, visit ftc.gov or call toll-free, 1-877-FTC-HELP (1<span style="font-size: small;">-</span><span style="font-family: CG Times,CG Times; font-size: small;"><span style="font-family: CG Times,CG Times; font-size: small;">877</span></span><span style="font-size: small;">-</span><span style="font-family: CG Times,CG Times; font-size: small;"><span style="font-family: CG Times,CG Times; font-size: small;">382-4357); TTY: 1-866-653-4261. The FTC enters consumer complaints into the Consumer Sentinel Network, a secure online database and investigative tool used by hundreds of civil and criminal law enforcement agencies in the U.S. and abroad. </span></span></p>
<p><strong>Your Opportunity to Comment</strong></p>
<p>The National Small Business Ombudsman and 10 Regional Fairness Boards collect comments from small businesses about federal compliance and enforcement activities. Each year, the Ombudsman evaluates the conduct of these activities and rates each agency’s responsiveness to small businesses. Small businesses can comment to the Ombudsman without fear of reprisal. To comment, call toll-free 1-888-REGFAIR (1<span style="font-size: small;">-</span><span style="font-family: CG Times,CG Times; font-size: small;"><span style="font-family: CG Times,CG Times; font-size: small;">888-734-3247) or go to www.sba.gov/ombudsman.</span></span></p></blockquote>
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		<title>Can I Get Paid to Care for a Senior Family Member?</title>
		<link>http://lawyercolorado.net/2011/12/can-i-get-paid-to-care-for-a-senior-family-member/</link>
		<comments>http://lawyercolorado.net/2011/12/can-i-get-paid-to-care-for-a-senior-family-member/#comments</comments>
		<pubDate>Tue, 20 Dec 2011 05:35:17 +0000</pubDate>
		<dc:creator>Frank A. Cseke</dc:creator>
				<category><![CDATA[Estate Planning]]></category>
		<category><![CDATA[VA assistance]]></category>
		<category><![CDATA[Wills and trusts]]></category>

		<guid isPermaLink="false">http://lawyercolorado.net/?p=245</guid>
		<description><![CDATA[The past few years have seen new specialized companies developed that work directly with seniors in downsizing, moving or reorganizing their current home for “aging in place”.]]></description>
			<content:encoded><![CDATA[<div id="tweetbutton245" class="tw_button" style=""><a href="http://twitter.com/share?url=http%3A%2F%2Flawyercolorado.net%2F2011%2F12%2Fcan-i-get-paid-to-care-for-a-senior-family-member%2F&amp;text=Can%20I%20Get%20Paid%20to%20Care%20for%20a%20Senior%20Family%20Member%3F&amp;related=&amp;lang=en&amp;count=horizontal&amp;counturl=http%3A%2F%2Flawyercolorado.net%2F2011%2F12%2Fcan-i-get-paid-to-care-for-a-senior-family-member%2F" class="twitter-share-button"  style="width:55px;height:22px;background:transparent url('http://lawyercolorado.net/wp-content/plugins/wp-tweet-button/tweetn.png') no-repeat  0 0;text-align:left;text-indent:-9999px;display:block;">Tweet</a></div><p>Cheryl was in a panic trying to get her parents home sold in Florida and move them near her in Idaho. Seven years ago Max and Clara purchased their retirement home in Florida and moved there from Idaho. Max had a stroke recently and Clara can no longer care for him herself, so in order for Cheryl to help out they need to move back to Idaho.</p>
<p><span id="more-245"></span></p>
<p>As is often the case, when elderly parents have health problems, the children are called on for help and support in major decisions. Unfortunately, Cheryl is not able to leave her job and family in Idaho to spend time selling the home in Florida  nor find living arrangements for her parents in Idaho.</p>
<p>“More than 65 million people, 29% of the U.S. population, provide care for a chronically ill, disabled or aged family member or friend during any given year and spend an average of 20 hours per week providing care for their loved one.”               Caregiving in the United States; National Alliance for Caregiving in collaboration with AARP; November 2009</p>
<p>The <a href="http://www.aarp.org">AARP</a> estimates that over 25 million Americans struggle to balance work responsibilities with caring for a relative aged 50 or older.</p>
<p>The National Association of Realtors recognized the specialized need of seniors and their families to sell an established home quickly and efficiently. They have established a designation for realtors called Seniors Real Estate Specialists® (SRES®). To earn the designation a realtor goes through a comprehensive program which qualifies them to know how to work with seniors in the 50+ real estate market.</p>
<p>Specialties characteristic to an SRES® designated agent would include:</p>
<ul>
<li>Knowledge of senior communities and housing restrictions</li>
<li>Ability to work with seniors on sensitive issues when selling their property</li>
<li>Understanding how real estate impacts Medicare and Medicaid laws</li>
<li>Knowledge of retirement accounts such as 401K and IRA accounts in relationship to real estate purchases.</li>
<li>Expertise in bringing in help with downsizing, packing, moving and relocation</li>
<li>Resources to work as a team of realtors throughout the United States for relocation purposes.</li>
</ul>
<p>Seth Owens of Albany New York says of working with an SRES® agent, “Jim worked with me in downsizing and preparing my home for the sale and then took care of all the details. I didn’t have to worry about a thing. He knew his business. The sale was made and Jim helped me find a condo in a senior community near by. He understood I wanted to be near my church, doctor and friends.”</p>
<p>With more of the senior population downsizing or moving there has been a growing need for moving companies to specialize in the needs of seniors and their families. Some moving companies have added a department just for moving seniors.</p>
<p>Senior moving services may include:</p>
<ul>
<li>Organizing and packing items and unpacking at the new home.</li>
<li>Downsizing by disposing of unneeded items</li>
<li>Disconnecting electronics and reconnecting after the move.</li>
<li>Placing furniture, rugs and household items.</li>
<li>Personnel skilled to help with the emotional transition of seniors.</li>
</ul>
<p>The past few years have seen new specialized companies developed that work directly with seniors in downsizing, moving or reorganizing their current home for “aging in place”.</p>
<p>The National Association of Senior Move Manager® (<a href="http://www.nasm.org/">NASMM</a>) is an organization of “move managers” whose mission is “to facilitate the physical and emotional aspects of relocation for older adults.” A <a href="http://longtermcarelink.net/a7seniorrelocation_SRES.htm">move manager</a> may oversee the complete move or reorganizing for seniors, making the senior transition less stressful from beginning to end.</p>
<p><a href="http://longtermcarelink.net/a7placement_management_services.htm">Placement Services</a> are another specialized business that has developed to fill the need of seniors to find appropriate living conditions. With many options available from independent living apartments, <a href="http://longtermcarelink.net/a7continuingcareretirement.htm">retirement communities</a>, care communities such as <a href="http://longtermcarelink.net/a7assistedliving.htm">assisted living</a>, residential care homes and <a href="http://longtermcarelink.net/a7nursinghome.htm">nursing homes</a> the decision can be overwhelming. Those who do placement services have the expertise to assess the clinical needs, financial resources and family preferences to help seniors find the living situation that will meet their lifestyle and future needs.</p>
<p>The <a href="http://longtermcarelink.net/">National Care Planning Council</a> promotes many services for seniors. Find <a href="http://longtermcarelink.net/a7seniorrelocation_SRES.htm">relocation experts</a> in your area or obtain helpful information from <a href="http://longtermcarelink.net/a13information_article.htm">articles</a> and <a href="http://longtermcarelink.net/a16books.htm">books</a>.<br />
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