Thursday, March 5, 2015
Yesterday I wrote about the Utah Supreme Court decision rejecting application of Nevada law to determine the nature of an asset protection trust. Would the same result occur if the claimant was an "ordinary" creditor, rather than a spouse and co-settlor?
One way to get in on the discussion would be the ABA's "Jurisdiction Selection Series" on "Domestic Asset Protection Trusts." And as luck would have it, the next in the series of 5 webinar sessions covers Arizona, Maryland, New Hampshire --- and Nevada law. The program is Tuesday, April 14, 2015, and will be followed by a session on June 9, 2015 covering Hawaii, Kentucky, South Dakota and Utah. Here are some of the topics to be addressed:
- What is an inter vivos QTIP trust and how can it help my clients?
- Will domestic self-settled asset protection trusts benefit my clients?
- Do the costs of creating a trust in one state for creditor protection or taxation benefits really outweigh the creation of such a trust in another?
- Is the trust really protected from creditors?
- Can the trust be used to avoid the income tax in the grantor's state of residence?
- Can a same sex couple benefit from the use of these trusts?
- Is using an offshore trust better?
A number of states have laws governing "full blown self-settled asset protection trusts" or permit some form of similar trust. Here is the link to the details about registration, cost and timing for all of the ABA sessions.
Hat Tip to Penn State Law Professor James Puckett for sharing the timely info on this series.
Wednesday, March 4, 2015
In Dahl v. Dahl, the Utah Supreme Court was asked to examine the effect of a choice-of-law clause in a trust that purported to be "irrevocable." The clause provided:
"Governing Law. The validity, construction and effect of the provisions of this Agreement in all respects shall be governed and regulated according to and by the laws of the State of Nevada. The administration of each Trust shall be governed by the laws of the state in which the Trust is being administered."
The first sentence of the provision was significant, because the trust granted husband-settlor continuing rights of control, even as he argued the "irrevocable" label was valid, prohibiting wife from claiming any marital interest in assets used to fund the trust.
The New York Times Ethicists take on an estate dispute. Here's how it starts:
In order to decrease his net worth before beginning divorce proceedings, my brother invested $600,000 in an apartment in my father’s name. Years later, he had our mother co-sign a business loan. When the business failed, my mother was sued for $3 million she didn’t have. After she died of cancer, my father fought the suit for many years. At 93, he settled for a $1.1 million loss. Unable to live his accustomed lifestyle, he approached my brother with the expectation that my brother would supplement his income. When my brother refused, my father sold the apartment and kept the $600,000.
When my father died, he left his estate to be split between my two adult sons....
Perhaps you have already guessed that "brother" is asserting a claim against the estate to recover "his" $600,000.
For the full analysis, listen to the podcast or read the shortened discussion here.
Tuesday, March 3, 2015
Heidi Rai Stewart, an attorney who concentrates her practice in "estate planning, estate and trust administration, special needs planning, elder law and Orphan's Court matters," has an interesting article in the March-April issue of The Pennsylvania Lawyer.
In "A Hit Between the Eyes - The Danger of Treating Legal Practice as a Commodity," Ms. Stewart takes on the hot topic of nontraditional providers of legal documents or legal advice, including lower-cost sources such as LegalZoom's partnership with Sam's Club or Avvo Advisor, an "on-demand service providing legal advice at fixed rates."
Ms. Stewart makes several points, including:
- "A fill-in-the-blank document program simply cannot address the possible eventualities that a skilled attorney will bring to a client's attention. Although attorneys use forms, a skilled lawyer does not simply fill in blanks."
- "Commoditization of legal services and documents induces the mindset of the cheaper the better."
- "There has long been a perception, reflected oftentimes in negative humor, that attorneys are solely concerned with making money.... That perception must change.... [A]ttorneys must better communicate the value of the breadth of their knowledge and wisdom if they want to remain competitive in the marketplace...."
Ms. Stewart asks "Are companies that provide DIY legal documents engaging in the unauthorized practice of law in Pennsylvania?" She observes that such a claim has not yet been heard in Pennsylvania.
Ms. Stewart outlines several recent cases from other states. She concludes by encouraging lawyers to engage in introspection and to think deeply:
"Do we distinguish ourselves by rising to the occasion with our integrity, skills, knowledge and wisdom? Or do we just continue on the path already trod while the public continues to search for the cheapest way to deal with life's most important issues?"
The issue containing the article is currently available only to members of the Pennsylvania Bar Association. Worth tracking down the full article!
Monday, March 2, 2015
The White House Council of Economic Advisors released "The Effects of Conflicted Investment Advice on Retirement Savings" in February 2015, and the report is a must-read for anyone teaching courses on aging policy.
The major focus of the analysis is on evidence of "conflicts of interest" for those advising individuals on roll-over investment of IRA accounts, but the findings undoubtedly have relevance beyond that window on retirement planning.
The decision whether to roll over one’s assets into an IRA can be confusing and the set of financial products that can be held in an IRA is vast, including savings accounts, money market accounts, mutual funds, exchange-traded funds, individual stocks and bonds, and annuities. Selecting and managing IRA investments can be a challenging and time-consuming task, frequently one of the most complex financial decisions in a person’s life, and many Americans turn to professional advisers for assistance. However, financial advisers are often compensated through fees and commissions that depend on their clients’ actions. Such fee structures generate acute conflicts of interest: the best recommendation for the saver may not be the best recommendation for the adviser’s bottom line.
The report focuses on the quantifiable cost from conflicted advice, concluding that savers receiving such advice "earn returns roughly 1 percentage point lower each year." But isn't there also a deeper cost, as the large swath of middle-income Americans, who may have justified fears of being able to safely evaluate investment risk and their investment advisors, do nothing productive with their savings?
The New York Times editorial board draws upon the White House Council's report to call for adoption of reality-based rules on fiduciary duties for the financial services industry. See NYT's "Protecting Fragile Retirement Nest Eggs."
Alzheimer's Research UK is releasing a report this month about the impact of dementia on women. Details released in advance of the formal launch are eye-opening.
As reported in The Guardian, “'Dementia is a life-shattering condition and represents a ‘triple whammy’ for women,' said Hilary Evans, director of external affairs at Alzheimer’s Research UK. 'More women are dying of dementia, more women are having to bear the burden of care, while a disproportionate number of women currently working in dementia research are having to leave science.'”
The full study calls for the government to make a significant increase in its funding of dementia research and an improved investment in care. Further, the report will explain that:
■ More than 500,000 women [in the U.K.] are now affected by dementia. About 350,000 men have the condition.
■ Women over 60 are now twice as likely to get dementia as breast cancer.
■ Women are more than two-and-a-half times more likely than men to be care-givers of people with dementia.
■ Most care- givers do not choose or plan to take on this role and often find the experience highly stressful.
Thanks to friends at CARDI, the Centre for Ageing Research and Development in Ireland for sharing this news. The formal launch of the Alzheimer's Research UK report appears timed to coincide with their "sold-out" 2015 Conference on March 10-11 in London.
Sunday, March 1, 2015
This week, the Supreme Court will hear oral arguments on the latest challenge to the ACA, in King v. Burwell. The New York Times offers historical perspective about an earlier journey to enact federal legislation that mandated the nation's first broad health care coverage, the Medicare program:
Lyndon B. Johnson was often derided for being egocentric, but when it came time to sign his landmark bill creating Medicare, 50 years ago this July, he graciously insisted on sharing the credit with the 81-year-old Harry Truman. At almost the last moment, Johnson decided to change the location from Washington to Truman’s presidential library in Independence, Mo.
During the ceremony, Johnson noted that in 1945, the newly installed President Truman had called for national health insurance, planting “the seeds of compassion and duty which have today flowered into care for the sick, and serenity for the fearful.” Johnson then presented his host with the nation’s first Medicare card. Deeply moved, Truman later wrote in a letter to Johnson that the ceremony was “the highlight of my post-White House days.”
For more details, read "LBJ and Truman: The Bond That Helped Forge Medicare."
For more on this week's Supreme Court challenge, from the Washington Post, see "Five Myths About King v. Burwell."
Friday, February 27, 2015
For more than twenty-five years, The Atlantic Philanthropies has been one of the most important funding sources for nonprofit and NGO work on health, education and equality issues in the U.S. and beyond, often providing key support for legal advocates including those at the National Senior Citizens Law Center (with its new name, Justice in Aging). My first encounter with AP began in Ireland in 2009-10, when I was based at the Changing Ageing Partnership, an AP funded-project at Queen's University Belfast.
Everywhere I turned during that sabbatical, I encountered the good works underway as the result of Chuck Feeney's decision in the mid-1980s to transfer virtually all of his considerable personal wealth to Atlantic. I learned that for the first half of AP's history, the grantmaking was anonymous and Chuck Feeney's role was largely unknown. The publication of The Billionaire Who Wasn't, by Irish writer Conor O'Clery, helped to change that visibility, and Mr. Feeney began to embrace a more public commitment to "giving while living."
My own work was impacted by what I learned that year, and I soon added a course on Nonprofit Organizations Law to my teaching package at Penn State's Dickinson Law.
Now Atlantic Philanthropies is facing its final two years of new grants, with 2016 being the concluding year. The final grants will focus on four themes:
Texas attorney Renée C. Lovelace has literally written the book -- a guidebook -- on Pooled Trust Options. Renée was a recent guest speaker at Penn State's Dickinson Law, appearing before students in an advanced seminar on planning techniques. Indeed, our students had specifically asked to hear from experienced practitioners on special needs trusts, and with the help of the National Elder Law Foundation we were able to host a nationally known speaker to do just that.
Renée (third from the left, in blue) helped our students identify appropriate uses of pooled trusts, such as where the beneficiary's needs could be uniquely well-served by a trustee who is familiar with the challenges sometimes encountered in managing assets on behalf of persons with disabilities.
While the special needs beneficiary may be frustrated by a manager's handling of "his" (or "her") money, sometimes it is the family that has questions about application of the law. Recently I was reading a New Jersey case decision, where a family was challenging the state's attempt to seek reimbursement for medical and care expenses expended by the state, following the death of their disabled daughter. At the core of the dispute was what appeared to be a misunderstanding on the part of the family about the nature of their daughter's special needs trust, which they were describing as a pooled trust. The court pointed out, that in the absence of a nonprofit manager, the trust could not be deemed a (d)(4)(C) trust or "pooled" trust, that would have allowed assets remaining after the death of the daughter to stay in the trust for the benefit of other disabled persons, rather than be subject to the state's reimbursement claim.
Thus, the case is a reminder that pooled trusts, properly created and managed are usually drafted as special needs trusts (SNTs). However, not all SNTs are pooled trusts. Or as Renée explains so well in her thorough guidebook:
Check out Volume 48, Issue 1 of the Indiana Law Review which contains articles from the 2013 Program on Law & State Government Fellowship Symposium: State Governments Face the Realities of Aging Populations. Three articles are included from the symposium, all of which are available on-line. The articles include Introduction: Governing Choices in the Face of a Generational Storm, Aging Populations and Physician Aid in Dying: The Evolution of State Government Policy, and What the Future of Aging Means to All of Us: An Era of Possibilities.
Thursday, February 26, 2015
The New York Times offers dramatic front page coverage of a criminal trial against ten defendants in France, accused of manipulation of Liliane Bettencourt, the 92 year-old heir of the L'Oreal cosmetics fortune. The defendants include a "celebrity photographer" (and his "long-time companion"), a former wealth manager, and an 81-year-old notary "who certified, with misgivings, Mrs. Bettencourt's decision to make" the 67-year-old photographer her sole heir, cutting out her only daughter.
Serious money is involved, with Forbes once estimating Mrs. Bettencourt's fortune at more than $40 billion. She has been diagnosed with "dementia and moderately severe Alzheimer's."
The prosecutors said her advanced age, the beginnings of dementia and a daily medical regimen of 56 pills, including antidepressants, also invited exploitation. And investigators contend that the schemes were so widespread that they included a political scandal involving a former finance minister seeking cash for the 2007 presidential campaign of Nicolas Sarkozy.
Some of the house staff members risked their jobs to challenge her advisers and confidants, particularly a French society photographer who gained the largest share of her fortune. At one point, investigators estimated that share to be about a billion euros, or $1.13 billion, in gifts during 20 years of friendship ending in 2010.
“Liliane wanted to do things for me, to ease my life,” testified the photographer, François-Marie Banier, 67, who is facing the highest penalty of the defendants, three years in prison. “I refused things like a mansion. But she took it so poorly. It’s really hard to cross that extraordinary woman.”
For all the details, sadly familiar if you followed the Brooke Astor history of wealth and manipulation, about the trial that just ended before a panel of judges who will issue their verdict on May 28, read "The Case of L'Oreal Heiress, A Private World of Wealth Becomes Public."
February 26, 2015 in Cognitive Impairment, Crimes, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, International | Permalink | Comments (0) | TrackBack (0)
A new research project on demographics of the U.S., with funding from The William and Flora Hewlett Foundation, brings together the Center for American Progress, the American Enterprise Institute, and demographer William H. Frey of the Brookings Institution. The project goals are:
- To document and analyze the challenges to democracy posed by the rapid demographic evolution from the 1970s to 2060
- To project the race-ethnic composition of every state to 2060, which has not been done for 20 years
- To promote a wide-ranging and bipartisan discussion of America’s demographic future and what it portends for the nation’s political parties and policy
The team's first report identifies a Top Ten list of demographic factors likely to impact the future of both policy-decisions and politics, including #6 on the "Graying of America." Graphics illustrate each of the projections, including this one on aging.
For more complete results, see The States of Change: Demographics and Democracy, 1974 to 2060.
Thanks to GW Law Professor Naomi Cahn for sending this report! The statistics should be useful for generating student discussion in a wide range of courses.
The movie, Still Alice, has been released. Starring Julianne Moore in the role of the lead character, the movie is based on the book by the same name written by Lisa Genova. The book and movie are about a professor who has early onset Alzheimer's. The synopsis from the movie's website describes the movie this way:
Alice Howland, happily married with three grown children, is a renowned linguistics professor who starts to forget words. When she receives a diagnosis of Early-Onset Alzheimer's Disease, Alice and her family find their bonds thoroughly tested. Her struggle to stay connected to who she once was is frightening, heartbreaking, and inspiring.
Wednesday, February 25, 2015
There are many interesting sessions, but two sessions will be of particular interest to those of us teaching elder law. On Saturday May 30 from 4:45-6:30 p.m. PDT is a panel session on Supporting Older Adults' Well-Being: A Look Across Countries which will include 5 presenters focusing on three countries, Sweden, China and the U.S. The second session is on Sunday May 31 from 8:15-10:00 a.m. PDT is a panel discussion on Uniform Laws & Older Adults. The general schedule for the conference is available here.
Tuesday, February 24, 2015
USA Today reports on home care workers "joining a nationwide movement" to raise wages, with rallies planned for "more than 20 cities in the next two weeks."
As described by journalist Paul Davidson,
"Like the fast food workers, the 2 million personal care and home health aides seek a $15 hourly wage and the right to unionize, which is barred in some states. Their median hourly wage is about $9.60 and annual pay averages just $18,600 because many work part-time, according to the Labor Department and National Employment Law Project. That puts the industry among the lowest paying despite fast-growing demand for home-based caregivers to serve aging Baby Boomers over the next decade.
'Home care providers living in poverty don't have a stable standard of living so they can provide quality care,' says Mary Kay Henry, president of the Service Employees International Union, which is spearheading the home care aides' movement and backed the fast-food worker strikes."
According to a representative of "Home Care Association of America, which represented agencies that employ personal-care aides," companies attempt to "balance the ability to keep care affordable with attracting employees."
Thanks to Dickinson Law 3L student Jake Sternberger for pointing me to this news item.
February 24, 2015 in Consumer Information, Discrimination, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, State Cases, State Statutes/Regulations, Statistics | Permalink | Comments (0) | TrackBack (0)
The National Consumer Law Center (NCLC) is offering a free webinar on "Medical Debt: Overview of New IRS Regulations and Industry Best Practices" on March 4, 2015 from 2 to 3 p.m. Eastern Time.
The hosts describe the webinar as follows:
This webinar will present an overview of the IRS final regulations governing financial assistance and collection policies of nonprofit hospitals. The regulations require nonprofit hospitals to have written financial assistance policies; regulate debt collection by nonprofit hospitals and third party
agencies; and prohibit the imposition of "chargemaster" rates to patients eligible for financial assistance.
Find out how to use the regulations to help clients who owe medical debts to nonprofit hospitals and protect them from lawsuits, liens, and credit reporting damage. The webinar will also review the voluntary best practices on medical account resolution issued by the Healthcare Financial Management Association.
Here is the link for REGISTRATION. Thanks to the National Senior Citizens Law Center (soon to be "officially" Justice in Aging) for sharing news of this educational opportunity of clear relevance to older persons and their families.
The Administration for Community Living (ACL) has announced an upcoming webinar, Intellectual & Development Disabilities & Dementia-Experiences of a Family Advocate & Promising Practices. The webinar is scheduled for February 26, 2015 from 3-4 p.m. est. Registration is free. The program website offers this description of the webinar:
The February 26th webinar will provide participants with information on personal experiences, advocacy efforts, and helpful practices for people with intellectual and developmental disabilities (ID/D) and dementia. Mary Hogan will speak about her personal experience as guardian for her late brother and an advocate for her brother and others with intellectual and developmental disabilities and dementia. Phil McCallion will speak about promising practices of how to work with people with ID/D and dementia.
To register, click here.
Monday, February 23, 2015
On Saturday, I had the privilege of attending the 7th Annual Conference of the Pennsylvania Association of Elder Law Attorneys (PAELA), to give a presentation with Dr. Claire Flaherty, a Penn State Hershey Medical Center neuropsychologist with special expertise in frontal and temporal lobe impairments, on "Dementia Diagnosis and the Law."
Another speaker, Teepa Snow, an occupational therapist with long-experience in behavioral health, brain injury and dementia care, spoke on Sunday.
It was one of the rare times when I've been glad to be "snowed in" at a conference, as that kept me in place for both days of the presentations, rather than rushing home to work on some other task.
One of the topics that was discussed by attendees over the two days was the question of whether testimony by witnesses who observe "moments of lucidity" -- standing alone -- is proper support for a finding of "legal capacity." Context is important, of course, as both common law and statutory law increasingly recognize that capacity should be evaluated in terms of specific transactions.
My own takeaway from the health care experts was the need for some measure of caution in this regard. With many forms of dementia, especially at the early stages, unrecognized impairment of judgment may precede recognized impairment of memory. In other words, as I understand it, we may spend too much time being impressed by a client's ability to remember who is the president or the names of their children, and too little time asking more probing questions. Deeper inquiry may reveal or ameliorate concerns about judgment, including an individual's current abilities to make decisions, make reasonable, rational connections in formulating or following a plan, and related skills such as empathy or self-awareness.
Along this same line, it is a good time to remind readers that there are three useful handbooks on "Assessment of Older Adults With Diminished Capacity," one directed to lawyers, one to psychologists, and one for judges, that were created by experienced professionals working as a team on behalf of the American Bar Association and the American Psychological Association (APA). Individual copies can be downloaded without cost from the APA website.
Sunday, February 22, 2015
The first White House Conference on Aging Regional Forum was held on February 19, 2015 in Tampa Florida. The morning featured comments by the WHCOA Executive Director Nora Super and remarks by Cecilia Munoz, Assistant to the President and Director, Domestic Policy Council. Two panels followed, with comments by panelists on the 4 topics of emphasis for the 2015 WHCOA, healthy aging, long term services and supports, retirement security and elder justice. In the afternoon, participants were divided into working groups for those 4 topics, where they discussed priorities, obstacles, and actions. Representatives from each working group presented the group's topic recommendations in a closing panel presentation moderated by Kathy Greenlee, Administrator for the Administration on Community Living and the Assistant Secretary for Aging. In person attendance was invitation only, but the event was live webcast through HHS. The next regional forum is set for Phoenix, Arizona on March 31st. Visit the WHCOA forums website a day or so before the event to register for the live webcast.
February 22, 2015 in Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Health Care/Long Term Care, Medicaid, Programs/CLEs, Retirement, Social Security | Permalink | Comments (0) | TrackBack (0)
Friday, February 20, 2015
Seasons 22 Restaurants, with locations in more than ten states nationwide, has a reputation for dining that emphasizes farm-to-table freshness, naturally seasoned cooking, and with a pledge that nothing on the menu is over 475 calories. Cutting edge, and hip.
Not so hip are the allegations by the EEOC that since 2010 the chain "engaged in a nationwide pattern or practice of age discrimination in hiring hourly workers," as described in a lawsuit filed by the EEOC this month:
"According to the lawsuit, various Seasons 52 management hiring officials would travel to new restaurant openings to oversee their staffing. Older, unsuccessful applicants across the nation were given varying explanations for their failure to be hired, including 'too experienced,' the restaurant's desire for a youthful image, looking for 'fresh' employees, and telling applicants that Seasons 52 'wasn't looking for old white guys.'
Age discrimination violates the Age Discrimination in Employment Act (ADEA). The EEOC filed suit Civil Action No. 1:15-cv-20561-JLK, in U.S. District Court for the Southern District of Florida after first attempting to reach a pre-litigation settlement through its conciliation process. The agency seeks monetary relief for applicants denied employment because of their age, the adoption of strong policies and procedures to remedy and prevent age discrimination by Seasons 52, and training on discrimination for its managers and employees.
'This case represents one example of the barriers to hiring that some job applicants face,' said Malcolm S. Medley, district director for the EEOC's Miami District Office. 'Eradicating barriers to employment opportunities is a priority of the Commission.'"
Thanks to students in the Elder Law class at George Washington Law for sharing news of this case, which includes the response by Darden (the parent company) spokesman, denying the allegations and pledging to "defend this claim vigorously."