Wills, Trusts & Estates Prof Blog

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

Tuesday, February 2, 2016

Arizona Court Overturns Home Arbitration Agreement

GavelOne of the biggest changes when it comes to nursing homes in recent years has not been related to the care received but the agreement that gets someone into the facility. Arbitration agreements are now boiler plate language in nursing home contracts and severely constrict the ability of aggrieved residents or family from pursuing relief in court where the potential remedies are often more robust. But a recent Arizona case showed that the agreements are not ironclad. A man entered his mother into the home and signed the agreement on her behalf but had no power of attorney or other authority which the court held made the contract unenforceable. In addition, the court noted that agreements might be attacked using the doctrine of "contract of adhesion" which essentially means the term is void since a party to the contract has no choice but to sign with the offending term. However, the only surefire way to protect yourself from the arbitration agreement is to cross out the provision before signing which many agreements allow and an increasing number of states permit by law. But always make sure that the arbitration agreement can be waived before signing in order to avoid any unpleasant revelations down the line.

See Robert Fleming, Nursing Home Arbitration Provision Voided in Arizona Case, Fleming & Curti, February 1, 2016.


February 2, 2016 in Disability Planning - Health Care, Elder Law, New Cases | Permalink | Comments (0)

Friday, January 29, 2016

Issue Of Long-Term Care Costs Not Getting Much Attention This Election Season

CandidatesThis has been an interesting campaign season, but one crucial issue that the media and the candidates have not focused much on is the growing costs of long-term health care. As the elderly population continues to grow more people are going to be experiencing health related issues that might require expensive labor intensive care. Public policy makers are going to need to develop a plan to address this ticking healthcare time bomb. “As 78 million baby boomers age – the oldest are now entering their 70s – with many of them caring for family members or adding to the population that needs care, and many lacking an affordable solution, you would think pressure would grow on politicians to speak out and act.” Presidential candidates should be questioned by members of the media about their plans for addressing these problems so that voters can be more informed.

See Richard Harris, Why Candidates Aren’t Talking About Long-Term Care, next avenue, January 29, 2016.

January 29, 2016 in Disability Planning - Health Care, Elder Law, Estate Planning - Generally | Permalink | Comments (0)

Thursday, January 28, 2016

CLE On Special Needs Trusts

CLEThe University of Texas School of Law is presenting a CLE entitled,12th Annual Changes and Trends Affecting Special Needs Trusts, February 4-6, 2016, at the Radisson Hotel and Suites in Austin-Downtown.  Here are some details about the event:

The 12th Annual Changes and Trends Affecting Special Needs Trusts brings together nationally recognized professionals in the SNT field, features the latest updates and hot topics, and offers a great set of materials including sample forms, drafting tips, sample language and resources. This year’s program includes:
  • A special presentation from the Social Security Administration’s Regional Trust Review Team with must-have insight on the review process and opinions on amending trusts; plus Neal Winston with advice and tips for practitioners in handling the trust review process
  • Updates on recent Texas legislation, including the possible impacts of new Supported Decision-Making Agreement Act, and exploration of the Texas ABLE Act with Stephen W. Dale
  • A review of special needs trusts basics, including essential drafting tips and clauses from Craig C. Reaves; and the fundamental rules for protecting you client’s eligibility for SSI and Medicaid
  • Current issues and trends from the Texas Health and Human Services Commission (HHSC)
  • Discussion on SNTs and tax planning, as well as a specific guidance on IRAs and SNTs
  • An exploration of veteran’s benefits and their impact on SNT planning
  • An in-depth look at the value of consulting with an SNT attorney in winding up PI litigation to preserve benefits and avoid unintended consequences with Patricia F. Sitchler
  • Earn up to 2.50 hours of ethics, plus network with program faculty and attendees at the Thursday Evening Reception

January 28, 2016 in Conferences & CLE, Disability Planning - Health Care, Disability Planning - Property Management, Trusts | Permalink | Comments (0)

Monday, January 25, 2016

Special Needs Trusts Getting New Levels Of Scrutiny From Social Security Administration

Social SecurityFirst Party Special Needs Trusts are vehicles that can be created to support an individual who is disabled and seeking Social Security disability payments and other governments benefits such as health care. To establish this type of trust, a parent or conservator of the beneficiary, or a court order, must set up a seed trust to which the qualifying assets of the disabled individual may be transferred. However, a seed trust established by an otherwise qualifying party will be rendered invalid if created while the party is acting in another capacity, for example, a person acting as an agent under power of attorney rather than in their role of parent. In addition, the trust must use any remaining assets when the trust ends to repay all government entities that provided financial or medical support to the disabled person during their lifetime. This has been a problem for many trust since their terms called for repayment to Social Security but not to the state medical programs that provided treatment and care. Lastly, newly tightened regulations now require the trust to be used solely for the care of the beneficiary; no longer can the trust pay for family members to travel for visits or provide care to beneficiary unless they are approved or specially trained to provide the type of care being given. But one small grace has been granted, the Social Security Administration will not go after previously approved trust, even those that fall foul of the new regulations, unless an event occurs that requires re-authorization which will provide some measure of relief. Disability advocacy groups have been displeased with these new rules and are lobbying the SSA to pull back on the newly tightened regulations so, perhaps, some changes can be expected in the future.

See Dennis A. Fordham, Upheaval in the world of First Party Special Needs Trusts, Wealth Strategies Journal, January 11, 2016.

Important comment provided by Marjorie Suisman (shareholder, Davis, Malm & D'Agostine, P.C.):

 I believe that this post and the linked article contain incorrect information about state payback provisions. The states are entitled to recoup the medical assistance benefits they pay out from a “First Party SNT”, and the trust must so provide, but there is no requirement that SSI benefits be repaid. If a disabled person has assets, they do need a First Party SNT in order to qualify for SSI, but the payback requirement only applies to medical assistance paid out by the States.

January 25, 2016 in Disability Planning - Health Care, Disability Planning - Property Management, Trusts | Permalink | Comments (0)

Tuesday, January 12, 2016

More Customers Are Finding Ways To Game Obamacare

Gaming obamacareHealth insurers are warning of a growing destabilizing trend involving Obamacare customers who are gaming the system by buying coverage only after they need expensive care and then jumping ship. “Insurers blame the problem on lax rules that allow more than 900,000 people to sign up for coverage outside the standard enrollment season — for instance, when they change jobs or move — without sufficient proof they are eligible.” According to these insurers there are many customers that are also exploiting a three-month “grace period” that allows them to keep getting coverage after they stopped paying their premiums. Maintaining the Affordable Care Act will require better regulation of the health insurance exchanges to counter the current trend of rising premiums and health care costs.

See Paul Demko, Gaming Obamacare, Politico, January 12, 2016.

January 12, 2016 in Disability Planning - Health Care, Estate Planning - Generally, Non-Probate Assets | Permalink | Comments (0)

Friday, January 1, 2016

Things To Look For Concerning Early Onset Alzheimer's Disease

DementiaAlzheimer's Disease is among the dreaded and feared of age related afflictions with millions of Americans suffering from the disorder. However, while the disease generally does not strike until very late life, there are a number of cases per year when it hits at a younger age generally in the 50's. Here are some of the signs to look out for if you suspect a loved one or client if suffering from the early onset Alzheimer's:

  • The ability to control their actions often is lost so if someone suddenly starts to have run ins with the law or commits crimes of dishonesty then it could be a symptom.
  • Increased risk of falling has been linked the the disease so if they person is having trouble maintaining balance then it could be a sign of Alzheimer's or another age related problem.
  • Forgetting the use of items that were commonly used is a major red flag. In addition, eating items that are clearly not food is also an act that should give pause to those monitoring the health of a loved one.
  • If the person seems confused or often times stares without focus then it could be a sign of cognitive decline and medical advice should be sought.

See Andrea Atkins, Surprising early signs of Alzheimer's disease, Macomb Daily, December 18, 2015.

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

January 1, 2016 in Disability Planning - Health Care, Science | Permalink | Comments (0)

Tuesday, December 29, 2015

Dementia And Alzheimer's Diagnosis Should Prompt Change To Estate Plans

DementiaA diagnosis for Dementia or Alzheimer's Disease is a devastating blow to anyone and will often push other considerations into the background. However, proper planning for the change in circumstances must be done in order to protect the interest of the sufferer. The best time to make alterations to any estate plans would be right after the diagnosis when the cognitive decline will be comparatively mild and the individual can still make decisions without any capacity concerns. Health care directives should be the first change made since a  diagnosis may alter what measures would preferably be taken by the sufferer to preserve life when the disease is in a later stage. Another step worth taking would be preparing for the eventuality of long term care with any LTC insurance being maintained by the prompt payment of premiums to avoid any chance of having the policy dropped. Coming down with a degenerative disease is never good but with a modicum of sober minded forethought some of the problems and concerns that arise with the condition may be avoided and greatly lower the level of frustration that will inevitably be involved.

See David M. Zimmer, Planning becomes vital following Alzheimer's diagnosis, NorthJersey.com, December 27, 2015.

December 29, 2015 in Disability Planning - Health Care, Disability Planning - Property Management, Estate Planning - Generally | Permalink | Comments (0)

Monday, December 28, 2015

Documents That Alzheimer’s Patients Should Complete As Soon As Possible

Alzeimer'sThere are a number of important estate planning documents that people with Alzheimer’s should complete as soon as possible. It is extremely important to have a durable power of attorney for both financial and health care related decisions. People should start thinking about who they want to designate to make financial and health care related decisions for them if they lose capacity. Creating an up-to-date living will or advanced directive for healthcare is also important for specifying what type of healthcare treatments a person wants. They will need to have an up-to-date will so that their intentions for how they want their property distributed are fulfilled. A living trust is also a good idea for people that might have a lot of assets to distribute and want to avoid the probate process.

See Documents for Alzheimer’s Patients Need to be Done Now!, Idaho Estate Planning, December 24, 2015.

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

December 28, 2015 in Disability Planning - Health Care, Disability Planning - Property Management, Estate Planning - Generally, Guardianship, Trusts, Wills | Permalink | Comments (0)

Saturday, December 26, 2015

Large Long Term Care Facilities Dominant But Small Ones On Rise

Nursing HomeWhen it comes to long term care the usual preference is for large group facilities that have a diverse offering of services but often lack much in the way of personal touch. However, competition has emerged where a facility will cater to a small number of residents, often no more than a dozen, and offers greater personal contact with the residence by the staff and between the residents themselves. This method of care has drawn much praise from the families of residents but has shown mixed results when it comes to the health of residents. While residents do report greater interaction with each other, declines in cognitive and physical condition follow the same path and timetable as those in large facilities. In the event a choice must be made between a large and small long term care facility, it is imperative to look at the needs of the soon to be resident. Financial limitations must be taken into account as smaller communities tend to be more expensive compared to large ones that are designed to operate within Medicaid allowances. In addition, the anticipated health needs of the resident will not always be capable of being met unless the small facility offers a full spectrum of services right up to full nurse care. Ultimately, small and large facilities both have pros and cons so do not get caught up in judging them against each other, rather, look for the facility, regardless of size, that best suits the needs and desires of the person who is going to live there.

See Amy Fontinelle, Pros & Cons of Smaller Long-Term Care Facilities, Investopedia.

December 26, 2015 in Disability Planning - Health Care, Estate Planning - Generally | Permalink | Comments (0)

Wednesday, December 23, 2015

Hardship Exception May Be Available To Some Stuck In Medicaid Penalty Period

MedicalWhen a person applies to receive Medicaid, they will be subject to a review of their need which includes a look back over the previous five years for transfers of property for less then it's fair market value. If an improper transfer did occur, then a penalty period, which could last for years, may be assessed which denies the applicant coverage. However, there is a little used hardship exception which may be sought even if the hardship is brought about solely because of the penalty period. To claim it, the applicant must show that access to Medicaid is necessary to maintain their health or that a lack of access would take away their ability to have the necessities of life such as food or shelter. The big catch is that the applicant has the burden of proof and each state is free to set a hardship standard which means some might be out of luck based solely on where they live. As a result, before pursuing any exception to the penalty period, be sure to check the statutory and case history in the state of residence of the applicant due to variability that might exist in defining hardship.

See, The Hardship Exception to the Medicaid Penalty Period: Rare But Possible, Elder Law Answers, December 22, 2015.

December 23, 2015 in Disability Planning - Health Care, Disability Planning - Property Management, Elder Law | Permalink | Comments (0)