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
Marlin 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.
Tuesday, June 13, 2017
The 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.
Tuesday, May 30, 2017
It 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.
Wednesday, May 24, 2017
Ernie MacNeill, a longtime contractor and a Certified Aging in Place Specialist (CAPS), points out problem spots as he tours Elliot Goldberg’s home. MacNeill makes note of carpet that needs to be taken up to remove it a possible tripping hazard, doorways that need widening to possibly accommodate a wheelchair, and discusses moving a closet to make space for an electric lift. Goldberg, 71, has difficulty traversing the multi-storied space . Despite living in a three-floor, split-level home, memories of a deceased wife and family keep him from relocating. MacNeill, part of a growing group of specialists, focuses part of his practice on remodeling homes for aging homeowners that may have mobility and access issues.
There are currently around 3,500 CAPS graduates spanning across the country, but their dispersion is uneven and focused in large cities. While the need for such individuals may be growing, their relative scarcity leaves a gap that has been partially filled by occupational therapists. Though not performing the work of tearing down walls and ripping up carpet, these individuals make suggestions to clients to alleviate some of the common risks found in the home. These suggestions include installing bars in the tub, adding curbless showers, improving lighting, and installing stairless walkways.
While these solutions are practical and may potentially save trips to the emergency room, many of these changes come at a high price. To counter this, some architects have proliferated the idea of a “universal design.” This would encompass some safety features, like a zero-step entrance, with a selling point considering not just the elderly but also the parent hauling twins with a stroller in tow. By incorporating these design features into new homes and scheduled remodels, contractors create a living space their clients can enjoy even as they age and become less mobile.
See Paula Span, Planning to Age in Place? Find a Contractor Now, N.Y. Times, May 19, 2017.
Special thanks to Lewis Saret (Attorney, Washington, D.C.) for bringing this article to my attention.
Monday, May 15, 2017
Bernard A. Krooks & Benjamin A. Rubin recently published an Article entitled, ABLE Accounts: What Trusts and Estates Lawyers Need to Know, 31 Probate & Property 40 (May/June 2017). Provided below is an abstract of the Article:
Individuals with special needs and their families and advisors are now able to set up ABLE (Achieving a Better Life Experience) accounts under Internal Revenue Code § 529A. These tax-free accounts do not affect an individual’s eligibility for Supplemental Security Income (SSI) or Medicaid so long as certain requirements are met. Currently, at least 19 states are operating ABLE accounts and several more have announced plans to launch ABLE accounts in 2017. Most states allow out-of-state residents to open accounts. Thus, it is generally not necessary for clients to wait until their home state offers ABLE accounts to establish one. When first enacted, the ABLE law prohibited out-of-state residents from setting up accounts. In 2015, however, Congress removed this provision.
Although ABLE accounts offer many benefits, it is important to understand the applicable limitations and how they compare to special needs trusts. In some cases, it may be appropriate for an individual to have both an ABLE account and a special needs trust (SNT). Keep in mind that the individual with disabilities is generally considered the owner of the ABLE account even if a third party (parent, grandparent, among others) contributes funds to the account. There are two kinds of SNTs: first-party SNTs and third-party SNTs. First-party SNTs are funded with the assets of the individual with disabilities. By contrast, third-party SNTs are created by someone other than the beneficiary with disabilities and are a common estate planning tool used to improve the quality of life of an individual with disabilities while allowing that person to maintain his government benefits. A major characteristic that distinguishes a third-party SNT from a first-party SNT is that, on th death of the beneficiary, funds remaining in the first-party SNT must be used first to repay the states’ Medicaid programs the beneficiary received services from for expenses incurred; whereas, in a third-party SNT there is no such requirement. Thus, at the death of the beneficiary of a third-party SNT, any remaining funds may be distributed to other family members or beneficiaries. This distinguishes third-party SNTs substantially from ABLE accounts as will be discussed further later in this article.
Wednesday, April 26, 2017
“S-Town” is the successor podcast to the famous “Serial” podcast. The podcast depicts the anti-hero, John B., who lives in a house on 128 acres in Woodstock, Alabama with his mother who suffers from dementia. Most residents of Woodstock thought John B. was a wealthy man, but upon committing suicide, he dies without a will and without a plan for someone to take care of his mother. However, John B. did leave instructions with a friend about what to do and who to contact after his death. His story represents several estate planning lessons. You should always choose a will over a set of instructions, but leaving both is not a bad idea. Without a will, your assets will pass to those heirs designated by the estate, and your loved ones will be cared for by a relative willing to serve as guardian, both scenarios may not represent your true wishes.
See Jay Brinker, Don’t Be Like John B. (Estate Planning Lessons from “S-Town”), Jay Brinker Blog, April 21, 2017.
Monday, April 17, 2017
A recent study, conducted by Amy Ziettlow and Naomi Cahn and detailed in Homeward Bound: Modern Families, Elder Care, and Loss, presents evidence that as the family structure becomes more complex, elder care also becomes more complex, leaving institutions unprepared to handle these realities. As 79 million Baby Boomers encounter old age, their diverse family structures will need to sustain the burden of care, often relying on the support of different family members than in the past. Specifically, Ziettlow and Cahn reveal how current approaches to elder care are cemented in outdated caregiving models, which presume life-long connections and valuable safety nets for late-in-life caregiving. Accordingly, the authors present solutions centering on awareness and preparation: additional support for individual incapacity and death planning, and the creation of legal, political, and social planning for American elders during a time of increasingly complex familial ties.
See Amy Ziettlow & Naomi Cahn, Family Scholars Find Modern Families Need Extra Help When a Loved One Dies, Homeward Bound: Modern Families, Elder Care and Loss, April 10, 2017.
Monday, March 13, 2017
Marvin E. Blum recently published an Article entitled, Filling in the Gaps: Create a “Red File” for Clients to Cover Issues Beyond Traditional Estate Planning, Tr. & Est. 68 (Feb. 2017). Provided below is an abstract of the Article:
Most estate planners will agree that one of the most formidable obstacles to the planning process is the general reluctance of clients to discuss their own mortality. There’s one significant motivating factor, however, that drives clients to confront their mortality and plan for their incapacity and death: control. Clients want to ensure that on incapacity, they’re cared for as they wish and on death, their assets pass exactly how they would like. While crafting an estate plan, both planners and clients tend to focus on the effective and tax-efficient distribution of the client’s assets. It’s all too common for a client to walk away with a perfectly crafted portfolio of estate-planning documents that expertly disseminates the client’s property but fails to provide the control so desperately desired. How is it possible for a perfect plan to be so imperfect? The answer lies outside of the formal estate-planning documents and accordingly often goes overlooked by planners and clients alike, but the answer, itself, is simple. By adding a “red file” to the traditional batch of estate-planning documents, clients increase their level of control in two key areas: (1) incapacity, and (2) administration of the estate at death.
As part of the planning process, estate planners should encourage clients to create a red file and guide them on how to do it. Essentially, a red file is a notebook or other centralized source of information that will not only aid an executor in navigating the waters of estate administration, but also will make very clear the wishes of a client in the event he becomes incapacitated in the future.
While only clients can actually establish the red file, estate planners should provide their clients with a framework of guidelines for what it should contain. There’s no specific formula for what makes a red file effective, but clients should know that the more information they include, the more helpful it will be to those managing their assets or making care decisions on their behalf.
Sunday, January 8, 2017
With the recent election of Donald Trump, the elderly and special needs populations are likely to see changes. The President-elect has claimed that Social Security and Medicare will remain intact and solvent. How he plans to make this happen is something that has younger generations worried about the preservation of the fiscal health. For those who rely on Medicaid, block grants could go into effect, which could create profound changes for individual states, creating uncertainty and concern for planning needs. Additionally, the block grants will potentially affect special needs trusts, reducing or eliminating the benefits they provide. These possible Medicaid changes could also see many older homeowners losing their homes, a legacy for future generations, if the Medicaid program cannot pay for the cost of skilled nursing, keeping them from selling their homes and moving into nursing homes. Ultimately, in the near future, families will become more insular and protective of one another, and there will be high demand for multi-generational planning.
See Michael Gilfix, How Trump Policies Could Affect the Elderly and Those with Special Needs, Wealth Management, January 6, 2017.
Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.
Friday, December 9, 2016
First 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.