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Jewish World Review
Sept. 25, 2006
/ 3 Tishrei, 5767
Is Dad a tax break?
Jan L. Warner & Jan Collins
Q: Our mother's lengthy illness and death caused emotional and economic devastation to our father, now 84. Because of his poor financial situation (his only income is Social Security of less than $875 per month), my brother, two sisters and I have been providing him money for food, clothing, gasoline, car and house maintenance, and other such expenses.
We have been talking about taking him as a dependent; however, since none of us provides more than half of his support, how can we take advantage of this tax break?
A: While it is generally correct that a taxpayer can claim a dependency exemption for an individual only if he or she provides more than half of that individual's support during the year, in multiple support situations such as yours, several taxpayers may provide support for an individual with no one of them providing more than half the support.
In these circumstances, the general rule has an exception: If qualified taxpayers each provide more than 10 percent of an individual's support and provide 50 percent collectively among them they can decide among themselves who will claim the exemption so long as all tests are met. "Support" can include expenditures for clothing, food, housing, transportation, vacations, medical and dental care, and other necessities.
Although only one taxpayer can claim the exemption each year, the exemption can be switched from sibling to sibling on a year-to-year basis. Those of you who are eligible to claim the exemption must enter into a new agreement each year in order for one of you to claim the exemption.
So long as your father or, for that matter, any other relative, is a citizen of the United States, he need not live with you in order for him to qualify as your dependent. However, other relatives must live with you in order for you to claim the dependency exemption. You cannot claim the exemption if your father files a joint return with anyone.
So, the first thing to do is determine which of you should claim the exemption in which year and establish the rotation. But remember, if one of you does not provide 10 percent of the total support for your father, that sibling will not be eligible to claim the exemption.
Once you decide who will take the exemption, each of the other siblings who have provided at least 10 percent of your father's support must complete and sign a Form 2120, which will be attached to the tax return of the person who claims the exemption.
It is important to remember that in multiple support situations, the taxpayer claiming the dependency exemption can also deduct medical expenses that he/she pays for the person being claimed as a dependent.
If you pay more than half of your parent's support, you may also be eligible to deduct medical expenses paid on Dad's behalf, even if Dad earns too much for you to be able to claim a dependency exemption. In these situations, you would merely add your parent's medical expenses such as health insurance premiums to your medical expenses and deduct them to the extent that they exceed 7.5 percent of your adjusted gross income.
We urge you to contact your certified public accountant or tax advisor to help you determine exactly where you stand.
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Robin Westmiller of Thousand Oaks, California, couldn't agree more. In her new book, "Blood Tastes Lousy With Scotch" (Star, 2006), she recounts the true events of a Florida family services organization appointed legal guardian of her elderly father at the behest of a cousin which legally drained her father's accounts of nearly $250,000 before Westmiller was able to have her father once again declared mentally competent.
Westmiller has formed an organization the National Association to Stop Guardian Abuse (NASGA) the Web site for which can be found at http://stopguardianabuse.org. In a recent interview with NextSteps, Westmiller, who is currently attending law school, said she founded her group in the aftermath of the 18-month-long "nightmare" that occurred with her own father's guardianship. "It's an organization I wish I had had when I was going through all this with my Dad," she said.
NASGA is a self-help membership organization that advises people in a similar situation what they can do. "We give information, not legal advice," Westmiller says. "But we tell people what (documents) they need to accumulate" for their own attorneys.
Westmiller and other organizations say the guardianship abuse crisis is "always about the money." A professional guardian or heir can get control of seniors' money "by alleging that you can no longer manage your affairs," says a group called Justice for Florida Seniors, which can be located at (www.justiceforfloridaseniors.org).
But critics also put the blame squarely on probate and surrogate court judges who appoint guardians some of whom may turn out to be incompetent and/or dishonest and then fail to provide judicial oversight. "Some judges," Westmiller says, "never even meet the victims (elders) who they strip of life, liberty and property."
Westmiller and others call for better education of probate judges on guardianship issues, better judicial oversight and severe penalties for the dishonest guardians.
Some states, such as New Jersey and Wisconsin, have recently passed legislation to improve the guardianship process, including stronger monitoring, and the California legislature is considering similar measures, according to the AARP. But it would seem like a good idea for the federal government to take the lead with model legislation and funding for research.
The first line of defense against this insidious problem is to plan in advance with durable powers of attorney and trusts through which trusted fiduciaries can follow your direction should you become incapacitated. For those who have not planned or have planned poorly, contact your national and local lawmakers about introducing and passing stricter legislation, because if we live long enough, eventually we, too, may well be vulnerable to guardianship abuse.
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JAN L. WARNER received his A.B. and J.D. degrees from the University of South Carolina and earned a Master of Legal Letters (L.L.M.) in Taxation from the Emory University School of Law in Atlanta, Georgia. He is a frequent lecturer at legal education and public information programs throughout the United States. His articles have been published in national and state legal publications. Jan Collins began co-authoring Flying SoloŽ in 1989. She has more than 27 years of experience as a journalist, writer, and editor. To comment or ask a question, please click here.
© 2006, Jan Warner