Wills, Trusts & Estates Prof Blog

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

Monday, June 5, 2017

Dad's Final Wish

WellberyCaroline Wellbery retreated to familiar surroundings in California after her father passed away at age 94. Wellbery’s father, alive, witty, and a stalwart center of his children’s lives, suffered a stroke while in the midst of a conversation. Wellbery’s mother suffered a similar stroke years before, but the decline was more gradual; it left the family time to prepare for her death. Wellbery’s father, perhaps mercifully, did not have years to suffer. According to his clear wishes, the family agreed to stop the antibiotics and the IV fluids. After a dose of morphine was administered to ease her father’s breathing, Wellbery recognized the shift in mood; there was no longer the hope of survival and recovery but only the grim acceptance of her father’s inevitable death. Although Wellbery’s siblings have each handled their father’s passing differently, they all seem to recognize that there is no way but forward.

See Caroline Wellbery, We Unplugged My Father from Everything, as He Wished, but I Wasn’t Ready to Let Go, The Washington Post, June 4, 2017.

Special thanks to Lewis Saret (Attorney, Washington, D.C.) for bringing this article to my attention

June 5, 2017 in Death Event Planning, Disability Planning - Health Care, Elder Law, Estate Planning - Generally | Permalink | Comments (0)

Thursday, June 1, 2017

DINKs Need Estate Planning Too

Happy-familyThe traditional nuclear family in America has typically revolved around the notion of two parents, two-and-a-half children, a dog, and a house with a white picket fence. Modern trends are undermining this ideal and estate planning must keep up. A growing demographic in need of estate and financial planning are those with dual-income, no kids (DINKs). This group chooses to forgo procreation and is typically relatively affluent and well educated. Traditional estate planning selling points involving designation of a guardian or setting up trusts for children are inappropriate for this group. But, there is still a variety of estate planning benefits for DINKs. Healthcare planning focused on establishing financial powers of attorney in case of incapacity may avoid future headaches. Setting up a Charitable Remainder Trust may help DINKs meet charitable aims while providing steady income. Finally, creating wills, trusts, and granting powers of attorney can be extremely valuable in case of incapacity or death. By shifting perspective to accommodate the modern family structure, estate planners can better serve their clients in helping them to achieve their planning goals.

See Patrick Carlson, DINKs Need Estate Planning Too, Wealth Management.com, May 30, 2017.

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

June 1, 2017 in Disability Planning - Health Care, Estate Planning - Generally, Trusts, Wills | Permalink | Comments (0)

Saturday, May 27, 2017

More Alzheimer's Deaths Occurring at Home

Brain_slicesAlzheimer’s deaths increased by more than 50% from 1999 to 2014 in the US. These numbers are expected to rise given America’s aging population and increasing life expectancy. While the number of individuals suffering from Alzheimer’s has gone up, the number of these individuals being treated in a medical facility has actually declined. Over the same fifteen-year period, Alzheimer’s sufferers being treated in a medical facility fell from 14.7% in 1999 to 6.6% in 2014. Many of these individuals are instead being cared for at home with family supervision. Considering the burden placed on these families, it is likely they would benefit from services such as respite care and case management. This trend of taking Alzheimer’s sufferers into the home in lieu of a medical facility will likely continue as the debilitating disease is expected to affect 13.8 million adults over 65 by 2050.

See Julie Steenhuysen, U.S. Alzheimer's Deaths Jump 54 percent; Many Increasingly Dying at Home, Reuters, May 25, 2017.

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

May 27, 2017 in Current Events, Disability Planning - Health Care, Elder Law | Permalink | Comments (0)

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)