Wills, Trusts & Estates Prof Blog

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

Tuesday, September 29, 2015

U.S. District Court Rules That FNHRA Does Not Create Private Rights

New gavelThe U.S. District Court for the Western District of Wisconsin has recently held that Section 1983 of the Federal Nursing Home Reform Act (FNHRA) does not create private, enforceable rights for residents.  This column discusses a case involving a plaintiff that sued Lakeview Health Center in West Salem, Wisconsin, seeking negligence and punitive damages on allegations that her brother died from injuries sustained from a fall. 

The plaintiff alleged that the nursing home violated her brother’s resident rights that are outlined in Section 1983 of FNHRA.  The Court dismissed the claim of a Section 1983 violation holding that the section in question was written to describe what a nursing home has to do to receive government funding and does not describe rights that nursing homes must provide residents.  The District Court opinion can be read here

See Emily Mongan, Court: Federal Nursing Home Act doesn’t create private rights, McKnights, September 22, 2015.

September 29, 2015 in Current Affairs, Disability Planning - Health Care, Elder Law, Estate Planning - Generally | Permalink | Comments (0)

Monday, September 28, 2015

Is Setting Up An ABLE Account The Right Strategy To Take?

Able accountThis article discusses the impact that ABLE accounts can have on estate planning for people with disabilities.  It is very important that clients understand how a special needs trust will effect a person’s access to Medicare or Medicaid benefits.  The Achieving a Better Life Experience (ABLE) Act was signed into Federal law on December, 19, 2014, to make it easier for people with disabilities to save money without risking their Medicare, Medicaid, or Social Security benefits.  Currently each state must pass legislation that create a vehicle for ABLE accounts to be set up and administered.  Clients considering an ABLE account should consult with a competent estate planning attorney and should also review the policies of their state. 

See Holly Nicholson, Money Matters: Is an ABLE Act account right for you?, The News & Observer, September 26, 2015.

September 28, 2015 in Disability Planning - Health Care, Estate Planning - Generally, Trusts | Permalink | Comments (0)

Bitter Legal Battle Over Guardianship Issue Spills Into Street

AutismProtesters have recently showed up to Munson Medical Center holding signs reading “Free Hannah G.”  Savannah Garcia, known as Hannah G, is an autistic person that has been a patient at the Munson Medical Center for over a month.  There is currently an ongoing legal battle in the local probate court between the center and Hannah G’s mother over guardianship.  Professionals at the center are concerned that Hannah G would suffer if her mother is involved in her care and have successfully entered an emergency petition that removed Samantha Garcia as guardian and named a replacement temporary guardian.  Doctors are concerned that Savannah might be experiencing Munchausen by proxy, a type of abuse that involves a caregiver adding to a person’s illness to gain attention.

See Matt Troutman, Guardianship battle spills to street, Traverse City Record Eagle, September 27, 2015.

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

September 28, 2015 in Current Affairs, Disability Planning - Health Care, Estate Planning - Generally, Guardianship | Permalink | Comments (0)

Sunday, September 27, 2015

New Medicare Proposal Might Limit Patient Access To High-Tech Prosthetics

Prosthetic limbThousands of patients, specialists, and other health advocates are concerned about efforts sought by several lawmakers and billing contractors to impose tougher eligibility standards for certain high-tech prosthetic limbs.  The new proposed standards come as a response to a 2011 inspector general’s report that found annual Medicare spending for lower-limb prosthesis reaching $655 million in 2009, which is a 27 percent increase from the 2005 amount.  In that same period the beneficiaries receiving these products dipped by about 2.5 percent. 

Federal inspectors believe that questionable billing practices by a number of suppliers is the cause of the increased spending.  Health experts and patients advocates are worried that the new proposals will make the process more difficult for people who need these devices.  Dr. Barbara Swan says that policies that make “the majority suffer because of what the minority does just seems like going after a flea with a baseball bat.”

See Adam Smeltz, Medicare proposal could limit access to high-tech prosthetics, The Pittsburgh Post-Gazette, September 13, 2015.

September 27, 2015 in Current Affairs, Disability Planning - Health Care, Estate Planning - Generally, Technology | Permalink | Comments (0)

Tuesday, September 15, 2015

Article On A New Approach To Selecting Legal Surrogates

Article PictureNina A. Kohn (Professor, Syracuse University - College of Law) recently published his article entitled, Matched Preferences and Values: A New Approach to Selecting Legal Surrogates, San Diego Law Review, Vol. 52, 2015. Provided below is an excerpt from the article:

Every day, hospitals are filled with incapacitated patients whose healthcare decisions are made by other people. The law recognizes such decisions as the patients’ own and, accordingly, the primary purpose of surrogate decisionmakers is to make the decisions that patients would make if able. Unfortunately, surrogate decisionmakers frequently make choices for patients that are inconsistent with patient wishes. Indeed, social psychology literature on surrogate decisionmaking finds a stronger correlation between surrogates’ decisions for patients and what surrogates would want for themselves than between surrogates’ decisions and what patients actually would want. Although others have treated surrogates’ tendency to project their own preferences and values on patients as a barrier to appropriate decisionmaking, this Article shows how savvy patients, advocates, and policymakers can capitalize on this tendency to improve healthcare decisionmaking. Specifically, it proposes that surrogate decisionmakers for health care be selected based, at least in part, on the extent to which they share patients’ treatment preferences. Where it is not possible to compare treatment preferences, or where an individual cares less about particular treatment decisions than about consistency with a set of values, surrogates should be selected based on shared values. Incorporating this approach into advance planning processes and the statutory law governing the selection of guardians and default surrogate decisionmakers could both increase the likelihood that decisions made are those patients would want made, and facilitate more flexible, context-appropriate treatment decisions.

September 15, 2015 in Articles, Disability Planning - Health Care, Estate Planning - Generally | Permalink | Comments (0)

Monday, September 14, 2015

Reasons To Plan Ahead For Old Age

Senior citizen couplePlanning ahead for end-of-life situations can be difficult for many people.  Making plans for growing old and dying is a morbid subject that people often like to avoid thinking about.  Creating an up to date end-of-life estate plan is a good idea for people who want to leave a financial legacy to their loved ones.  Some might have minor children that they might want to make arrangements for on issues like inheritance and guardianship.  It is also extremely important to plan ahead for the type of medical care needs an individual might have in their later years.  Putting together an adequate plan will give the client more control over how people will remember them.  Having a complete and up-to-date estate plan will help save loved ones a lot of stress and hassle.

See Karen M. Wyatt, 5 Reasons to Plan Ahead for End-of-Life, The Huffington Post, September 4, 2015.

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

September 14, 2015 in Death Event Planning, Disability Planning - Health Care, Elder Law, Estate Planning - Generally, Wills | Permalink | Comments (0)

Friday, September 11, 2015

The Importance Of Planning For The Later Years In Life

SeniorIt is common for clients to revisit their estate plans when they reach their mid-60s.  People start to realize that they are entering into old age and want to make sure they are prepared for what is to come.  The first thing this article discusses is the importance of planning for living arrangements in case there is ever any physical decline.  Another thing to decide on is when to start taking social security benefits.  The medigap policy with Medicare is another thing that needs to be planned for.  Senior citizens may at one point need long term care so it is essential to have a retirement plan in place that will address all of the emotional and financial needs of a person who may need long term treatment. 

See Lawrence Frolik and Bernard A. Krooks, Confronting the Realities of Planning for Later Life, Wealth Management, September 10, 2015.

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

September 11, 2015 in Current Affairs, Disability Planning - Health Care, Disability Planning - Property Management, Elder Law, Estate Planning - Generally, Guardianship, Wills | Permalink | Comments (0)

Tuesday, September 8, 2015

A Look At The Average Life Expectancy From Different Countries Around The World

Senior citizen coupleThis article shows a detailed chart that compares the life expectancy from different countries around the world.  The chart shows the average life expectancy for men and women and also shows the average “healthy years” and “unhealthy years.”  The average life expectancy have been rising in recent years thanks to an improvement in health care related technologies as well as other causes. 

One cause of increase in the average global life expectancy is a reduction in child mortality rates and also diseases like AIDS, malaria, and tuberculosis.  When resources are invested in getting rid of certain avoidable problems in developing countries the average life expectancy usually increases.  Then you have an aging population and a higher rate of people dying of certain age related illnesses like cancer and heart disease.  It is also important to emphasize the number of years people will be expected to live in ill health.  These unhealthy years usually take place around the end of life and countries dealing with an aging population will have to deal with the health costs. 

See Susan Brink, Check Out Life Spans Around The World – And Likely Years Of Ill Health, NPR, September 5, 2015.

September 8, 2015 in Current Affairs, Disability Planning - Health Care, Elder Law, Estate Planning - Generally, Science, Technology | Permalink | Comments (0)

Thursday, September 3, 2015

Should People Create A “VSED” Advanced Directive When Planning For Dementia Possibility?

DyingThis article discusses some of emerging debates surrounding VSED (voluntary stopping eating and drinking) advanced directives.  People who expect that they might suffer from some form of dementia or other type of severe illness later in life might want to consider whether a VSED might be an option for them. A California Psychiatrist named Dr. Stanley Terman has created a “Natural Dying Living Will” that he promotes as a strategy to help people with advanced Alzheimer’s Dementia or those who are suffering from unbearable end-of-life pain.  There are other advanced healthcare directives that can be made along with a VSED.  John Schappi, who has been diagnosed with Parkinson’s disease, describes his own personal advanced care directive that he plans to use.

See John Schappi, Creating a “VSED” Advanced Directive in Case of Future Dementia, Aging Care, September 3, 2015.

September 3, 2015 in Disability Planning - Health Care, Elder Law, Estate Planning - Generally, Guardianship, Wills | Permalink | Comments (0)

Monday, August 31, 2015

Florida Has Made Reforms To Its Health Care Surrogate Act

FloridaIn the State of Florida there is a written document called a “Designation of Health Care Surrogate” that can name a person to make health care decisions for an individual or receive health information on the individual’s behalf.  Since the enactment of the Florida Health Care Surrogate Act of 1992 an individual had the recognized right to designate a health care surrogate. 

Two key changes to the act are set to go into effect on October 1, 2015.  The first change will give a surrogate the ability to act immediately, and the second change will let parents name a health care surrogate for a minor child in the event that they cannot act.  It is important to keep in mind that there is a difference between a designation of surrogate and a “living will.”  This article provides some of the important details about the new statutory reforms. 

See Seth Kaplan, Recent Improvements to the Florida Health Care Surrogate Act, Berger Singerman, Offices, August 26, 2015.

August 31, 2015 in Current Affairs, Disability Planning - Health Care, Estate Planning - Generally | Permalink | Comments (0)