Utah Bar Journal

* The President's Message: Choosing for the Future of the Bar
* Overview of Elder Law
* Social Security Changes. . . As We Do
* Determining Capacity: Is Your Older Client Competent
* Medicaid, An Incredibly Brief Overview
* Views From the Bench: Some Current Causes for Popular Dissatisfaction With the Administrative of Justice
* Case Summaries

The San Juan River in Southern Utah winds through canyon walls of steep rock, formed of many layers formed over millions of years. The river is most famous for its goosenecks, created as the water winds its way through the stone of least resistance. The river may travel a mile to go a hundred yards in straight-line distance. The San Juan River's wearing process has created interesting features, one of which is the "perched meander."

Introduction

A 92 year old female client requests legal assistance for drafting a durable power of attorney and a basic will. Realizing that she must be competent (or "capacitated") for such documents to be valid and legally binding, the attorney engages the client in conversation to make an assessment. The client remembers the attorney (whom she knew since the attorney was a youngster) as well as numerous events from that earlier time period (around which she centers much of the conversation). She is dressed beautifully, and appears to be a very "young" 92 years of age. She answers all questions cordially and appropriately, and speaks and acts with social flair and grace. Moreover, she has some degree of understanding about the legal proceedings, indicating that she wants you to appoint her oldest daughter, the one she "always trusted the most" (as agent on the power of attorney). You are the attorney: is your client competent?

SUSPENSION

On August 21, 2000, the Honorable Anne M. Stirba, Third Judicial District Court, entered an Order of Discipline suspending Thomas Rasmussen for one year for violation of Rules 1.5(a) and (b) (Fees), 1.15(a) (Safekeeping Property), 5.1(a) and (b) (Responsibilities of Partner or Supervisory Lawyer), 5.3 (Responsibilities Regarding Nonlawyer Assistants), 7.5(d) (Firm Names and Letterheads), and 8.4(a) (Misconduct) of the Rules of Professional Conduct. The entire one year suspension was stayed; Rasmussen was placed on supervised probation for one year.

Medicaid, An Incredibly Brief Overview1

"Mom wants to give her property to her children, but she needs long-term nursing home care in a couple of weeks, after the stroke left her so disabled she can't survive at home. Could she get Medicaid to pay for the nursing home?"

All members of the Legal Assistant Division should mark their calendars for Friday, June 8th for the LAD Annual Meeting and Seminar. In addition to a great lineup of CLE topics and speakers, members will be able to participate in the LAD Annual Meeting and voting for new Directors. At the Annual Meeting, members will get the opportunity to meet their new Chair, Deborah Calegory, and to volunteer for committee assignments. We hope to involve many more of our members in the operation of the LAD this coming year.

Introduction

How often are we confronted with issues related to aging? The aging of the American population impacts all of society. Whether we are seeing a TV drama dealing with physician-assisted suicide, listening to the Ronald Reagan family discussing their ability to deal with Alzheimer's, watching Bill Moyers' outstanding recent PBS series on end-of-life, "On Our Own Terms," reading a newspaper article about an abused elder, dealing with a relative's announcement of a terminal illness, answering six telemarketing calls in twenty minutes while visiting your mother's home, or a having a valued employee quit to care for an ill parent, we are dealing with aging issues at an ever accelerating pace.

General Background

Over 31 years ago, I generally ignored individual Social Security taxes because they comprised only 7.5% of the first $7,800 in earnings - a monetary impact that was near negligible and individually endurable. At that time, high-income taxpayers were in a world of 70% income tax rates so the prime focus for social security planning was to help businesses avoid taxes - FICA, FUTA and workmen's compensation premiums.1 During the following years, as the overall FICA rates jumped to 15.3% on $76,0002 and Medicare premiums continued on all income the purposes of financial planning and taxation became to eliminate all FICA wages from taxation. Some business owners, using offsetting tax deductions, eliminated income taxes, but still found to their amazement that their income could still be subject to hefty self-employment taxes. Now in the twenty-first century, we have additional and sometimes different Social Security planning problems. This article looks at the different programs and how the legal problems of our clients may be affected by the changing law which the Supreme Court has said is the most intricate law adopted by Congress.3

Editor's Note: The following remarks were made by Judge J. Thomas Greene at the Federal Bar Association's Annual Litigation Practice Seminar, held on November 3, 2000. He has graciously permitted them to be reprinted here.

State Bar News

Commission Highlights
During its regularly scheduled meeting March 15, 2001 which was held in St. George, Utah, the Board of Bar Commissioners received the following reports and took the actions indicated.

Utah State Bar Request for 2001-2002 Committee Assignment

The Utah Bar Commission is soliciting new volunteers to commit time and talent to one or more of 20 different committees which participate in regulating admissions and discipline and in fostering competency, public service and high standards of professional conduct. Please consider sharing your time in the service of your profession and the public through meaningful involvement in any area of interest.

EDITOR'S NOTE: Supreme Court Justice Michael J. Wilkins and Court of Appeals Judge Judith M. Billings recently addressed last year's important Utah appellate decisions at well-attended CLE events. Although the information will be of more limited utility for those not in attendance, the Utah Bar Journal thought its readers might find the case summaries, distributed as handouts during the presentations, to be of interest. Accordingly, the handouts are reprinted here, with the speakers' permission. Especially because readers will not have the benefit of the narrative commentary provided by the speakers, readers are cautioned that the summaries should not be relied on for any purpose other than generally explaining what each case involves.

Utah Supreme Court Review 2000
By Justice Michael J. Wilkins, Utah Supreme Court

With about 1700 members, the Young Lawyers Division (YLD or "Baby Bar") is the largest and among the most active sections of the Bar. The YLD has been busy this year. Here is an update:

This is the first of a three-part series discussing the Utah Revised Limited Liability Company Act passed by the Utah Legislature on February 23, 2001. Part I gives an overview of the Revised Act and describes part of the changes made by the Revised Act. Part II will appear in the August/September issue and will discuss other changes made by the Revised Act. Part III will appear in the October issue and will discuss transition issues and tips for drafting and planning under the Revised Act.