Baytown, TX

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Weston G. Cotton, Attorney at Law - Lawyer | Baytown, TX

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By cottenwesto57742814, Sep 19 2016 01:29PM

You have worked all your life, dutifully paid into Social Security and your spouse worked as a teacher, a municipal worker or police, fire, or other form of government worker that has not paid into Social Security. When you die, you expect your spouse to get the benefit of the money you paid into Social security, right? Not necessarily so.

Benefits paid by the Teacher Retirement System of Texas, or other governmental body, such as firemen, police and other governmental bodies, may affect Social Security benefits due the surviving spouse on account of the Government Pension Offset (GPO).

The Government Pension Offset affects Social Security benefits paid to individuals who either have a living spouse who's receiving Social Security benefits or who have been widowed by a spouse who paid Social Security taxes. Benefit amounts are reduced by two-thirds of the amount of the uncovered government worker’s retirement pension. If two-thirds of the pension benefit is more than the spousal benefits amount, the person doesn't receive any spousal Social Security benefit at all.

Texas governmental pensions are not subsidized by the federal government, so the argument that receiving a state, or local governmental pension and Social security is “double dipping” is ludicrous. It is simply a way to help balance the Social Security accounts and prolong the deficits created by Congress.

Look at the history of Social security: from Social security Reform Center (http://socialsecurityreform.org/history/index.cfm)

1935 - The Social Security Act, which covered workers in commerce and industry, was signed by President Roosevelt.

1937 - The Federal Insurance Contribution Act (FICA) required workers to pay taxes to support the Social Security system. Payroll taxes were 2%.

1939 - Social Security was expanded to cover dependents and survivors. Payroll taxes were 2%.

1950 - Coverage was expanded to jobs outside of commerce and industry, and benefit levels were increased. Payroll taxes were 3%.

1956 - Disability Insurance was created, and expanded over the following years. Early retirement at age 62 for women was permitted. Payroll taxes were 4%.

1961 - Early retirement at age 62 for men was permitted. Payroll taxes were 6%.

1972 - Automatic cost-of-living-adjustments (COLAs), which index benefits to inflation, were introduced. The formula to calculate increases initially overstated inflation by 25%, and people born between 1910 and 1916 received an unintended windfall. Payroll taxes were 9.2%.

1977 - The mistake in the benefit formula was corrected. The "notch" refers to the difference in benefits paid to the group that received the windfall and those who retired following the formula correction. Social Security was thought to be actuarially sound. Payroll taxes were 9.9%.

1983 - The National Commission on Social Security Reform was created in response to the actuarial unsoundness of the system. The commission called for 1) and increase in the self-employment tax; 2) partial taxation of benefits to upper income retirees; 3) expansion of coverage to include federal civilian and nonprofit organization employees; and 4) an increase in the retirement age from 65 to 67, to be enacted gradually starting in 2000. Again, Social Security was declared actuarially sound. Payroll taxes were 10.8%.

1985 - The Social Security Trust Funds were moved "off-budget" so that the funds earmarked for the Social Security system would be tracked separately from the rest of the budget. Payroll taxes were 11.4%.

1986 - COLAs were increased to respond to minor levels of inflation. Payroll taxes were 11.4%.

1993 - The amount of taxable benefits for upper income retirees was increased to 85%. Payroll taxes were 12.4%.

1996 - The Social Security Trustees' Report stated that the Social Security system would start to run deficits in 2012, and the trust funds would be exhausted by 2029. All members of the Advisory Panel agreed that some or all of Social Security's funds should be invested in the private sector. To keep the unchanged system actuarially sound, payroll taxes would have to be increased 50%, to 18% of payroll, or benefits would have to be slashed by 30%.

1997 - All members of the presidentially-appointed Social Security Advisory Panel agreed that some or all of Social Security's funds should be invested in the private sector. To keep the unchanged system actuarially sound, payroll taxes would have to be increased 50%, to 18% of payroll, or benefits would have to be slashed by 30%."

1999 - The Social Security Trustees' Report stated the Social Security Retirement System's unfunded liability increased by $752 billion since the 1998 Trustee Report was published. This brings the total long-term unfunded liability to more than $19 trillion.

The Social Security system is funded by payroll taxes paid by employees and employers through the Federal Insurance Contributions Act (FICA) and the Self Employment Contributions Act (SECA). (The payroll tax is also used to fund part of the Medicare system.) Today the total employee/employer payroll tax is 15.3%, with 12.4% of that going to Social Security. This rate has been increased dramatically since 1937, when the rate was 2%.

Employers and employees each pay a 7.65% payroll tax. They pay 1.45% on all earnings for Medicare, and they pay 6.2% for Social Security up to a capped amount of $72,600. (This cap changes each year.)

Self-employed individuals pay the full 15.3% tax, but one half of the tax can be deducted as a business expense. Because the employer's portion of the payroll tax translates into lower wages for workers, it is most accurate to talk about the combined level of the payroll tax.

The Social Security payroll taxes are recorded through the different program trust funds, which are used to track the inflows and outflows of the program. The trust funds are presently taking in more money then they are issuing in benefits, and they therefore run annual surpluses. Rather than saving the surpluses, Congress spends the money on other parts of the budget, such as defense, domestic discretionary programs and other entitlement programs.

The government will have borrowed over $3 trillion from the trust funds and not a penny will be left to cover the owed benefits. To repay the $3 trillion, the government will have to either cut spending by $3 trillion, raise taxes on every family in America by $43,000, or increase the national debt by an additional $3 trillion.

Social Security has always depended upon more workers entering the system and paying more in taxes into the system than are being paid out of the system.

My thanks to Teacher Retirement System, Wikipedia, socialsecurityreform.org and nysscpa.org.

By cottenwesto57742814, Jun 16 2016 08:31PM


You may be taking care of elderly parents now or looking at that possibility in the near future. According to a report from USA TODAY, ABC News, Gallup Poll, 41% of baby boomers are helping take care of elderly parents by providing personal help or financial assistance or both.

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.

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.

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 from $3131 in 2009 to $3,293 in 2010. Home health aids average $21 an hour.

“According to some sources, 60% of us will need long term care sometime during our lives. You are three times (3x) more likely to become disabled, or severely impaired, than to die. It is important for all of us to prepare for that day when we will need to help loved ones with elder care or we will need elder care for ourselves.”

“It is simply a fact of life that we prepare financially for unexpected disasters by covering our homes, automobiles and health with insurance policies and to provide funding for our retirement. But no other life event can be as devastating to our lifestyle, finances and security as needing long term care. It drastically alters or completely eliminates the three principal retirement dreams of elderly Americans, which are:

1. Remaining independent in the home without intervention from others

2. Maintaining good health and receiving adequate health care

3. Having enough money for everyday needs and not outliving assets and income


Yet, it is our experience that the majority of the American public does not plan for the devastating crisis of needing elder care. This lack of planning also has an adverse effect on the older person's family, with sacrifices made in time, money, family lifestyles and even affecting the family's or caregiver's medical and emotional health.” National Care Planning Council “ The 4 Steps of Long Term Care Planning”

Because of changing demographics and potential changes in government funding, the current generation -- more-than-ever -- needs to plan for long term care.

If you have spent time helping a parent or loved one cope with a disability resulting from aging, you know the frustration of balancing what you feel they need to do and what they want to do. Communication is strained at times, because after all, you are the child and they the parent, yet physically and mentally the rolls have changed.

When you make directives, assignments and arrangements in advance of needing elder care, then everyone involved can follow the prearranged care plan.


As an example, Jefferson Simpson wrote in his care plan that if dementia or Alzheimer's inhibited his mental abilities to communicate or recognize his surroundings, he wished to be in a respectable facility and only asked that he be visited and brought chocolates. To his children this request seemed silly at the time, but when his mental capacities did diminish, the instructions were there. No one had to wonder if they should try to take care of Father Jefferson at home and how they would do it. Without quilt or question they placed him in a respectable facility that took care of his needs. All they had to do was make loving visits, and of course they brought chocolates.

In order for Jefferson's simple request to happen, he had made financial, legal and personal long term care plans years before.

1. What do you want your children or friends to do on your behalf?

2. When it comes time for them to help, what if you can't say what you want because of a physical or mental disability? This is where a written long term care plan comes into effect.

3. Do you have a financial plan or long term care insurance? Retirement savings can disappear quickly when used for care services.

4. Where is your paperwork; insurance policies, living will, medical directives, Armed Services discharge or disability papers? Is there someone designated to know the location?

5. What are the legal documents that are needed for power of attorney, estate planning and disbursement of assets? When do they have to be completed?

6. What types of care services and facilities are available and what are the costs?

7. What will government programs pay for and how do you qualify?

There is a lot you can do now to put together a plan for your own long term care. You may have limited resources in the future or health problems that will inhibit your ability to take care of things you could do now. For example.

Billy and Bobbie want to be able to stay in their home as they age. In order to do this, when they were in their 40's they took out a long term care insurance policy that will pay for home care if it is needed. The policy will also pay for nursing home costs as a care option. With taking the policy at a younger age and in good health the monthly payments are low. Extra funds can now be put away for retirement without worries of having to deplete savings for care costs.

Or consider Sarah's following experience: After taking care of her own parents for many years, Sarah realized the importance of making a plan and preparations for herself in advance . She saw all of her parents' assets dissipated in order for her father to qualify for Medicaid nursing home coverage. She didn't want the same thing to happen to her. She took the time to create her own plan on paper-- expressing her wishes for her own care. A trip to her attorney provided all the legal documents and estate planning she wanted to be in place to insure care for her and an inheritance for her children.

There is much to learn about long term care and there are a lot of new services and programs available to draw from.

The National Care Planning Council has gathered together an overall review of government and private long term care services both on the Council website, www.longtermcarelink.net and in their book The 4 Steps of Long Term Care Planning.

The 4 Steps of Long Term Care Planning provides comprehensive information about long term care planning. The design also allows you to record personal information, family agreements and directions on 20 planning sheets at the back of the book. Using this book as a single-source repository for information and directions makes it much easier for you or your care coordinator to carry out your wishes when the need for care occurs.

If it is too late for long term care planning, it is not too late to salvage some of the parent’s estate if a plan is put in place upon learning of the loved one’s need for long term care in a skilled nursing facility ( nursing home). Discussion with a skilled long term care attorney can result in savings to the well spouse, or for the children. Don’t rely on friends or for that matter the Department of Human Services. They manage the funding for Medicaid in the nursing home and are notoriously frugal in handing out benefits to which your loved one may be entitled with the proper planning, or proper guidance.

No matter the timing, it is important to discuss your situation with a competent professional immediately upon realizing that long term care, either in home, or in a skilled facility, is on the horizon.

The sooner the better.

Feel free to call the office of Weston Cotten, Attorney at Law, with any questions you may have, or visit www.westoncotten.com.

Legal Disclaimer: Unless otherwise indicated, the author is not certified by the Texas Board of Legal Specialization(Translation, I have not taken and passed a test in any area of legal speciality, but am licensed to practice law before all Texas State and County Courts and several Federal Courts).

The principal office of Weston Cotten, PC is 5223 Garth Road, Baytown, Texas 77521., office phone is 281-421-5774

The content of this article and any referenced pages or websites, has been written or located for informational purposes only and should not be relied upon as legal advice. Legal advice of any nature should be sought from legal counsel. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship.

By cottenwesto57742814, Jun 16 2016 08:25PM


It is with great sadness that I am writing this as a substitute column for today.

A great friend of mine was in a terrible auto crash and was unidentified for a number of days. Her identification was lost during the rush to get her to the hospital. Once identified, her family and friends were notified and then the search began.

She had a will which was easily found. However, she has not died as of this writing. Consequently the will is of no use. What is necessary are powers of attorney, medical and financial. Without these, her health care is constrained by the Texas Health Code, and HIPAA determine who can counsel with the doctors, and who can receive information about her condition.

I received a call this morning regarding her powers of attorney. A search finally turned them up, but valuable time was lost and possibly irreparable damage done due to withholding care pending the proper notifications being given.

My whole point is that once you appoint someone as your agent, you should certainly tell them and inform them about the location of your documents.

The documents should be located somewhere they can be accessed after hours. As an older attorney once said to me, “Nothing bad happens while the banks are open”. His point was that putting wills and powers of attorney into a safe deposit box were limiting your access to them to ties when the bank was open. Most problems occur just as this one, late at night on a week-end.

Give careful consideration to your appointee(s). This person will be making decisions for you while you are unable to do so. Are they local, accessible, and have the same values as you do? You want someone who thinks like you do and who is strong enough to make the difficult decisions while emotions are at their peak, while the doctor is standing in front of you and asking if he can proceed. Knowing you have life or death decisions to make can sometimes paralyze a person and then their decisions are based only on emotion, not the best interest of the party, or the agent cannot make a decision because they are afraid to make a wrong decision.

We are hoping all turns out well for our friend, but I am using this instance to sound the alarm about the need for a Health Care power of attorney as well as a financial (Durable) power of attorney.

With them, decisions can be made an made quickly. The decision will best mirror the injured party’s wishes.

Without them, the injured party may have an “attorney ad litem” appointed to make decisions that need to be made. As a court appointed agent, the ad litem substitutes his judgment for that of the family and/or friends, unless you are able to convince the judge who is appointing someone to act for the injured party, that you or some other family member should be appointed.

The result of a court appointment is a court overseeing decisions that are generally family decisions which should be made with the injured person’s wishes, lifestyle and instructions in mind, not those of some third party who is not privy to the thoughts and lifestyle of the injured.\

Speak you your attorney, your family and then take that step to appoint someone who will honor your wishes, who thinks like you do and who is strong enough to make the hard decisions, knowing that if you were available that you would either make the same decision, or approve of it.

Don’t make it any more difficult than it will already be.

Don’t leave life or death choices to chance, or to strangers.


THIS ARTICLE IS FOR INFORMATION ONLY AND SHOULD NOT BE RELIED UPON AS LEGAL ADVICE. This does not constitute the establishment of an attorney client relationship between you and this lawyer. Most information is of a very general nature and cannot attempt to cover all fact situations. Nothing contained in this article should be construed to constitute a recommendation of any product, service, or web site.

Weston Cotten is admitted to practice in all Texas Courts, all Federal District Courts in Texas, and the U. S. Tax Court, though not certified as to any legal specialization. He is a member of the College of the State Bar of Texas.

Please visit his website at www.westoncotten.com, or call at 281-421-5774. Principal (and only) office is located at 5223 Garth Road, Baytown, 77521.

By cottenwesto57742814, Apr 11 2016 01:26PM

Use of deadly force and the possession of and carrying of firearms is a personal choice and is the subject oaf many heated discussions and has generated many websites, non-profit organizations and various groups that have an agenda both pro and con. These discussions always end up in the discussion of the Second Amendment and what it really means and is it relevant today. This article does not take a position on the righteousness of either position, but tries to resolve questions as to when is deadly force available and for what reasons, since the possession of a firearm presupposes there might be the need for deadly force.

In the 2008 case District of Columbia v. Heller, the U.S. Supreme Court ruled that otherwise law-abiding American citizens have a right to maintain firearms in the home "for the core lawful purpose of self-defense." Although the decision implies a right to use force to defend a residence, the Supreme Court did not comment on the right to defend oneself outside the home, nor did the decision rule as to whether one must first retreat within the home before using force. The Heller decision underscored a basic right of self-protection within one's home, but did not alter states' laws of self-defense regarding retreat.

The Texas Constitution, Article 1 - BILL OF RIGHTS, Section 23 - RIGHT TO KEEP AND BEAR ARMS states, "Every citizen shall have the right to keep and bear arms in the lawful defense of himself or the State; but the Legislature shall have power, by law, to regulate the wearing of arms, with a view to prevent crime.".

Texas HB 1815 was actually passed to clarify some issues left dangling by a similarly-enacted law in Texas in 2005 and helps resolve some of the questions left unanswered by the Supreme Court. Now, it simply isn’t an offense to carry a gun in a vehicle, but with these three critical qualifiers: (1) the gun must be concealed; (2) the carrier cannot be involved in criminal activities; (3) the carrier cannot be a member of a criminal gang. The fourth rule isn t mentioned in the bill, but stands from laws on the books for a long time, and that is that no felon can carry or even be around a gun. Penal Code §46.02. Spells out what is defined as unlawful carrying of weapons. In Texas the gun must be concealed in a car with or without a Texas CHL.

Carrying of firearms is usually justified by the need for personal protection or self-defense.

Self Defense Statutes (Texas Penal Code), (a) Except as provided in Subsection (b), a person is justified in using force against another when and to the degree he reasonably believes the force is immediately necessary to protect himself against the other's use or attempted use of unlawful force.

Self Defense in Texas

(Texas Penal Code), (a) Except as provided in Subsection (b), a person is justified in using force against another when and to the degree he reasonably believes the force is immediately necessary to protect himself against the other's use or attempted use of unlawful force.

Deadly Force in Defense of Person; "A person is justified in using deadly force against another if he would be justified in using force under Section 9.31 of the statute when and to the degree he reasonable believes that deadly force is immediately necessary to protect himself against the other's use or attempted use of unlawful deadly force, if a reasonable person in the same situation would have not retreated. The use of deadly force is also justified to prevent the other's imminent commission of aggravated kidnapping, murder, rape or robbery."

Defense of Another Person; "A person is justified in using deadly force against an attacker to protect another person if he would be justified to use it to protect himself against an unlawful attack and he reasonably believes his intervention is immediately necessary to protect the other person from serious injury or death."

Deadly Force to Protect Property; "A person is justified in using deadly force against another to protect his property to the degree he reasonably believes the force is immediately necessary to prevent the other's imminent commission of arson, burglary, robbery, theft during the nighttime or criminal mischief during the nighttime, and he reasonably believes that the property cannot be protected by any other means." "A person is justified in using deadly force against another to prevent the other who is fleeing after committing burglary, robbery, or theft during the nighttime, from escaping with the property and he reasonable believes that the property cannot be recovered by any other means; or, the use of force other than deadly force to protect or recover the property would expose him or another to a substantial risk of death or serious bodily injury. (Nighttime is defined as the period 30 minutes after sunset until 30 minutes before sunrise.)"

Protection of the Property of Others; ( the Joe Horn Defense)"A person is justified in using force or deadly force against another to protect the property of a third person if he reasonably believes he would be justified to use similar force to protect his own property, and he reasonably believes that there existed an attempt or actual commission of the crime of theft or criminal mischief." "Also, a person is justified in using force or deadly force if he reasonably believes that the third person has requested his protection of property; or he has a legal duty to protect the property; or the third person whose property he is protecting is his spouse, parent or child."

REASONABLE BELIEF; "It is not necessary that there should be actual danger, as a person has the right to defend his life and person from apparent danger as fully and to the same extent as he would have were the danger real, as it reasonably appeared to him from his standpoint at the time."

Weston Cotten is admitted to practice in all Texas Courts, the Southern District, Eastern District, Northern District, Western District Federal Courts, and the U. S. Tax Court, though not certified as to any legal specialization. He is a member of the College of the State Bar of Texas. He has been licensed to practice for 29 years. His areas of practice include Probate and Estate preservation, business formation and operations, real estate, Social Security Disability and Bankruptcy law. He a local, solo practice attorney with his office located at 5223 Garth Road, Baytown, TX 77521. If he is unable to assist you, he will try to give you a referral to an attorney with experience in your area of legal need.

Please visit his website at www.westoncotten.com, or call at 281-421-5774.

THIS ARTICLE IS FOR INFORMATION ONLY AND SHOULD NOT BE RELIED UPON AS LEGAL ADVICE. This does not constitute the establishment of an attorney client relationship between you and this lawyer. Most information is of a very general nature and cannot attempt to cover all fact situations. Nothing contained in this web site should be construed to constitute a recommendation of any product, service, or web site.

(Federally Required Notice) The Law Office of Weston Cotten, P.C. is a “debt-relief agency” as defined by federal bankruptcy law, and we proudly assist our clients in filing for debt relief under the Bankruptcy Code.

By guest, Jul 23 2015 10:40PM

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