Wills, Trusts & Estates Prof Blog

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

Wednesday, February 10, 2016

Three Doctors Will Control Sumner Redstone's Fate... If They Are Summoned

ArticlePictureLook up the word mogul in the dictionary and a picture of Sumner Redstone could legitimately sit beside it and be accurate in every sense. His multi billion dollar empire includes two of the most powerful corporations in modern media, CBS and Viacom, and makes him one of the wealthiest human beings alive. However, control over that empire is increasingly in doubt as Redstone's health deteriorates which raises the question of how it will be determined if he is no longer fit to lead. Apparently the answer to that question is a two step process involving family members and long time executives as well as a group of three doctors. To rule Redstone incapacitated requires a  majority vote of five individuals, among them his daughter, Les Moonves, and Philippe Dauman, who can call upon the expert opinions of three doctors. The team of doctors, drawn from different hospitals, would then rule on his health which will decide if his assets move to an irrevocable trust that would include the voting shares in his various corporations. Due to an ongoing lawsuit from his former partner it is unknown if this arrangement will last, but the two step process is an intriguing method of ensuring any conclusions on his health are well thought out.

See Keach Hagey & Joann S. Lublin, Doctors Have Key Role in Fate of Sumner Redstone’s Company Stakes, Like Viacom, The Wall Street Journal, February 6, 2016.

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

February 10, 2016 in Current Affairs, Disability Planning - Health Care, Disability Planning - Property Management | Permalink | Comments (0)

Sunday, February 7, 2016

The Importance Of Planning Ahead For Long-Term Care

ABLEPlanning ahead for long-term care can be difficult because there are many ways it can impact different people. This column discusses some of the statistics that can provide people guidance with long-term care planning. It goes over the statistics on the age demographics of people needing nursing home care revealing that the odds are an individual will not need nursing home care until he or she is 80 or 85. Some of the key factors that go into determining whether a person will need long-term care include their family history, health and fitness level, and their current family situation. All these factors should be weighed together when planning ahead for the possibility of one day needing long-term care in an assisted living facility.

See Harry S. Margolis, Will You Need Long-Term Care?, Margolis & Bloom, LLP, February 2, 2016.

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

February 7, 2016 in Disability Planning - Health Care, Disability Planning - Property Management, Elder Law, Estate Planning - Generally, Non-Probate Assets | Permalink | Comments (0)

Thursday, January 28, 2016

CLE On Special Needs Trusts

CLEThe University of Texas School of Law is presenting a CLE entitled,12th Annual Changes and Trends Affecting Special Needs Trusts, February 4-6, 2016, at the Radisson Hotel and Suites in Austin-Downtown.  Here are some details about the event:

The 12th Annual Changes and Trends Affecting Special Needs Trusts brings together nationally recognized professionals in the SNT field, features the latest updates and hot topics, and offers a great set of materials including sample forms, drafting tips, sample language and resources. This year’s program includes:
  • A special presentation from the Social Security Administration’s Regional Trust Review Team with must-have insight on the review process and opinions on amending trusts; plus Neal Winston with advice and tips for practitioners in handling the trust review process
  • Updates on recent Texas legislation, including the possible impacts of new Supported Decision-Making Agreement Act, and exploration of the Texas ABLE Act with Stephen W. Dale
  • A review of special needs trusts basics, including essential drafting tips and clauses from Craig C. Reaves; and the fundamental rules for protecting you client’s eligibility for SSI and Medicaid
  • Current issues and trends from the Texas Health and Human Services Commission (HHSC)
  • Discussion on SNTs and tax planning, as well as a specific guidance on IRAs and SNTs
  • An exploration of veteran’s benefits and their impact on SNT planning
  • An in-depth look at the value of consulting with an SNT attorney in winding up PI litigation to preserve benefits and avoid unintended consequences with Patricia F. Sitchler
  • Earn up to 2.50 hours of ethics, plus network with program faculty and attendees at the Thursday Evening Reception

January 28, 2016 in Conferences & CLE, Disability Planning - Health Care, Disability Planning - Property Management, Trusts | Permalink | Comments (0)

Monday, January 25, 2016

Special Needs Trusts Getting New Levels Of Scrutiny From Social Security Administration

Social SecurityFirst Party Special Needs Trusts are vehicles that can be created to support an individual who is disabled and seeking Social Security disability payments and other governments benefits such as health care. To establish this type of trust, a parent or conservator of the beneficiary, or a court order, must set up a seed trust to which the qualifying assets of the disabled individual may be transferred. However, a seed trust established by an otherwise qualifying party will be rendered invalid if created while the party is acting in another capacity, for example, a person acting as an agent under power of attorney rather than in their role of parent. In addition, the trust must use any remaining assets when the trust ends to repay all government entities that provided financial or medical support to the disabled person during their lifetime. This has been a problem for many trust since their terms called for repayment to Social Security but not to the state medical programs that provided treatment and care. Lastly, newly tightened regulations now require the trust to be used solely for the care of the beneficiary; no longer can the trust pay for family members to travel for visits or provide care to beneficiary unless they are approved or specially trained to provide the type of care being given. But one small grace has been granted, the Social Security Administration will not go after previously approved trust, even those that fall foul of the new regulations, unless an event occurs that requires re-authorization which will provide some measure of relief. Disability advocacy groups have been displeased with these new rules and are lobbying the SSA to pull back on the newly tightened regulations so, perhaps, some changes can be expected in the future.

See Dennis A. Fordham, Upheaval in the world of First Party Special Needs Trusts, Wealth Strategies Journal, January 11, 2016.

Important comment provided by Marjorie Suisman (shareholder, Davis, Malm & D'Agostine, P.C.):

 I believe that this post and the linked article contain incorrect information about state payback provisions. The states are entitled to recoup the medical assistance benefits they pay out from a “First Party SNT”, and the trust must so provide, but there is no requirement that SSI benefits be repaid. If a disabled person has assets, they do need a First Party SNT in order to qualify for SSI, but the payback requirement only applies to medical assistance paid out by the States.

January 25, 2016 in Disability Planning - Health Care, Disability Planning - Property Management, Trusts | Permalink | Comments (0)

Tuesday, January 12, 2016

Helping A Loved One With Alzheimer’s Manage Their Finances

Business_expenseThis column discusses the difficult issues that a family can face when a loved one with Alzheimer’s starts to become reckless with their spending. In this instance a person was concerned that his brother who had early-onset Alzheimer’s was going to end up giving away all of his money. This column suggests that it is a good idea for a concerned person to convince their loved one with Alzheimer’s to give them a durable power of attorney over their finances. This can be a difficult subject to discuss with a person because many people will be resistant to the idea of giving up control over their own finances. It is important to be persistent in trying to convince that family member that a durable power of attorney over their finances will be in their best interest.

See Dana Territo, Alzheimer’s Q&A: How can I prevent a loved one with Alzheimer’s from giving away money?, The Advocate, January 10, 2016.

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

January 12, 2016 in Disability Planning - Property Management, Elder Law, Estate Planning - Generally, Non-Probate Assets, Trusts, Wills | Permalink | Comments (0)

Monday, January 11, 2016

Important Things To Know About The ABLE Act

Special needs trustThe Achieving a Better Life Experience (ABLE) Act was passed in 2014. The ABLE Act is intended to help people who were disabled before turning 26 set up an account that would let them accumulate funds to pay for qualified disability expenses without risking their eligibility for certain federal benefits. This article describes some of the benefits that an ABLE account can provide for people with disabilities. It is important to be aware of the rules and regulations that go with having an ABLE account. These accounts are administered by State government so it is a good idea to speak with an experienced estate planner about the local requirements and regulations. Setting up an ABLE account can be a great estate planning tool if done properly.

See Amos Goodall, Elder Law: Understanding the ABLE Act, Centre Daily Times, January 9, 2016.

January 11, 2016 in Disability Planning - Property Management, Estate Planning - Generally, Non-Probate Assets, Trusts | Permalink | Comments (0)

Tuesday, December 29, 2015

Dementia And Alzheimer's Diagnosis Should Prompt Change To Estate Plans

DementiaA diagnosis for Dementia or Alzheimer's Disease is a devastating blow to anyone and will often push other considerations into the background. However, proper planning for the change in circumstances must be done in order to protect the interest of the sufferer. The best time to make alterations to any estate plans would be right after the diagnosis when the cognitive decline will be comparatively mild and the individual can still make decisions without any capacity concerns. Health care directives should be the first change made since a  diagnosis may alter what measures would preferably be taken by the sufferer to preserve life when the disease is in a later stage. Another step worth taking would be preparing for the eventuality of long term care with any LTC insurance being maintained by the prompt payment of premiums to avoid any chance of having the policy dropped. Coming down with a degenerative disease is never good but with a modicum of sober minded forethought some of the problems and concerns that arise with the condition may be avoided and greatly lower the level of frustration that will inevitably be involved.

See David M. Zimmer, Planning becomes vital following Alzheimer's diagnosis, NorthJersey.com, December 27, 2015.

December 29, 2015 in Disability Planning - Health Care, Disability Planning - Property Management, Estate Planning - Generally | Permalink | Comments (0)

Monday, December 28, 2015

Documents That Alzheimer’s Patients Should Complete As Soon As Possible

Alzeimer'sThere are a number of important estate planning documents that people with Alzheimer’s should complete as soon as possible. It is extremely important to have a durable power of attorney for both financial and health care related decisions. People should start thinking about who they want to designate to make financial and health care related decisions for them if they lose capacity. Creating an up-to-date living will or advanced directive for healthcare is also important for specifying what type of healthcare treatments a person wants. They will need to have an up-to-date will so that their intentions for how they want their property distributed are fulfilled. A living trust is also a good idea for people that might have a lot of assets to distribute and want to avoid the probate process.

See Documents for Alzheimer’s Patients Need to be Done Now!, Idaho Estate Planning, December 24, 2015.

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

December 28, 2015 in Disability Planning - Health Care, Disability Planning - Property Management, Estate Planning - Generally, Guardianship, Trusts, Wills | Permalink | Comments (0)

Wednesday, December 23, 2015

Hardship Exception May Be Available To Some Stuck In Medicaid Penalty Period

MedicalWhen a person applies to receive Medicaid, they will be subject to a review of their need which includes a look back over the previous five years for transfers of property for less then it's fair market value. If an improper transfer did occur, then a penalty period, which could last for years, may be assessed which denies the applicant coverage. However, there is a little used hardship exception which may be sought even if the hardship is brought about solely because of the penalty period. To claim it, the applicant must show that access to Medicaid is necessary to maintain their health or that a lack of access would take away their ability to have the necessities of life such as food or shelter. The big catch is that the applicant has the burden of proof and each state is free to set a hardship standard which means some might be out of luck based solely on where they live. As a result, before pursuing any exception to the penalty period, be sure to check the statutory and case history in the state of residence of the applicant due to variability that might exist in defining hardship.

See, The Hardship Exception to the Medicaid Penalty Period: Rare But Possible, Elder Law Answers, December 22, 2015.

December 23, 2015 in Disability Planning - Health Care, Disability Planning - Property Management, Elder Law | Permalink | Comments (0)

Sunday, December 13, 2015

The Dementia Issue In Retirement Planning

Mental capacityDementia is an issue that many senior citizens will have to contend with when planning for retirement. This column addresses the concern about what would happen if a surviving spouse has dementia and is not legally competent enough to be able to roll over an inherited IRA into their own IRA. “IRS regulations specify that the spousal election to treat an IRA inherited from the deceased spouse as the surviving spouse's own IRA may not be made until after the death of the first spouse.” Many IRA custodians will not permit a participant to name a “successor beneficiary” because the primary beneficiary owns the inherited IRA absolutely. This column discuss different plans that people can adopt to deal with a potential anticipated mental disability. When developing a plan it is important to get help from an experienced estate planner who can provide more personalized assistance.

See Natalie Choate, Planning for the Dementia Factor in Retirement, Morningstar, December 12, 2015.

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

December 13, 2015 in Disability Planning - Property Management, Elder Law, Estate Planning - Generally, Non-Probate Assets, Wills | Permalink | Comments (0)