Thursday, July 27, 2017

Distributive Justice and Donative Intent

Professor Alexander Boni-Saenz at Chicago-Kent College of Law has an interesting new article, Distributive Justice and Donative Intent, forthcoming in the UCLA Law Review.  From the abstract:

The inheritance system is beset by formalism. Probate courts reject wills on technicalities and refuse to correct obvious drafting mistakes by testators. These doctrines lead to donative errors, or outcomes that are not in line with the decedent’s donative intent. While scholars and reformers have critiqued the intent-defeating effects of formalism in the past, none have examined the resulting distribution of donative errors and connected it to broader social and economic inequalities. Drawing on egalitarian theories of distributive justice, this Article develops a novel critique of formalism in the inheritance law context. The central normative claim is that formalistic wills doctrines should be reformed because they create unjustified inequalities in the distribution of donative errors. In other words, probate formalism harms those who attempt to engage in estate planning without specialized legal knowledge or the economic resources to hire an attorney. By highlighting these distributive concerns, this Article reorients inheritance law scholarship to the needs of the middle class and crystallizes distributive arguments for reformers of the probate system.

When I teach Wills, Trusts & Estates, I always include a few of the latest news articles or case reports that focus on LegalZoom or other, less high-profile on-line document drafting venues that are used directly by consumers.  Alex's article examines the implications of formalism for this important reality.  Thanks, Alex!

July 27, 2017 in Consumer Information, Current Affairs, Estates and Trusts, Ethical Issues, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Friday, July 21, 2017

Filial Friday: Elderly NJ Parents Held Not Liable to Pay Care for Disabled Adult Son in PA

In the latest chapter of an ongoing dispute between a specialized care facility, Melmark, Inc., and the older parents of a disabled adult son, Pennsylvania's intermediate Superior Court of Appeals has ruled in favor of the parents.  

The July 19, 2017 appellate decision in Melmark v. Schutt is based on choice of law principles, analyzing whether New Jersey's more limited filial support law or Pennsylvania's broader filial law controlled.  If applied, New Jersey law "would shield the [parents] from financial responsibility for [their son's] care because they are over age 55 and Alex is no longer a minor." By contrast, "Pennsylvania's filial support law...would provide no age-based exception to parental responsibility to pay for care rendered to an indigent adult child."

The parents and the son were all, as stipulated to the court, residents of New Jersey.  New Jersey public funding paid from the son's  specialized care needs at Melmark's Pennsylvania facility for some 11 years.  However, when, as part of a "bring our children home" program, New Jersey cut the funding for cross-border placements, the parents, age 70 and 71 year old, opposed return of their 31-year old son, arguing lack of an appropriate placement.  Eventually Melmark returned their son to New Jersey against the parents' wishes, with an outstanding bill for unpaid care totaling more than $205,000, incurred over his final 14 months at Melmark.

Both the Pennsylvania trial and appellate courts ruled against the facility, concluding that "the New Jersey statutory scheme reflects a legislative purpose to protect its elderly parents from financial liability associated with the provision of care for their public assistance-eligible indigent children under the present circumstances."  The courts rejected application of Pennsylvania's law as controlling.

This is a tough case, with hard-line positions on the law staked out by both sides.  One cannot expect facilities to provide quality care for free.  On the other side, one can empathize with families who face limited local care choices and huge costs.

Ultimately, I anticipate these kinds of cross-border "family care and cost" disputes becoming more common in the future for care-dependent family members, as the impact of federal funding cuts trickle down to states with uneven resources of their own.  Some of these problems won't see the courtroom, as facilities will likely resist any out-of-state placement where payment is not guaranteed by family members, old or young.  

July 21, 2017 in Consumer Information, Estates and Trusts, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Housing, Medicaid, Social Security, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Thursday, June 22, 2017

ACTEC Engagement Letters

We previously let you know that ACTEC has released the 5th edition of its Commentaries to the Model Rules of Professional Conduct. Now ACTEC has released a new edition of their engagement letters. Engagement Letters A Guide for Practitioners (3rd ed. 2017) is available as a pdf.  There are 9 chapters with introductions, explanations, checklists and forms.  The introduction explains the book's organization:

Following this introduction, there is a general checklist designed to aid the lawyer before preparing the engagement letter in any trust and estate representation. The general checklist includes cross references to the specific checklists and forms that follow. Following the general checklist, there are nine chapters, each with a basic engagement letter form or specific language to be added to, or used in conjunction with, a basic engagement letter form addressing:

Chapter 1: Estate Planning Representation of One Person or Spouses;

Chapter 2: Representation of Multiple Members of the Same Family Other Than or in Addition to Spouses;

Chapter 3: Representation of Multiple Parties in a Business Context;

Chapter 4: Estate Planning Lawyer Serving as a Fiduciary;

Chapter 5: Representation of Executors and Trustees in Administration Matters;

Chapter 6: Representation of Guardians/Conservators;

Chapter 7: Probate Litigation;

Chapter 8: Dealing with Diminished Capacity or Death of a Client Not Represented in a Fiduciary Capacity;

Chapter 9: Termination of Representation.

The introduction also offers a caution regarding the use of forms, a great reminder for all attorneys.

 

 

June 22, 2017 in Consumer Information, Current Affairs, Estates and Trusts, Ethical Issues | Permalink

Wednesday, June 14, 2017

Your Estate Planning IQ?

Kiplinger has a nifty quiz for you to test your knowledge about estate planning. The quiz, What Do You Know about Wills and Trusts? Test Your Estate-Planning Smarts consists of 10 multiple choice questions with explanations once you have answered a specific question.  Take the quiz - it only takes about 5 minutes. Your results are instantaneous and you can compare your knowledge against the rest of us (the average is 7 correct answers out of 10). If you teach Trusts & Estates, this would be a good exercise to give during the first class!

June 14, 2017 in Consumer Information, Current Affairs, Estates and Trusts, Property Management, Web/Tech | Permalink | Comments (0)

Monday, May 15, 2017

Elder Financial Abuse Video from Pennsylvania Departments of Banking and Aging

Here's a seven-minute video on elder financial abuse, focusing mostly on "scam artists," from the Pennsylvania Departments of Aging and Banking & Securities.  You might find this useful for classes.

I found the discussion of "mild cognitive impairment" interesting, especially as it allows a conversation about planning without the dreaded words, dementia or Alzheimer's Disease.

May 15, 2017 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Film | Permalink | Comments (0)

Wednesday, May 10, 2017

Taking a Closer Look at "Gray Divorce" Statistics

Writing for the Institute for Family Studies, George Washington Law Professor Naomi Cahn and University of Minnesota Law Professor June Carbone dig into the black and white of statistics on "gray" divorce, with interesting observations. For example:

First, some good news for everyone: the divorce rate is still not all that high for those over the age of 50. Yes, it has doubled over the past 30 years: in 1990, five out of every 1,000 married people divorced, and in 2010, it was 10 out of every 1,000 married people. And yes, the rate has risen much more dramatically for gray Americans than for those under 50; in fact, there was a decline in the rate for those between the ages of 25-39. But the divorce rate for those over 50 is still half the rate for those under 50.

Divorce for older individuals often does have significant impacts for individuals in retirement, as they point out:  

These statistics don’t mean that gray divorce isn’t a problem. Those who divorce at older ages, like those who divorce at younger ages, tend to have less wealth than those who remain married, with the gray divorced having only one-fifth of the assets of gray married couples. Compared to married couples, gray divorced women have relatively low Social Security benefits and relatively high poverty rates. While gray married, remarried, and cohabiting couples have poverty rates of four percent or less, 11 percent of men who divorced after the age of 50 were in poverty, and 27 percent of the women were in poverty.

For more, read "Who is at Risk for a Gray Divorce?  It Depends."

May 10, 2017 in Consumer Information, Current Affairs, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Retirement, Social Security | Permalink | Comments (0)

Wednesday, April 19, 2017

Debts Linger After Death

Kiplinger ran an article in their April issue on Dealing With Debts After Death explaining what adult children should do when their parents die with debts.  Oftentimes the adult kids get an unpleasant surprise when they learn that their parents left debts behind.  The article explains how in many instances the parents don't tell their kids about the debts, for various reasons. The article also references some statistics about increasing amounts of debt of elders. The article stresses how important it is for the adult kids to understand the implications of these debts and what, if any, debt for which they are responsible.  The article discusses credit card debt, student loan debt, and mortgages.  The article is useful not only for a quick discussion in classes, but to help students understand debt and liability.  Check it out!

April 19, 2017 in Consumer Information, Current Affairs, Estates and Trusts | Permalink | Comments (0)

Thursday, April 13, 2017

Register Now: Webinar on Fundamentals of SNT Administration

Registration is now open for Stetson's annual Fundamentals of SNT Administration webinar.  This half-day webinar is scheduled for May 5, 2017 from 1-5 p.m.  The 4 speakers will cover topics on how to become a SNT administrator,  Tax issues when making distributions, services and products a SNT administrator can provide, and an update on the laws, regs and POMS.  The agenda is available here and registration is available here. (you can register online and fill out and submit a pdf). 

Full disclosure, I'm the conference chair. Hope to see you virtually at this webinar!

April 13, 2017 in Consumer Information, Current Affairs, Estates and Trusts, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Programs/CLEs, Webinars | Permalink | Comments (0)

Monday, February 27, 2017

Will "Everyday Americans" Lose Potential Protections re Investment Advice?

NPR had a good recent summary of the politics behind opposition to full implementation of fiduciary duty standards for investment brokers in providing retirement advice: 

Over the past two weeks, the Trump administration has taken steps to delay and perhaps scuttle a new rule designed to save American workers billions of dollars they currently pay in excessive fees in their retirement accounts.

The Obama administration spent 5 years crafting the rule through the Labor Department. It requires that financial advisers and brokers act in their customers' best interest when offering them investment advice for their workplace retirement accounts. Firms must comply by April [2917 under the current rule].

As the commentary pointed out, early-on Trump pledged to support the interests of ordinary working Americans and to take on Wall Street:

In his inauguration speech, President Trump talked about giving America back to everyday working Americans. In one of the more memorable moments, the president said, "The forgotten men and women of our country will be forgotten no longer."

The fiduciary duty rule for investment brokers directly signals the tension between President Trump's pledge to working Americans and his career-long focus on big business.

AARP supports the rule, recognizing that the U.S. has an "under savings" problem. Distrust of investment advisers plays into the reluctance of ordinary Americans to engage in professionally-assisted planning for the future.  Will AARP rally retirees to resist repeal or delay of the fiduciary duty rule? 

For more, read or listen to Trump Moving to Delay Rule that Protects Workers from Bad Financial Advice.Trump Moving To Delay Rule That Protects Workers From Bad Financial Advice and White House to Investors: Put Savers' Interests First.

Warren Buffett has been counseling -- for years -- to avoid high fee "experts" for investment advice, recommending the use of index funds instead.  See e.g. Newsday's "Warren Buffett Says Don't Waste Money on Investment Fees." 

 

February 27, 2017 in Consumer Information, Estates and Trusts, Ethical Issues, Federal Statutes/Regulations, Retirement | Permalink | Comments (0)

Friday, February 24, 2017

Washington State Discusses Expansion of Limited License Legal Technicians to Estate & Health Care Law

In 2012, the Washington Supreme Court approved Admission to Practice Rule 28, which created a new program for authorization of "limited license legal technicians," also known as LLLTs or "Triple L-Ts." The express purpose of the program was to meet the legal needs of under-served members of the public with qualified, affordable legal professionals, and the first area of practice chosen was domestic relations.  With that first experience in hand, in January 2017, the Washington State Bar Association has formally proposed expansion of the LLLT program to enable service to clients on "estate and health law."  

As described in the Washington State Bar Association materials, this expansion will include "aspects of estate planning, probate, guardianship, health care law, and government benefits. LLLTs licensed to practice in this area will be able to provide a wide range of services to those grappling with issues that disproportionately affect seniors but also touch people of all ages who are disabled, planning ahead for major life changes, or dealing with the death of a relative."  The comment period is now open on the proposed expansion.

For more about this important innovation, there was an excellent 90 minute-long webinar hosted by the Washington Bar in February 2017, with members of the Limited License Legal Technician Board explaining the ethical rules (including mandatory malpractice insurance), three years of education and 3000 hours of experience required for LLLTs to qualify.  Now available as a recording, the comments from the Webinar audience, including lawyers concerned about the potential impact on their own practice areas, are especially interesting.  

Many thanks to modern practice-trends guru, Professor Laurel Terry at Dickinson Law, for helping us to keep abreast of the Washington state innovation. 

February 24, 2017 in Consumer Information, Current Affairs, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Legal Practice/Practice Management, Programs/CLEs, State Statutes/Regulations, Webinars | Permalink | Comments (0)

Thursday, February 23, 2017

North Carolina Appeals Ct Declines to Recognize Pre-Death Cause of Action for Tortious Interference with Expectancy

An interesting decision addressing standing issues arising in the context of a family battle over an 87-year old parent's assets was issued by the North Carolina Court of Appeals on February 21, 2017.  In Hauser v Hauser, the court nicely summarizes its own ruling (with my highlighting below): 

This appeal presents the issues of whether (1) North Carolina law recognizes a cause of action for tortious interference with an expected inheritance by a potential beneficiary during the lifetime of the testator; and (2) in cases where a living parent has grounds to bring claims for constructive fraud or breach of fiduciary duty such claims may be brought instead by a child of the parent based upon her anticipated loss of an expected inheritance. [Daughter] Teresa Kay Hauser (“Plaintiff”) appeals from the trial court's 3 March 2016 order granting the motion to dismiss of [Son] Darrell S. Hauser and [Son's Wife] Robin E. Whitaker Hauser (collectively “Defendants”) as to her claims for tortious interference with an expected inheritance, constructive fraud, and breach of fiduciary duty as well as her request for an accounting. Because Plaintiff's claims for relief are not legally viable in light of the facts she has alleged, we affirm the trial court's order.

The succinct North Carolina opinion, declines to follow the logic of Harmon v. Harmon, a 1979 decision from the Maine Supreme Court, that addressed the "frontier of the expanding field" on torious interfence of with an advantageous relationship, by recognizing a "pre-death" cause of action. 

Currently the North Carolina opinion is available on Westlaw at 2017 WL 672176; I'll update this post with a open access link if it becomes available.  

February 23, 2017 in Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Monday, February 20, 2017

How Do "Domestic Partnerships" Fare for Elderly Couples?

George Washington Law Professor Naomi Cahn recommended an interesting new article from the Elder Law Journal, "The Precarious Status of Domestic Partnerships for the Elderly  in a Post-Obergefell World."

Authors Heidi Brady, who is clerking for the Fifth Circuit Court of Appeals, and Professor Robin Fretwell Wilson from the University of Illinois College of Law, team to analyze key ways in which elderly couples in domestic partnerships may be treated differently, and sometimes more adversely, than same sex couples who are married.  From the abstract: 

Three states face a particularly thorny question post-Obergefell [v. Hodges, the Supreme Court's 2015 decision recognizing rights to marry]: what should be done with domestic partnerships made available to elderly same-sex and straight couples at a time when same-sex couples could not marry. This article examines why California, New Jersey, and Washington opened domestic partnerships to elderly couples. . . . This Article drills down on three specific obligations and benefits tied to marriage -- receipt of alimony, Social Security spousal benefits, and duties to support a partner who needs long-term care under the Medicaid program -- and shows that entering a domestic partnership rather than marrying does not benefit all elderly couples; rather, the value of avoiding marriage varies by wealth and benefit. 

Thank you, Naomi, for this recommendation.  

February 20, 2017 in Estates and Trusts, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Social Security, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Friday, February 17, 2017

Sigificant Relationships: Arizona's New Guardianship Law Provides Rights of Contact for Wards

As we have discussed often on this Blog, one key issue in guardianships can be the right of access between third persons and the protected ward.  Arizona has adopted a new rule expressly permitting individuals with "significant relationships" with a ward to petition the court for access if the appointed guardian is denying contact.  A key section of the new law, adding Arizona Rev. Statutes Section 14-1536, effective as of January 1, 2017, provides:

"A person who has a significant relationship to the ward may petition the court for an order compelling the guardian to allow the person to have contact with the ward.  The petition shall describe the nature of the relationship between the person and the ward and the type and frequency of contact being requested.  The person has the burden of proving that the person has a significant relationship with the ward and that the requested contact is in the ward's best interest."

In deciding whether to grant access the court is obligated to consider the ward's physical and emotional well-being, and to consider factors such as the wishes of the ward "if the ward has sufficient mental capacity to make an intelligent choice," whether the requesting person has a criminal history or a history of domestic or elder abuse, or has abused drugs or alcohol. The new law also gives the ward the direct right to petition for contact with third persons.  

"Significant relationship" is defined in the statute as meaning "the person either is related to the ward by blood or marriage or is a close friend of the ward as established by a history of pattern and practice."

The Arizona guardianship law was also amended to mandate that guardians notify "family members" when an adult ward is hospitalized for more than 3 days or passes away.  Section 14-1537 provides notice shall be given to the ward's spouse, parents, adult siblings and adult children, as well as to "any person who has filed a demand for notice." 

I have also run into the issue of access where the care for the incapacitated person is being provided by means of family member or third person acting through a "power of attorney."  Sadly, in some states, the access issue triggers a full blown guardianship proceeding. Should a similar "significant relationship" test be used to provide a court petition-system outside of guardianships?  

February 17, 2017 in Cognitive Impairment, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, State Cases | Permalink | Comments (0)

Sunday, January 22, 2017

Illinois Law Professor Kaplan on "Reforming Taxation of Retirement Income"

University of Illinois Law Professor Richard Kaplan responded to my post last week, that questioned the appropriate age to compel IRA distributions, by providing a more in-depth look at the topic, via his own article, Reforming Taxation of Retirement Income.  

His recommendations include simplifying how Social Security retirement benefits are taxed, bifurcating defined contribution plan withdrawals into capital gains and ordinary income components, repealing certain exceptions to the early distribution penalty, reducing the delayed distribution penalty and adjusting the age at which it is triggered, and changing the residential gain exclusion to avoid unanticipated problems with reverse mortgages.

The 2012 Virginia Tax Review article demonstrates that increased life expectancy supports an increase to age 74 (from 71.5) as the trigger for mandatory distributions.  

Thanks, Dick!  As always, you have important analysis to share. 

January 22, 2017 in Current Affairs, Estates and Trusts, Federal Statutes/Regulations, Retirement, Social Security, Statistics | Permalink | Comments (0)

Friday, January 20, 2017

Is Age 70.5 No Longer an Appropriate Age to Compel IRA Distributions? What Sayeth Donald Trump?

Under long-standing IRS rules, IRAs and similar retirement accounts created with tax deferred income are generally subject to "required minimum distributions" when the account holder reaches age 70 and a half.  As the IRS.gov website reminds us:

  • You can withdraw more than the minimum required amount.
  • Your withdrawals will be included in your taxable income except for any part that was taxed before (your basis) or that can be received tax-free (such as qualified distributions from designated Roth accounts).

As the Wall Street Journal recently reported, as baby boomers are now reaching that magic age of 70 1/2+, there will be huge mandatory transfers of savings, creating taxable income, even if they don't actually need the retirement funds yet.

Boomers hold roughly $10 trillion in tax-deferred savings accounts, according to an estimate by Edward Shane, a managing director at Bank of New York Mellon Corp. Over the next two decades, the number of people age 70 or older is expected to nearly double to 60 million—roughly the population of Italy.

The account holders may not actually "need" the money in their early 70s, an age now often seen as "young" for retirement, and they may still be in high tax brackets, thus cancelling the original reasons for the savings and deferral.  The rules were made when average lifespans were shorter. 

On average, men and women who turned 65 in 2015 can expect to live a further 19 and 21.5 years respectively, according to the U.S. Social Security Administration’s most recent life-expectancy estimates; those post-65 expectancies are up from 15.4 and 19 years for those who turned 65 in 1985.

....[D]istributions are expected to grow exponentially over the next two decades because of a 1986 change to federal law designed to prevent the loss of tax revenue. Congress said savers who turn 70½ have to start taking withdrawals from tax-deferred savings plans or face a penalty. Specifically, retirees who turn 70½ have until April of the following calendar year to pull roughly 3.65% from their IRA and 401(k) funds, subject to slight differences in the way the funds are treated by the Internal Revenue Service. Then they must withdraw an increasing portion of their assets every year based on IRS formulas. The rules don’t apply to defined-benefit pensions, where retirees get automatic distributions.

There is a 50% penalty for failure to make required minimum withdrawals.  And not all retirees are aware of the consequences of failing to make with withdrawals, especially when accounts were created originally by a spouse who is no longer alive or is unable to manage the account personally. From the Wall Street Journal article:

Bronwyn Shone, a financial adviser in Pleasanton, Calif., said many of her clients aren’t aware of their legal obligation to take distributions. “I think some people thought they could let the money grow tax-deferred forever,” she said.

Certainly the federal government wants -- and an argument can certainly be made that it "needs" -- more tax revenues, but if the goal of the permitted deferral is to encourage saving for the the "real" needs of retirement, which can include disability, health care, long-term care, and other "late in aging" needs, is it still realistic to set the mandatory threshold for withdrawals at age 70.5?  For example, Donald Trump is just today commencing his "new job" at age 70 and a half, and yet he could be subject to the RMDs for any IRAs. Maybe this is a financial issue that might interest the new Trump Administration? 

For more, read Pulling Retirement Cash, but Not by Choice, by WSJ reporters V. Monga and S. Krouse (paywall protected article from 1/16/17).

January 20, 2017 in Current Affairs, Estates and Trusts, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Retirement, Social Security | Permalink | Comments (0)

Wednesday, January 11, 2017

"The Aging Brain" as a Focus for Collaborative Analysis and Research

I'm much overdue in writing about a terrific, recent workshop at Arizona State University's Sandra Day O'Connor College of Law on "The Aging Brain." For me it was an ideal gathering of disciplines, including experts in neurology, psychology, health care (including palliative care and self-directed aid-in-dying), the judiciary, and both practitioners and academics in law (not limited to elder law).  Even more exciting, that full day workshop (11/18/15) will lead into a public conference, planned for fall 2017.  

Key workshop moments included:

  • Preview of a potentially ground-breaking study of early-onset Alzheimer's Disease (AD) centered on a family cluster in the country of Columbia with a genetic marker for the disease and a high incidence of onset.  By "early onset," we're talking family members in their 40s.  The hope is that by studying the bio-markers in this family, that not only early onset but later-in-life onset will be better understood. Eric Reiman, with professional affiliations with Banner Health, Arizona State University and University of Arizona, spoke at the workshop, and, as it turned out, he was also featured on a CBS 60 Minutes program aired a short time later about the family-based study.  Here's a link to the CBS transcript and video for the 60 Minutes program on "The Alzheimer's Laboratory."  
  • Thoughtful discussion of the ethical, legal and social implications of dementia, including the fact that self-directed aid-in-dying is not lawful for individuals with cognitive impairment. Hank Greely from Stanford University Law and Medical Schools, and Professor Betsy Grey for ASU's Sandra Day O'Connor College of Law led discussions on key issues.  As biomarkers linked to AD are identified, would "you" want to know the outcome of personal testing?  Would knowing you have a genetic link to AD change your life before onset? 
  • Overview of recent developments in "healthy" brain aging and so-called "anti-aging" treatments or medications, with important questions raised about whether there is respected science behind the latest announcement of "breakthroughs." Cynthia Stonnington from the Mayo Clinic and Gary Marchant from ASU talked about the science (or lack thereof), and Gary raised provocative points about the role of the FDA in drug approvals, tracking histories for so-called off label uses for drugs such as metformin and rapamycin.  

I very much appreciate the opportunity to participate in this program, with special thanks to Betsy Grey and federal Judge Roslyn Silver for making this possible.  I've also enjoyed serving as occasional guest in Judge Silver's two-semester Law and Science workshop with ASU law students. Thank you! For more on the Aging Brain programming at ASU, see here.    

January 11, 2017 in Advance Directives/End-of-Life, Cognitive Impairment, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Programs/CLEs, Science | Permalink | Comments (0)

Tuesday, January 10, 2017

Oregon Supreme Court Rejects Medicaid Estate Recovery for Asset Transfers between Spouses

In late December 2016, the Oregon Supreme Court ruled that state efforts to use Medicaid Estate Recovery regulations to reach assets transferred between spouses prior to application were improper. In Nay v. Department of Human Services, __ P.3d ___, 360 Or. 668, 2016 WL 7321752, (Dec. 15, 2016), the Supreme Court affirmed in part and vacated in part the ruling of the state's intermediate appellate court (discussed here in our Blog in 2014).  The high court concluded:

Because “estate” is defined to include any property interest that a Medicaid recipient held at the time of death, the department asserted that the Medicaid recipient had a property interest that would reach those transfers. In doing so, it relied on four sources: the presumption of common ownership in a marital dissolution, the right of a spouse to claim an elective share under probate law, the ability to avoid a transfer made without adequate consideration, and the ability to avoid a transfer made with intent to hinder or prevent estate recovery. In all instances, the rule amendments departed from the legal standards expressed or implied in those sources of law. Accordingly, the rule amendments exceeded the department's statutory authority under ORS 183.400(4)(b). The Court of Appeals correctly held the rule amendments to be invalid.

Our thanks to Elder Law Attorney Tim Nay for keeping us up to date on this case.  His firm's Blog further reports on the effects of the final ruling in Oregon:

"Estate recovery claims that were held pending the outcome of the Nay case can now be finalized, denying the claim to the extent it seeks recovery against assets that the Medicaid recipient did not have a legal ownership interest in at the time of death. Estate recovery claims that were settled during the pendency of Nay contained a provision that the settlement agreement was binding on all parties to the agreement no matter the outcome in Nay and thus cannot be revisited."

January 10, 2017 in Estates and Trusts, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Monday, January 9, 2017

Diving Deeper into Approval of Short-Term Annuities in Medicaid Planning

3L Villanova Law Student Jennifer A. Ward has an interesting analysis of the Third Circuit's decision in Zahner v. Sec'y Pa Dept. of Human Servs., 802 F.3d 497 (3d Cir. 2015), published in a recent issue of the Villanova Law Review.  She begins with a summary of the Zahner decision and an outline of her analysis:

[T]he Third Circuit examined whether short-term annuities, a specific instrument used in Medicaid planning, qualified for the DRA's safe harbor provision. If so, assets used to purchase short-term annuities would be sheltered from factoring into individuals' eligibility for Medicaid. Holding that short-term annuities can qualify for protection, the Third Circuit's decision signifies that the DRA did not completely foreclose the “use of short-term annuities in Medicaid planning.”
 
This Casebrief argues that the Third Circuit's Zahner decision is a win for elder law attorneys and their clients, as it solidifies the viability of the use of short-term annuities in Medicaid planning. Part II examines how individuals take part in Medicaid planning, including a discussion of the DRA and the use of annuities in planning. Part III presents the facts of Zahner and reviews the Third Circuit's analysis. Part IV analyzes the Third Circuit's decision to approve the use of short-term annuities. Part V advises elder law practitioners on the use of short-term annuities going forward. Part VI concludes by discussing the long-term viability of short-term annuities.
 
The author recognizes the potential for Congress to change the outcome of the Zahner ruling: 
 
After Zahner, elder law practitioners are free to use short-term annuities while guiding their clients through the Medicaid planning process. The Third Circuit will not bar the use of qualified short-term annuities in Medicaid planning, instead leaving any change in policy to Congress. Therefore, until Congress acts, short-term annuities are a viable planning tool in the Third Circuit for the foreseeable future.For people who wish to leave assets to loved ones, Zahner presents good news. Rather than causing people to exhaust their savings on long-term care, Zahner provides individuals greater ability to protect resources through Medicaid planning.
 
The title of the article is Doctor's Orders: The Third Circuit Approves Short Term Annuities As a Viable Planning Tool, and is available through subscription on Westlaw and Lexis and appears to be forthcoming on a digital commons platform via the Villanova Law Review. 

January 9, 2017 in Estates and Trusts, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid | Permalink | Comments (0)

Thursday, December 8, 2016

21st Century Cures Act

The Senate passed the 21st Century Cures Act, HR 34, on December 7, 2016. Having already passed the House, the bill goes to the President for signature.  There are two specific provisions in the Cures Act that bear mention:

The Special Needs Trust Fairness Act in section 5007, which allows a beneficiary with capacity to establish her own first-party SNT (finally) and Section 14017 which deals with capacity of Veterans to manage money.

Section 5007 provides:

SEC. 5007. Fairness in Medicaid supplemental needs trusts.

(a) In general.—Section 1917(d)(4)(A) of the Social Security Act (42 U.S.C. 1396p(d)(4)(A)) is amended by inserting the individual, after for the benefit of such individual by.

(b) Effective date.—The amendment made by subsection (a) shall apply to trusts established on or after the date of the enactment of this Act.

Section 14017 amends 38 USC chapter 55 by adding new section 5501A "Beneficiaries’ rights in mental competence determinations"

The Secretary may not make an adverse determination concerning the mental capacity of a beneficiary to manage monetary benefits paid to or for the beneficiary by the Secretary under this title unless such beneficiary has been provided all of the following, subject to the procedures and timelines prescribed by the Secretary for determinations of incompetency:

“(1) Notice of the proposed adverse determination and the supporting evidence.

“(2) An opportunity to request a hearing.

“(3) An opportunity to present evidence, including an opinion from a medical professional or other person, on the capacity of the beneficiary to manage monetary benefits paid to or for the beneficiary by the Secretary under this title.

“(4) An opportunity to be represented at no expense to the Government (including by counsel) at any such hearing and to bring a medical professional or other person to provide relevant testimony at any such hearing.”.

The effective date for the VA amendment is for "determinations made by the Secretary of Veterans Affairs on or after the date of the enactment...."

The President is expected to sign the bill soon. More to follow.

December 8, 2016 in Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Property Management, Veterans | Permalink | Comments (0)

Monday, October 31, 2016

Self Awareness, Courage and Cognitive Impairment

The Washington Post recently had a good article titled Facing Financial Reality When Early Dementia is Diagnosed.  It begins with Chuck McClatchey's realization that something was wrong: 

He moved to Fort Worth at age 61 with his partner Bobbie Duncan, and they spent $25,000 in savings on a fixer-upper house. His plan was to work until he was 70. But then things got strange. “I was having trouble understanding new technologies and things that I should have known off the top of my head” and having trouble using Word and Excel and PowerPoint, “things I had known for years."

 

He left that job but had problems in another, simpler job at Lowe’s.

 

Then one day, amid growing confusion, came clarity.

 

“I brought home a little desk for me to put together,” he said. “I love to put things together, the more complicated the better.” It should have taken about half an hour. Instead, two hours later, “the pieces just weren’t going together like I thought they should.”

 

Duncan finally said what they both knew. He needed to see a doctor about what was going on in his brain. The diagnosis was Alzheimer’s. . . . 

McClatchey's early diagnosis allowed him to get help while he was still well able to participate in planning.  He applied for Social Security disability at age 61 and also became an "early stage advisor" for the the Alzheimer's Association.  

Reading this article reminded me of a good friend who also received a diagnosis of Alzheimer's at an early stage.  Betty has often inspired me by how she has approached this fact. She quietly told friends of her diagnosis, but she did not retreat from life. Betty stays engaged and has a full social life. She has made critical accommodations -- she keeps a daily journal to help with tasks and memory --  and her children have rallied to support and help her, while still giving her as much autonomy as possible. Indeed, her family was instrumental in these changes as they insisted on that first evaluation, rather than brushing away early warning signs as merely due to stress.  Thus, "self awareness" of both Betty and her family has been essential in creating a short and long range plan for the future.

The Post article also suggests that not every financial professional is skilled at recognizing how to help individuals with cognitive impairments, whether diagnosed or undiagnosed.  I think this is true for attorneys and other professionals as well. Good intentions alone are not enough.  From the article: 

Being good with money isn’t the only skill required to help dementia sufferers. Corey Purkat, an Oakdale, Minn., financial planner, found himself unable to help a couple in their 80s who hired him to help sort things out in the early stages of the wife’s dementia. She had been a financial professional whose memory issues rapidly worsened. As they did, “she got defensive that someone would have to help her with something she had done for a living.” That put more stress on her husband, who decided “he wasn’t up to making the hard decisions.”

 

“I did what I could, and I did the best I could,” he said of their amicable parting. But if a similar case comes up in the future, he said, “my goal is to refer them to someone with more experience” with dementia.

It takes courage to get a diagnosis when early, subtle warning signs appear.  It takes courage to help a family member get that diagnosis. Our thanks to George Washington Law Professor Naomi Cahn for sharing the link to this and other timely Washington Post articles. 

October 31, 2016 in Advance Directives/End-of-Life, Cognitive Impairment, Dementia/Alzheimer’s, Estates and Trusts, Ethical Issues | Permalink | Comments (0)