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Asset Protection Fundamentals for Physicians

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Don’t Leave Yourself Unprotected

By Nicholas Efthemis CFP® http://www.cornerstonefinancialwny.com

The largest concern facing physicians today is how to protect their wealth against the proliferation of malpractice claims and extraordinarily high jury verdicts. Malpractice insurance has become so expensive that physicians are greatly reducing their coverage.

Even worse, some carriers are dropping physicians that have poor claims history. When meeting with physicians my message is a simple one. Take action and do so now. Constructing a complete asset protection plan is the single most critical step towards attaining financial freedom. Physicians work hard and long hours to create wealth, and are potentially one medical malpractice claim or general negligence claim away from financial catastrophe. Detailing every asset protection strategy is beyond the scope of this article, however I will review some important concepts you should know.

Good asset protection will prevent lawsuits. Conversely, the more personal assets that remain unprotected the more likely an attorney is willing to go after you. In fact, a physician with very high malpractice coverage and unprotected assets has a target on his back. This can be avoided through lower policy limits and a complete Asset Protection Plan.

What is the Best Asset Protection Plan?

The best Asset Protection Plan for a physician or any high net worth client removes all assets from the client’s name. The worst plan has all the assets in the client’s name. You will need to work with a specialized attorney to find the ideal plan for you. In many cases your largest asset are the funds in your retirement plan or IRA. The good news is that creditors cannot reach ERISA qualified plan assets. Common ERISA plans include:

1. 401(k) 403(b) Plan

2. Profit Purchase Plan

3. Money Purchase Plan

4. New Comparability Plans

5. Defined Benefit Plan

Keep in mind IRAs are not considered ERISA qualified plans and have no federal protection from creditors. Many individual states have protected IRAs in part or in full. In my state, New York, IRAs are fully protected. If you live in a state where they are not you should seriously consider moving the money into an ERISA qualified plan. This can be accomplished even if you are retired.

What about my house?

It is never a good idea, from an asset protection standpoint to own property in just your name. If you get sued the property is almost entirely at risk. Owning the marital home jointly with your spouse can be effective. You will protect the home from each other’s individual creditors (though not joint creditors). You should not title many assets as tenants by the entirety for several reasons. Physicians suffer a higher divorce rate than the already high national average of fifty percent. Should a divorce occur you will have ensured the spouse will receive half of that asset. Also, you do nothing to protect the asset against joint creditors.

How should my other assets be held?

You will need to consult a specialized asset protection attorney. Most effective plans involve the use of a corporate structure, limited liability company, or family limited partnership. Keep in mind that the entity you choose will have its own unique asset protection and tax consequences.

  • Sole proprietorships and partnerships are the worst way to own a business. If a sole proprietor is found negligent in his duties for the business that injures a third person, the sole proprietor is personally liable. If a product or employee harm a third person or someone is harmed on the premises, the sole proprietor is personally liable. With a partnership you have all of the above risks coupled with a partner who can cause you even more liability.
  • Limited Liability Companies (LLCs), Family Limited Liability Companies (FLLCs) and Family Limited Partnerships (FLPs) are the most commonly used tools by asset protection specialists today. A creditor attempting to obtain assets of a debtor when the assets are in a LLC will likely have very limited success. In fact, a charging order is the only remedy a court can give a creditor. A charging order does not allow creditors to sell assets of the LLC or force distributions of income. It also cannot transfer interest in the LLC to the creditor. A creditor who obtains a charging order against an LLC may in fact receive a K-1 for income they never did and may never receive.

What should I consider holding in an LLC?

I advise my physician clients to consider holding rental real estate, after tax investment accounts, planes, boats and any personal assets of value in an LLC. Unless you are single and your home is titled in your name alone, the marital home may not be a good candidate for transfer to an LLC. By doing so, you forego the capital gains exemption of $250,000 per spouse. Brokerage accounts can be owned by an LLC, and when constructed correctly you will have full ability to invest as you desire. The investments within the account would then be protected. Assets such as planes and boats may be best held in their own LLCs to protect the rest of your estate from their unique risk profiles.

Example:

  • Personal Residence $750,000 Tenants by the entireties
  • Vacation Property $300,000 LLC #1
  • Investment Account $900,000 LLC #1
  • 401 (k) 2,400,000 ERISA plans are federally protected
  • Boat $55,000 LLC #2

Assessment

The topic of asset protection is vast and complicated, but I hope to break out additional topics such as off-shoring, accounts receivable leveraging, fiduciary duties, and insurance in subsequent articles. My hope is that I have given you enough ideas and motivation to act now. You cannot wait until there is an issue. It is critical that your financial planner, attorney and accountant are all very knowledgeable on asset protection. Do not rely on a generalist to navigate such a complex yet critical issue.

About the Author:

Nicholas Efthemis is a Certified Financial Planner™ who helps physicians plan wisely and live fully by creating a financial plan that helps them focus on their medical practice and live a better life.

Conclusion

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May Patients Privately Contract with their Doctors?

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QUESTION: A question to ME-P readers and subscribers.

Medicare may disallow private contracting by federal law. But, can private insurances, whether PPO or managed care, legally prevent a patient from privately contracting with their doctor for services or goods above the contracted rates, as long as informed consent and appropriate waivers are executed in advance of the service?

IOWs: Do private managed care insurance companies have the legal  right to limit a person’s liberty to seek care above the constraints of the health insurers contract, if the patient so desires?  I understand that an insurer by contract with provider and patient is obligated to pay only a negotiated fee for a specific service or good, but if the patient desires a more accommodating service or extra features to a durable good, do they have the right to privately contract for such services beyond the contract payment or benefit restraints. I believe that this goes into state law safeguards for patient welfare in as much as most non-federal or non-ERISA health insurances are guided by state law.

Assessment

This is not a naïve question for I have posed it to various plan medical directors in our area and have had surprisingly varied responses.

I welcome your crowd-sourced comments with thanks in advance.

Dr. Mark D. Dollard

Loudoun Foot and Ankle Center

46440 Benedict Drive

Suite #111  – Sterling, VA 20164

703 444-9555 [ph] 703 444-1190 [fax]

mdollard@erols.com

Conclusion

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Retirement Plan Risks for Physician-Employers

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Advantages Well Known – Disadvantages Not So

By Brian J. Knabe, MD

[Certified Medical Planner™ candidate]

A source of risk often overlooked by the physician-employer is the risk involved in offering a retirement plan.

Medical practice owners, like other small business owners, find several advantages to starting a retirement plan. The plan can be used to allow the owners to save money in a tax-advantaged manner, and a generous retirement plan can help to attract and retain quality employees.

Administration Risks 

The recent “Great Recession” and turbulence in the stock market have highlighted the risks involved in administering these plans. There is a long history of fraud and neglect in the field of retirement savings plans, and a series of legislative efforts have been enacted to counter these abuses.

Current standards are based primarily on four federal laws, the Employee Retirement Income Security Act (ERISA), the Uniform Prudent Investors Act (UPIA), the Management of Public Employee Retirement Systems Act (MPERS), and the Pension Protection Act of 2006 (PPA).

ERISA Standards 

According to ERISA standards, you may be considered a fiduciary for a retirement plan if you meet any of the following tests:

  • You exercise discretionary authority or control over plan assets or plan management.
  • You are specifically identified in the written documents of a plan as a named fiduciary.
  • You have discretionary responsibility in the administration of the plan.
  • You manage the plan or its assets or render investment advice for a fee.

Recent court decisions have found fiduciaries to be personally liable, even for acts of which they were unaware or in areas not considered within their scope of responsibility. Acting with good intentions or in good faith is not an acceptable defense. Neither is ignorance of your responsibilities.

www.CertifiedMedicalPlanner.com

Liability Mitigation 

The liability of the administrator (or business owner) can be diminished by taking these steps:

  • Act in a procedurally prudent manner.
  • Diversify investments to minimize the risk of large losses.
  • Provide sufficient information and education to employees to enable them to exercise control over their investments.
  • Offer a broad, diversified investment menu having at least three (preferably five or six) “core” alternatives, each of which must be diversified.

Assessment

The most efficient way to meet these and other requirements is to hire a retirement plan provider which is a certified as a fiduciary, and which accepts “co-fiduciary” status along with the practice owner.  The Centre for Fiduciary Excellence (CEFEX) offers certification as a fiduciary.

For more information, see www.savantcapital.com/cefex.

Savant Capital Management, Inc®

190 Buckley Drive

Rockford, IL 61107

Tel 815-227-0300

Fax 815-226-2195

bknabe@savantcapital.com

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Conclusion

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About the Covestor Mutual Fund Portfolio Sharing Service

Certified Medical Planner

What it is – How it works

By Dr. David Edward Marcinko; MBA, CMP™

[Publisher-in-Chief]

Covestor, with offices in New York and London, is a web platform started by entrepreneurs Perry Blancher, Richard Tachta and Simon Veingard http://www.covestor.com. Their belief was that salaried mutual fund managers have no monopoly on investment talent and shouldn’t have a lock on the rewards that come with investment success. As financial services, and online netizens, they also believed in democratizing the investment management industry and helping proven self-investors compete with the large institutions. This is known as the power of “crowd-sourcing.” All core philosophies seem to be shared by this ME-P.

What it is

According to their website, Covestor is both a portfolio sharing service for proven self-investors and for those wishing to track them; where data is private, secure and anonymous. With Covestor, one can coat-tail successful investors and follow their real trade activity. Or, have their moves auto-traded for you by Covestor Investment Management. Members can also keep track of their investments andBuild a free track record comparable to professional mutual funds. Members earn fees for their hard work, and Manage a model that their clients can mirror thru shared management fees.

Profit Sharing Investors

Covestor investors sharing portfolios include professionals, full time amateurs and industry specialists. They are a serious bunch with an average reported portfolio size of over $200,000 (excluding cash). Positions are typically held in over 5,000 different equities; are based in 50 countries and span the full range of ages, backgrounds and styles.

Issues

As a doctor-investor, health economist and former certified financial planner, there are at least three issues needed to be raised about this firm.

The first is SEC/NASD/FINRA rules and applicable SRO and state regulations for brokers, RIAs, FAs and related others? The status of suitability versus fiduciary accountability for ERISA regulated plans is also questioned. The third [and least important] is the potential negative impact on traditional financial services “professionals.”

In other words, is this another example of how technology will flatten the “intermediary curve” and reduce the profit of middle sales-men and sales-women? Oh! What about medical specificity for our target audience?

www.CertifiedMedicalPlanner.org

Assessment

I am sure there are other issues as well. Your thoughts and comments on this ME-Pare appreciated; especially from financial services “professionals”, lawyers and FAs, etc, Give em’ a click and tell us what you think http://www.covestor.com?

Conclusion

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Doctors versus Retail Bankers

Understanding Modern Reality

By Dr. David Edward Marcinko; MBA, CMP™

[Publisher-in-Chief]Dr. David E. Marcinko MBA

Doctors often carry notoriously heavy debt loads. Beyond the costs of a medical education are substantial costs for equipping, launching and staffing a practice. Technology changes fast these days and capital is required frequently. And, the era of eMRs, ARRA, HI-TECH and Obama-Care is upon us!

“I‘m a Banker – I’m Here to Help”

Unfortunately, retail bankers are now very conservative by nature; and the liquidity squeeze and financial meltdown of 2008-2009 makes credit even more difficult to obtain. It may be increasingly difficult to borrow money, especially since modern bankers know that a medical degree is no longer the guarantee of a steady and high income that it once was in the past. As more than one banker has often opined to me,

“We don’t usually loan money to doctors who really need it.”

Nevertheless, the more business a physician does with a bank, the better the terms that can be obtained; even thought hey may also not have a clue about what the practitioner can do to better compete in the managed care arena.

Why Big-Banks Hate Customers

http://articles.moneycentral.msn.com/Investing/JubaksJournal/why-big-banks-hate-banking.aspx

Local Community

Some bankers do have a good concept of local community politics however, for those not familiar with a practice venue. They frequently can provide references to more focused advisors, and bankers generally do not charge a fee for their advice. But, banks selling products are doing so according to their governing regulations as “prudent experts” under ERISA, and are not necessarily held to a fiduciary standard in any broader sense.

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Conclusion

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Sponsors Welcomed

And, credible sponsors and like-minded advertisers are always welcomed.

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About Fiduciary Benchmarks, Inc

Independent Custom Benchmark Groups

By Staff Reportersfp-book1

Department of Labor [DOL] regulations under ERISA, and specifically pending section 408(b)(2), requires that retirement plan sponsors obtain fee disclosures for their plans and that all fees be “reasonable” for services provided.

Fiduciary Benchmarks, Inc. [FBi] was launched to support plan sponsors, advisors, consultants, record-keepers and other plan service providers in addressing this obligation. Fiduciary Benchmarks helps document a thorough and objective process and well-informed decisions. This is an increasingly important topic for hospitals, healthcare systems, CXOs, CFOs, sponsoring medical entities and many modern physician-executives.

Background

Fiduciary Benchmarks, Inc was founded in October 2007 with the express purpose of providing pension and retirement plan benchmarking services. The genesis of the firm was recognition by FBi principals that the marketplace did not have an efficient and affordable way to help plan sponsors meet their fiduciary obligation to determine if plan fees are reasonable.

Progressing Past Current Approaches

Existing marketplace approaches to assessing fee reasonableness (including the use of simple averages books, issuing RFIs, participating in a mock RFPs or actually taking a plan to market) were falling short in terms of validity and/or the time, effort and disruption involved. These gaps continue today.

FBi Modern Approaches

FBi spent more than a year sharing their methodology and reports with the marketplace. They solicited and considered feedback from record-keepers and TPAs, advisors, consultants, independent auditors and ERISA attorneys. As a result, products are claimed to be well vetted and improved.

Link: http://www.fiduciarybenchmarks.com

Fiduciary Report [The Duty to Use Outside Sources]

“Fiduciaries are not expected to be experts. They may reasonably rely on the assistance of others in performing required investigation of and data gathering process. One of the key issues in determining whether reliance on the expert is reasonable is whether the expert is independent and unbiased.”

-Fred Reish

Assessment

In order to remain independent and conflict free, FBi does not perform any traditional investment consulting, plan monitoring and/or record-keeper search work. FBi offers benchmarking services, where desired, by plan sponsors, directly. Fiduciary Benchmarks, Inc. is a completely independent company.

Conclusion

And so, your thoughts and comments on this Medical Executive-Post are appreciated; especially from FAs, wealth managers, CPAs, CFAs and CMPs™? Experienced customer opinions are appreciated. Feel free to review our top-left column, and top-right sidebar materials, links, URLs and related websites, too. Then, be sure to subscribe to the ME-P. It is fast, free and secure.

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Non-Traditional Property and Liability Insurance Coverage for Doctors

Review of Other Insurance Forms for Medical Providers

By Dr. David Edward Marcinko; MBA, CMP™

Publisher-in-Chief

dem23Obviously, not all forms of P and L insurance coverage can be described in detail on this post. However, the healthcare professional or medical practitioner should consider these other forms of commercial property and liability coverage.

Directors and Officers Liability Insurance

The officers and directors of large practices, or healthcare facilities can be held personally accountable, and thus liable, for breaches of their duties by a number of parties.

Commercial Automobile / Vehicle Insurance

As the name suggests, this coverage provides protection for any commercial vehicles owned and operated by the healthcare corporation. If the practice or facility owns automobiles or other vehicles that are used in the “usual and customary” business activities, this coverage is required.  The policy-owner should be aware of the nine classifications of automobiles insured to ensure that coverage is appropriate.

Commercial Umbrella Liability Insurance

This coverage is very similar to the umbrella coverage that falls under the personal coverage area. Again, risks above the limits established by the underlying commercial liability coverage trigger the umbrella policy. The word of caution for this coverage is “Read the Provisions Carefully” as there is little standardization among insurance companies. Make sure the umbrella policy covers what you want it to cover, with the right limits of benefits and “trigger” points, with proper exclusions, and proper endorsements (if being used specifically for a medical practice.)

Employee Benefits Liability Insurance

Virtually each medical practice or healthcare facility has employee non-cash benefits in addition to their payroll. These benefits usually include group insurance and some form of retirement plan (a 401(k), for example). Nevertheless, each of these benefit packages expose the employer to liabilities under state and federal statutes. Employee Benefits Liability Insurance covers an employer, or if so stipulated by some policies, the employees who act on behalf of the employer, against liability claims involving alleged errors or omissions, or improper advice or administration of the employee fringe benefit plans.  For example, an employer may be liable for not enrolling an employee on a timely manner resulting in no medical coverage. Frequent litigation also arises out of violations of the Employee Retirement Income Security Act (ERISA) of 1974.  Since 1974, the provisions and reach of this Act has become massive and errors can occur.insurance-book3

Disclaimer: The author is a former licensed insurance agent and certified financial planner and advisor.

Conclusion

And so, your thoughts and comments on this Medical Executive-Post are appreciated. What have we missed, and who might wish to update this post?

Speaker: If you need a moderator or speaker for an upcoming event, Dr. David E. Marcinko; MBA – Publisher-in-Chief of the Executive-Post – is available for seminar or speaking engagements. Contact: MarcinkoAdvisors@msn.com  or Bio:

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Medical Risk Management: http://www.jbpub.com/catalog/9780763733421

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