Wills, Trusts & Estates Prof Blog

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

A Member of the Law Professor Blogs Network

Monday, September 1, 2014

New Form 2848

FormsThe new Form 2848 titled, Power of Attorney and Declaration of Representative, has been released by the IRS. The new Form now has room for the information of four representatives to be entered, but only two representatives will receive communications from the IRS.

See Mel Schwarz, Dustin Stamper, Shamik Trivedi, IRS Issues New Power of Attorney Form, Mondaq, Aug. 27, 2014.

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

September 1, 2014 in Disability Planning - Health Care, Disability Planning - Property Management, Estate Planning - Generally | Permalink | Comments (0) | TrackBack (0)

Thursday, August 28, 2014

Beyond the Five-Star Nursing Home Rating System

Nursing home

I previously discussed the recent New York Times investigative report on Medicare’s deceiving five-star rating system for nursing home systems. 

The real problem is that nursing homes are measuring the incorrect things; a wise consumer should view the five-star system as only one tool in the search for the best possible facility.  While the five-star system may be a good reference, do not stop there.  Visit facilities and look beyond the lobby.  Talk to residents and their families.  Talk to nurses and aides. 

It is also important to keep in mind that Medicare is mostly rating safety rather than quality.  Medicare says very little about whether a facility provides high-quality, person-centered care that responds to individual needs of its patients and residents. 

The Medicare rating system may be best used as an initial screen to help which facilities to look at more closely.  While it is easy for facilities to game numbers, Medicare is measuring the wrong things.

See Howard Gleckman, Looking Beyond Medicare’s Nursing Home Ratings: What to Know Before Picking a Facility, Forbes, Aug. 27, 2014.

August 28, 2014 in Disability Planning - Health Care, Elder Law, Estate Planning - Generally | Permalink | Comments (0) | TrackBack (0)

Tuesday, August 26, 2014

The Medicare Star System

Medicine

For the last five years, Medicare has been assigning hotel-style ratings to nearly every nursing home in the country.  An examination of this rating system has found that many top-ranked nursing homes have been given a seal of approval that is based on incomplete information and can mislead consumers, investors, and others about the home’s conditions. 

The Medicare ratings are based in large part on self-reported data by the nursing homes that the government does not verify.  The ratings do not take into account entire sets of potentially negative information, including fines and other enforcement actions by state authorities, as well as complaints filed by consumers.  For example, the State of California fined a five star rated nursing home $100,000 (highest penalty possible) for causing the death of a woman who was given an overdose of a powerful blood thinner.  Furthermore, this nursing home has been the subject of around a dozen lawsuits from patients and their families claiming substandard care. 

Widespread acceptance of the ratings system is leading to use beyond the eldercare industry.  Beginning this year, Medicare plans to introduce similar five-star ratings for hospitals, dialysis centers and home health care agencies.  Federal officials say that while the rating system can be improved, it incentivizes nursing homes to get better.  Unfortunately, some nursing homes are not improving, but rather, learning how to game the rating system. 

See Katie Thomas, Medicare Star Ratings Allow Nursing Homes to Game the System, The New York Times, Aug. 24, 2014. 

August 26, 2014 in Disability Planning - Health Care, Elder Law, Estate Planning - Generally | Permalink | Comments (0) | TrackBack (0)

Unparalleled Alzheimer's Novel Applauded

Hospital care

Matthew Thomas, 39, published a great American novel about Alzheimer’s—a disease that will impact the lives and estate plans of thousands.  Thomas devoted ten years of his life to writing We Are Not Ourselves, much of that time was while he was working as a high-school English teacher.  Last year, his book was auctioned for $1 million.  The book was subsequently featured as one of the Buzz Books for 2014 at Book Expo America. 

The book tells the story of Ed Leary, a college professor in his early 50s, and his wife Eileen, a nurse, put the pieces together during Ed’s devastating disease.  The book chronicle’s Ed’s gradual demise, in addition to the emotional and financial impact it has on Eileen and Ed’s son. 

Although fiction, this is a story Thomas knows well.  He was 19 when his own father was diagnosed with early Alzheimer’s.  Thomas says his father’s diagnosis with Alzheimer’s was a “protracted and delayed death sentence.” 

See Deborah L. Jacobs, Debut Author Hits the Jackpot with Novel About Alzheimer’s, Forbes, Aug. 25, 2015.

August 26, 2014 in Books - Fiction, Disability Planning - Health Care, Elder Law, Estate Planning - Generally | Permalink | Comments (0) | TrackBack (0)

Caring for Family Members That are Having Difficulty Eating

Hospital BedWhen elderly family members are no longer able to eat, it creates a difficult situation and decision for their families. Difficulties with eating in old age can lead to health problems such as pneumonia and frequent trips to the hospital. A feeding tube is an option considered by many families in such a situation, which can assist with the delivery of nutrients, but can also cause additional medical complications and create distance between the older individual and their loving family. The decision of whether to continue to feed family members near the end of life by hand or feeding tube is a difficult decision.

See Jessica Nutik Zitter, M.D., Food and the Dying Patient, The New York Times, Aug. 21, 2014.

Special thanks to Matthew Bogin (Law Offices of Matthew B. Bogin) for bringing this article to my attention.

August 26, 2014 in Disability Planning - Health Care, Estate Planning - Generally | Permalink | Comments (0) | TrackBack (0)

Monday, August 25, 2014

Powerless with Power of Attorney

Power of attorney

Power of attorney has always been an inexpensive way to give someone the right to act on another person’s behalf.  Yet, the power is not absolute and when it fails, the consequences can be disastrous. 

For Christine, a 62-year-old woman in Connecticut, experienced the powerlessness power of attorney embodies.  After sorting out their parents’ estate, Christine’s older brother promised he would set his own affairs in order so they would not face the same messy process.  He drafted a will, titled accounts to transfer to them on death, and drew up a power of attorney should he become incapacitated.  Years later, when Christine’s brother began suffering from severe dementia, he needed indefinite care.  Christine knew there would be no problem paying for this since he had done well financially.  However, when she looked at the power of attorney, she noticed he used her legal first name, Carol, which she had abandoned.  It was not until she went to bank after bank explaining the situation, was she denied access to his accounts to pay for his care.  “They said ‘Go get your marriage certificate’ . . . . I had my birth certificate, passports, a driver’s license.  But they did not have the name my brother had on that form.” 

Estate planners say that Christine’s experience is not uncommon.  Banks routinely try to deny the appointed person any right to have access to accounts.  One valid reason for banks’ hesitancy is because a power of attorney can be used to commit elder fraud.  Banks have been sued for giving access to accounts without properly checking the person named in the power of attorney. 

A better option all around might be a revocable trust.  It allows people to put their property in a trust while they are still alive, using it as they normally would.  “Banks are more comfortable with this because you’re funding it now while you’re competent.”  Provisions can also be written into revocable trust documents that allow future trustees to put in assets that were forgotten when the trust was created. 

See Paul Sullivan, Power of Attorney Is Not Always a Solution, The New York Times, Aug. 22, 2014.

Special thanks to Matthew Bogin (Law Offices of Matthew B. Bogin) for bringing this article to my attention.

August 25, 2014 in Disability Planning - Health Care, Disability Planning - Property Management, Elder Law, Estate Administration, Estate Planning - Generally, Trusts | Permalink | Comments (0) | TrackBack (0)

Problems Arising Out of Power of Attorney

ProblemsFor many individuals, power of attorney is an inexpensive estate planning tool that allows for a trusted loved one to be able to take a decision making role if the person becomes unable to do so for themselves. However, the fear of elder abuse being committed through a power of attorney has caused many banks to create detailed rules for honoring the designation of power of attorney. Problems can occur when individuals go to a bank to enforce a power of attorney and find out for the first time that the bank requires the document to be on specific paper or the drafter used a variation of their name that does not match their official forms of identification. One possible solution is a revocable trust, which banks are more comfortable with.

See Paul Sullivan, Power of Attorney is Not Always a Solution, The New York Times, Aug. 22, 2014.

Special thanks to Joel Dobris (Professor of Law, UC Davis School of Law) and Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.

August 25, 2014 in Disability Planning - Health Care, Disability Planning - Property Management, Estate Planning - Generally, Trusts | Permalink | Comments (0) | TrackBack (0)

Thursday, August 21, 2014

Online Toolkit Offers Estate Planning Help

ToolkitA comprehensive on-line estate planning toolkit service called Final Roadmap can assist with various estate planning needs, including storing and sharing estate planning documents. Membership to the site is available with a one-time purchase. Here is a description of the toolkit from the website:

Misunderstanding and confusion result from neglecting to plan ahead, leaving a painful and costly legacy to those you care about most.  Final Roadmap was created to make end of life planning manageable and affordable. The Toolkit allows you to create, compile and safely store documents and directives  – with the option to share the documents you select, with the individuals you choose, in the equivalent of an electronic vault.

August 21, 2014 in Death Event Planning, Disability Planning - Health Care, Disability Planning - Property Management, Estate Planning - Generally, Resource Links | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 20, 2014

Article on The Donald Sterling Case and Mental Capacity

SterlingLara Zeigler (Fiduciary Counsel) recently published an article entitled,The Donald Sterling Case and Mental Capacity, Of Minds and Money, Summer 2014. Provided below is the introduction to the article:

Rochelle (“Shelly”) Sterling, wife of Los Angeles real estate mogul and billionare Donald Sterling, made headlines in May when she argued to a probate court that her husband was mentally incapacitated—a charge he vehemently denied. The court’s decision had great implications for the Los Angeles Clippers, a 44-year-old professional basketball franchise held in a revocable trust for which both the Sterlings were co-trustees.

The ensuing legal battle brought to light an important question all wealthy individuals should address: What happens when you lose capacity to make sound decisions regarding your wealth? In this estate planning update, we explore the legal nuances of mental capacity through the lens of the Sterling case and offer practical tips on how to establish a clear plan in the event one’s cognitive abilities decline.

August 20, 2014 in Articles, Disability Planning - Health Care, Disability Planning - Property Management, Estate Planning - Generally, Non-Probate Assets, Trusts | Permalink | Comments (0) | TrackBack (0)

Tuesday, August 19, 2014

Health and Financial Planning for Students

HealthAdvanced health care directives and financial power of attorney are helpful planning tools to ensure that in the later years of life, one’s health care and financial needs are provided for. However, they can also be helpful during other stages of life. For a new student that is leaving home and starting the adventure of college life, these tools can ensure that parents can assist with health care decisions, access important health information, and address financial circumstances if the need arises.

See Michael J. Maransky, Back to School: Health Care Directives and Powers of Attorney for College Students, Mondaq, Aug. 14, 2014.

 

August 19, 2014 in Disability Planning - Health Care, Disability Planning - Property Management, Estate Planning - Generally | Permalink | Comments (0) | TrackBack (0)