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What is an ILIT or Irrevocable Life Insurance Trust ? (and why should doctors and business owners use it)

ILITWe’ve previously devoted a number of discussions to the use of life insurance by physicians and business owners including a look at how to buy insurance and discussions of its specific uses and how much life insurance a doctor and his or her spouse should have. This week we take an introductory look at a legal structure that often accompanies life insurance in your estate plan, the Irrevocable Life Insurance Trust or ILIT.

What is an ILIT?

It is an irrevocable trust that, for the purposes of our introductory discussion, cannot be changed or amended outside few very specific exceptions. It is a formal legal structure that should be drafted by a qualified attorney familiar with both estate and gift tax laws. It is specially created to hold life insurance policies as well as cash and various other valuable assets that may be used to fund policy premiums or managed for other benefit of the named “beneficiaries” — the parties for whom the trust was set up.

The policy may be either purchased by the ILIT outright or later sold or gifted to the trust by the person creating the trust, known as the “grantor.” Finally, the grantor appoints a trust manager who can make discretionary distributions and who helps manage the trust known as a “trustee.” The trustee cannot also be a grantor and despite the common practice by many estate planners, in my opinion, should not be a beneficiary. In other words, it should be a third party.

What does an ILIT do?

In the majority of cases it’s used for a basic estate-planning reason — to put the proceeds of a large life insurance policy outside the taxable estate of the grantor. This means that the death benefit can be used to either supplement the value of the estate or to help pay any estate taxes that might be due by purchasing illiquid assets that might otherwise have to be sold to pay the taxes, as just one of several examples.

Why Can’t a Grantor also be a Trustee?

We avoid this practice for the reason that is at the core of this column, asset protection, as we do not want a beneficiary who has the power to make discretionary distributions of trust assets to be forced to make a distribution to his or her own creditors.

The ILIT provides creditor and principal protection of the assets in the trust (including any death benefit received upon the death of the insured) in several ways:

1. It protects the assets in the trust from estate tax by excluding them from the grantor’s taxable estate.

2. It can protect the cash value and death benefit of a life insurance policy from creditors. Some states protect cash values to a very high, even unlimited, dollar amount, while others do not; a properly drafted trust easily achieves this result.

3. It protects the death benefit and other trust assets from the creditors of the beneficiaries themselves, including future spouses. So, if the beneficiaries of your estate face a future lawsuit, bankruptcy, or divorce this asset will be protected from those exposures or even from the beneficiary themselves if they are minors or have other significant exposures like mental or physical disabilities, addiction problems, or other behavioral issues.

4. It protects present assets intended to go to the beneficiaries, including plain old cash you may intend to fund the policy with now or in the future, from the grantor’s creditors. Said simply, it allows the irrevocable present transfer of assets into a “safe” that the trustee can use to pay for the insurance premiums in the future.

This is a very general introduction to a tool that can be exceptionally complex and is not a recommendation that every doctor or business owner out there needs or is even qualified for an ILIT. As always, a good tool is only “good” if it is a fit for your very subjective goals and needs. We will continue our discussion of this topic in the near future, including a look at how assets in an ILIT can be protected from your creditors and still accessible to you during your lifetime through the use of loans.

 

Income Tax Deductions Doctors and Business Owners Often Overlook

CPA TJ CASEY

CPA TJ CASEY

As tax day bears down on us with increasing momentum, I turned to a CPA for some tips on commonly overlooked deductions. As always, legal and tax advice given in this forum can only be general information and can never be considered individual tax advice, so discuss these issues with your own CPA now, while meaningful discourse and even some legal tax avoidance planning is still possible.

CPA TJ Casey is experienced in working with doctors through his firm TJ Casey CPA in Mesa, Ariz. and shared the following tips. Hopefully you have your own great CPA that you can turn to and who is helping your practice stay on schedule with its own business-planning calendar.

Here are Casey’s tips:

• Take advantage of reduced income tax from participating in employee-sponsored retirement plan, generally 401(k) plans.

• Keep track of your personal medical expense deductions for possible deductions on state tax returns. Many people don’t bother to keep track of medical expenses due to federal ceilings being so high that medical is generally disallowed. For instance, in our state, Arizona, all deductions for this expense may be allowable

• Take advantage of any available state income tax credits — allocating your tax dollars to working poor, private schools, and public schools; in some states to the tune of about $2,800 each year.

• Mileage deductions for self-employed doctors and practice owners. Most people don’t keep a log, and end up not being able to justify a deduction that could be a $0.55 per mile deduction depending on your state of residence.

• Not reporting when you should. Failure to report foreign bank account and security ownership (including through trust and other legal entities) can cost a doctor up to 50 percent of the account value if discovered by the IRS.

Note from Ike: Although we have discussed the use of a variety of offshores tools by doctors in this column and I personally use them with thousands of clients nationwide, all such tools are tax neutral, and are fully reported to the IRS. The penalties for abusing these tools, as many doctors are prone to do, (often at the suggestion of unskilled or unscrupulous tax plan salesmen and financial advisors), are exceptionally onerous and carry fines of hundreds of thousands of dollars and multi-year jail sentences. Full tax disclosure means never having to say, “I’m sorry.”

• Missing Alternative Minimum Tax (AMT) credit carry forwards and missing other tax attribute carry forwards like loses from previous years you may not have been able to fully use then.

• Misreporting issues like failing to properly report debt relief income from real estate transactions like short sales or other write-offs where you escaped the full liability of financing debt.

• Paying unnecessary penalties for failure to properly and timely pay estimated tax payments (do your really want to leave a tip?)

As Casey explained to me, none of this individually may be that exciting from a numbers perspective, but not letting a number of these things get away from you has a substantial cumulative effect.

Given the time of year and the damage severe winter storms have done to many parts of the country I discovered a few other timely and important deductions to consider:

• Deductions for damages and losses due to disaster (and theft and other losses). Again this is fact-specific but we’ve seen large numbers of practices affected over the last few years by tornadoes, hurricanes, and now severe winter storms. Those in official federal disaster areas get some level of automatic qualification, but get professional advice and don’t try to deduct things that actually weren’t a loss (i.e. normal wear and tear) and for which you may have been fully reimbursed by insurance, as one prohibited example.

• Deductions for caring for a parent or other dependent individual. The IRS may allow you take a specific deduction of up to $3,000 known as the “Dependent Care Credit”  for the care of a parent or other individual that meets certain minimum qualifying criteria and who is incapable of caring for themselves.

• Deductions of a variety of common and recurring business expenses including:

• Financial advisory and financial management fees including bank fees of various types;

• The cost of last year’s tax returns;

• Property taxes you may have paid on any time share property (doctors love these); and

• Qualifying personal and business legal expenses.

Again, please explore these issues only with professional tax help in the context of your own business and personal tax returns.

This article originally appeared at www.PhysiciansPractice.com , the nation’s leading practice management resource, where Asset Protection Attorney Ike Devji has written over 125 articles.  See them here: http://www.physicianspractice.com/authors/ike-devji-jd

CPA TJ Casey has experience ranging from estate planning services coordinator in a local law firm to “Big 4″ and local public accounting. He provides his tax clients an added benefit with his extensive background and experience in estate planning both from a tax and trust administration perspective. TJ graduated from Arizona State University with his Bachelors Degree in Accounting in 2001 and Masters Degree in Taxation in 2002. He is a member of the American Institute of Certified Public Accountants, the Arizona Society of Certified Public Accountants, and is a current member of the Board of Directors for the East Valley Adult Resources Foundation. In his spare time, TJ enjoys fishing, camping, attending his children’s sporting events, and playing guitar in a Phoenix based rock band. Learn more about him at: http://tjcaseycpa.com/

“Defensive Medicine” is often Good Medicine and “Best Practice” for Doctors

PHYSICIAN AND HEALTHCARE EXECUTIVE LIABILITYAsset protection for doctors is the main focus of this column (note: this article originally appeared at www.PhysiciansPractice .com, The Nation’s Leading Practice Mgmt. Resource) and we’ve examined it from many angles over the last 100+ articles I’ve shared here. Today, we examine the issue of defensive medicine, much decried by politicians and insurance companies and the role a thorough diagnosis, free of fear of such claims by a third-party payer, plays in good medicine and your own risk management plan.

The inappropriately deemed “common wisdom” regarding medical malpractice lawsuits and the overuse of diagnostics due to so-called defensive medicine is something like this:

1. There is a national medical malpractice lawsuit crisis;

2. Doctors run too many unnecessary tests to avoid being sued;

3. These tests have little medical value and are not necessary or reasonable to providing good care; and

4. It is because of this so-called abuse that healthcare and insurance costs are high, fewer medical procedures including testing can be covered, and your compensation must continually be reduced.

This is an admitted oversimplification of the arguments from both sides, but it seems to me that the loudest opponents of this standard of care regularly fall into two primary categories: marginally informed politicians looking for a hot button issue to trumpet and insurance companies and their lobbyists and publicists. It’s my opinion that neither of these groups have effective diagnosis, treatment. or doctors at heart.

I have worked with a national client base of several thousand doctors for 11 years and have seen every imaginable form of liability you can imagine. If you’re a regular reader of this column you know I take the threat to your wealth posed by litigation very seriously and have repeatedly addressed the threat of medical malpractice lawsuits in particular, so let’s assume that I agree you are at risk; in fact most of you will statistically face such a claim twice in your career.

Now, let’s look at the fact pattern behind a vast number of medical malpractice claims, a majority of which (some 35%) center on either “failure to diagnose” or “misdiagnosis” claims by plaintiff patients or worse, their surviving family members. We don’t need to look far for examples. I get news updates on medical malpractice claims, settlements, and lawsuits several times a week and cases like the recent failure to diagnose a bone infection in Texas  that lead to a suit against an orthopedic surgeon, the death of a six-year-old child in Dallas after his internal injuries were misdiagnosed as constipation and treated with enemas, and the misdiagnosis of lymphoma in Louisiana as an infection that was treated with antibiotics and which led to the patient later needing surgery and radiation are common. In the latter case, the lawsuit included claims for damages including, “medical expense, physical pain and suffering, mental anguish, economic loss, diminution of earning capacity, disability, fear of death, scarring, disfigurement and loss of enjoyment of life”. What else do these three cases have in common? They are all from the headlines of the last one week.

I’m not a doctor and my knowledge of the cases is limited to the reports I’ve shared, so humor me and assume that the facts in these are accurate as reported. I am, however, an attorney and I know many other excellent attorneys, including the ones that sue doctors (and everyone else) for a living, here’s a little of what they’ve shared with me:

• Yes, is there is a pool of crooked attorneys out there churning frivolous cases and looking to scare and extort settlements out of any poor doctor they can get their sights on;

• This group is relatively small and spends most of their time on lower level cases that are typically settled or relatively easier to win, like conventional personal injury, dog bites, car accidents, slip and falls, etc;

• The best (meaning most successful and highest recovering) medical malpractice attorneys play to win and hedge their bets by carefully screening cases. They invest significant amounts of time and actual dollars in fronting costs for many claims and don’t usually take cases they don’t think they can win or which are at least strongly arguable as to causation in their client’s favor; and

• A key element of their claims is often related to the testing that could or should have been done to prevent further distress, or worse, to the patient. This standard of care is easily arguable both ways and poses a significant risk to your career and solvency.

My advice to doctors given these fact patterns is simple: Practice “defensive medicine” that puts the full range of modern diagnostics at your patient’s disposal. Its good medicine, good risk management, and the life you save may also be your own.

 

Attorney Ike Devji Joins Davis Miles Mcguire Gardner to Create Asset Protection & Wealth Preservation Law Group

Press Release 

Asset Protection Attorney Ike Devji joins multi-state law firm of Davis Miles McGuire Gardner, PLLC – expanding needed legal services to high net worth clients and their advisors.

Asset Protection Lawyer Ike Devji

Phoenix, February 10, 2014:  

Noted Asset Protection Attorney Ike Devji has joined the law firm of Davis Miles McGuire Gardner, PLLC (DMMG) and its multi-state legal practice in an of-counsel capacity.

Lawyer Devji is in his 11th year of focused Asset Protection legal practice and has helped protect over $5 Billion in personal assets for a national client base of several thousand physicians and private business owners, c-level executives and a small but growing group of professional athletes and entertainers for over a decade. Devji formerly acted as the managing attorney of one of the nation’s leading asset protection only law firms and remains of counsel with that firm as well.

“This new relationship does not distract from my practice focus, which remains centered on Asset Protection, Wealth Transfer and Risk Management for successful individuals”, said Devji in a recent interview.

What this new partnership achieves is the creation of a focused asset protection practice group at DMMG and an expansion of the level of service I can bring my clients and the financial advisors, CPAs and medical practice management groups that refer their most cherished clients to me. I now have the additional legal expertise of some 70 odd attorneys with a high degree of skill and experience in 17 additional legal practice areas ranging from real estate to estate planning. This allows me to focus on what I’m best at and help coordinate my clients’ other complex planning and litigation needs in the holistic way they increasingly want and need”.

The timing of this new partnership is key for several reasons, not the least of which is the vulnerable state of the wealth of many of the Southwest’s most successful business people. The last 6 years in particular has shown that there is a substantial disconnect between the needs of many Arizona residents and the relatively low level of asset protection and defensive risk management planning they have in place. “The fact so many people in Arizona and across the U.S. lost a lifetime’s worth of work by relying on insurance and traditional estate planning alone speaks for itself” says Devji. “My new associates and I are going to work hard to increase not only the level of service and protection these folks have in place, but also the level of awareness of the needs of successful entrepreneurs of all types with public at large and legal and advisory communities in particular”.

Devji and his new associates will be hosting a variety of educational events for both the public and advisors which will continue the focus of Devji’s national speaking and educational activities and expend them by adding the expertise of DMMG’s other attorneys in other areas of the law. Devji is a popular and in-demand national speaker and has taught on this issue to literally thousands of advisors and consumers nationally. His scheduled speaking engagements include presentations at the request of the Financial Planning Association of Greater Phoenix, The Arizona State Physicians Association, a private surgery group and private presentation for professional athletes at the request of a boutique wealth management firm in Atlanta. This is in addition to video teaching presentations for NBI and The American Educational Institute (AEI), which will be shown to physicians across the United States over 1000 times in AEI’s classrooms.

Ike Devji’s work as an author has appeared in print and online in countless medical journals including Physicians Practice, Worth Magazine, Advisor Today, Public Accountant, Life Insurance Selling, Financial Consultant, Best Thinking. Expert Beacon and many other sources in additional to his being a contributing author to the book Optimal Financial Health, The Doctor’s Essential Wealth Management and Preservation Handbook. Devji is has been rated “10.0 Superb” by AVVO for the years 2013, 2012 and 2011 in addition to being named a WORTH magazine “Leading Wealth and Legal Advisor” and among North Valley magazine’s “Top Lawyers” in 2013.  He is a 30 year plus Arizona resident and a double ASU Alumni.

###

 

Contact: IKE DEVJIPro Asset ProtectionPhone: (602) 808-5540Fax: (602) 808-5553 3131 E. Camelback   Road, Suite 350Phoenix, AZ 85016www.ProAssetProtection.com

pro asset protection

Employees, Financial and HIPPA Data Create Risk for Medical Practices and Business Owners

BUSINESS AND MEDICAL PRACTICE OWNER LAIBILITYHIPAA and financial data present an ongoing asset-protection issue for physicians and medical practices. This week we take a look at a specific exposure suffered by up to 40,000 (yes, 40,000) patients of one Arizona medical practice and some simple precautions that may help your practice avoid the same exposure. 

While written for doctors, this applies to ANY business that handles HIPPA protected info or client financial data like social security numbers, account numbers, credit cards, etc.

Recent news reports from Scottsdale, Ariz., detail the alleged activities of a medical billing firm employee and her boyfriend. According to news reports, Brittany Davidson and her boyfriend Winfred Aurelious Dick, Jr., were arrested after a Maricopa County Sheriff Captain spotted an unauthorized charge on his credit card. Further investigation revealed Davidson had reportedly stolen his credit card information from the medical billing firm where she worked, which handled billing for a Scottsdale dermatology clinic.

As a result, the financial data of as many as 46,000 patients may have been exposed by the duo that used patient credit card numbers for items ranging from rims and tires to fast food. The practice, Scottsdale Dermatology, has offices around the city and data from multiple offices was potentially exposed by the billing company’s security breach.

 

What Could Have Helped?

 

  1. 1.    Cyber liability insurance.

We’ve previously covered a variety of vital forms of commonly overlooked medical-practice insurance policies, and discussed the importance of data breach or cyber liability policies, which we can only hope the practice owner has in place here. These policies cover a variety of issues in our increasingly electronic world, including not only outside theft or loss of medical records but also the intentional misuse of patient data by employees. In this case both the medical practice and the billing company, which is likely a “business associate” of a covered entity, face substantial liability for a variety of issues including:

 

• Any actual losses incurred by patients;

• The expense of formal notification of over 40,000 patients;

• Ongoing remediation including credit monitoring and credit repair for those actually exposed;

Reputational damage and loss of patient trust.

 

I’d also add that EPLI, or employment practices liability insurance, could prove useful in such a situation. While much of my previous coverage of this vital issue has centered on its value in protecting a doctor’s office from an employee lawsuit, the best policies often include riders that protect the employer from the liability associated with the unsanctioned actions of an employee as well.

  1. 2.    Background checks and proper employee credentialing.

In this case the billing and subsequent breach occurred at a third-party company that we can only hope was properly credentialed and met the specifications of the dermatology practice’s third-party payer contracts. It could just as easily have been at the doctor’s office itself. Part of your HIPAA security procedures should include a discussion of the entire chain of custody of the records your practice handles and discloses to third parties and that review should include questions about any third party’s background-screening practices. Find out if they indemnify you for their loss or misuse of the information you share with them, and get a copy of their “in-force” liability policy that covers you in the event of such a breach.

 

I can only hope some phones are ringing on these issues at billing companies across the country later this week.

Asset Protection Trusts For Doctors – An Introduction

law and money for doctorsAsset-protection strategies for physicians take many forms and range from sound policies and procedures that seek to minimize risk and liability to crisis-management plans, the right kinds insurance, and, finally, specific legal tools.

All of these strategies can be valid and effective parts of a true asset protection and risk management system and the key to the success of most plans is having many effective layers instead of seeking a single solution cure.

 

In previous discussions we’ve addressed the use of specific tools like limited partnerships and captive insurance companies by doctors, to name just two specific examples of tools that can be effective when used and drafted the right way. This week examine the Asset Protection Trust (APT) and address some of the most basic questions and misconceptions we’ve helped thousands of physicians investigate on a consistent basis.

When can I do it?

As with any asset-protection strategy, the key element is timing. This is preventative or defensive medicine but terribly ineffective against a pending or existing exposure. Implementing this against something that has already happened is called “fraud”.

What is it?

The Asset Protection Trust or APT is typically an irrevocable trust that becomes the owner of the assets being put into it, typically referred to as “gifting” or “funding.”

Why is it irrevocable?

In order for the property to truly be outside the reach of a judgment creditor by law it must go into a vehicle that is granted permanent, irrevocable title. If you, the “grantor” can easily pull it back at will, it is generally not protected from others either. It must truly be the property of the trust.

Is it the same as my estate-planning trust?

Typically no, but some estate planning vehicles do provide asset protection. The estate planning trust most doctors have or have seen is generally referred to as a Revocable Living Trust, a.k.a. “family trust” or RLT. This structure is often correctly funded with your home, investment account, and other assets. This is so those assets follow a specific chain of custody at your death and avoid the probate process. Unfortunately because this vehicle is revocable by you at will it offers ZERO creditor protection during your lifetime. A simple way to keep this straight is this: Estate planning is death planning and concentrates of giving your property away as you desire at your death. Asset protection on the other hand is life planning and preserves the assets you have, use, and would like to pass on so that they actually get to the estate plan.

I paid a great deal for my trust, does that mean it does more?

Usually not. Fees can vary widely based on the local legal market and the skill and experience of the drafter and what their expertise demands. Unfortunately, paying more does not it automatically make it better or give it extra features.

Can any lawyer do it?

Like any area of the law asset protection is an increasingly complex and specialized practice and as such it should be ventured into with an attorney with some very specific experience, just as you’d select a divorce, tax, bankruptcy, or other focused practitioner. While it shares similarities with other areas of law including corporate law and estate planning, there are a variety of considerations that must be accounted for with every move including timing, the liquidity needs of the doctor, the most defensible choice of legal entity, the jurisdiction that controls and legitimate business purpose. As asset protection has grown increasingly popular with consumers the number of attorneys and non-attorney promoters that have entered the field has grown exponentially. Furthermore, the leading sellers of form legal documents have recently increased their marketing of documents structured for the this purpose. In some cases, those documents are adequate; in others they are hopelessly inappropriate or drafted with fatal errors. Either way, even assuming the form is perfect, the application must be learned and apply to your very specific asset structure and fact pattern. Buying the best laser in the world will not make me a surgeon.

This simple introduction just scratches the surface of the features and issues physicians should understand when considering an APT. We will continue the conversation over the next few weeks and cover issues like jurisdiction, selecting counsel and the appropriate use of the tool as part of a system. As always, this information is general in nature and never fact specific legal advice. This article originally appeared at www.PhysiciansPractice.com, where Attorney Ike Devji is a regular contributor.

 SEE THESE LINKS FOR MORE DETAILS:

Doctors Lack Key Financial Planning Info

law and money for doctorsRecently, I read a 48-page report issued by AMA Insurance on financial preparedness among  physicians, based on 2,500 respondents. Consensus: Many doctors feel  they are under-planned and undereducated about personal finance issues. The good news? We’ve already covered and continue to address many of these issues for you here and at www.PhysiciansPractice.com, where this article originally appeared.

I didn’t find the results of the well-documented report particularly surprising based on my personal experience with a wide variety of doctors across the country. However, the report did help narrow down some of the areas to visit in greater detail going forward. The one constructive criticism I’d offer is that the report did not disclose any interest in or questions about asset-protection planning. As this column is primarily about physicians’ asset-protection and wealth-preservation planning you may assume some bias toward the topic by the author but two key facts remain: First, most polls show this is an area of significant concern and real exposure to doctors. Second, financial planning is moot if the assets get taken away from you. The key findings of the report identified several key concerns:

Half of physicians surveyed feel they are behind where they should be in their retirement planning while only six percent feel they are ahead of their savings plan;

Many doctors lack confidence in their education and decisions on key planning issues like estate planning, life insurance, disability planning, and retirement planning;

Many female doctors feel they are behind their male counterparts in these areas;

All are concerned about their future and the adequacy of their retirement savings.

We will soon address these issues again and, in turn, will feature discussions with experts in areas like the use of 401K and self-directed IRA plans. We’ll also focus on financial behavior patterns from the perspective of advisors who work with a heavily female professional client base. Until then, here’s a quick look back at just a few of the ideas we’ve introduced for your further discovery.

Estate Planning and Life Insurance

We’ve covered a variety of estate-planning-related topics and taken a look at common estate planning mistakes made by doctors; we’ve also published a multi-part article series on specific tools like limited partnerships (a.k.a. family limited partnerships) and asset protection trusts. On a related note we also addressed issues like the tactical use of life insurance and took a look at ways to help determine how much life insurance your family needs.

Investing and Retirement Planning

Our most recent of nearly one dozen columns in these areas have covered issues like the liability associated with administering a 401K plan for your practice as well as common issues related to investment fraud targeting doctors. We’ve also covered due diligence issues in dealing with an investment advisors. Of course, inherent to any such discussion must be a good look at tax planning by doctors and we’ve addressed issues like the right corporate formation, tax fraud targeting doctors, and even provided a basic two-part checklist of legal and financial essentials that we will soon be updating for 2013.

My goal in our discussions has been to share information on issues that I’ve personally seen doctors affected by and to provide a simple introduction to the options available to proactively address them. We will continue to do so throughout the year and I welcome your direct questions or suggestions for coverage on areas of specific concern to you. Finally, if you are heading out on vacation over the next few weeks along with the rest of the country, please take a second look at our personal security tips. We want you safely back with us to continue the journey.

Asset Protection Trust Jurisdictions For Doctors Part 2: Going Offshore

OFFSHORE TRUSTSLast week marked the second chapter of our discussion of asset protection trusts for doctors, with a look some basic issues of jurisdiction, that is, what geographic location’s set of laws control the trust. For those who want a potentially higher degree of security with a longer track record, offshore tools like international asset protection trusts (IAPTs) are often attractive. 

 

Although painted in a negative light in recent popular lore because of issues with large numbers of tax evaders (many of who are American doctors) the defensive value of the IAPT remains intact. The simple mistake made by most of the people you read about having trouble with offshore accounts can be reduced to simply failing to report the accounts as the law requires. You do have a well-established right to have offshore bank accounts and trusts and the event of moving money to a foreign bank account owned by a trust or held personally as we covered in our previous article on offshore finance is typically not taxable in and of itself. 

A large number of successful American doctors set up this kind of defensive planning in the first place because they lack full confidence in the often inconsistent and subjective nature of the American court system and are unwilling to remain exposed to any claim or lawsuit that may come along, regardless of its validity and amount. One of the questions that I’ve asked clients pondering the domestic vs. foreign asset protection trust question is this: If you feel you that ensuring your life’s efforts against the above mentioned exposures in the U.S. court system is a good idea, does it make sense to rely on that very same system’s laws and subjective judgment in the planning you implement against it? While opinions and tactics vary widely among planners not all of those strong opinions are backed by actual long-term experience; make sure the answers you are getting actually are.

There are many international jurisdictions to choose from when creating an IAPT ranging from familiar Caribbean islands to Belize, Jersey, The Isle of Mann and the Cook Islands, one of my personal favorites. Some jurisdictions (especially many of the romanticized Caribbean ones) are now too close and connected to the United States to provide the full value of an offshore trust structure and others may be too remote, politically unstable or under-developed to provide many westerners comfort. This author’s personal experience with several thousand of these structures has been to use a remote but well-established protective jurisdiction staffed by top international banks and trust companies that controls assets housed in first-world, European-state-owned and insured banks. These provide superior solvency risk and political stability.  Banks such as these provide the many layers of protection and part of the system of checks and balances so important when moving your assets.

Once assets are moved, the “investment advisor” to the trust can allocate the trust’s assets to nearly any imaginable conventional investment and a few you can’t participate in directly as an individual U.S. citizen. In addition to the basic legitimate business purposes of wealth preservation and estate planning, the IAPT is also gaining popularity with those who have concerns about having their entire investment portfolio here in the United States. Currency stability as well as social political and economic variables have prompted more Americans than ever before to investigate these options over the last five years.

The costs and legal formalities, as well as the history and legal protection afforded, vary widely between jurisdictions, so it’s important to work with an experienced planner that has full range of required support resources like banks, trust companies, protectors, and investment advisors. As always, timing is key, so looking at these tools after an exposure has occurred dramatically reduces their effectiveness and legality.  In this limited forum we can’t possibly cover every detail, so get personalized professional legal help when examining this important asset protection strategy or any other.

 

 

Asset Protection Trust Jurisdictions for Physicians – Part 1, Domestic

law and money for doctorsIn our discussion two weeks ago we introduced the Asset Protection Trust (or APT) as a tool and answered some of the most frequently asked questions regarding what it is and how it differs from the estate-planning trust many doctors already have in place. We continue our discussion of the APT this week and examine the often argued and misunderstood issue of jurisdiction, that is, the place and laws under which the trust is created that ideally control any legal action with or against it.

The Options

The most basic division between choices is simple; APTs can be on-shore or “domestic” or offshore, typically referred to as “international” or “foreign.” Look for these prefixes to indicate this elemental distinction. Both DAPTs and their offshore or international (IAPT) counterparts share some common elements:

 They are irrevocable

They must strictly comply with all legal, formational and operational requirements imposed by a specific jurisdiction and state so in their drafting

They have trustees appointed to mange the trust and its assets

Some require that the assets seeking legal protection are actually located within the jurisdiction and that an approved local agent, trustee or authority is appointed

 They must be set up and funded in advance of any claim or specific liability you want them to be effective against

 Neither structure is secret or tax free, despite what’s promised

Both are usually ineffective against a current spouse when used in a legal way

There are a number of states that have created laws that allow the formation of a domestic APT or DAPT in their jurisdictions. This number has grown over the last few years due to consumer demand and the states’ realizations that they can generate significant fees as part of being in the trust business.

Among the most popular of the DAPT jurisdictions are Nevada, Montana, Delaware, and Wyoming but there are many others that have similar statutes. Experienced planners have strong opinions about which jurisdictions are best and why and should be able to explain the benefits and how they can effectively apply to you and your assets well beyond just, “Because we are in state X”.  

These trusts are typically less expensive than their offshore counterparts but are as yet untested on any wide scale and rely on the hope that, for instance, a judge in California with jurisdiction over a California defendant will refrain from trying to grab that defendant’s assets in Nevada because Nevada says they are in a special trust. This also unfortunately flies in the face of “full faith and credit” which essentially states that a judgment in any state is good and enforceable against a defendant and their asset in every other state. Large numbers of DAPTS have been established over the last few years in various jurisdictions by planners of widely varying skill for clients with questionable timing.

I’m a strong believer that “bad facts make bad law” and given the number of bad fact-planning cases that have been executed in the last few years, I feel it is likely that you will see many of these structures pierced. Although these cases should be judged individually on their merits, human nature makes it more likely that they will begin to be viewed as a group by the courts and either generally upheld or viewed as ineffective. Until that drama plays out I advise not be in the legal equivalent of a clinical trial.

Consumers must be wary of who they chose to work with for both DAPT and offshore-based planning. There are significant ramifications for making transfers to these kinds of vehicles including tax, estate, and fraudulent conveyance issues that you must understand or have counsel that does. Many recent entrants to the asset-protection business are applying form documents without a full understanding of their use and how it will affect your future defense, control, and use of those assets. Get personalized help from an experienced attorney who can help make sure that you are following the letter of the law to get any and every possible benefit the trust may provide.

Our next discussion on this issue will turn to the use of offshore asset protection trusts by doctors and the myths surrounding IAPT planning and its effectiveness.

 This article was originally written for and published by www.PhysiciansPractice.Com, The Nation’s Leading Practice Mgmt. Resource, where Mr. Devji is also a regular contributor.

Medical Practice Liability Insurance Tune Up: The First Line of Defense

law and money for doctorsWe’ve previously detailed both the most common fatal flaws in physicians’ asset-protection planning and the reasons insurance alone is inadequate to protect doctors. Those issues aside, insurance against known and recurring exposures is always the essential first line of defense.
 
As you’ve seen in this column before, it is unreasonable to think that we can adequately insure against any and every possible loss or liability to an unlimited amount, but we can catch some of the big and predictable ones. Below is basic list to consider, along with an expert, which can explain the details and gaps common to many policies.

1. Adequate liability and loss coverage. It’s important to not only insure your physical facility for liability but also for loss and in an amount that adequately covers the structure, its replacement, the improvements you’ve made, and the fixtures and equipment at actual replacement value. Work with a reputable company that has national claims service offices, which can be held accountable under bad faith jeopardy and that is experienced in insuring businesses like yours.

2. Employment practices liability insurance. We’ve covered the issue of employment and the significant exposure it creates for every medical practice with employees in several articles in the past. It remains the number one exposure most practices face and sexual harassment awards average over $500K.

3. Data breach insurance. Make sure you are protected against the loss, theft, or intentional misuse of patient financial and HIPAA-protected information. Be careful about the use of mobile devices, laptops, and tablets and make sure they are covered as well. Have demonstrable security policies in place and enforce them; in some cases liability is based on your proactive efforts, or a lack of them.

4. Directors and officers insurance, a.k.a. D&O. We’ve covered this in detail recently; many physicians, practice managers and executives face severe civil and even criminal liability for their decisions, acts and omissions. Make sure those that have such responsibility are adequately insured against this additional professional liability.

5. Workers’ compensation insurance. This provides coverage for an employee who has suffered an injury or illness resulting from job-related duties. Coverage includes medical and rehabilitation costs and lost wages for employees injured on the job. The law in most states requires some form of workers’ compensation insurance and this protects the employer by limiting an employees right to sue for further damages.

6. RAC audit insurance. Any business that bills Medicare, Medicaid, or a private health-care provider should be prepared to be audited and have payments denied or classified as over-payments at some point. Defending against such an audit and the ensuing manpower demands the massive record production can create is stressful and expensive. There is coverage available to handle the various costs and exposures involved.

This list is no complete but is a good start in examining the adequacy of your risk management plan. As this week’s column is devoted to the practice itself, I’ll save a discussion of the personal coverage so crucial to practice owners themselves for a future column.

Be aware, however, that life, disability, and long-term care insurance are increasingly vital parts of doctors’ planning that need to be implemented in a tactical way and are often an extension of the practice’s own risk management and continuation plan.

 This article was originally written for and published by www.PhysiciansPractice.Com, The Nation’s Leading Practice Mgmt. Resource, where Mr. Devji is also a regular contributor. He works with a national client base from his office in Phoenix, Arizona. His legal practice is devoted solely to asset protection and wealth preservation.