Wills, Trusts & Estates Prof Blog

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

Tuesday, October 9, 2018

Nursing Homes are Pushing the Dying into Pricey Rehab

NursinghomeThe University of Rochester published a study finding that nursing home residents who received “ultrahigh intensity” rehabilitation increased by 65% from October 2012 to April 2016, some even in their last week of life. Medicare defines “ultrahigh” therapy as more than 12 hours per week.

The study analyzed data from 647 New York-based nursing home facilities and 55,691 long-stay residents that had died, with a specific focus on those who received very high to ultrahigh rehabilitation services—including physical, occupational and speech therapy—during the last month of their life. Treatments categorized as such receive the highest payout from Medicare and other insurers.

Helena Temkin-Greener, the lead author of the study and a professor at the University of Rochester Medical Center Department of Public Health Sciences says that the findings raise questions on whether there is a financial reason rather than a medicinal one for those types of treatments. For-profit nursing homes were more than two times as likely to use high to ultrahigh intensity therapy than were nonprofit homes.

On the other hand, the study could be indicative that nursing home staff are failing to recognize when a patient is nearing the end of their life. “It is important for [skilled nursing facility] providers and their care teams to consider the risk-benefit of potential therapy interventions and dosage relative to the resident’s current health status,” said Daniel Ciolek, associate vice president of therapy advocacy at the American Health Care Association, which represents most of the country’s for-profit nursing homes.

See Riley Griffin, Nursing Homes are Pushing the Dying into Pricey Rehab, Bloomberg, October 9, 2018.

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

October 9, 2018 in Current Affairs, Disability Planning - Health Care, Elder Law, Estate Planning - Generally | Permalink | Comments (0)

Friday, September 28, 2018

What 'Succession' and Sumner Redstone can Teach us About Planning Ahead for Senior Care

SumnerFormer executive chairman of  Viaciom's Sumner Redstone,’s story was a key influence on the HBO hit series Succession, riveting the country with the litigious financial power struggle that has embroiled his family. Though the majority of clients may not have to worry about billions of dollars in assets, disagreements over money can and often do prevent families from making the appropriate choices about care.

Medicare, the primary insurer for 55 million older adults and people with disabilities, does not typically pay for long-term care services including nursing homes and in-home care. The majority of people don't have the financial resources to pay for the staggering costs senior care, but make "too much" to qualify for Medicaid assistance. If you are among the “in-betweeners,” you’ll need to be resourceful because care is expensive.

Baby boomers are turning 65 at an amazing rate of 10,000 per day, and 70% of Americans over that age will need long-term care at some point in their lives. Planning ahead for this type of care is becoming increasingly vital, especially if you would rather age in-place rather than in a nursing home. Because in-home caregivers average $22 per days, many elderly citizens depend on care from family members, and the majority of them are dipping into their own pockets to do so.

See Jody Gastfriend, What 'Succession' and Sumner Redstone can Teach us About Planning Ahead for Senior Care, Forbes, September 27, 2018.

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

September 28, 2018 in Disability Planning - Health Care, Elder Law, Estate Planning - Generally | Permalink | Comments (0)

Tuesday, September 25, 2018

Book on The Advisor's Guide to Disability Insurance

AdvisorbookTamra L. Barraclough, Erik T. Reynolds, & R. David Watros recently published a book entitled, The Advisor's Guide to Disability Insurance, ABA Book Publishing (2018).Provided below is a summary of the book.

It may not be the first thing that comes to mind, but disability insurance may represent the most important financial product that individuals need during their working years. Generating an income from work is the foundation for all financial planning, allowing individuals to maintain their lifestyle as well as plan for future retirement. The Advisor’s Guide to Disability Insurance is a clear, concise, and approachable guide that helps attorneys and other financial professionals understand the opportunities and benefits of disability insurance for their clients as well as for themselves and their families.

This book presents information on disability insurance with a long-term duration until retirement, beginning with the basics and an overview of the different types of disability. Subsequent chapters address key topics in greater depth:

  • Individual and group long-term disability
  • Integrated group and individual plans
  • Underwriting the disability risk
  • Filing a claim under different policy types
  • Employment/shareholder agreements
  • Evaluating and selecting a disability insurance carrier
  • Regulations and relevant benefit laws
  • Income protection planning and how it will evolve in the future
  • The role the advisor plays in planning
  • Sample planning situations

September 25, 2018 in Books, Disability Planning - Health Care, Estate Planning - Generally | Permalink | Comments (0)

Sunday, September 23, 2018

5 Ways to Know you Need a Guardianship for Mom (or Dad)

GuardianshipMany adult children see that once their parents reach a certain age, their roles may reverse. The child may be taking care of the parent more and more. But when does the child know that it is time to take the drastic step of establishing a guardianship for their mom or dad? Here are 5 ways that may indicate their your beloved parent may need a court's intervention to protect them and their assets.

  1. Refusal to sign a power of attorney.
    • If your parent either refuses to sign anything in front of them, or you have the frightening feeling that they would sign anything in front of them, a guardianship may be necessary.
  2. Real property or investments have to be sold.
    • Depending on the laws of your state, you may have to have a guardian appointed in order to sell their home or other investments if you have been appointed with power of attorney.
  3. Disagreement over nursing home.
    • If you feel that your parent would be healthier (and safer) in a nursing home and they refused, you may need to petition to be named as guardian.
  4. Medical intervention beyond the health care proxy.
    • If your parent cannot give informed consent anymore because of dementia or Alzheimer's, being appointed as a guardian can give you the authority to authorize medical treatment and certain medications.
  5. Decision-making is compromised in some areas.
    • A limited guardianship may be the best course of action if your parent retains the ability to make decisions in certain areas of their life but not in others, such as financial or investment decisions.

See Christine Fletcher, 5 Ways to Know you Need a Guardianship for Mom (or Dad), Forbes, September 13, 2018.

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

September 23, 2018 in Current Affairs, Disability Planning - Health Care, Disability Planning - Property Management, Elder Law, Estate Planning - Generally, Guardianship | Permalink | Comments (0)

Friday, September 21, 2018

Opinion: The 10 commandments of Retirement

RetireplanRetirement is about you. Taking care of you and your needs, wants, and wishes. Here is a list of 10 "commandments" of how to live in retirement comfortably.

  1. Set a sustainable lifestyle.
  2. Remember that Social Security is meant to replace no more that 40% of your income.
  3. Have an estate plan that provides for your spouse and loved ones in case they outlive you.
  4. Never forget the nonfinancial aspects of your retirement are important, too, such as relocation and leisure time.
  5. Pay attention to communications and deadlines from financial institutions, Social Security, and your employer.
  6. Put retirement savings goals in front of other financial goals.
  7. Save as much as possible as soon as possible.
  8. Remember that your taxes may remain as they are during retirement.
  9. Health care should be placed high on your list of fixed expenses.
  10. You want a steady flow of income, so invest in ways that will do just that.

See Richard Quinn, Opinion: The 10 commandments of Retirement, Market Watch, September 12, 2018.

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

September 21, 2018 in Disability Planning - Health Care, Estate Planning - Generally, Income Tax | Permalink | Comments (0)

Thursday, September 20, 2018

Tim Conway Recovers From Brain Surgery as Family Battle Over Comic's Fate Rages on

ConwayTim Conway's second wife and daughter are dueling  in court over sole conservatorship over the actor, who is currently recovering from brain surgery and is also suffering from dementia. Kelly Conway, the daughter of the 84-year-old actor, revealed that a Los Angeles court has decided a permanent conservatorship will be appointed in November. The actor had signed a power-of-attorney and health care directives designating his wife, Charlene Conway, as his caregiver, according to Charlene herself.

The person making decisions for his care must be competent. There are others that surround him that have only their best interest at heart and not my dad’s. That’s why I want to be the one in charge of his care," Kelly claims. She also says that she has been banned from her father's hospital room.

A Los Angeles judge denied Kelly’s petition to be appointed as her father’s conservator, finding that her concerns about Charlene’s medical decisions regarding her father are moot for now, as he’s been hospitalized since September 3.  In court documents, Michael Harris, who was appointed to protect Conway’s interest during the ongoing feud between daughter and stepmother, also said the comedian is “unable to communicate” and is “suffering from fluid on the brain.”

See Stephanie Nolasco, 'Carol Burnett' Star Tim Conway Recovers From Brain Surgery as Family Battle Over Comic's Fate Rages on, Fox, September 17, 2018.

September 20, 2018 in Current Events, Disability Planning - Health Care, Estate Planning - Generally, Guardianship, New Cases | Permalink | Comments (0)

Tuesday, September 18, 2018

Case Note on Parrales et al. v. Dudek

NaelaNancy E. Wright recently published a Case Note on Parreles el al. v.Dudek, NAELA Journal, Vol. 14 No. 1 (Spring 2018). Provided below is the introduction to the Case Note.

How to use the Americans With Disabilities Act/Olmstead case against a state Medicaid agency for failing to provide standards in its managed care home and community-based services program.

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

 

September 18, 2018 in Articles, Current Events, Disability Planning - Health Care, Elder Law, Estate Planning - Generally | Permalink | Comments (0)

Friday, September 14, 2018

Article on Power of Attorney Under the Uniform Power of Attorney Act Including Reference to Virginia Law

PowerofattPhilip Manns recently published an Article entitled, Power of Attorney Under the Uniform Power of Attorney Act Including Reference to Virginia Law, Wills, Trusts, & Estates Law eJournal (2018). Provided below is an abstract of the Article:

The Uniform Power of Attorney Act (UPOAA), approved in 2006, slightly amended in 2008 and more significantly amended in 2016, has been adopted by 27 U.S. jurisdictions. The UPOAA promotes uniformity in language delineating an agent’s powers and mandates that third parties accept notarized powers of attorney. Under the UPOAA, an instrument simply granting an agent authority to do “all acts that a principal could do,” vests that agent with broad powers: the precise delineation of those powers is produced by about a dozen pages of UPOAA text automatically incorporated by reference into such “all acts” instruments. However, the UPOAA expressly excludes from such “all acts” agents nine powers, six of which relate to acts that could dissipate the principal’s property, two of which relate to delegation of authority, and the ninth of which relates to the “content of electronic communications.” Those nine, so-called “hot” powers, are granted to an agent only when the instrument “expressly grants” them.

Five problematic areas exist within the UPOAA: (1) internal conflict within the UPOAA after its 2016 amendments regarding agent access to the content of the principal’s electronic communications; (2) a failure automatically to grant incidental powers to any hot powers expressly granted; (3) a missing modifier in the section concerning an agent’s authority to make gifts; (4) a missing good faith requirement in the agent certification rule; and (5) overlap among the ostensibly distinct hot powers.

Virginia’s adoption of the UPOAA included about two-dozen changes to the uniform text, nine of which are particularly important: (1) the cold gifting power; (2) the gutting of the primary consumer protection of the UPOAA; (3) the reversal of the forged signature rule; (4) the negation of provisions conditioning effectiveness upon delivery of the instrument to the agent; (5) the expanded agent disclosure rule; (6) the agent’s creation and amendment of trusts; (7) the rule of presumed non-ademption; (8) the legally irrelevant failure to adopt the UPOAA Statutory Form Power of Attorney; and (9) the curious change to the definition of “incapacity.” Some of those changes are inexplicable; others are misguided.

Regarding agency law doctrines not particularly addressed by the UPOAA, but obviously affected by it, the UPOAA reverses the century-old Virginia rule of strict construction for powers of attorney, and that will expose irreconcilable conflicts between (1) two Virginia Supreme Court cases stating opposite rules regarding the evidentiary presumption placed upon self-dealing agents, and (2) two Virginia Supreme Court cases reaching opposite conclusions on nearly identical facts for agents who made gifts to themselves of the principal’s property. Thus, courts soon will confront the consequences of the UPOAA and its effect upon various aspects of agency law.

September 14, 2018 in Articles, Disability Planning - Health Care, Disability Planning - Property Management, Estate Planning - Generally | Permalink | Comments (0)

Wednesday, August 29, 2018

Why Your Power of Attorney Probably is an Accident Waiting to Happen

PoaPower of Attorneys (POA) are routinely - and should always be - included in an estate plan. They can often be the most important document in an estate plan and determines who will be making financial and other decisions in the unfortunate situation that the person becomes incapacitated. But a POA can be complicated and intricate, so there are several things to consider when making one appropriate for your circumstances.

  • Choose the agent carefully 
    • Do not feel obligated to appoint a certain person or family member
  • Consider appointing more than one person
  • Check with your financial institutions
    • Often they have their own guidelines and rules for honoring POAs
  • Consider when it takes effect
  • Establish some oversight
  • Appoint a protector
  • Make your intentions clear

See Bob Carlson, Why Your Power of Attorney Probably is an Accident Waiting to Happen, Forbes, August 24, 2018.

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

August 29, 2018 in Current Affairs, Disability Planning - Health Care, Disability Planning - Property Management, Estate Planning - Generally, Trusts, Wills | Permalink | Comments (0)

Tuesday, August 28, 2018

Some Doubt LTC Insurance Industry's Future as Premiums Spiral Upward

GenworthGenworth, which has the nation's most long-term care (LTC) insurance policyholders, has almost regularly increased their premiums over the past couple years, and this year has approved a quarterly weighted average rate increase of 58% for some in 22 states. Other provided have applied for similar increases.

An explanation for the LTC market suffering from such high premium increases starts right from the beginning of the industry. When these products were developed, there was not a lot of statistics available to properly determine future claims utilization," explains Murray Gordon, CEO and founder of  MAGA Limited, an LTC insurance planning specialist and consulting firm. From the start the products were under-priced, so with rising costs in the medical industry the cost of LTC policies have to play catch-up.

But there are other factors affecting costs of the policies. Customers are living longer and filing more costly claims than originally expected, especially as health-care costs rise, and low-interest rates have adversely impacted carriers' earnings on reserves.

In 2017, the number of traditional LTC policies sold amounted to just 10 percent of those 20 years earlier, with several insurance companies deciding to sell new LTC policies altogether.

See Ben Mattlin, Some Doubt LTC Insurance Industry's Future as Premiums Spiral Upward, Financial Advisor, August 23, 2018.

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

August 28, 2018 in Current Affairs, Disability Planning - Health Care, Elder Law, Estate Planning - Generally | Permalink | Comments (0)