Wills, Trusts & Estates Prof Blog

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

A Member of the Law Professor Blogs Network

Wednesday, July 30, 2014

Often Forgotten Considerations for Disability Planning

QuestionWhen planning for the possibility of disabilities, there are more considerations than Medicaid, durable power of attorney, and a health care proxy. Here are some additional considerations:

  • A disability doesn’t always mean inability to walk or make decisions
  • Disabilities vary in how they affect an individual
  • Disabilities should not all be treated the same, but planned for based on individual circumstances and needs
  • It is important to understand the affects of various conditions, especially neurological conditions

See Martin M. Shenkman, How Neurologic Conditions Affect Planning, Wealth Management, June 24, 2014.

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

July 30, 2014 in Disability Planning - Health Care | Permalink | Comments (0) | TrackBack (0)

Sunday, July 27, 2014

Article on Physician Aid in Dying

Hospital care

David Orentlicher (Indiana University, Robert H. McKinney School of Law), Thaddeus Mason Pope (Hamline University School of Law) and Ben A. Rich (University of California, Davis) recently published an article entitled, The Changing Legal Climate for Physician Aid in Dying, JAMA, Vol. 311, No. 19, 1961-1962 (2014); Indiana University Robert H. McKinney School of Law Research Paper No. 2014-24.  Provided below is the abstract from SSRN:

While once widely rejected as a health care option, physician aid in dying is receiving increased recognition as a response to the suffering of patients at the end of life. With aid in dying, a physician writes a prescription for a life-ending medication for an eligible patient. Following the recommendation of the American Public Health Association, the term aid in dying rather than "assisted suicide" is used to describe the practice. In this Viewpoint, the authors describe the changing legal climate for physician aid in dying occurring in several states.

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

July 27, 2014 in Articles, Disability Planning - Health Care, Elder Law, Estate Planning - Generally | Permalink | Comments (0) | TrackBack (0)

Friday, July 25, 2014

Estate Planning Lessons From Three Famous Estates

Movie Star2Many famous estates are full of drama, family feuds, and numerous opportunities to learn from others’ estate planning mistakes. Here are three that provide helpful lessons:

  1. Walt Disney: The trust created by Walt Disney teaches the importance of choosing trustees wisely. The trustees for the trust have allegedly used their discretion to withhold principal distributions from some of Disney’s grandchildren, because they would not keep the funds with the financial firm of one of the trustees.
  2.  Johnny Unitas: Unitas’ story teaches how important it is to choose the right executor. Unitas’ son had to endure a lengthy court battle to be able to buy a company he shared with his father, due to his father’s second wife refusing to sell to him.
  3. Casey Kasem: Kasem’s tale of his wife moving him away from his children and now both sides feuding over the will, highlights the importance making smart choices with who gets powers of attorney.

See Bob Carlson, Key Estate Planning Mistakes You Need to Avoid, Investing Daily, July 24, 2014.

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

July 25, 2014 in Disability Planning - Health Care, Estate Administration, Estate Planning - Generally, Trusts, Wills | Permalink | Comments (1) | TrackBack (0)

Friday, July 18, 2014

Why an Estate Plan May Be the Best College Graduation Gift


As your child prepares to leave for college, they may not be thinking about their estate plan.  However, this is a great time to prepare important legal documents such as health care power of attorney, a HIPAA authorization, a financial power of attorney and a will.

In the majority of states, an individual is considered an adult at age 18.  Absent legal documents, parents do not have access to their adult child’s financial information, medical records or basic information about their child’s medical conditions. 

If your child becomes incapacitated, it is likely they would want you (thier parent) to be able to communicate with medical professionals in the case of an emergency.  In terms of financial institution representatives, your child may want you to have the ability to report a lost debit or credit card.

See Child Heading Off to College? Why an Estate Plan is Important, Taft Law, July 14, 2014.

July 18, 2014 in Disability Planning - Health Care, Estate Planning - Generally, Wills | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 15, 2014

Estate Planning for Alzheimers

Old people holding hands

Alzheimer’s is a devastating disease that affects many Americans every year.  If diagnosed early enough, a person with Alzheimer’s disease will likely retain the mental capacity to sign an estate plan.  These documents should include a Power of Attorney for healthcare, Power of Attorney for property, and a will.  It is vital that these documents are signed in a timely manner, as any delay could prevent the patient’s meaningful input as the cognitive impairments worsen. Provided below are a few steps to guide an Alzheimer’s patient when creating a plan:

  1. Power of Attorney Documents.  These designate to a loved one to make healthcare and asset management decisions when the person affected with Alzheimer’s is no longer capable of making decisions for themselves.  When naming someone to hold Power of Attorney, select an individual you trust to carry out your wishes and act in your best interests.
  2. Last Will and Testament. A will allows the Alzheimer’s patient to finalize their legacy and distribute their estate.  The will should include burial and funeral wishes as well.
  3. Time is of the Essence. Since Alzheimer’s is a progressively declining illness, prompt action is required.  The longer the passage of time from diagnosis to document signing, the more likely the Alzheimer’s affected person will be deemed incompetent.
  4. Finalizing the Plan. Sit down and have a conversation with family and loved ones to discuss healthcare plans and wishes, including discussion of nursing home placement or in-home care.

See Maria Shriver, Life Ed: Protecting Wishes And Assets of Alzheimer’s Patients, NBC News, July 14, 2014.

July 15, 2014 in Disability Planning - Health Care, Disability Planning - Property Management, Elder Law, Trusts | Permalink | Comments (0) | TrackBack (0)

Minnesota Addresses Thefts by Court-Appointed Guardians

MinnesotaAfter the discovery of abuse by court-appointed guardians in Minnesota, the state audited 24 random accounts handled by Alternate Decision Makers, Inc. The findings uncovered problems with ten accounts ranging from missing documents to possible indications of theft. Allegations of theft by the guardians include unreasonably high fees accessed, missing property, and personal items sold off after the protected person died. The suspicious accounts discovered by auditors are being sent to judges for review and to be remedied.

See James Eli Shiffer, Conservator’s Thefts Prompted 24 State Audits, Star Tribune, July 14, 2014.

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

July 15, 2014 in Current Affairs, Disability Planning - Health Care, Disability Planning - Property Management, Elder Law, Guardianship, Professional Responsibility | Permalink | Comments (0) | TrackBack (0)

Sunday, July 13, 2014

End of Life Planning with POLST

Hospital care

Physician Orders for Life-Sustaining Treatment (POLST) is another approach to end-of-life care that incites discussions between patients and their health care providers.  The idea behind POLST is to give patients the ability to choose their course of treatment, and ensure those preferences are respected. 

With POLST, patients and doctors discuss diagnosis, prognosis and treatment options.  Based on these conversations, patients and health care providers complete a POLST form, which documents the patient’s wishes with respect to end-of-life care.  The form is signed by the patient’s health care provider and becomes part of the patient’s medical record. 

It is important to note that POLST does not replace an advance directive or a durable power of attorney for health care.  Rather, the POLST form supplements these other documents.  Where advance directives and durable power of attorney provide instructions for future treatment, POLST gives medical orders for current treatment. 

The POLST form is standardized by state and studies indicate it is making a difference in safeguarding patients’ wishes.

See Anne Jump and Doug Stanley, Planning with POLST, Bryan Cave, July 9, 2014.

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

July 13, 2014 in Disability Planning - Health Care, Elder Law, Estate Planning - Generally | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 9, 2014

Planning for Medical Expenses in Retirement

Medical expensesMany Americans do not realize that medical care can consume a large portion of their retirement budget.  According to the Employee Benefits Research Institute (EBRI), Medicare currently covers roughly 62 percent of an individual’s medical expenses.  Unfortunately, EBRI says the percentage covered is likely to decrease in the future.  With healthcare costs on the rise, it is more important now than ever to plan for these expenses in retirement.  Here are some steps you should take ahead of time to prepare for medical expenses:

  1. Understand Medicare.  While you do not have to be an expert in Medicare, understand that Medicare is similar to a government-sponsored health insurance plan for seniors.  Seniors can choose to be covered by Original Medicare, which is broken into two parts (A and B) or a Medicare Advantage plan (part C).  To cover prescription drug gaps, Medicare users can pay for Part D, which is the Medicare Prescription Drug Plan.
  2. Estimate Future Healthcare Costs.  According to a 2011 guide to healthcare and retirement costs, the average annual health care cost for a 65-year-old in poor health and on Medicare was $4,760.  For a healthy 65-year-old on Medicare, the average cost was $4,450.  By age 75, those numbers increase by about $1,000. 
  3. Look at Your Options.  There are many ways to save, earn or otherwise obtain the funds you will need to pay for medical expenses during retirement.  Some employers will provide medical coverage after retirement.  You should also continue to save and invest as much as possible to help pay for future out-of-pocket medical expenses.

See Scott Holsopple, How to Factor Medical Expenses into Your Retirement Plan, US News, July 8, 2014.   

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

July 9, 2014 in Disability Planning - Health Care, Elder Law, Estate Planning - Generally | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 8, 2014

Article on End-of-Life Care in Connecticut

HealthErin A. O’Neill, recently published an article entitled, End-of-life care in Connecticut: whose decision is it and when does the conversation begin?, 27 Quinnipiac Prob. L.J. 317-343 (2014). Provided below is an excerpt from the article:

A 49-year-old woman has been suffering from multiple sclerosis for more than twenty years. Her condition continues to worsen. She can no longer sit up, swallow, or speak well enough to be understood by others. One year ago, she developed respiratory arrest, became cyanotic, and was hospitalized. She was given a tracheostomy and put on a respirator. To this day, the body's secretions that collect in the tube must be suctioned from the tube every couple of hours, requiring the removal of her respirator, which prevents her from breathing. She is semi-comatose, and only her brain stem, which controls her heartbeat, body temperature, and some reflexive actions, functions. She cannot see and it is believed that she cannot hear. After two months of treatment, she has shown no sign of improvement. At best, she can be described as awake but unaware. The prognosis for improvement is hopeless, but she is still kept on the respirator. 1

This woman has no living will or other advance directive; therefore, her father has been appointed as her conservator 2 by the probate court. Her father is faced with the difficult decision of whether to sustain his daughter's life in such a hopeless state, or remove the respirator and let her pass. He decides to ask the hospital to remove the respirator. 3 The hospital refuses to honor the request without a court order, and the matter is brought to the probate court. 4

July 8, 2014 in Articles, Disability Planning - Health Care, Guardianship | Permalink | Comments (0) | TrackBack (0)

Sterling Case Halted

SterlingAs I have previously discussed, Shelly and Donald Sterling were scheduled to have their day in probate court yesterday. However, Donald’s move to try to remove the case to a Federal district court postponed proceedings. Donald is claiming that he had given his wife his consent to negotiate the sale of the Clipper’s, but that she was to maintain a stake, but the deal she negotiated was for a complete sale of the team. Donald is further arguing that his privacy was violated by Shelly under the Health Insurance Portability and Accountability Act, and thus the case should be removed to Federal court to deal with that Federal statute.

See James Rainey, Tension Between Shelly and Donald Sterling Plays Out in Court Papers, LA Times, July 7, 2014.

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

See Eric Kelsey, Trial Over $2 bln Clippers Sale Waits on Federal Ruling, Reuters, July 7, 2014.

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

July 8, 2014 in Current Affairs, Current Events, Disability Planning - Health Care, Estate Planning - Generally, Trusts | Permalink | Comments (0) | TrackBack (0)