Wills, Trusts & Estates Prof Blog

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

Wednesday, August 23, 2017

Article on Planning for Incapacity: Helping Clients Prepare for Potential Future Health Crises

Man-hit-by-carVaughn E. James recently published an Article entitled, Planning for Incapacity: Helping Clients Prepare for Potential Future Health Crises, 9 Est. Plan. & Community Prop. L.J. 227 (2017). Provided below is an abstract of the Article:

Although disabilities are more common among the elderly, younger people are not immune, The Census Bureau reports that in 2015, 5.9% of Americans between the ages of sixteen and twenty reported having a disability; 10.7% of Americans between the ages of twenty-one and sixty-four also reported having a disability. Disabilities­—and incapacity—are not reserved for the elderly population.

Accordingly, it is prudent for all people to plan for incapacity. As individuals plan, they will turn to their lawyers—or estate planners and personal financial planners—to help them. This article examines various ways in which these professionals can help their clients prepare for potential health crises or accidents that lead to disability or incapacity.

August 23, 2017 in Articles, Disability Planning - Health Care, Estate Planning - Generally, Trusts | Permalink | Comments (0)

Monday, August 21, 2017

Article on Don’t Pull the Plug on Bioethics Mediation: The Use of Mediation in  Health Care Settings and End of Life Situations

TerryAmy Moorkamp recently published an Article entitled, Don’t Pull the Plug on Bioethics Mediation: The Use of Mediation in  Health Care Settings and End of Life Situations, J. Disp. Resol. (2017). Provided below is an abstract of the Article:

Theresa Marie “Terri” Schiavo was a woman who suffered cardiac arrest in 1990 which left her in a persistent vegetative state.1 Terri Schaivo’s case made headlines in 2005 in a well-publicized right-to-die case. The controversy festered in the clashing of opinions voiced from both Schaivo’s husband (her legal guardian) and Schaivo’s parents. Schaivo’s husband argued that his wife would not have wanted prolonged artificial life support without the prospect of recovery, and advocated for removal of her feeding tube. Conversely, Terri Schaivo’s parents advocated for a continuation of artificial nutrition and hydration for their daughter. This well-documented conflict amounted to an array of legal challenges, ultimately involving state and federal politicians alike, including President George W. Bush. The result was a seven-year delay before eventual removal of Terri Schaivo’s feeding tube.

A hefty decision, such as the life or death of a loved one, requires more than a few minutes of deliberation and a handful of outside consultations. Delicate, emotional, and potentially contentious medical decisions compel a structured, compassionate approach to produce quality and well-informed results. Due to the magnitude of the decision being made, as well as the abundance of other considerations, (emotional, religious, historic, financial, etc.) the case for a creative, problem-solving process of dispute resolution, such as mediation, is ripe.

This Comment will explore the use of mediation in bioethical disputes. In Part II, the Comment will give an overview of bioethics and examine its inherent nuances and complexities. Part III will examine mediation and its application in healthcare settings. Finally, Part IV will advocate for increased use of mediation in bioethics disputes in recent, applicable scenarios and cases.

Special thanks to Stacie Strong, Manley O. Hudson Professor of Law, for bringing this article to my attention.

August 21, 2017 in Current Affairs, Disability Planning - Health Care, Estate Planning - Generally | Permalink | Comments (0)

Wednesday, August 16, 2017

More Retirement-Age Clients Facing New, Unexpected Expenses

OldSuzanne Shier, chief tax strategist at Northern Trust, noted an increasing number of Americans who are facing unexpected expenses as they close in on retirement: support for elderly parents. Many individuals hope and plan to provide some support for their children, and if possible, grandchildren. But, as the life expectancy for the average American continues to increase, more and more planning and resources are being dedicated to the support of aging parents who are still alive and relatively healthy as their children are entering into retirement.

Some individuals nearing retirement have been forced to extend their employment stay in order to accommodate expenses for parents’ costs. Others have planned a bit differently and have instead chosen to work out an arrangement with siblings to pool resources to support parents. Shier commented, “It’s an expense that people hadn’t thought much about but that more and more people are having to accommodate.”

This trend is unlikely to abate in the near future. Currently, there are over half a million people on earth over the age of 100. Data suggests that there may be upwards of 3.7 million centenarians by 2050.

See Juliette Fairley, More Retirement-Age Clients Facing New, Unexpected Expenses, Financial Advisor, August 7, 2017.

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

August 16, 2017 in Disability Planning - Health Care, Estate Planning - Generally | Permalink | Comments (0)

Monday, July 24, 2017

How the Medicaid Debate Affects Long-Term Care Insurance Decisions

Fa08537fdd7342ec6f6600179865d9abThe Senate just released the newest version of its health insurance bill last Thursday. The most current form of the bill has not done much to mitigate the drastic reductions in Medicaid spending seen in the original bill. Regardless of possible cuts, it is clear that the federal and state governments are not going to be able to maintain current spending levels for aging baby-boomers as they consume more health-related services. A common question for those concerned with coverage is: "How seriously should I consider getting some kind of insurance to cover my care in case big Medicaid cuts are on the horizon?" The insurance market for long-term coverage can be extremely expensive, if you can even qualify for coverage. There is a balancing act required that must consider high premiums and not using the insurance on one side, and not paying for insurance and needing it on the other.

Though the current, heavily regulated and subsidized healthcare market is costly and inefficient, some are hoping that Big Brother will deign to meddle in the long-term care sector as well. While the federal and state governments may be able to kick the can down the road for a bit longer, a call for additional subsidies in the face of desperately needed cuts seems like trying to remove the mote from your brother's eye whilst ignoring the plank in thine own.

See Erik Jacobs, How the Medicaid Debate Affects Long-Term Care Insurance Decisions, The New York Times, July 14, 2017.

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

July 24, 2017 in Disability Planning - Health Care, Elder Law, Estate Planning - Generally | Permalink | Comments (0)

Sunday, July 2, 2017

Plan on Growing Old?

FightOne in three people over the age of 65 will end up in a nursing home. Among those living in a nursing home today, 62% cannot pay the bill on their own. The harsh reality in the United States is that many older Americans cannot pay their own way as they move into old age. Possible cuts to Medicaid by Republicans in Congress may make qualification and payments scarcer. With Medicaid reductions looking very real, many Americans are being placed in a vulnerable position.

See Ron Lieber, Plan on Growing Old? Then the Medicaid Debate Affects You, The New York Times, June 30, 2017.

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

July 2, 2017 in Current Events, Disability Planning - Health Care, Estate Planning - Generally, New Legislation | Permalink | Comments (1)

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)