Wills, Trusts & Estates Prof Blog

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

A Member of the Law Professor Blogs Network

Tuesday, March 24, 2015

Nevada Considers Physician Assisted Suicide

Death with Dignity

Nevada is joining several Legislatures across the county in considering the legalization of physician-assisted suicide. 

State Senator David Parks (D-Las Vegas) introduced Senate Bill 336 on March 16, which would authorize “a physician to prescribe a controlled substance that is designed to end the life of a patient under certain circumstances.”  Currently, Nevada law gives terminally ill patients the right to refuse life-sustaining treatment, but SB336 extends those rights by giving patients the right to “self-determination concerning medically assisted, informed, voluntary decisions about dying with dignity and avoid unnecessary suffering.” 

The bill will require patients to be diagnosed by two physicians, make two verbal requests at least fifteen days apart, make a written statement and be mentally competent.  Only the patient can administer the suicide drug(s). 

See Laney Olson, Nevada Mulls Legalizing Assisted Suicide, Courthouse News Service, March 24, 2015.

March 24, 2015 in Current Affairs, Disability Planning - Health Care, Estate Planning - Generally | Permalink | Comments (0) | TrackBack (0)

Thursday, March 19, 2015

Helping Clients With Long-Term Care Plans

Medical expensesLong-term care woes are rapidly escalating.  Rising medical costs, improved longevity and continued low interest rates are taking a toll on an industry many clients will rely on to take care of them on old age. 

Amidst these problems planners must evolve their own strategies on how to best help clients meet their future needs.  Below are some components an advisor should address to help clients create the best possible plan:

  • Home Front.  Home equity continues to be the most significant asset for a majority of older Americans.  Yet as clients begin aging, home maintenance becomes a burden and downsizing may not have much financial benefit.  Better ideas include renting in an area where there is good elder support, moving to a continuing care community, or living with family members. 
  • Default Care.  Identify potential caretakers and create agreements long before the need arises.  Financial planners can help families negotiate the best process. 
  • Too Much Stuff.  Create a plan as to how jewelry, collections, and other valuables should be insured and protected.  Discuss car ownership and a transportation plan before a client can become a danger to themselves or others.  If a client drives less than a couple thousand miles a year, paying someone else to drive may provide cost benefits. 
  • Quality of Life Choices.  Help clients become empowered patients by documenting acceptable quality of life measures, and sharing those decisions with medical providers and everyone else who has input on their care.  In doing so, the medical system will have a defined end point of when to move away from aggressive curative care to palliative care. 

See Carolyn McClanahan, Create a Long-Term Care Plan—Without Insurance, Financial Planning, March 18, 2015.

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

March 19, 2015 in Disability Planning - Health Care, Disability Planning - Property Management, Elder Law, Estate Planning - Generally | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 18, 2015

Are Older Couples Being Pushed Into Divorce?

Divorce1The rising divorce rates for older individuals combined with the rising cost of long-term care, has some saying that the problem is big enough already and that the financial criteria for qualifying for Medicaid Long-Term Care benefits is making it worse for financially strapped older couples. Additionally, critics advocating for reform argue that the financial strain and Medicaid criteria leaves divorce as the only option for some older couples.

See Amy Ziettlow, Is Divorce the Best Option for Older Americans?, Huffington Post, March 16, 2015.

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

March 18, 2015 in Disability Planning - Health Care, Estate Planning - Generally | Permalink | Comments (0) | TrackBack (0)

Monday, March 16, 2015

Changes for Nursing Home Rating Standards

Rating systemThe federal government recently announced changes to its procedure in rating nursing homes, making it more difficult to earn four and five star ratings. 

The previous system rated nursing homes on a one to five star scale and relied heavily on unverified information that resulted in poor nursing homes receiving top marks.  Two of the three major criteria used in the previous ratings system—quality measure statistics and staffing levels—were self-reported by the nursing homes and not audited by the government. 

Last October, the government announced that nursing homes would be required to submit their staff levels quarterly through a system that could verify their claims through payroll data.  It also announced that it would initiate a nationwide auditing program geared toward checking quality measure statistics. 

See Bonnie Kraham, Bonnie Kraham: Rating Standards Increased for Nursing Homes, The Times Herald, March 11, 2015.

March 16, 2015 in Disability Planning - Health Care, Elder Law, Estate Planning - Generally | Permalink | Comments (2) | TrackBack (0)

Friday, March 13, 2015

Article on Medicaid, Estate Recovery and Divorce

John Miller

John A. Miller (University of Idaho College of Law) recently published an article entitled, Medicaid Spend Down, Estate Recovery and Divorce: Doctrine, Planning and Policy (February 18, 2015) Elder Law Journal, Forthcoming.  Provided below is the abstract from SSRN:

Medicaid is the need based government program that pays for much of the health care for the poor in the United States. Medicaid often ends up paying the costs of nursing home care for middle class seniors who have descended into poverty as a result of the high costs of such care. For married couples Medicaid requires “spend down” of both spouses’ assets before one spouse can qualify for Medicaid support. This article posits that, unless the law is changed, divorce may well become standard Medicaid planning practice in many circumstances. This will be especially true for middle and upper middle class married couples because they have the most to gain from divorce in this context. It argues that Medicaid’s approach toward married couples is based on a narrow and outmoded image of marriage. It assumes a marriage where the spouses have enjoyed a long life together, have common intended beneficiaries, have no other person to whom they have an equal or greater commitment, and it assumes a high level of commitment to the institution of marriage itself. This view of marriage tends to not fit the modern landscape where the marriage one inhabits in old age may be of newer vintage and may not include children of the marriage. Added to this is the trend toward “de-institutionalization” of marriage. The article contends that as marriage becomes less sacred in our society the utility of divorce as a Medicaid planning strategy will outweigh its moral repugnance. This is especially true because in this context divorce does not require ending or even substantially changing the day to day relationship of the parties. It simply becomes a rational asset protection plan.

The alternative recommended to this developing trend is the disaggregation of marital property for most Medicaid purposes. Thus, instead of requiring the healthy spouse to spend down her or his assets before the unhealthy spouse can qualify for Medicaid assistance as present law does, the article recommends that only the assets properly allocable under state law to the unhealthy spouse should be required to be spent down. Similarly, estate recovery should only apply to the assets properly allocable to the deceased person who received the Medicaid assistance during life. This last point is particularly important in light of the apparent trend toward more aggressive estate recovery in some states.

March 13, 2015 in Articles, Disability Planning - Health Care, Estate Planning - Generally, Non-Probate Assets | Permalink | Comments (0) | TrackBack (0)

Thursday, March 12, 2015

Planning for the Retirement Move

TripIt is common for retirees to move. The move is not always a large across-the-country relocation to a sunny retirement community, but is often moving into a home that is more suitable to their needs, such as into an apartment to avoid the maintenance a house requires or to a neighborhood closer to family. However, it also common for retires to not make the move until a health crises makes it immediately necessary. Experts advise that individuals make plans for their post-retirement move around mid-fifties while still in good health rather than waiting until later in life when health problems are more prevalent and moving is more difficult.

See Elizabeth O'Brien, Want to Move When You Retire? Start Planning Now, Market Watch, March 5, 2015.

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

March 12, 2015 in Disability Planning - Health Care, Estate Planning - Generally | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 10, 2015

Think Twice About A DIY Estate Plan

DIYWhile many of us are proudly “do-it-yourselfers,” when it comes to your estate plan, seeking professional advice is often the most prudent course of action. 

A basic estate plan comprises of three core documents: a will, durable power of attorney, and an advance directive.  These all serve vital roles in your estate plan, which is why everyone needs them.  Although you can create these documents yourself (perhaps the more economical solution), you must be careful as estate planning documents that are not properly executed can cause problems for heirs, potentially making the document null and void. 

Certain circumstances may warrant or even necessitate various types of trusts, and if you think you could benefit from one, getting advice from an estate planning attorney is highly recommended.  Furthermore, basic documents will likely not provide the necessary language to handle more complex situations, such as including children from a prior marriage, children with special needs or transferring a business ownership.  Also be aware that a DIY approach may not contain the most up-to-date information, since new legislation and case law is constantly renewed.  Paying for advice could save you and your loved ones added expenses and frustrations, allowing you to focus on other DIY tasks.

See Mark A. Hebert, Money Sense: Do-It-Yourself Estate Planning Has Potential Pitfalls, New Hampshire Union Leader, March 7, 2015.

March 10, 2015 in Disability Planning - Health Care, Disability Planning - Property Management, Estate Administration, Estate Planning - Generally, Trusts, Wills | Permalink | Comments (0) | TrackBack (0)

How Planners Can Help Detect Early Signs of Alzheimer's

ConvoDiscussions about Alzheimer's disease are among the most difficult topics for a financial planner to bring up with a client. However, for individuals that experience the cognitive effects of the disease it is imperative that plans are in place to cover the cost of long-term care, which is increasing each year. Since planners are not seeing the client on a daily basis, they are more likely to be able to detect warning signs than close family members, who may have trouble detecting the disease as it slowly progresses. Thus, while it may be a difficult conversation to have, it is crucial to help with planning for future needs when early warning signs arise.

See Mark Miller, Planning for Alzheimer's, Wealth Management, Feb. 13, 2015.

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

March 10, 2015 in Disability Planning - Health Care, Estate Planning - Generally | Permalink | Comments (0) | TrackBack (0)

Thursday, March 5, 2015

Mounting Costs of Long-Term Care Insurance

Medical expenses

For about 1.2 million Americans, Tom McInerney will be paying their nursing home bill.  McInerney, 58, is the chief executive officer of Genworth Financial Inc., the giant of long-term care insurance. 

Long-term care policies written years ago have become a black hole for the insurance industry.  Executives misjudged everything from how much elder care would cost to how long people would live; costing insurers like Genworth billions. 

Struggling to contain the damage, Genworth warned of a “material weakness” in some of its accounting.  To cope with mounting costs on the policies, Genworth has been continually raising premiums.  Despite furious policyholders, there is no quick fix for Genworth. 

“What’s happened over the last five, six years is an example, frankly, of market failure,” said Howard Bedlin, vice president at the National Council on Aging.  “There was a slew of pretty significant premium increases.”  Nonetheless, McInerney says they will get it right eventually. 

See Bloomberg News, The Old-Age Bill That’s Crushing Genworth, Financial Advisor, March 3, 2015. 

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

March 5, 2015 in Current Affairs, Disability Planning - Health Care, Elder Law, Estate Planning - Generally, Non-Probate Assets | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 3, 2015

Problems With Boilerplate Advance Directives

Hospital care

An advance directive is a legally valid form that enables a person to choose the type of medical care he or she wishes to receive.  It goes into effect when that person is no longer able to speak for himself.  Nursing homes typically highlight advance directive completion rates with pride, as an attempt to show they are concerned about patients’ preferences. 

However, advance directives that come from nursing homes are cookie-cutter similar.  Almost all indicate that a patient has stated that all attempts to prolong life should be pursued and no treatment is unacceptable—regardless of prognosis.  The witnesses are typically the admissions clerk and the social worker, hardly ever the physician. 

Unfortunately, this is the reality for many individuals.  Discussing values, preferences and goals in the event of debilitation is difficult and time consuming.  Since nursing homes are paid to care for patients in perpetuity, their employees may not be the right people to oversee the completion of these ever-important forms.  It may be time to begin questioning our blind trust in patient autonomy.  This may be in fact harming, rather than helping patients nearing the end of their lives.  Thus, in order to obtain better care, and to provide it, directives need to be created, updated, accessible and incorporated into treatment.

See Jessica Nutik Zitter, When ‘Doing Everything’ Is Way Too Much, The New York Times, Feb. 7, 2015.

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

March 3, 2015 in Death Event Planning, Disability Planning - Health Care, Elder Law, Estate Planning - Generally | Permalink | Comments (0) | TrackBack (0)