Wills, Trusts & Estates Prof Blog

Editor: Gerry W. Beyer
Texas Tech Univ. School of Law

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Friday, May 22, 2015

Common Estate Planning Mistakes That People Need To Avoid

Plan aheadA large number of people often make estate planning mistakes.  Kyle E. Krull, an attorney involved in estate planning, wrote about his own embarrassing experience of forgetting to prepare a durable power of attorney for a loved one when he was a young captain in the U.S. Army.  Mr. Krull wants more people to become aware about the need to plan ahead.  He suggests that people update their wills, trusts, powers of attorney, and healthcare directives every five years or whenever a major life event happens.  Not planning ahead can lead to consequences if something unexpected happens to a loved one. 

See Kyle E. Krull, Avoiding Estate Planning Gotchas, Wealth Management, May 19, 2015.

Special thanks to Jim Hillhouse for bringing this article to my attention.

May 22, 2015 in Death Event Planning, Disability Planning - Health Care, Disability Planning - Property Management, Elder Law, Estate Planning - Generally, Trusts, Wills | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 20, 2015

The ABLE Act Has Some Drawbacks

Able actI have previously discussed the ABLE Act, which allows for the creation of a trust to help pay for the expenses of a person with a disability without disqualifying that person from receiving government benefits.  As of now there are eleven states that have enacted the ABLE Act and another six states with pending legislation.  In order to benefit from the law a person would need to live in a state that has enacted the ABLE Act.

One problem with the ABLE Act is a Medicaid recovery procedure called a “clawback.”  If a person with a disability who received Medicaid benefits dies with money still left in their ABLE account Medicaid will be able to make a claim to that account through its clawback option.  Some families might prefer setting up a traditional special needs trust as an alternative to using an ABLE account.  The ABLE Act is still a good idea for people with disabilities who want to save for themselves without risking the loss of government benefits.

See Liz Weston, The Limitations Of ABLE Accounts For The Disabled, Reuters, May 18, 2015.

Special thanks to Jim Hillhouse for bringing this article to my attention.      

May 20, 2015 in Current Affairs, Disability Planning - Health Care, Disability Planning - Property Management, Estate Planning - Generally, Trusts | Permalink | Comments (0) | TrackBack (0)

Friday, May 15, 2015

Seeking Clarity Amidst Looming Death

Gordon RossGordon Ross, 66, suffers from several serious medical conditions including Parkinson’s disease, and is now seeking clarification from a court in Edinburgh over Scotland’s legal position in regards to assisted suicide.  Mr. Ross is calling on the top prosecutor to issue guidance elucidating whether an individual who helps him end his life would be charged with an offense. 

These guidelines have been published by the Director of Public Prosecutions in England, but have no authority in Scotland.  Although Mr. Ross does not want to die now, he fears that if the time comes when he has “had enough,” he will not be able to end his life without help.  Representing him, Aidan O’Neill QC said, “The matter is one of particular concern and urgency for him to be resolved as quickly as possible.”  Mr. Ross’ legal team is arguing that the failure to issue guidelines is incompatible with his rights under the European Convention on Human Rights. 

See Assisted Suicide: Severely Disabled Grandfather’s Case is of ‘Particular Concern and Urgency’ for Him, Court Hears, Daily Record, May 14, 2015.

May 15, 2015 in Current Affairs, Disability Planning - Health Care, Estate Planning - Generally | Permalink | Comments (0) | TrackBack (0)

Costly Caregiving

Medical expensesMillions of people in the U.S. devote significant amounts of time, energy, and money to taking care of their elderly or disabled loved ones.  According to the RAND Corporation, the informal cost of elder care in the U.S. is more than $522 billion per year—which is paid by caregivers out of their own pockets. 

Unfortunately, Medicare does not cover any type of long-term care, and elderly loved ones do not qualify for Medicaid unless they fall below the income threshold for care.  The Legislature has yet to offer much help in this arena either.  Congress has not renewed the Older Americans Act, which provides funding for elderly services such as nutrition and transportation. 

Experts say that there is no simple solution to solving rising caregiving costs.  Reforms will require a combination of private insurance and public assistance from state and federal institutions.  Meanwhile, obtaining long-term care insurance coverage could help replace any lost income the caregiver undergoes.

See Bonnie Kraham, Bonnie Kraham: Taking Care of Loved Ones Costs Families Billions, Record Online, May 13, 2015.

May 15, 2015 in Disability Planning - Health Care, Elder Law, Estate Planning - Generally | Permalink | Comments (0) | TrackBack (0)

Friday, May 8, 2015

B.B. King At Center of Guardianship Battle

BB KingAs blues legend B.B. King is home hospice care after a brief hospital visit, one of his eleven surviving children is petitioning a Las Vegas court to give her and an executor guardianship over King’s money and medical decisions.  Currently, Laverne Toney, King’s longtime business manager, controls King’s legal affairs.  Toney is asserting that King would want to be at home.

See Ken Ritter, B.B. King Guardianship Fight Goes to Court, U.S. News & World Report, May 7, 2015.

Special thanks to Brian Cohan (Attorney at Law, Law Offices of Brian J. Cohan, P.C.) for bringing this article to my attention.

May 8, 2015 in Disability Planning - Health Care, Elder Law, Estate Planning - Generally, Guardianship | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 5, 2015

ABLE Explained

ABLEIn December 2014, President Obama signed into law the Achieving a Better Life Experience (ABLE) Act, which went into effect this year.  The ABLE Act enables people with disabilities and their caretakers to open savings accounts for disability related expenses without jeopardizing Medicaid coverage and other federal benefits as long as the balance does not exceed $100,000.  The goal  of ABLE accounts is to provide an opportunity for a brighter economic future for individuals with disabilities and a level of comfort for those that love and support those individuals. 

An ABLE account can be opened for any eligible individual—that is, someone who is entitled to benefits based on blindness or disability under Title II or XVI of the Social Security Act.  A person with a “disability certification” is also eligible. 

ABLE accounts are patterned after 529 plans, and allow for tax-free growth while the funds are in an ABLE account and then allow for tax-free distributions when the funds are used for qualified disability expenses.  Moreover, ABLE accounts allow for a change in the designated beneficiary of an account as long as the new beneficiary is a member of the family. 

See James W.C. Canup, What Does “ABLE” Mean?, Wealth Management, May 5, 2015.

May 5, 2015 in Disability Planning - Health Care, Estate Planning - Generally, New Legislation | Permalink | Comments (0) | TrackBack (0)

Monday, May 4, 2015

End of Life Planning

Advance directivePlanning and communicating about end-of-life issues is one of the most important tasks a family can do.  However, there is much confusion among individuals regarding which form is the correct one and who should have a copy? 

An advance directive is an important legal document, intended to prepare its owners in advance for difficult times.  Although an advance directive does not provide a clear and sequential set of instructions for doctors to follow, it should be seen as a conversation starter and guide for your loved ones to work with your doctors and make decisions that are based on your goals and values as events unfold. 

Individuals should also complete a Physician Orders for Life-Sustaining Treatment or Polst form (also known as a pre-hospital DNR) and have it signed by their doctor.  Polst forms are recognized in 45 states, and some states are even calling for Polst registries--electronic databases that provide rapid access to this information.  The form summarizes a doctor’s specifications for the sue of specific treatments like breathing machines, chest compressions and electric shocks to the heart.  This is a blunt, clear instruction to medical providers, not meant for use by healthy people.

See Jessica Nutik Zitter, The Right Paperwork for Your End-of-Life Wishes, The New York Times, Apr. 29, 2015.

Special thanks to Jim Hillhouse for bringing this article to my attention.

May 4, 2015 in Disability Planning - Health Care, Elder Law, Estate Planning - Generally | Permalink | Comments (0) | TrackBack (0)

Sunday, May 3, 2015

Saving in the Wake of High Healthcare Costs

Medical expensesWhile the saying rings true, that “Two things in life are certain—death and taxes,” life can also bring about unforeseen occurrences resulting from serious illness.  How we hedge our wealth against these events that have the ability to weaken the financial foundation of a retiree is an important area of estate planning. 

Learning how to preserve wealth against the overwhelming costs in a skilled nursing facility (SNF) can be beneficial in the long run.  The national average for a one-year stay in a semi-private room in an SNF is $77,380 and the average stay in an SNF ranges between 1 and 3 years depending on your gender and demographic.  One technique used to offset these expenses is an insurance contract.  Something known as an Accelerated Death Benefit can be used against the face value of a long term care policy for more immediate needs like an advance on the policy due to a terminal illness diagnosis or costs associated with long-term care.  You can also create an Irrevocable Life Insurance Trust, which is a helpful tool aiding the grantor in protecting an estate from estate taxes or those potentially damaging costs of long-term care. 

See Matthew Jarrell, Preserving Wealth Despite High Healthcare Costs, Investopedia, 2015.

May 3, 2015 in Disability Planning - Health Care, Estate Planning - Generally | Permalink | Comments (0) | TrackBack (0)

Friday, May 1, 2015

Having the Complete End-of-Life Document Bundle

HealthAn advanced directive is an important document that directs health care decisions, but alone it can leaves gaps that may result in an individual receiving care against their wishes. An E.M.T. or paramedic responding to an emergency is required to start life prolonging treatment unless they receive specific orders from a doctor to do otherwise. An advance directive does not satisfy that requirement. This often results in life sustaining treatment being started and then an advance directive becoming known to the doctor that this treatment was against the wishes of the patient, but advance directives often do not direct what to do once life sustaining treatment has begun if it was not wanted at all.

A Physician Orders for Life-Sustaining Treatment (Polst ) signed by the individual's doctor, or a MedicAlert “Do Not Resuscitate” bracelet can avoid this problem by giving the E.M.T.s and emergency room staff clear and immediate doctor's orders to not give treatment. Polst forms are an effective communication tool in the 45 states that recognize them.

See Jessica Nutik Zitter, The Right Paperwork for Your End-of-Life Wishes, New York Times, Apr. 29, 2015.

Special thanks to Naomi Cahn (Harold H. Greene Professor of Law, George Washington University School of Law) for bringing this article to my attention.

May 1, 2015 in Disability Planning - Health Care, Estate Planning - Generally | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 29, 2015

Making Your Voice Heard in Medical Care

HealthA healthcare emergency that makes the ability to communicate wishes for care can come on suddenly for both the elderly and the young. However, many individuals over age 65 do not have an advance directive, and the numbers are even lower for 18 to 29-year-olds at 7 percent. Even with an advance directive, more is needed to adequately prepare a plan for future.

A Physician Orders for Life-Sustaining Treatment (POLST) can assist in giving directions for care preferences and is more detailed than a DNR, but is not available in all states. Having all needed information consolidated and easily accessible before a heath emergency can ensure that the expressed wishes will get to those who need them. This can be done by creating a ready to go packet that is kept by the front door and includes all relevant documents and contact information for family and physicians. Additionally, the My Health Care Wishes app can assist with document sharing  between family members.

See Speak for Yourself, While You're Able, Washington Post, Apr. 28, 2015.

Special thanks to Naomi Cahn (Harold H. Greene Professor of Law, George Washington University School of Law) for bringing this article to my attention.

April 29, 2015 in Disability Planning - Health Care, Estate Planning - Generally | Permalink | Comments (0) | TrackBack (0)