Wednesday, April 22, 2015

Fundamentals of SNT Administration webinar-it's not too late to register

Stetson College of Law and the Center for Excellence in Elder Law at Stetson Law (full disclosure, I'm hosting this webinar) is offering the annual Fundamentals webinar on Friday April 24, 2015 from 1-5 p.m..  This half-day webinar features presentations by Stu Zimring, Mary Alice Jackson and Robert Fleming.  More information, the schedule and registration information are available here.

April 22, 2015 in Estates and Trusts, Other, Programs/CLEs | Permalink | Comments (0) | TrackBack (0)

Thursday, April 16, 2015

Comment Window Opens for Proposed Rules re Conflicts of Interest in Retirement Advice

The U.S. Department of Labor has released a new proposed rule intended to protect consumers from conflicts of interest among an array of folks who want to give advice about how and where to invest 401(c) and IRA retirement funds.  The new rule would impose a "fiduciary duty" standard on those advisors, rather than the current, lower "suitability" standard for investment advice.

A DOL press release explains the goal: 

"This boils down to a very simple concept: if someone is  paid to give you retirement investment advice, that person should be working in  your best interest," said Secretary of Labor Thomas E. Perez. "As commonsense  as this may be, laws to protect consumers and ensure that financial advisers  are giving the best advice in a complex market have not kept pace. Our proposed  rule would change that. Under the proposed rule, retirement advisers can be  paid in various ways, as long as they are willing to put their customers' best  interest first."

 

Today's announcement includes a proposed rule that would  update and close loopholes in a nearly 40-year-old regulation. The proposal  would expand the number of persons who are subject to fiduciary best interest  standards when they provide retirement investment advice. It also includes a  package of proposed exemptions allowing advisers to continue to receive payments  that could create conflicts of interest if the conditions of the exemption are  met. In addition, the announcement includes a comprehensive economic analysis  of the proposals' expected gains to investors and costs.

The New York Times covers the new rules in "U.S. Plans Stiffer Rules Protecting Retiree Cash," and notes the history of opposition to this kind of reform from -- surprise, surprise -- the "financial services industry." There is a 75-day window for public comments on the latest proposal.

Perhaps my biggest surprise was the remarkably "consumer friendly" presentation of the proposed change by the Department of Labor on its webpage, beginning with this simple video describing conflicts of interest.   

April 16, 2015 in Consumer Information, Current Affairs, Estates and Trusts, Ethical Issues, Federal Statutes/Regulations, Property Management, Retirement | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 31, 2015

April Fools? (Unfortunately, Not So)

When I ask real or prospective law students what television programs they watch, I often get two answers:  "The Big Bang" or "Suits."  I have to admit I love to use Big Bang's "roommate contract" for my contracts class examples.  But, Suits is a bit more problematic -- until now.

The key character in Suits is "Mike Ross," a college dropout, and the back story is that he's brilliant, with a superb memory, and stumbled into being a "lawyer" after a life of petty crime that somehow included taking the LSAT exam for others.  I would like to think that the appeal of the program is the law, but I am realistic enough to suspect the "charm" is the idea that you can succeed in law without knowing the law, indeed without being a "real" lawyer. A little fantasy, right?

Now we have a report -- and I wish this wasn't true -- from my own state of Pennsylvania, of a 45-year-old woman who allegedly posed for 10 years as an estate planning lawyer, even making partner in a law firm, who may have faked her attendance at a specific law school.  In fact, she may have faked everything that should have happened afterward, such as being licensed to practice law.  

According to news reports, the individual has been charged with crimes.  To follow her defense, and the developing details, see here, here, and here

March 31, 2015 in Crimes, Estates and Trusts, Ethical Issues, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Massachusetts Federal Court Calls for Clearer Rules to Permit Sound Planning for Special Needs

In DeCambre v. Brookline Housing Authority, decided by a federal district court in Massachusetts on March 25, the issue was whether a disabled adult living in Section 8 housing becomes ineligible for the housing subsidy because of disbursements to her from a special needs trust, funded as the result of a personal injury settlement. 

Although the court affirmed the Bureau of Hearings and Appeal ruling on her income and expenses, thus disqualifying her for public housing benefits, the court also called for clearer federal guidelines to permit better planning for needy beneficiaries: 

"[This case demonstrates the serious problem that beneficiaries of irrevocable trusts face; in particular, those that seek to pour lump-sum settlement funds into irrevocable trusts. But until the rules and regulations are clarified, public housing authorities should provide clear guidance and instruction for potential tenants with regard to their financial planning and spending. A more thorough and thoughtful analysis is required by public housing authorities when determining Section 8 eligibility, until further guidance is provided by the HUD."

March 31, 2015 in Discrimination, Estates and Trusts, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Housing | Permalink | Comments (0) | TrackBack (0)

Thursday, March 26, 2015

Pennsylvania's New Pro Rep Rules Target Financial Accountability for Lawyers, Including Restrictions re Sales of "Investment Products"

New rules supplementing Pennsylvania's Rules for Professional Conduct, adopted by the Pennsylvania Supreme Court in late 2014, are intended to require greater accountability by lawyers for handling of client funds, including sums temporarily deposited in IOLTA accounts.  The rules became effective on March 1, 2015. As we reported on this blog earlier, including here and here, the changes were an important response to disturbing instances of individual attorneys who stole client funds -- in the aggregate amounting to millions of dollars -- that they had purported to "invest" for the clients. 

On March 25, I had the interesting task of serving as a moderator for a meeting hosted by the Elder Law Section of the Pennsylvania Bar Association to explore the implications of the new rules.  Panelists included attorneys Stephen K. Todd and David Fitzsimons who have each served on the Pennsylvania Disciplinary Board. They were involved in either the drafting or implementation stages for the new rules. Also helping to set the stage were two additional panelists, practicing elder law and estate planning attorneys, Linda Anderson from the east side of Pennsylvania and John Payne from the west side of the state. 

The audience included attorneys from a range of practice areas around the state, as well as Pennsylvania Supreme Court Justice Debra Todd.  The dialogue following the panelists' opening remarks was robust, demonstrating support for the increased standards for record-keeping and safe-keeping of property, as well as enhanced powers for the Disciplinary Board to investigate suspected misconduct and demand accountability and disciplinary compliance. 

Many of the comments and questions focused on a single new rule, reportedly the first in the nation, that addresses the role of lawyers with respect to "investment products," defined to include annuity contracts, life insurance contracts, commodities, investment funds, trust funds or securities. 

The key provisions of new Rule 5.8 provide:

Continue reading

March 26, 2015 in Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Legal Practice/Practice Management, Programs/CLEs, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 18, 2015

Asking Questions re What It Means to Have "The Talk" about Long-Term Care Planning

There is an interesting new YouTube video available, with charismatic, high-profile actors encouraging all of us to initiate "The Talk" about how we -- or our loved ones -- want to handle the possibility, indeed probability, that someday we will need long-term care.  Rob Lowe, Maria Shriver, Maggie Gyllenhaal, Angela Bassett, Zachary Quinto and Jim Nantz admit the difficulties of talking about growing old, often using vivid tidbits from their own lives or families to emphasize the importance of breaking past the barriers of denial. 

I like the video. It is simple, direct.  But, at the same time, I find the initial video, while interesting, to be a lacking in specifics about what it means to "talk" about long-term-care planning. The 2-minute video is actually part of a series created by Genworth, the major seller of long-term care insurance, and if you hit the right (wrong?) buttons you are directed to Genworth websites that offer more details, especially about  -- surprise, surprise -- buying long-term care insurance. 

I suspect that many people will panic if they hear "pay some money now" in order to buy LTC insurance, as even a part of the  "solution."  See what you think:

 

March 18, 2015 in Consumer Information, Current Affairs, Dementia/Alzheimer’s, Estates and Trusts, Ethical Issues, Film, Health Care/Long Term Care | Permalink | Comments (0) | TrackBack (0)

Monday, March 16, 2015

Family Dynamics are Complicated, Particularly When We're Talking End-of-Life "Wealth" Transfers

GW Law Professor Naomi Cahn and Amy Zeittlow, affiliate scholar with the Institute of American Values, have collaborated on a new article that is fascinating.  In "Making Things Fair: An Empirical Study of How People Approach the Wealth Transmission System," to be published in a forthcoming issue of the Elder Law Journal, they ask fundamental questions about whether traditional laws governing testate and intestate wealth transmission reflect and serve the wishes of most Americans.  Professor Cahn previews the article as follows:

Based on an empirical study of intergenerational care for Baby Boomers, the article shows how the inheritance process actually works for many Americans.  Two fundamental questions about the wealth transfer system guided our analysis  of the data: 1) does the contemporary inheritance process respond to the changing structure of American families; and 2) does it reflect the needs of the non-elite, who have not traditionally been the focus of the system?    

Our study shows that the formal laws of the inheritance system are largely irrelevant to how property is  transferred at death. While the contemporary trusts and estates canon focuses on the importance of planning for  traditional forms of wealth in nuclear families, this study focuses on the transmission of wealth that has high emotional, but low financial, value. We illustrate how the logic of “making things fair” structured how families navigated the distribution process and accessed the law. Consequently, the article recommends that law reform should be guided by the needs of contemporary  families, where not only is wealth defined broadly but also family is defined broadly, through ties that are both formal and functional.  This means establishing default rules that maximize planning while also protecting familial relationships.

The article is part of a new book by the authors titled "Homeward Bound," with planned publication in 2016, and the authors welcome comments and suggestions. 

March 16, 2015 in Books, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Property Management, State Cases, State Statutes/Regulations, Statistics | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 10, 2015

8th Circuit Rejects "Attempt" to Create d4A Special Needs Trust to Permit SSI Eligibility

In Draper v. Colvin, petitioner sought judicial review of SSA's denial of her application for SSI benefits. Her claim was sympathetic, as "[e]ighteen-year-old Stephany Draper suffered a traumatic brain injury in a car accident in June 2006."

In an admittedly  "hard line" ruling on March 3, the 8th Circuit rejected her argument that her parents' intent to establish a valid third-party-settled special needs trust, using proceeds from a settlement of a personal injury suit on her behalf, should permit her to claim SSI. 

The ruling means that over $400,000 will be treated as "available resources," thus requiring spend down before she would be eligible for benefits.  The court explained (minus citations):

Admittedly, some evidence in the record supports Draper's claim that her parents intended to act in their individual capacities. Draper's parents identified themselves individually as settlors and trustees, and the trust document explicitly states that it was established “pursuant to 42 U.S.C. § 1396p(d)(4)(A)," a provision which notes that a third party, such as a parent, must create the special needs trust for the benefit of the disabled person. Nevertheless, as discussed [earlier in the opinion], other facts provide substantial evidence to support the conclusion that Draper's parents acted using the power of attorney when establishing the trust.

The Court continued on to its tough bottom line:

Continue reading

March 10, 2015 in Cognitive Impairment, Estates and Trusts, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Property Management, Social Security, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Friday, March 6, 2015

Harvard Prof. Robert Sitkoff to Speak on Incapacity Planning at University of Illinois

Harvard Law Professor Robert H. Sitkoff is speaking at University of Illinois School of Law on Monday, March 9.  The topic is "Revocable Trusts & Incapacity Planning: More then Just a Will Substitute." Sitkoff-Publicity-HLS 

Here are details provided by Illinois Law Professor Richard Kaplan

The use of trusts has evolved from means of transferring property to mechanisms for managing assets and more recently, to will substitutes for avoiding probate and simplifying post-death transfers. But lawyers increasingly use revocable trusts in planning for possible client incapacity to avoid the costs and publicity associated with custodianship and guardianship. State-level reforms of trust law to accommodate older uses of these devices are not, however, well-suited to this newer use of trusts, and this lecture will examine those reforms in this context.

 

Professor Sitkoff was the youngest professor to receive a chair in the history of Harvard Law School. He previously taught at New York University School of Law and at Northwestern University School of Law. After graduated from the University of Chicago Law School with High Honors, he clerked for then Chief Judge Richard A. Posner of the United States Court of Appeals for the Seventh Circuit. Professor Sitkoff is an active participant in trust and estates law reform. He is a liaison member of the Joint Editorial Board for Uniform Trusts and Estates Acts within the Uniform Law Commission and has been a member of several drafting committees for acts involving trusts and estates matters. Sitkoff is also a member of the American Law Institute’s Council and has served on the consultative groups for the Restatement (Third) of Trusts and the Restatement (Third) of Property: Wills and Other Donative Transfers.

Word from Dick Kaplan is that Rob's  presentation will be available (eventually) via a recording, and his presentation will also be captured as an article in University of Illinois' Elder Law Journal

My students often ask why all casebooks can't be as engaging to read as the "Dukeminier" text on Wills, Trusts & Estates -- and I suspect one reason is that Rob Sitkoff, although uniquely prolific and gifted, is still only human and cannot write them all! 

Postscript:  I asked Rob to send me something other than his "official" Harvard photo.  The one above seems to capture his spirit and the smile I sometimes detect in his footnotes. 

March 6, 2015 in Books, Cognitive Impairment, Dementia/Alzheimer’s, Estates and Trusts, Health Care/Long Term Care, Programs/CLEs, Property Management | Permalink | Comments (0) | TrackBack (0)

Pennsylvania Bar Association Program on New Rules of Professional Conduct & Disciplinary Enforcement

On Wednesday, March 25, 2015 (1:30 to 3:30 p.m.), the Pennsylvania Bar Association (PBA)'s Elder Law Section is hosting a panel session at the annual PBA Section/Committee Day to discuss important changes in the Pennsylvania Rules of Professional Conduct and the Disciplinary Enforcement Rules. 

Several of the recent changes, including rules mandating greater oversight for trust accounts, timelier handling of complaints, and specific new prohibitions or restrictions on attorney involvement in marketing of "investment products," were a response, at least in part, to serious cases of attorney misconduct resulting in tragic financial losses for individuals.  In some instances the clients were older persons who entrusted large retirement assets to the care of a small number of attorneys. 

In planning the program, Elder Law Section Chair Jacqui Shafer commented that the program reflects the continuing commitment of the Bar and the Section to take affirmative steps to address and prevent misappropriation of funds from any client, including vulnerable seniors and their families.

Panelists include experienced private practitioners in elder law or estate planning practices and representatives of the Disciplinary Board and PBA's Legal Ethics and Professional Responsibilities Section.  Several participants were members of the Pennsylvania's recent Supreme Court Elder Law Task Force. 

Here is the link for more details on the program, including the link for required registration (free, including lunch).  The deadline for on-line registration is March 20.

March 6, 2015 in Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Legal Practice/Practice Management, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Thursday, March 5, 2015

ABA Webinars on Domestc Asset Protection Trust Planning

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.

March 5, 2015 in Current Affairs, Estates and Trusts, Ethical Issues, Property Management, State Cases, State Statutes/Regulations, Webinars | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 4, 2015

Utah Supreme Court Rejects Attempt to Specify Nevada Law as Controlling "Irrevocable" Trust

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.

Continue reading

March 4, 2015 in Books, Estates and Trusts, Ethical Issues, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

How Many "Wrongs" in This Estate Dispute...?

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

March 4, 2015 in Estates and Trusts, Ethical Issues, State Cases | Permalink | Comments (0) | TrackBack (0)

Friday, February 27, 2015

Why A "Pooled Trust" for Special Needs?

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. Renee Lovelace and Dickinson Law Students

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:

Continue reading

February 27, 2015 in Books, Consumer Information, Current Affairs, Estates and Trusts, Health Care/Long Term Care, Medicaid, Social Security | Permalink | Comments (0) | TrackBack (0)

Monday, February 16, 2015

Canadian Centre for Elder Law in Vancouver: Call for Abstracts for November 2015 Conference

The Canadian Centre for Elder Law and the British Columbia Law Institute have extended a call for panel proposals for their November 2015 Elder Law Conference in Vancouver. Canadian Centre for Elder Law 

The themes for the two day conference are: 

November 12 (Day 1): Connecting Across Discipline and Geography:

Join practitioners from law, social work, health care, finance, non-profit and other sectors from across the country and around the world to talk about the challenges and issues involved in working with older adults.  Particular topic areas we are seeking include:

  •  elder abuse,
  • assisted living and retirement housing,
  • financial abuse,
  • guardianship,
  • pensions,
  • age friendly communities,  and
  • outreach strategies. 

November 13 (Day 2): Key Practice Challenges and Hot Topics in Legal
Practice:


Explore issues engaged in powers of attorney and substitute decision-making, health care decision-making and end of life care, mental capacity and dementia, elder abuse and neglect, and other challenging subjects that arise in representing older adults and their families.

Contact National Director Krista Bell with any questions, and additional details, including submission information are available here.

February 16, 2015 in Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Housing, International, Retirement, Social Security | Permalink | Comments (0) | TrackBack (0)

Saturday, January 31, 2015

"Still Alice" As Springboard For Family Conversation

My colleague and great friend, Professor Laurel Terry, shared Paul Sullivan's Wealth Matters column from the New York Times, that uses the new movie Still Alice as a reminder of the importance of family conversation:

"For anyone who has ever watched a family member disappear into Alzheimer’s, Ms. Moore’s performance is gripping, particularly as her tricks to stall her decline inevitably fail and the later stages of the disease consume her. Yet the movie is also a great vessel to explore many of the financial issues that families need to address when someone is diagnosed with Alzheimer’s or any other disease that causes cognitive impairment."

The column continues with thoughts from financial professionals, who sometimes observe the early signs of a long-time client's decline:

"Thomas Mingone, managing partner at Capital Management Group of New York, said he had clients whose mental slide had been apparent to the advisers, accountants and lawyers in the room but not to the client. Since advisers are bound by a fiduciary duty to protect their clients’ privacy, Mr. Mingone said he can’t simply call up their children to let them know. With a client who seems to be slipping but lives alone and sees family members infrequently, Mr. Mingone said he suggests a family meeting, which allows him to connect with his client’s children. Other times, he said, just asking clients how they are doing brings the problem out.

 

'Sometimes when you bring this up with clients, it’s a relief to them,' he said."

For additional realities, including the problem of end-of-life decision-making and care choices, read "In Alzheimer's Cases, Financial Ruin and Abuse Are Always Lurking." 

January 31, 2015 in Cognitive Impairment, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Film | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 27, 2015

The Importance of Checks & Balances in Law Firm Management, Including Handling Of Elder Client Funds

A news release from the U.S. Attorney's Office in Western Virginia provides an important reminder of the importance for every lawyer of having a system of checks and balances for law office management, to prevent any single employee from having unsupervised access or exclusive control over client trust funds.  On December 15, 2014, a 34-year-old legal assistant at a law firm in Virginia was sentenced to 24 months in federal prison for stealing more than $183k from an elderly client of the law firm.  The lawyer who employed that assistant had been named by the county to serve as the conservator for the elderly woman who became the victim.  According to the news release, the attorney "allowed [the legal assistant] to access the elderly woman's bank accounts,...but [the assistant] did not have signature authority on the accounts."

According to the news release, the employer "to date... has repaid $104,990.15." One suspects the law firm (or, its insurer) will have to pay the whole tab, even though the sentencing order imposes an obligation of restitution for the full sum on the legal assistant. 

January 27, 2015 in Crimes, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Cases, Legal Practice/Practice Management | Permalink | Comments (0) | TrackBack (0)

Sunday, January 25, 2015

How Do You Tell Family You Have Alzheimer's?

NPR's All Things Considered began a series on January 24th that follows Greg O'Brien's journey with early-onset Alzheimer's, beginning with his diagnosis at age 59.  There is lots of important stuff here, including the need for family dialogue and understanding.  One dialogue is between the father and son, about why it was important for the son to serve as his  dad's agent under a Power of Attorney. 

Here's an excerpt from O'Brien's powerful account:

"How do you tell your kids that you got Alzheimer's? It sucks.

 

I had planned this family meeting, so all the kids were home and we're going to go out to dinner. I knew I had to talk beforehand.So I'm in the bathroom, you know I felt a little bit like Luca Brasi in The Godfather, practicing my speech. 'On the day of your daughter's wedding....'

 

I could hear, 'Daddy,where are you?' So I came out and I went over the fact that their great-grandfather, my grandfather, had died of Alzheimer's and my mother, which they knew. And now it's come for me...."

To read or listen to the series on public radio or podcast, follow the NPR links here.  O'Brien also has a book, On Pluto - Inside the Mind of Alzheimer's.

January 25, 2015 in Cognitive Impairment, Dementia/Alzheimer’s, Estates and Trusts | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 21, 2015

Midweek Potpourri: Recent Elder Law Articles from SSRN

Catching up with three new elder law-related articles from SSRN that look very interesting:

"The Universality of Medicaid at Fifty" by University of Kentucky Law Professor Nicole Huberfeld, forthcoming in the Yale Journal of Health Policy Law & Ethics:

"This essay, written for the Yale Law School symposium on The Law of Medicare and Medicaid at 50, explores how the law of Medicaid after the ACA creates a meaningful principle of universalism by shifting from fragmentation and exclusivity to universality and inclusivity. The universality principle provides a new trajectory for all of American health care, one that is not based on individual qualities that are unrelated to medical care but rather grounded in non-judgmental principles of unification and equalization (if not outright solidarity). This essay examines the ACA's legislative reformation, which led to universality, and its quantifiable effects. The essay then assesses and evaluates Medicaid’s new universality across four dimensions - governance, administration, equity, and eligibility. Each reveals a facet of universality that underscores this new principle’s importance for health care into the future."

"The Troubled State of America's Nursing Homes," by Temple Law's graduate, Albert Moran:

"This paper analyzes nursing home failures in light of the federal regulatory regime that oversees them. Section II provides a framework for the discussion of nursing homes by describing the choices seniors have for their living arrangements. In order to establish context for the current social and legal space inhabited by nursing homes, Section III traces the historical development of the modern nursing homes, with a particular focus on the landmark laws of the 1960s that paved the way for late-twentieth century proliferation of nursing homes. With this background in mind, Section IV explores the federal regulatory regime that governs nursing homes, and Section V details the bodies and mechanisms that enforce federal rules and regulations. Section VI provides evidence and statistics regarding the prevalence of abuse and neglect in nursing homes and argues that these data evidence a troubled regulatory system. Section VII examines the Patient Protection and Affordable Care Act, which has been heralded as the most significant legislation affecting the healthcare industry in decades, and concludes that the law does not contain provisions that will serve to reduce elder abuse and neglect in any significant way. Section VIII offers recommendations to improve nursing home care in light of the foundation provided by PPACA. Section IX discusses potential blowback that these and other solutions may present and urges reformers to proceed carefully and thoughtfully before enacting any proposed reform."

"Probate Law Meets the Digital Age," by George Washington Law Professor Naomi Cahn, for the Vanderbilt Law Review:

"This Article explores the impact of federal law on a state fiduciary’s management of digital assets. It focuses on the lessons from the Stored Communications Act ('SCA'), initially enacted in 1986 as one part of the Electronic Communications Privacy Act. Although Congress designed the SCA to respond to concerns that Internet privacy posed new dilemmas with respect to application of the Fourth Amendment’s privacy protections, the drafters did not explicitly consider how the SCA might affect property management and distribution. The resulting uncertainty affects anyone with an email account."

January 21, 2015 in Estates and Trusts, Health Care/Long Term Care, Housing, Medicare | Permalink | Comments (0) | TrackBack (0)

Sunday, January 18, 2015

Florida Supreme Court Advises on "Medicaid Planning" by Nonlawyers as "Unlicensed Practice of Law'

Following extensive hearings and related proceedings, including revision of an earlier proposed advisory opinion by the Florida Bar's Standing Committee, the Florida Supreme Court issued a per curiam opinion on January 15, 2015, addressing certain Medicaid planning activities, concluding that when performed by nonlawyers, they constitute the "unlicensed practice of law" (UPL), thereby leading to potential sanctions. Florida Supreme Court

The ruling focuses on actions by nonlawyers who assist with one or more of the following activities leading up to an application for Medicaid: (1) drafting of personal service contracts, (2) preparation and execution of Qualified Income Trusts; or (3) rendering legal advice on implementation of Florida law to obtain Medicaid benefits. The Court expressly distinguished the "preparation of the application for Medicaid benefits" as being outside of its opinion, pointing to federal law as authorizing nonlawyer assistance in the application process. 

The Elder Law Section of the Florida Bar was the petitioner seeking the advisory ruling.

In the detailed conclusion, the "harm and potential harm" from "unregulated" nonlawyers selling trust packages was outlined:

Continue reading

January 18, 2015 in Consumer Information, Estates and Trusts, Ethical Issues, Legal Practice/Practice Management, Medicaid, State Cases | Permalink | Comments (1) | TrackBack (0)