Wills, Trusts & Estates Prof Blog

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

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Saturday, January 31, 2015

Free Webinar on the Uniform Powers of Appointment Act

CLEThe American Bar Association Section of Real Property, Trust and Estate Law is holding a free webinar for RPTE members entitled, The Uniform Powers of Appointment Act: Straightforward Default Rules to Fill a Vacuum, on February 11th from 12:30-1:30 PM ET.  Here is why you should attend:

Powers of appointment are among the most commonly-used techniques in estate planning.  Despite this fact, little case law and virtually no statutory law governing powers of appointment exists in many United States jurisdictions.  As a result, much uncertainty exists in the planning and administration of estates, often leading to costly litigation.  Does the residuary clause of a powerholder’s will exercise a general power of appointment?  If a power of appointment is ambiguously drafted, may the powerholder give the appointive property only to some of the appointees, omitting others entirely? May a power of appointment be exercised in a record that is not a writing?  What is the difference between a power of appointment, a fiduciary power, and a power of attorney? When is a contract to exercise a power of appointment enforceable?  What are the rights of a powerholder’s creditors in the appointive property? 

In 2013, the Uniform Law Commission published the Uniform Powers of Appointment Act (“UPAA”) to provide a well-organized codification that eliminates much of the uncertainty surrounding the answers to these questions.  Our panelists have played important roles in the preparation and dissemination of the UPAA: Mr. Kent, a former ULC Commissioner from Colorado, was a member of the drafting committee; Professor Hess was the ABA Advisor to the drafting committee, and Mr. Orzeske is the member of the ULC staff who advises state legislatures planning for the enactment of the UPAA.

The speakers will first briefly summarize the process by which the act was written.  Then, they will discuss selected provisions dealing with the creation, exercise, and interpretation of powers of appointment.  Finally, they will outline experiences with enactment to date.

January 31, 2015 in Conferences & CLE, Disability Planning - Health Care, Disability Planning - Property Management, Estate Administration, Estate Planning - Generally | Permalink | Comments (0) | TrackBack (0)

Friday, January 30, 2015

CLE on Powers of Attorney in Disability Planning

CLE Photo

The American Bar Association Section of Real Property, Trust and Estate Law is holding a CLE entitled, Powers of Attorney in Disability Planning: Silver Bullet or Landmine? on February 3rd, from 1:00-2:30 PM ET via webinar.  Here is why you should attend:

The power of attorney began as a simple instrument for disability planning for those of modest means. However, it has become an extremely powerful tool in late-in-life-estate planning, financial management during disability and health care decision-making.

This panel discussion will cover:

  • Guidance for advising clients and the attorney-in-fact about powers of attorney;
  • Ethical issues in the drafting and use of powers of attorney; and
  • Drafting powers of attorney to accommodate the continuation of the estate planning process after disability of the principal in a changing tax environment, address health care decision-making and end of life care consistent with the principal's wishes, authorize the attorney-in-fact to access the principal's digital assets to the extent possible, and customize a power of attorney to reflect the client's unique situation rather than relying on standard forms.

January 30, 2015 in Disability Planning - Health Care, Disability Planning - Property Management, Elder Law, Estate Planning - Generally | Permalink | Comments (0) | TrackBack (0)

Monday, January 26, 2015

A Devastating Practice In Debt Collection

Lillian PalmeroWhen Lillian Palermo became incapacitated at age 80, her husband and power of attorney regularly rolls his wife’s wheelchair at a nursing home in Manhattan.  Yet last summer, after Mr. Palermo disputed nursing home bills that doubled Mrs. Palermo’s copays and complained about employees who dropped his wife on the floor, Mr. Palermo was shocked to find a guardianship petition filed by the nursing home, asking the court to give a stranger full legal power over Mrs. Palermo.

Few people are aware that a nursing home can take such a step.  However, the growing practice has become routine, illustrating the power nursing homes wield over residents and families amid changes in financing of long-term care. 

In a random sample of 700 guardianship cases filed in Manhattan over a decade, researchers found that more than 12 percent were brought by nursing homes.  Lawyers and others agree that nursing homes primarily use such petitions as a means of bill collection.  At least one judge has ruled that the tactic is an abuse of the law, but the petitions force families into costly legal ordeals. 

While it is a drastic measure, nursing home lawyers argue that using guardianship to secure payment for care is better than suing an incapacitated resident who cannot respond. 

See Nina Bernstein, To Collect Debts, Nursing Homes Are Seizing Control Over Patients, The New York Times, Jan. 25, 2015.

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

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

January 26, 2015 in Disability Planning - Health Care, Disability Planning - Property Management, Elder Law, Estate Planning - Generally, Guardianship | Permalink | Comments (1) | TrackBack (0)

Approaching Issues of Capacity

Writing 2

While capacity can be an issue at any age, it is statistically most common among the elderly.  Many people decline in mental and physical ability as they age and capacity becomes a concern.  However, it is a well-known pillar of capacity law that practitioners cannot assume that capacity is an issue.  It is the professional’s responsibility to probe and verify in order to confirm or dispel any concerns surrounding an assessment of capacity. 

An advisable way to approach extracting issues of capacity with an elderly individual is through delicate conversation and encouraging openness.  Though it is important to avoid offending clients who may be uncomfortable, this is a crucial issue to ensure proper estate planning.  Sometimes, apparent symptoms of incapacity can result from cultural differences between client and lawyer.  Other times, apparent cultural issues can mask signs of incapacity.  As a lawyer, information regarding capacity may govern whether or not you can take instructions or act for the person, or whether any will prepared will ultimately be valid. 

See Ian M. Hull, How Lawyers Should Approach Issues of Mental Capacity, The Huffington Post Canada, Jan. 24, 2015.

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

January 26, 2015 in Disability Planning - Health Care, Disability Planning - Property Management, Elder Law, Estate Planning - Generally, Professional Responsibility, Wills | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 21, 2015

California Senators Introduce Right to Die Bill

Brittany maynard 3Despite wide support among the population, physician-assisted suicide remains illegal in California. 

Yet when Brittany Maynard brought the issue front and center, saying she had moved to Oregon from California so that she could legally end her life before her brain cancer could cause debilitating pain, several California legislators were emboldened to reintroduce the issue. 

The new bill that was recently introduced by State Senators Bill Monning and Lois Wolk, and closely follows the Oregon  “Death with Dignity” Act.  It would allow a person with a terminal disease and a prognosis of death within six months to obtain a physician’s prescription for a lethal dose of medication.  Although there are details within the bill that need to be amended, overall, this is an important piece of legislation that will allow Californians to determine their personal medical destinies. 

See The Times Editorial Board, Californians Deserve the Right to Die With Dignity, LA Times, Jan. 19, 2015.

January 21, 2015 in Current Affairs, Disability Planning - Health Care, Estate Planning - Generally | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 20, 2015

Court Holds Nursing Home Must Forego Arbitration

Gavel 3

In Bair v. Manor Care of Elizabethtown, PA, LLC, 2015 Pa. Super. 9 (2015), the Pennsylvania Superior Court held that a nursing home arbitration agreement was not enforceable when the facility did not sign the agreement. 

Sylvia Bair commenced an action for wrongful death and survival in Lancaster County as executor of the estate of Martha Edwards against Manor Care, alleging that neglect and abuse of Ms. Edwards by Manor Care led to her death. 

Manor Care sought to have the case referred to arbitration pursuant to an agreement executed by Ms. Bair on behalf of Ms. Edwards upon her admission to Manor Care.  However, no Manor Care representative signed the agreement.  Thus, the trial court overruled Manor Care’s preliminary objections, permitting the litigation to move forward in the state court.  Manor Care subsequently appealed to Pennsylvania Superior Court. 

The Superior Court found that by failing to affix its signature, Manor Care did not consent to arbitrate, as there was no mutual assent.  Ultimately, it found that the nursing home could not enforce the arbitration agreement. 

See Danielle Dietrich, Pennsylvania Nursing Home That Failed To Sign Arbitration Agreement Cannot Seek To Enforce Agreement, JD Supra Business Advisor, Jan. 19, 2015.

January 20, 2015 in Disability Planning - Health Care, Estate Planning - Generally, New Cases | Permalink | Comments (0) | TrackBack (0)

Friday, January 16, 2015

CLE on Powers of Attorney in Disability Planning

CLE

The American Bar Association section of Real Property, Trust and Estate Law is holding a CLE entitled, Powers of Attorney In Disability Planning: Silver Bullet or Landmine?, on February 3, 2015 from 12:00 – 1:00 PM CT via webinar.  Here is why you should attend:

The power of attorney began as a simple instrument for disability planning for those of modest means. However, it has become an extremely powerful tool in late-in-life-estate planning, financial management during disability and health care decision-making.

This panel discussion will cover:

  • Guidance for advising clients and the attorney-in-fact about powers of attorney;
  • Ethical issues in the drafting and use of powers of attorney; and
  • Drafting powers of attorney to accommodate the continuation of the estate planning process after disability of the principal in a changing tax environment, address health care decision-making and end of life care consistent with the principal's wishes, authorize the attorney-in-fact to access the principal's digital assets to the extent possible, and customize a power of attorney to reflect the client's unique situation rather than relying on standard forms.

January 16, 2015 in Conferences & CLE, Disability Planning - Health Care, Estate Planning - Generally | Permalink | Comments (0) | TrackBack (0)

Thursday, January 15, 2015

Planning for Clients With Neurologic Conditions

Brain

Every estate planner must address the challenges of aging and disability.  To best address client needs, practitioners should understand the incidence and nature of the challenges that aging and disease can create.  Not only should legal documents be tailored to meet a client’s specific challenges, but the planning team must also educate clients to take practical steps to implement the planning. 

Brain disease is prevalent and diverse among Americans and neurologic conditions can result in a wide range of possible physical and cognitive symptoms.  These conditions and symptoms could affect clients, and in turn, the planning steps that should be considered.  Practitioners should begin discussing these matters with their clients and apply their expertise to help affected clients as they face their own obstacles. 

For example, clients who suffer from multiple sclerosis are often concerned about the potential for an exacerbation.  If the client has experienced sporadic exacerbations, a springing provision in a durable power of attorney and a disability clause for the client serving as a trustee or co-trustee of his own revocable living trust should be tailored to reflect these circumstances. 

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.

January 15, 2015 in Disability Planning - Health Care, Estate Planning - Generally, Trusts | Permalink | Comments (0) | TrackBack (0)

Medicaid Benefits Denial Reversed 6 Days After Applicant Dies

Elder CareNeva Holt, a Tennessee resident and small business owner, was denied Medicaid assistance for nursing home care after a determination that she transferred land to grandchildren that could have been used as an asset to generate income for her nursing home care. Holt's family arranged for her to be cared for by a disabled caregiver after she left the nursing home, and appealed the decision by TennCare to deny her Medicaid benefits. On Jan. 7 her family successfully got the decision reversed due to a ruling by an assistant commissioner for the Tennessee Department of Human Service that Holt did not have an ownership interest in the land. However, the decision came six days after the 88-year-old grandmother died.

See Tom Wilemon, Tenn. Woman Gets Medicaid Help - 6 Days After Her Death, USA Today, Jan. 14, 2015.

January 15, 2015 in Disability Planning - Health Care, Elder Law | Permalink | Comments (0) | TrackBack (0)

Friday, January 9, 2015

Future Alzheimer's Diagnosis May be Predicted by Blood Test

Blood testNew research on Alzheimer's detection has revealed that a blood test can detect the disease 10 years prior to diagnosis. The researchers that tested for the protein IRS-1 in 174 individuals were able to predict whether each individual had Alzheimer's, even when diagnosis of the disease was 10 years away. The research has raised ethical questions over whether it is more harmful than helpful for individuals to know years in the future that they will develop the disease without any clear preventative measures to take.

See Stephanie Guzowski, Predicting Alzheimer's Disease With Blood Tests: Early Detection, Ethical Concerns, Bioscience Technology, Dec. 4, 2014.

January 9, 2015 in Disability Planning - Health Care, Science | Permalink | Comments (1) | TrackBack (0)