Wills, Trusts & Estates Prof Blog

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

Tuesday, May 23, 2017

Making Friends with Fido

PuppyThe Institute, a 501(c)(3) organization, conducts oncology research and education. The Institute is currently interested in designing and implementing a pet therapy program. The program would reach out primarily to children and the elderly in hospitals and nursing homes. The overall goal of the program is to relieve some of the tension and stress experienced by susceptible demographics when moved into new and strange environments.

The dogs participating in the program must pass through certification and training to act as therapy dogs. The volunteers offering their pets for services must also undergo training, background checks, and certification in order to participate in the program.

The question for The Institute was whether the contemplated service would fall under an exempt purpose under the IRC. Prior rulings have determined that non-medical services, like reading to patients to improve their mental state, do qualify as carrying out an exempt purpose. Additionally, because the elderly are more immunologically susceptible to high levels of distress, alleviating this heightened emotional state may also qualify as an exempt purpose. In the instant case, the IRS considered the purpose of the program and ruled that lessening distress in hospital patients was, indeed, a charitable purpose.

See Dawn S. Markowitz, Making Friends with Fido, Wealth Management, May 17, 2017.

Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.

May 23, 2017 in Current Events, Disability Planning - Health Care | Permalink | Comments (0)

Friday, May 19, 2017

Virtual Reality Helping Dementia Sufferers

4063D61E00000578-4510896-image-a-28_1494941292204The progression of dementia can be a slow and agonizing process for both those afflicted and for the people who love and care for them. Difficulty recalling precious memories is among the prominent and more terrible symptoms associated with this disorder. There is some new hope for individuals struggling with dementia, and it comes from an unexpected source. The Oculus Rift headset, a virtual reality system capable of immersing the user in a virtual world, has been integrated into a therapeutic package. The package includes a number of relaxing scenes ranging from beaches, to forests full of animals, to a view of Earth from space. The user maintains varying levels of control in each of the simulated scenes. The goal is to refresh the memories of dementia sufferers. Many who have used the headset recalled memories correlated to the scenes they were shown. The kit also includes a number of activity cards healthcare professionals may use in conjunction with the device that have specific questions used to pinpoint particular memories. While the system has shown some promise, it does not come cheap at a cost of just over $5,000.

See Shivali, Touching Moment a Virtual Reality Headset Helps Elderly People with Dementia Recall Precious Memories, Daily Mail, May 16, 2017.

May 19, 2017 in Current Events, Disability Planning - Health Care, Elder Law, Science, Technology | Permalink | Comments (0)

Tuesday, May 16, 2017

How Gene Testing Is Threatening Long-Term Care Insurance

Gene testingApproximately 5.5 million Americans have Alzheimer’s disease, making up half of all nursing home residents, but very few people have been tested for the ApoE4 gene. Last month, however, the gene testing company 23andMe started offering tests that reveal whether people carry the gene, while assessing their risks for developing certain conditions. Following the wave, other genetics companies are planning to offer similar tests, allowing many Americans to get a better grasp on their medical futures. Although a benefit to the American people, insurance companies selling long-term care insurance might experience a disaster, sending risky patients in search of policies and damaging an already fragile business. The potential impact of gene testing has the ability to increase adverse selection, which in turn could impact the availability and affordability of certain products.

See Gina Kolata, New Gene Tests Pose a Threat to Insurers, N.Y. Times, May 12, 2017.

Special thanks to Joel Dobris (Professor of Law, UC Davis School of Law) for bringing this article to my attention.

May 16, 2017 in Current Events, Disability Planning - Health Care, Elder Law, Estate Planning - Generally, Science, Technology | Permalink | Comments (0)

Monday, May 15, 2017

Article on ABLE Account Information for Estate Planning Lawyers

Able georgiaBernard A. Krooks & Benjamin A. Rubin recently published an Article entitled, ABLE Accounts: What Trusts and Estates Lawyers Need to Know, 31 Probate & Property 40 (May/June 2017). Provided below is an abstract of the Article:

Individuals with special needs and their families and advisors are now able to set up ABLE (Achieving a Better Life Experience) accounts under Internal Revenue Code § 529A. These tax-free accounts do not affect an individual’s eligibility for Supplemental Security Income (SSI) or Medicaid so long as certain requirements are met. Currently, at least 19 states are operating ABLE accounts and several more have announced plans to launch ABLE accounts in 2017. Most states allow out-of-state residents to open accounts. Thus, it is generally not necessary for clients to wait until their home state offers ABLE accounts to establish one. When first enacted, the ABLE law prohibited out-of-state residents from setting up accounts. In 2015, however, Congress removed this provision.

Although ABLE accounts offer many benefits, it is important to understand the applicable limitations and how they compare to special needs trusts. In some cases, it may be appropriate for an individual to have both an ABLE account and a special needs trust (SNT). Keep in mind that the individual with disabilities is generally considered the owner of the ABLE account even if a third party (parent, grandparent, among others) contributes funds to the account. There are two kinds of SNTs: first-party SNTs and third-party SNTs. First-party SNTs are funded with the assets of the individual with disabilities. By contrast, third-party SNTs are created by someone other than the beneficiary with disabilities and are a common estate planning tool used to improve the quality of life of an individual with disabilities while allowing that person to maintain his government benefits. A major characteristic that distinguishes a third-party SNT from a first-party SNT is that, on th death of the beneficiary, funds remaining in the first-party SNT must be used first to repay the states’ Medicaid programs the beneficiary received services from for expenses incurred; whereas, in a third-party SNT there is no such requirement. Thus, at the death of the beneficiary of a third-party SNT, any remaining funds may be distributed to other family members or beneficiaries. This distinguishes third-party SNTs substantially from ABLE accounts as will be discussed further later in this article.

May 15, 2017 in Articles, Disability Planning - Health Care, Disability Planning - Property Management, Estate Planning - Generally, Trusts | Permalink | Comments (0)

Friday, May 12, 2017

Let's Talk About Death

Bad at deathFor years now, the medical profession has left unanswered the question of what we should do when there is nothing left to do. Despite research recognizing that more care is not necessarily better care, many Americans still receive substantial doses of medicine in their final days. Specifically, 80% of patients say they would like to avoid hospitalization and intensive care at the end of their life, but in their last month, half of Medicare patients go to the emergency room, one-third are admitted to an intensive care unit, and one-fifth have surgery. Two inventions have shown to help patients live their final days according to their wishes: earlier conversations about their death goals and greater use of palliative care. Patients who implement advance care planning are more likely to have their wishes met, and family members are less likely to experience trauma from the death of a loved one.

See Dhruv Khullar, We’re Bad at Death. Can We Talk?, N.Y. Times, May 10, 2017.

Special thanks to Joel Dobris (Professor of Law, UC Davis School of Law) for bringing this article to my attention.

May 12, 2017 in Current Events, Disability Planning - Health Care, Elder Law, Estate Planning - Generally | Permalink | Comments (0)

Wednesday, May 3, 2017

Filial-Responsibility Laws Could Cost You

Filial responsibiltyFilial-responsibility laws exist in twenty-eight states and intend to hold family members financially responsible for other family members. For example, under these laws, children can be held responsible for their parents’ nursing home costs. For decades now, these laws have not been widely used because of programs like Social Security, Medicare, and Medicaid. However, as retirees are increasingly unable to pay their expenses, some providers are turning to filial-responsibility laws for debt payments. So, how can you avoid paying off your parents’ debt? A long-term care and estate plan will ensure sufficient funding is set aside to cover these end-of-life expenditures. Failing to plan for retirement cannot only impact your life but also the lives of your children.

See Jamie Hopkins, Family-Responsibility Laws Could Cost Your Clients, Barron’s, April 22, 2017.

Special thanks to Joel Dobris (Professor of Law, UC Davis School of Law) for bringing this article to my attention.

May 3, 2017 in Disability Planning - Health Care, Elder Law, Estate Planning - Generally | Permalink | Comments (0)

A Better Death

Better deathDeath was horrific and sudden many centuries ago, but today, dying has turned into a medical experience, specifically how, when, and where death happens has changed greatly over time. Approximately two-thirds of deaths happen in a hospital or nursing home, and nearly a third of Americans who die after sixty-five years of age will have spent some time in an intensive-care unit in their final three months. More importantly, these deaths do not seem to be what people want, as most Americans prefer to die at home. Further, these Americans want to die free of pain, at peace, and surrounded by loved ones. Too often, doctors are administering drastic treatment in spite of the patient’s dying wishes. Changes in physician-assisted suicide, palliative care, and the way doctors talk about death can help create a broad shift in the way health care systems deal with illness and death. After all, a better death means a better life.

See How to Have a Better Death, Economist, April 29, 2017.

Special thanks to Joel Dobris (Professor of Law, UC Davis School of Law) for bringing this article to my attention.

May 3, 2017 in Disability Planning - Health Care, Elder Law, Estate Planning - Generally, Science | Permalink | Comments (0)

Saturday, April 29, 2017

The Lesson of Three Girls

Advance directive2Go back to the summer of 1975, and there is a 21-year-old girl who just found a job and was moving out of her parents’ house. The girl had been on a strict diet to fit into one of her dresses, and after a night of drinking, she felt faint and was taken home by her roommates. After some time, the roommates went to check on her, but she was not breathing; she was rushed to the hospital, where she was pronounced brain dead. Months later, her parents decided it would be best to turn off her respirator, allowing her to die in peace. However, the local county prosecutor threatened to charge them with homicide if they did so. Their case ended up in the New Jersey Supreme Court, where the court ruled that the girl could be disconnected if its what she would have wanted, creating a new area of law.

There was a second girl, who was 23-years-old and living in Missouri. After a bad motorcycle accident, she was found face down in a ditch. She ultimately lost part of her brain function from the accident, causing her parents to seek a court order to remove her feeding tube. Her case also went to court. After reaching the United States Supreme Court, the Court ruled that a competent person had a right to refuse life-prolonging treatment, but the individual states could pass laws regarding what was “clear and convincing” proof of a person’s preferences. A Missouri court ultimately decided that the girl would not want to be kept alive under these circumstances, and she died nine years after her accident.

The third girl, a 26-year-old, suffered a heart attack, which subsequently caused massive brain damage. After her condition persisted, her husband thought it would be best to let her die, but her parents were sure she was still conscious. Their dispute led to nineteen court cases.

These stories about Karen Ann Quinlan, Nancy Cruzan, and Terri Schiavo present two lessons. First, you do not need to be old in order to have an Advance Directive for Healthcare; in fact, you should sign one upon getting your driver’s license. Second, statistics report that only 26% of adults have advance directives, so it is important to increase this percentage for the sake of your family and loved ones.

See George, The Lesson of the Three Girls., Fox + Mattson, P.C., April 20, 2017.

April 29, 2017 in Disability Planning - Health Care, Estate Planning - Generally | Permalink | Comments (0)

Wednesday, April 26, 2017

Estate Planning Lessons from John B.

John b“S-Town” is the successor podcast to the famous “Serial” podcast. The podcast depicts the anti-hero, John B., who lives in a house on 128 acres in Woodstock, Alabama with his mother who suffers from dementia. Most residents of Woodstock thought John B. was a wealthy man, but upon committing suicide, he dies without a will and without a plan for someone to take care of his mother. However, John B. did leave instructions with a friend about what to do and who to contact after his death. His story represents several estate planning lessons. You should always choose a will over a set of instructions, but leaving both is not a bad idea. Without a will, your assets will pass to those heirs designated by the estate, and your loved ones will be cared for by a relative willing to serve as guardian, both scenarios may not represent your true wishes.

See Jay Brinker, Don’t Be Like John B. (Estate Planning Lessons from “S-Town”), Jay Brinker Blog, April 21, 2017.

April 26, 2017 in Disability Planning - Health Care, Disability Planning - Property Management, Estate Planning - Generally, Intestate Succession, Wills | Permalink | Comments (0)

Monday, April 17, 2017

Recent Study Finds Complex Family Structures Lead to More Complex Elder Care

Modern elder careA recent study, conducted by Amy Ziettlow and Naomi Cahn and detailed in Homeward Bound: Modern Families, Elder Care, and Loss, presents evidence that as the family structure becomes more complex, elder care also becomes more complex, leaving institutions unprepared to handle these realities. As 79 million Baby Boomers encounter old age, their diverse family structures will need to sustain the burden of care, often relying on the support of different family members than in the past. Specifically, Ziettlow and Cahn reveal how current approaches to elder care are cemented in outdated caregiving models, which presume life-long connections and valuable safety nets for late-in-life caregiving. Accordingly, the authors present solutions centering on awareness and preparation: additional support for individual incapacity and death planning, and the creation of legal, political, and social planning for American elders during a time of increasingly complex familial ties.

See Amy Ziettlow & Naomi Cahn, Family Scholars Find Modern Families Need Extra Help When a Loved One Dies, Homeward Bound: Modern Families, Elder Care and Loss, April 10, 2017.

Download Ziettlow&Cahn Press Release

April 17, 2017 in Current Events, Disability Planning - Health Care, Disability Planning - Property Management, Elder Law, Estate Planning - Generally | Permalink | Comments (0)