Wills, Trusts & Estates Prof Blog

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

A Member of the Law Professor Blogs Network

Saturday, September 13, 2014

Home Video Reveals Elder Abuse by Home Care Aides

Elder Care

Peter Mazza needed assistance with daily activities at the age of 99, but wanted to live out his days at his home in Staten Island, N.Y. To honor Mazza’s wishes, his family hired home-health aides through Visiting Nurse Service of New York, Partners in Care. The family had previously had a bad experience with home health aides so they installed video cameras in the home prior to hiring the new aides, and say that they informed both the company and the aides of the presence of the cameras.

Mazza sustained injuries due to a fall in April and died in a nursing home in June. Mazza's family claims that the cameras reveal multiple incidences of severe abuse and neglect, including an aide refusing to assist Mazza to reach his walker, which resulted in the fall that caused his injuries. The family is currently suing Partners in Care. The company has fired or suspended the aides involved.

See Frank Donnelly, Shocking Video at Center of Lawsuit Alleging Home Health Aides Abused 99-Year-Old Staten Island Man, SILive, Sept. 9, 2014.

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

September 13, 2014 in Current Affairs, Current Events, Disability Planning - Health Care, Elder Law, Estate Planning - Generally | Permalink | Comments (0) | TrackBack (0)

Friday, September 12, 2014

Joan Rivers' Lessons on Pet Planning

Joan rivers dog 2

Joan Rivers’ death has left millions of fans mourning her loss as she represented a huge step forward for women in comedy. 

When it came to ensuring her loved ones were provided for upon her death, Rivers’ did an A List job.  Rivers leaves behind a valuable estate-planning lesson that many could learn from, which would be how to make sure your pets are cared for after you are gone.

Rivers had a simple estate plan as she left the bulk of her estate to her daughter, Melissa, by way of a family trust.  Additionally, Rivers made sure her four dogs would be taken care of, “She loved her dogs dearly, and they meant so much to her . . . dogs have become accepted as much essential family members that providing for them well in life, and after death, is considered quite normal.” 

Although trust laws vary from state to state, traditional pet trusts are effective everywhere.  Such trusts allow you to make very specific arrangements about the type of care you want your pets to receive and how the money you use to fund the trust will be managed and used over the pets’ lifetimes.  Traditional pet trusts allow you to go into as much detail as you desire about how exactly your pets should be treated. 

See Dan Caplinger, What Joan Rivers Just Taught Pet Lovers About Estate Planning, Daily Finance, Sept. 11, 2014.

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

September 12, 2014 in Elder Law, Estate Administration, Estate Planning - Generally, Trusts | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 10, 2014

End of Life Lessons from Joan Rivers

Joan rivers

Joan Rivers, an iconic comedian, passed away last week, and her death seemed to shock the hearts of many.  But why was her death so alarming?  Perhaps it was her vivacity, zest, and boldness that made her seem anything but eighty-one.  Perhaps it was because Rivers, unlike many of us, was not uncomfortable with the notion of growing old or dying.  She told jokes about death—even her late husband’s suicide was not out of bounds. 

Rivers was never afraid to face the reality that she was growing older.  Losing her memory because of aging was one of her go-to comedy sources, “I must admit I am nervous about getting Alzheimer’s.  Once it hits, I might tell my best joke and never know it.” 

While estate planning is about wills and trusts, it is also so much more than that.  End of life planning is a critical aspect of this field of law, evidenced by Rivers.  On September 4, Melissa Rivers made the decision to take her mother off life support.  Although a difficult decision, she knew it was the right one, as this was a conversation she and her mother had previously had. 

Advance directives allow family members to make medical and termination of life support decisions for someone who becomes unable to do so.

See Danielle and Andy Mayoras, Joan Rivers Can Help With Difficult End-Of-Life Conversations, Forbes, Sept. 10, 2014. 

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

September 10, 2014 in Death Event Planning, Elder Law, Estate Planning - Generally | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 9, 2014

Elderly Couple's Marriage Questioned

Old newlyweds

After 96-year-old Edith Hill and 95-year-old Eddie Harrison had been companions for more than a decade, they finally married earlier this year.  Hill’s daughter, Rebecca Wright, does not understand the fuss over her mother’s marriage, “Anybody who wants to get married must have a little dementia.” 

However, the courts are not amused and the future for the newlyweds remains uncertain.  Legally, the wedding has been problematic, as Hill has been declared incapacitated for several years.  At a hearing earlier this month a judge said he believes that Wright, co-guardian over her mother, acted improperly by taking her mother to get married without the court’s permission. 

Cary Cuccinelli, represents Patricia Barber, the sister who opposed the marriage, said that the wedding occurred without other family members’ knowledge, and that it complicated the matter of how to eventually distribute Hill’s estate.  “Legally, Mr. Harrison now has a right to a portion of Ms. Hill’s estate.

The judge removed Wright and Barber as Hill’s guardians and subsequently appointed a lawyer, instructing her to “investigate the marriage and take all actions appropriate and reasonable to protect the best interests of Edith Hill.”    

See Matthew Barakat, Marriage of Newlyweds, Ages 96 and 95, Questioned, SF Gate, Sept. 9, 2014.

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

September 9, 2014 in Elder Law, Estate Administration, Estate Planning - Generally, Guardianship | Permalink | Comments (0) | TrackBack (0)

Thursday, September 4, 2014

Article on Filial Responsibility

Filial responsibility

Christina Lesher (Law Offices of Christina Lesher), Andrea Wilson (The Methodist Hospital System), and Kerrie Wesley (Law Office of Kerrie A. Wesley) recently published an article entitled, Whose Bill is it Anyway? Adult Children’s Responsibility to Care for Parents, Estate Planning and Community Property Law Journal, Vol. 6 No. 2, 247-278 (2014).  Provided below is a portion of the article’s introduction:

Over the next few decades, the elderly population of the United States will expand exponentially, as the Baby Boomer generation ages.  Though Social Security and other government programs have aided in sustaining the financial stability of Americans for the better part of a century, the system now lacks resources.  As more of the work force retires, fewer tax dollars go into the system to maintain a population that will likely have a longer life expectancy than any generation before it.  Seeking a solution to this problem, some have proposed a utilization of filial responsibility statutes, which place a heightened level of responsibility for the welfare of the elderly on family members, rather than on the government. 

In recent years, there has been growing discussion of filial responsibility statutes among legal scholars.  If such policies were effectively implemented, they could potentially ease the burden on government coffers.  However, these laws also come with the potential for a significant impact on Medicaid eligibility.  This article aims to provide an overview of filial responsibility laws and to explain how it factors into Medicaid estate planning. 

September 4, 2014 in Articles, Disability Planning - Health Care, Elder Law, Estate Planning - Generally | Permalink | Comments (0) | TrackBack (0)

Article on Complex Decision-Making and Cognitive Aging Call for Enhanced Protection of Seniors Contemplating Reverse Mortgages

Debra StarkDebra Pogrund Stark (The John Marshall Law School), Jessica M. Choplin (DePaul University), Joseph A. Mikels (DePaul University), and Amber Schonbrun McDonnell (The John Marshall Law School), recently published an article entitled, Complex Decision-Making and Cognitive Aging Call for Enhanced Protection of Seniors Contemplating Reverse Mortgages, Arizona State Law Journal, Vol. 46, 2014. Provided below is the abstract from SSRN:

This article explains what reverse mortgages are and how they work. It also analyzes who could potentially benefit from them, but why this type of loan is so problematic for many seniors. The article then considers steps that can be taken to improve the effectiveness of current federal rules and counseling protocols to enable seniors to make well-informed decisions keeping in mind cognitive barriers and the complicated nature of this loan product.

Because many seniors may not be noticing the high costs associated with federally insured reverse mortgages, many believe these loans are now the product of choice for “predatory lending.”

September 4, 2014 in Articles, Elder Law, Estate Planning - Generally | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 3, 2014

New Illinois Probate Law Creates Presumption of Fraud

Anti-FraudIllinois has passed a new law that creates enhanced protection against elder financial abuse by non-family member caregivers. The new law creates a presumption in favor of voiding a transfer of property that is through a transfer instrument, such as a will, if the transfer is over $20,000. The law applies to transfers that are to someone defined by the statute as a “caregiver,” which excludes family members. The law will affect challenged transfers that are made through a transfer instrument that is executed on or after Jan. 1, 2015.

See Jeffrey R. Gottlieb, New Illinois Law Questions Bequests to Non-Family Caregivers, Illinois Estate Plan, Sept. 2, 2014.

September 3, 2014 in Elder Law, Estate Administration, Estate Planning - Generally, New Legislation, Wills | Permalink | Comments (0) | TrackBack (0)

Friday, August 29, 2014

Retirement Made Easy By 'Unretirement'

Retirement

In his new book entitled, Unretirement, Chris Farrell asserts that developing skills can help you earn income past traditional retirement age offers a better return on investment than any other financial instrument. 

Farrell defines “unretirement” as the financial impact of working longer.  If people can work into their 60s, they will make much more in the course of a year than they could from saving.  This changes the financial landscape, as people will no longer need to tap into their retirement nest egg during these years. 

The first place to being is by asking yourself what kind of work you want to be doing.  “Don’t romanticize any particular idea—research it.  Think about how you can take your existing skills and move into a different sector of the economy with those.” 

The notion of “unretirement” further suggests that you can wait to claim social security, which in turn creates a wealthier society, healing the economic crisis.

See Mark Miller, Why ‘Unretirement’ Might Be Your Best Retirement Strategy, Reuters, Aug. 28, 2014. 

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

August 29, 2014 in Books, Elder Law, Estate Planning - Generally | Permalink | Comments (0) | TrackBack (0)

Thursday, August 28, 2014

Beyond the Five-Star Nursing Home Rating System

Nursing home

I previously discussed the recent New York Times investigative report on Medicare’s deceiving five-star rating system for nursing home systems. 

The real problem is that nursing homes are measuring the incorrect things; a wise consumer should view the five-star system as only one tool in the search for the best possible facility.  While the five-star system may be a good reference, do not stop there.  Visit facilities and look beyond the lobby.  Talk to residents and their families.  Talk to nurses and aides. 

It is also important to keep in mind that Medicare is mostly rating safety rather than quality.  Medicare says very little about whether a facility provides high-quality, person-centered care that responds to individual needs of its patients and residents. 

The Medicare rating system may be best used as an initial screen to help which facilities to look at more closely.  While it is easy for facilities to game numbers, Medicare is measuring the wrong things.

See Howard Gleckman, Looking Beyond Medicare’s Nursing Home Ratings: What to Know Before Picking a Facility, Forbes, Aug. 27, 2014.

August 28, 2014 in Disability Planning - Health Care, Elder Law, Estate Planning - Generally | Permalink | Comments (0) | TrackBack (0)

Tuesday, August 26, 2014

Seven Cardinal Rules of Retirement Planning

Retirement planning

Financial planning for retirement has always been an overwhelming prospect; the existing economic landscape makes preparation that much more important in utilizing assets appropriately.  There are seven important points everyone should know when it comes to retirement planning:

  1. Don’t time the market. Markets move in cycles and investors are terrible at correctly predicting market movements.  Stay calm and focus on long-term strategy.
  2. Use risk-appropriate financial vehicles. While eliminating risk isn’t possible, you can manage it through competent retirement planning and an understanding of goals and financial circumstances.
  3. Invest tax efficiently.  Taxes can hurt investment returns, this is why it is important to structure your investments so that you are able to keep what you earn.
  4. Complete a cash flow analysis.  This will identify spending patterns and help ensure you have enough income to support your retirement lifestyle.
  5. Guarantee your required income.  Having income that is not subject to market fluctuations is an important part of a retirement plan.  A financial advisor can help you explore options for additional streams of income for life.
  6. Longevity planning. Longevity planning is about preparing for a comfortable retirement and helps ensure your wealth lasts as long as you need it to.
  7. Effects of inflation.  Inflation is a big issue because retirees can disproportionately be affected by rising prices.  Positioning your retirement portfolio to fight inflation is crucial to ensuring adequate income in retirement. 

See Carl Edwards, Retirement Planning: Seven Cardinal Rules, My San Antonio, Aug. 26, 2014.

August 26, 2014 in Elder Law, Estate Planning - Generally, Non-Probate Assets | Permalink | Comments (0) | TrackBack (0)