Wills, Trusts & Estates Prof Blog

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

Wednesday, May 2, 2018

Never Too Late for Love

Heart-made-small-hearts-vector-32804992

Cupid's arrow can strike its mark anytime in life. But when love's intoxicating effects overcome older adults, it can occur during a time when planning involves nursing homes rather than baby bottles. There is, of course, nothing wrong with this, but estate and financial planning choices must be made at this time that may not have seemed so vital in a person’s twenties or thirties. These decisions involve long-term healthcare, planning for when one spouse is incapacitated, and altering intended beneficiaries. In addition to these concerns, the risk of divorce still exists for marriage later in life. With this risk comes the possibility of a disparity in assets between the spouses. Such imbalances demand careful preparation and knowledgeable advisors for estate planning needs.

See Bernard A. Krooks, Never Too Old for Love, Wealth Management.com, May 1, 2018.

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

May 2, 2018 in Death Event Planning, Disability Planning - Health Care, Disability Planning - Property Management, Elder Law, Estate Planning - Generally, Guardianship | Permalink | Comments (0)

Wednesday, April 4, 2018

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

image from https://s3.amazonaws.com/feather-client-files-aviary-prod-us-east-1/2018-04-04/88f82d62-6b7b-4cb0-955b-ead53c710317.pngF. Philip Manns, Jr. published an Article entitled, Powers of Attorney Under the Uniform Power of Attorney Act Including Reference to Virginia Law, 43 ACTEC L.J. 151 (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 *152 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.

April 4, 2018 in Articles, Disability Planning - Health Care, Disability Planning - Property Management, Estate Planning - Generally, New Legislation | Permalink | Comments (0)

Tuesday, April 3, 2018

Article on Aging in the 21st Century: Using Neuroscience to Assess Competency in Guardianships

image from https://s3.amazonaws.com/feather-client-files-aviary-prod-us-east-1/2018-04-03/3d4b62fe-ea53-4b2e-ab35-36e339481372.pngBetsy Grey published an Article entitled, Aging in the 21st Century: Using Neuroscience to Assess Competency in Guardianships, Elder Law Studies eJournal (2018). Provided below is an abstract of the Article:

Whether to remove a person’s decision making authority in a guardianship proceeding is one of society’s most weighty determinations. As much as we value individual autonomy, we will strip that autonomy when a person is deemed legally “incompetent.” This competency determination has traditionally relied, almost exclusively, on clinical assessments of cognitive and functional abilities, based mainly on observed behavior. But developments in neuroscience — and particularly the advent of physiological biomarkers of Alzheimer’s disease — require us to think about a broader approach to competency determinations. Coupled with behavioral data, information from diagnostic biomarkers can add significant value to the competency determination. This article discusses the potential benefits and risks of use of this evidence in the competency determination, concluding that we need to anticipate its introduction into the equation, but with care to avoid overvaluing the evidence.

April 3, 2018 in Articles, Disability Planning - Health Care, Disability Planning - Property Management, Elder Law, Estate Planning - Generally | Permalink | Comments (0)

Wednesday, March 21, 2018

Top 10 Scams That Target Seniors

"Your mother is receiving top quality care and attention."Though scammers target individuals of all ages, seniors are particularly susceptible to their deceit. Scammers prefer seniors because they tend to have accessible savings, good credit, and may live alone or suffer from mental disorders like Alzheimer’s. Common schemes used to prey on the elderly include Medicare fraud, cons involving cemetery and funeral services, and internet and homeowner scams. It is important for seniors to avoid these hoaxes by protecting their financial and personal information and by being extremely cautious around any deals that sound too good to be true. Another possible defensive measure against scammers is to have a power of attorney drafted so a trusted individual can help monitor and manage financial transactions.  

See Top 10 Scams That Target Seniors, Elder Law: Cranfill Sumner & Hartzog, February 1, 2018.

March 21, 2018 in Disability Planning - Health Care, Disability Planning - Property Management, Elder Law, Estate Planning - Generally | Permalink | Comments (0)

Tuesday, March 20, 2018

Post-Retirement Planning: A Checklist for Seniors

image from https://s3.amazonaws.com/feather-client-files-aviary-prod-us-east-1/2018-03-20/24c28768-1022-40da-9466-a1666b314f5b.pngPrior to exiting the workforce, sagacious seniors will seek the advice of their trusted advisors to ensure their carefully laid out retirement plan comes to fruition. But careful planning does not end at retirement. Prudent seniors should have a solid framework for their post-retirement plans as well. Such a plan includes creating and keeping a list of financial accounts, compiling a list of investments and digital assets, a durable and medical power of attorney, and keeping these documents in a safe location known to at least one trusted friend or family member.

See Post-Retirement Planning: A Checklist for Seniors, Elder Law: Cranfill Sumner & Hartzog, February 20, 2018.

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

March 20, 2018 in Disability Planning - Health Care, Disability Planning - Property Management, Estate Planning - Generally, Travel, Wills | Permalink | Comments (0)

Monday, December 4, 2017

A New Uniform Act Guides Clients Dealing With Aging Parents

image from https://s3.amazonaws.com/feather-client-files-aviary-prod-us-east-1/2017-12-04/203777fb-200e-429f-b9ea-2af45829e991.pngThe Uniform Power of Attorney Act, which identifies best practices and sets minimum standards for agents working under powers of attorney, has been adopted (or substantially adopted) by four states in 2017, Texas, Wyoming, North Carolina, and New Hampshire, bringing the total number of enactments to 25. Leon LaBrecque, attorney and financial advisor in Michigan, notes that the “uniform act requires the person appointed power of attorney to keep records and to provide an accounting of those records to other family members who are involved with the elderly parent”. The idea behind the act is to ensure that the agent with a power of attorney is accounting to the possible heirs. This can add additional burdens on children taking care of elderly parents. Kathryn Avery, who takes care of her 93-year-old father, said that she is now “required to account for every single dime and to justify every expense”.

See Juliette Fairley, A New Uniform Act Guides Clients Dealing With Aging Parents, Financial Advisor, December 1, 2017.

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

December 4, 2017 in Current Events, Disability Planning - Property Management, Estate Planning - Generally, Professional Responsibility | Permalink | Comments (1)

Sunday, October 22, 2017

Book on How to Get the Death You Want: A Practical and Moral Guide

41dHHMq1r+L._SX331_BO1 204 203 200_John Abraham Rev., published a book entitled, How to Get the Death You Want: A Practical and Moral Guide (2017). Provided below is a summary of the book:

This is a comprehensive manual for anybody reaching the end of life, and for their caring friends, relatives, advocates, and caretakers. The author, an Episcopal priest, describes in detail the formidable challenges faced by those who wish to avoid months or years of painful treatment after they no longer have any hope of recovering any reasonable quality of life. Specific subjects include:

the nature of physical death;
legal documents to clarify one's wishes;
the need for a strong advocate to have the patient's wishes honored
moral questions that must be considered;
means of dying painlessly once the decision is made;
and much more, including how to respond to reluctant doctors, and the value of humor in communicating with a dying patient.

Abraham emphasizes that despite is position as a priest, this is not a religious book. It is intended for people of all faiths or no faith. People develop their own views on end-of-life issues, and for those who have not yet given it much thought, he offers facts and insights that are useful in forming one's moral beliefs. The decision, of course, must always be made by the patient, usually well ahead of time while he or she is able to make a sound judgment. If the patient desires continued medical treatment despite suffering and no means of recovery, that person's wishes must be honored. However, he argues strongly that those who hope to avoid the terrible suffering that comes so often at the end of life should also have their wishes honored.

The book carries strong endorsements from a number of well-known authorities on death, dying, grief, and mourning, including Rabbi Earl A. Grollman, the author of numerous best-selling books on death and grieving, and Derek Humphry, founder of the Hemlock Society and author of Final Exit.

October 22, 2017 in Books, Death Event Planning, Disability Planning - Health Care, Disability Planning - Property Management, Estate Administration, Estate Planning - Generally, Wills | Permalink | Comments (0)

Wednesday, August 30, 2017

Article on You Can Have My Gun When You Pry It from My Hands Which Are Incapable of Managing My Own Estate by Reason of Advanced Age, Physical Incapacity, or Mental Weakness: Firearms Rights of Wards in Mississippi Guardianships and Conservatorships

Come and take itMarlin Marcellus Stewart, III recently published an Article entitled, You Can Have My Gun When You Pry It from My Hands Which Are Incapable of Managing My Own Estate by Reason of Advanced Age, Physical Incapacity, or Mental Weakness: Firearms Rights of Wards in Mississippi Guardianships and Conservatorships, 35 Miss. C. L. Rev. 495 (2017). Provided below is an abstract of the Article:

The laws of the State of Mississippi allow the state's chancery courts to appoint a fiduciary for someone who is unable to manage his own affairs. As detailed below, while the appointment of a fiduciary may result in the abridgement of certain civil rights of that individual, a fiduciary appointment has previously had no statutory impact on the firearms rights of Mississippians. Recent changes in state law, however, may have changed that outcome by creating a correlation between the abridgment of a veteran's firearms rights subsequent to the appointment of a fiduciary and the firearms rights of a Mississippian in a guardianship or conservatorship. This Article will examine whether, and to what extent, Mississippi's citizens who have a fiduciary appointed to manage their personal affairs can potentially lose their right to purchase or possess12 firearms, while using as an illustrative example the impact that the assignment of a fiduciary has on the ownership rights of a veteran receiving disability compensation benefits from the VA.

The first section will provide historical background on the VA disability compensation benefit and will incorporate a brief discussion of the mental health issues facing veterans returning from combat operations in Iraq and Afghanistan, coupled with an overview of the process and purported authority by which the aforementioned veterans are being reported to the NICS. The second section will provide a brief overview of the rights Mississippians enjoy with regard to firearms. The third section will explain the range of actions, including the appointment of a fiduciary through a guardianship or conservatorship, available through the Mississippi court system to protect those who are no longer able to care for themselves. The penultimate section will analyze recent applicable law and regulations to establish that, under the current scheme, Mississippians who have guardians or conservators appointed for them under certain circumstances will soon be in similar situations to the veterans who have had fiduciaries appointed through the VA. The final section will demonstrate that although a similar reporting scheme should be in place for some Mississippians in a conservatorship or guardianship, one does not yet exist and the section will additionally propose a potential planning avenue for elder law attorneys whose clients may soon be entering a conservatorship.

 

 

August 30, 2017 in Articles, Disability Planning - Property Management, Estate Planning - Generally | Permalink | Comments (1)

Tuesday, June 13, 2017

Seven Tips for Protecting Clients from Elder Abuse

ElderThe National Center on Elder Abuse estimates that nearly 1 in 10 Americans over the age of 60 experience abuse. Research also suggests that half of individuals over the age of eighty-five suffer from some sort of cognitive impairment. An important part of financial and estate planning is considering worst-case scenarios when it comes to intellectual capacity. Planners must work with clients to establish checks and balances for their assets in case of mental degradation. Jonathan Fitzgerald, director of wealth and fiduciary planning at Wilmington Trust, has a few suggestions to help planners and their clients. First, start early. While the onset of a mental impairment may still allow enough time to plan, it is not an ideal beginning point. Second, define “capacity.” This is left to the judgement of the client, but the final definition of what “capacity” entails should be clearly understood and recorded. Finally, set up revocable trusts. Many trusts include clauses that are invoked upon the incapacity of the settlor/beneficiary.

See David H. Lenok, Seven Tips for Protecting Clients from Elder Abuse, Wealth Management.com, June 9, 2017.

June 13, 2017 in Disability Planning - Property Management, Elder Law, Estate Planning - Generally | Permalink | Comments (0)

Tuesday, May 30, 2017

Dementia Taxes

TaxesIt seems as though it is becoming something of a social faux pas to admit to wanting to leave an inheritance to children. The newest mantra taken up by liberal economists and policy makers is the idea that passing on hard-earned and already-taxed assets to loved ones is among the great inequities of the day. This ideal is embodied in the recent “dementia tax.” Proponents advocate for a policy that would require a tax on those selfish individuals who did not have the decency to expire through an equitable and timely method. Such polices are fresh examples of a government failing to recognize the motivation of voters. The instinct to benefit loved ones after death is felt by rich and poor alike, and it is the part of the engine that drives continued social progress.

See Robert Shrimsley, Dementia Taxes and the Cursed Cult of Inheritance, Financial Times, May 24, 2017.

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

May 30, 2017 in Current Events, Disability Planning - Property Management, Elder Law, Estate Planning - Generally, Estate Tax, Income Tax | Permalink | Comments (0)