Wills, Trusts & Estates Prof Blog

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

Friday, December 9, 2016

The Special Needs Trust Fairness Act Has Passed

Special needs trustFirst Party Special Needs Trusts are established under 42 U.S.C. § 1396p(d)(4)(A). The prior federal statute only allowed the trusts to be set up by a disabled individual’s family member, not the person with the disability. The law presumed that individuals with disabilities lacked the mental capacity to establish a trust. The Special Needs Trust Fairness Act has now passed the House and Senate. This Act will allow a disabled individual to establish his or her own special needs trust. The President is expected to sign the bill soon.

See It Passed!: The Special Needs Trust Fairness Act Has Passed Both the House and the Senate and Is on Its Way to the President for Signature, The Interactive Legal Team, December 7, 2016.

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

December 9, 2016 in Current Events, Disability Planning - Health Care, Disability Planning - Property Management, Estate Planning - Generally, Trusts | Permalink | Comments (0)

Friday, November 11, 2016

End-of-Life Estate Plan Lessons

Estate plan lessonsIt can be hard to think about the time you might be incapable of making basic decisions, but it is an absolute must for someone with estate plans. There are a few lessons to learn when making the right decisions for your future. First, make your location wishes known and explain your thought process, so that the decision-maker has all the necessary information when the time comes. Second, pick strong surrogates who are capable of standing in your place and managing your sophisticated finances. Finally, do not leave a child who is easily heartbroken to make hard decisions about your end-of-life needs. The emotional challenge is huge, so the person needs to be able to communicate your wishes even at the most painful times. 

See Sonia Talati, Three End-of-Life Estate Plan Lessons, Barron’s, November 8, 2016.

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

November 11, 2016 in Disability Planning - Health Care, Disability Planning - Property Management, Estate Planning - Generally | Permalink | Comments (0)

Thursday, October 13, 2016

Buy-Sell Agreements at the Time of Ownership Transfer Events

Buy-sell agreementA buy-sell agreement usually ensures the continuity of ownership in the business and, in practice, most deal with two events: death and disability of the owner. But, what about other transfer events that are often more harmful to the remaining owners? For example, does your client’s buy-sell agreement cover transfers caused by personal bankruptcy or divorce; forced termination of the owner’s employment; or irreconcilable differences amongst the owners? 

In the incident of bankruptcy or divorce, the buy-sell agreement should give the business first opportunity to acquire that owner’s interest at the time of this involuntary transfer. On the other hand, no simple provision exists to deal with the termination of an owner’s employment. Instead, a client should seek an advisor that will help the owners weigh the alternatives. Possibly the most valuable asset of a buy-sell agreement becomes available when owners get locked into a bitter dispute. The agreement often settles this dispute by forcing one or more of the irritated owners to sell their ownership and leave the business. 

See John Brown, Buy-Sell Agreements Ignore Most Lifetime Ownershihp Transfer Events, BEI Exit Planning Solutions, October 10, 2016. 

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

 

October 13, 2016 in Disability Planning - Property Management, Estate Planning - Generally | Permalink | Comments (0)

Saturday, August 6, 2016

Retirement and Estate Planning for Alzheimer's

Alzheimers developA study shows that Americans fear developing Alzheimer’s more than any other life‑threatening disease. It also shows that Americans fear the inability to care for themselves if diagnosed. This fear is valid because the end-of-life care for Alzheimer’s patients is often underestimated and more expensive than cancer or heart disease. Insurance pays for a portion of these costs but not all, so it is important to appropriately plan a retirement and estate plan. Accordingly, you must identify family members to be included in financial plans and any projected costs that can be covered by government benefits.

See Art Koff, What to Know About Alzheimer’s and Retirement Planning, Market Watch, July 7, 2016.

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

August 6, 2016 in Disability Planning - Health Care, Disability Planning - Property Management, Elder Law, Estate Planning - Generally | Permalink | Comments (0)

Saturday, May 21, 2016

Article on Estate Planning for Vulnerable Clients

ShenkmanMartin M. Shenkman recently published an article entitled, Estate Planning for the Chronically Ill, Aging, and Otherwise Vulnerable or Isolated Client, ABA Probate & Property, May/June (2016). Provided below is a summary of the Article:        

        Attorneys routinely build flexibility into their documents to address the uncertainty of future tax laws. This same care can be applied to helping clients deal with the uncertainties aging and chronic disease may bring. Certain clients are more vulnerable to financial abuse and other gaps in their estate planning safety nets. This heightened risk may be because of the challenges of aging, chronic illness, and other similar circumstances. Those clients who require extra precautions in the planning process will be referred to as “vulnerable clients.” This article will explore four key points of planning for vulnerable clients: different approaches for planning, planning for those with chronic illness, enhancing traditional estate planning for vulnerable clients, and planning for isolated vulnerable clients.

May 21, 2016 in Articles, Disability Planning - Property Management, Elder Law, Estate Planning - Generally | Permalink | Comments (0)

Thursday, May 12, 2016

First ABLE Accounts Should Come Into Existence This Summer

ABLEIt has been more than a year and a half since legislation was passed that should make it easier for people with disabilities to save money without jeopardizing their federal benefits.  The first ABLE accounts are expected to become available this summer as a handful of states open up their ABLE programs.  The State of Nebraska was the first to announce a launch date of June 30, but Ohio could also offer ABLE accounts even sooner.  “The new offering was created by the federal Achieving a Better Life Ex perience, or ABLE, Act, which became law in 2014.”  The programs will be different in each state and it is important for people to be aware of the local rules and regulations.  If done right this program can be very beneficial for people who are disabled. 

See Michelle Diament, First ABLE Accounts Expected This Summer, disability scoop, May 10, 2016.

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

May 12, 2016 in Current Affairs, Disability Planning - Property Management, Estate Planning - Generally, Trusts | Permalink | Comments (0)

Tuesday, May 10, 2016

Undesirable Residents Being Forced Out Of Care Facilities Through Eviction

Nursing HomeLong-term care facilities are in the business of taking in people that require high levels of assistance and providing them with a stable environment for their final years. However, not all patients are the same and a new trend has emerged which sees time intensive and high maintenance patients being evicted. This is done, in no small part, to open up beds for individuals who require less attention and, as a result, cost less money to care for. Those targeted for eviction tend to be suffering from disorders that require high levels of care such as dementia. In addition, residents with family members that are viewed as difficult also tend to be targeted since they often request additional service and attention compared to others. As a result of this eviction trend, advocacy groups are calling for overhauls to state and federal law which dictate the circumstances under which a patient may be forced out of a facility. Until then, however, long-term care facilities will continue to have great leeway when it comes to choosing who gets to stay and who needs to go.

See Matt Sedensky, Nursing homes turn to eviction to drop difficult patients, The Seattle Times, May 8, 2016.

May 10, 2016 in Disability Planning - Health Care, Disability Planning - Property Management, Elder Law | Permalink | Comments (0)

Tuesday, May 3, 2016

Some Estate Planning Steps To Take With Special Needs Children

Piggy BankEstate planning for special needs children is particularly difficult since there are a number of special considerations that must be accounted not the least of which is the high cost that can be associated with care. Whether the child is a minor or an adult that is unable to care for themselves there is much that must be done in order to protect their interest. For starters, documents that outline the history, be it personal or medical, of the child such as letters of intent are worth drafting since they can impart much useful knowledge to any future caregiver. In addition, making arrangement for the financial stability of the child is paramount which is why executing a will or creating a special needs trust is key. A trust in particular is important since it can help provide for the care of the child while not interfering with the ability to receive public assistance. In any event, it is best to consult with a professional estate planner when preparing for the future of a child with special needs in order to maximize the quality of the future care and lifestyle.

See, Raising a Child With Special NeedsIdaho Estate Planning, April 28, 2016.

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

May 3, 2016 in Disability Planning - Health Care, Disability Planning - Property Management, Estate Planning - Generally | Permalink | Comments (0)

Monday, April 25, 2016

Estate Planning When A Spouse Moves Into A Nursing Home Facility

ElderlyFinancial planning for retirement can be difficult, and it can be even more troublesome when dealing with the expenses of a spouse moving into a nursing home facility.  This article discusses the Medical Assistance qualified annuity which is a planning tool that can be useful to someone whose spouse is already in a nursing home facility.  This is a means-tested program in order for the institutionalized spouse to become eligible they may be required to spend down excess resources.  “A Medical Assistance qualified annuity is an immediate annuity that is basically a contract between an individual and an insurance company by which the individual pays a sum of money and the insurance company sends the individual a fixed monthly check for the rest of that individual’s life or for a period of time less than that individual’s life.”

See Julian Gray and Frank Petrich, Elder Law Guys: Planning finances when spouse moves to nursing facility, Pittsburgh Post-Gazette, April 25, 2016.

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

April 25, 2016 in Disability Planning - Property Management, Elder Law, Estate Planning - Generally, Trusts | Permalink | Comments (0)

Thursday, April 21, 2016

Advanced Directives Are A Great Way To Ensure Your Future Wishes Are Respected

Pen and PaperAs old age approaches, many people begin to consider what their last wishes will be particularly in regards to how their property and health will be managed in the event of incapacitation. However, while many think, few plan and largely allow their wishes to be forgotten or ignored since they take no affirmative action to legally bind others to their desires. This is where an advanced directive can come into play since they allow for instructions to be given about care which must be followed by later decision makers. In addition to instructions, the advanced directive can appoint a specific person to carry out the wishes of the directive's creator. An advanced directive can be supplemented by a living will which dictates what level of end of life care will be given under certain circumstances. But, despite the advantages of these documents, relatively few people take advantage of what they have to offer although greater education about the benefits is slowly pushing more people in the right direction.

See Jamie Zuckerman, Why Do So Few Americans Have Advance Directives?, Wealth Management, April 18, 2016.

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

April 21, 2016 in Death Event Planning, Disability Planning - Health Care, Disability Planning - Property Management, Estate Planning - Generally | Permalink | Comments (0)