Wills, Trusts & Estates Prof Blog

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

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Wednesday, October 22, 2014

Paying For Elder Care

Medicare tax

The federal health insurance program for Americans over the age of 65 does not cover everything.  For example, long-term custodial care to assist with “activities of daily living,” which might include bathing, dressing, and eating, is not covered.

As many older people will eventually need such care, their families must find a way to pay for it.  Unfortunately, it is not cheap.  Privately purchased long-term care insurance is one way to handle some of these costs, though it is expensive.  Another solution is applying for Medicaid, a joint federal and state program.  In order to qualify, an elderly person must have total “countable assets” under a certain amount.  There are legal strategies that can help older people qualify for Medicaid, and below are a few options to look into:

  • Asset Protection Trusts. A properly established irrevocable trust is one way to shelter assets so they do not affect Medicare eligibility. 
  • Private Annuities. If a person needs to apply for Medicaid before the five-year look-back period expires, it is possible to preserve a portion of assets using a properly drafted private annuity or promissory note.
  • Personal Care Agreements. A lump sum paid to a caregiver for future services can do a number of things including: reduce the size of the estate so the person will be eligible for Medicaid, and purchase care beyond what Medicare provides. 
  • Spousal Refusal. Transferring assets from one spouse to another is not penalized under Medicaid.  However, the well spouse is legally obligated to provide for the other spouse’s care, and their collective assets will be considered for Medicaid eligibility purposes.  If the well spouse signs a spousal refusal, they effectively renounce that responsibility, making the other spouse immediately eligible for Medicaid.

See Greg Daugherty, Top 5 Strategies to Pay for Elder Care, Investopedia, Oct. 21, 2014.

October 22, 2014 in Elder Law, Estate Planning - Generally, Trusts | Permalink | Comments (0) | TrackBack (0)

Saturday, October 18, 2014

Passing With Regret

Older person

Many patients have expressed their regrets and unfulfilled wishes in the months before they die to Kerry Egan, a hospice Chaplain in South Carolina.  Although emotional, Ms. Egan states, “the stories about the time they waste hating their bodies, abusing it or letting it be abused—the years people spend not appreciating their body until they are close to leaving it—are some of the saddest.”

This body hatred stems not only from the media and magazines, but it can also come from a religious belief about the sinfulness of bodies.  Some women grow up thinking that their very existence in a body that might be sexually attractive to someone else is cause for shame, and their bodies make bad things occur just by existing. 

Unfortunately, it is only as a patient realizes that he or she will lose their body that they can finally realize how truly wonderful it is.  “I’d never admit it to my husband and kids, but more than anything else, it’s my own body I’ll miss most of all.  This body that danced and ate and swam and had sex and made babies.  It’s amazing to think about.  This body actually made my children.  It carried me through this world.  And I’m going to have to leave it.  I don’t have a choice.  And to think I spent all those years criticizing how it looked and never noticing how good it felt—until now when it never feels good.” 

See Kerry Egan, What the Dying Really Regret, CNN, Oct. 17, 2014. 

October 18, 2014 in Elder Law, Estate Planning - Generally | Permalink | Comments (0) | TrackBack (0)

Friday, October 17, 2014

Widowed Woman Allegedly Defrauded by Doctor

Last will and testament

In a Manhattan civil suit, an esteemed New York doctor is charged with maliciously gaining control of his wealthy widowed patient’s estate.  Helen Spears, the friend of the victim, filed the lawsuit and claims that the physician wrote himself into his patient’s will, stripping her of a multimillion-dollar inheritance. 

Spears contends that the doctor broke the law by doubling as both a primary care doctor and power of attorney.  Spears says that her 102-year-old friend is frail, vulnerable, and is unable to walk on her own, and would consequently want a judge to appoint her a guardian. 

See Alexandra Klausner, Top NYC Doctor Accused of Trying to Take Over Wealthy 102-Year-Old Widowed Patient’s Multimillion-Dollar Estate, Daily Mail, Oct. 16, 2014.

October 17, 2014 in Elder Law, Estate Administration, Estate Planning - Generally, Wills | Permalink | Comments (0) | TrackBack (0)

New Book: The Fundamentals of Elder Law, Cases and Materials

Elder LawA new casebook by Raymond C. O'Brien (Catholic-D.C.) & Michael T. Flannery (Arkansas-Little Rock) entitled The Fundamentals of Elder Law, Cases and Materials will be available October 25, 2014 and may be pre-ordered now. Provided below is a description of this new book:

This casebook contains the fundamentals for a lively, contemporary course in elder law. It emphasizes illustrative factual cases and statutes, and is supported by materials from elder law practitioners and statistical data. It is distinctive in its emphasis upon state and federal court decisions, not simply recitation of statutory provisions. Elder law is of burgeoning historical and social importance. Statistics indicate that by 2030 almost one-fifth of all Americans will be 65 or older. Among the legal issues pertinent to an aging population are estate planning objectives in the context of possible incapacity, integrating nonprobate and probate transfers, asset protection planning, philanthropy and dynasty options, and beneficial tax planning. Recently enacted statutes provide guidance in personal health care decision-making and designating guardians and surrogates to exercise authority when needed. And clients and institutions require legal assistance to navigate federal benefits such as Medicare, Social Security, Veterans Benefits, and the interaction of state-federal Medicaid opportunities. Statistics also indicate that almost two-thirds of all individuals over age 65 will need some form of long-term care. For many, the choices will involve home care or some form of institutional care, with payment derived from private funds, insurance, or government assistance. All of these options will involve legal parameters.

October 17, 2014 in Books, Books - For the Classroom, Elder Law, Estate Planning - Generally | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 15, 2014

Social Security: Now and Then

Social security

The Social Security Administration recently came out with a report on Social Security that compared aspects of the program from 1962 to 2012.  The report’s findings exposed the many ways in which Social Security has transformed the retirement landscape. 

First, the SSA report looked closely at the sources of income that Americans relied on at age 65 and older.  In 1962, more than two-thirds of Americans of retirement age received Social Security income, establishing it as a key aspect in financial planning for retirement.  By 2012, Social Security had become an even more important source of retirement income with 86 percent of all Americans over 65 receiving some benefit from the program. 

Social Security has had an even more notable impact on worker expectations.  In 1962, one out of every eleven Americans received money from private pensions from their employers, and the same number got retirement from governmental sponsored pension plans.  As Social Security became more popular, Americans realized the value of dependable monthly income after they stopped working and consequently, the percentage of those receiving private pensions has tripled in the past half-century.  Pensions for government employees have also grown more popular, indicating the value workers place in financial security in retirement. 

While retirees accumulate income from a variety of sources, they rely on those different sources to broadly varying degrees. When looking at actual aggregate income received, Social Security, work income, and pensions have all increased in influence, while the proportion of income from investments has sharply fallen.  This illustrates that most Americans have not done much in the realm of retirement planning and more Americans have continued to work beyond age 65 in order to make ends meet. 

See Dan Caplinger, 50 Years of Social Security: How It’s Transformed America’s Retirement, The Motley Fool, Oct. 12, 2014.

October 15, 2014 in Elder Law, Estate Planning - Generally, Non-Probate Assets | Permalink | Comments (0) | TrackBack (0)

Monday, October 13, 2014

The Worst Countries for Older Residents

Afghanistan

There are approximately 868 million people across the globe who are at least sixty years or older.  This comprises about twelve percent of the world’s population and by 2050, it is estimated that more than two billion people, or 21% of the global population will be sixty or older. 

HelpAge International recently ranked the social and economic well-being of older residents in ninety-six countries in the “Global AgeWatch 2014 Index.”  The report rated each country on four broad factors important to an aging population: supporting income security, fostering good health, employment and education, and the overall environment for older residents.  While Norway was rated the best country for elder residents, Afghanistan was rated the worst country for older people for the second consecutive year.  Provided below are the worst countries to grow old in according to the report:

  1. Afghanistan
  2. Mozambique
  3. West Bank and Gaza
  4. Malawi
  5. The United Republic of Tanzania
  6. Pakistan
  7. Jordan
  8. Uganda
  9. Zambia
  10. Iraq

See Alexander E.M. Hess and Thomas C. Frohlich, The Worst Countries to Grow Old In, USA Today, Oct. 12, 2014.

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

October 13, 2014 in Elder Law, Estate Planning - Generally, Travel | Permalink | Comments (0) | TrackBack (0)

Saturday, October 11, 2014

Green Burials Gaining Popularity

Tree

Jay Castano knows that when he dies, he wants to be wrapped in a shroud and put straight into the earth.  “They can call it a Chipotle funeral.  They can wrap me up and throw me there and cover me up with some grass and soil.”  Although the 65-year-old has no intention to die soon, he does plan to become part of the “green burial” movement, which is a push to strip away the trappings of the modern funeral industry and get back to basics.  “I want to be part of a tree, be part of a flower—go back to being part of the earth,” he says. 

As many baby boomers head towards retirement and thereafter, they want something different, “something that not many other people are doing.”  While there are no firm statistics on how many natural burials take place, a 2008 survey by a funeral industry researcher found that 43 percent of respondents would consider having an eco-friendly burial. 

In recent years, green burials has seen a wave of entrepreneurs offering imaginative options for those who choose cremation: a biodegradable urn that contains a seed so a tree will grow from the ashes, a Chicago company that turns human ashes into diamonds; a British firm that presses ashes into vinyl records; and a field of Etsy vendors who will turn your loved ones into glass art or canvas painting. 

See Ellen McCarthy, ‘Green Burials’ Are on the Rise As Baby Boomers Plan for Their Future, and Funerals, The Washington Post, Oct. 6, 2014.

Special thanks to Naomi Cahn (Harold H. Greene Professor of Law, George Washington University School of Law) for bringing this article to my attention.

October 11, 2014 in Death Event Planning, Elder Law, Estate Planning - Generally | Permalink | Comments (1) | TrackBack (0)

Thursday, October 9, 2014

Women and Social Security

Woman

Social Security is a significant component in retirement income; and more so for women, who generally live longer than men and are more likely to be single.  Because women tend to take time out of the workforce to care for children or aging parents, they earn less than men on average, therefore, their overall career earnings and savings may be lower.  Below are a few things women should keep in mind:

  1. Try to Delay.  You can begin taking retirement benefits at age 62, rather than waiting until your full retirement age (FRA), which is between 65 to 67.  If you take Social Security before your FRA, the amount of your monthly benefit payment will be reduced.  If you delay collecting benefits beyond your FRA, the amount of your monthly benefit will increase each year until you reach 70.
  2. Keep Working and Receive Social Security.  Even if you are still working or earning self-employed income you can collect Social Security.  However, there is an important caveat.  If you collect prior to your FRA, your benefit amount may be reduced based on the level of your earned income.  When you reach your FRA, there is no penalty for working and claiming Social Security.
  3. You have Options If you are Married, Widowed, or Divorced.  If married, you can receive Social Security payments based on your own earnings record or collect a spousal benefit of up to 50% of your spouse’s full Social Security benefit.  If divorced, you may be eligible to receive benefits based on your ex-spouse’s work history.  If you are a widow, you are eligible to collect your spouse’s Social Security payments as a survivor benefit. 

See Fidelity Viewpoints, How Women Can Get the Most from Social Security, Forbes, Oct. 7, 2014.

October 9, 2014 in Elder Law, Estate Planning - Generally, Non-Probate Assets | Permalink | Comments (0) | TrackBack (0)

CLE on Suspected Elder Abuse

CLEThe American Law Institute Continuing Legal Education (ALI CLE) is presenting a CLE entitled, Suspected Elder Abuse: Helping Your Clients and Their Loved Ones, Wednesday, October 15, 2014, 11am – 12:30pm Eastern, online and by phone. Here is why you should attend:

You know something is wrong but what can you do if you suspect your older client needs help?

Unlike child abuse or domestic abuse, elder abuse, and its many forms, has not been at the forefront of the public’s understanding and perception as a serious problem. Many lawyers can feel like their hands are ethically tied when they suspect an older client needs help.  Learn what you need to know in terms of elder abuse and legal remedies available to your clients.

Join us as we discuss:

  • identifying signs of elder abuse
  • elder abuse during lifetime: physical abuse and financial exploitation
  • estate contests: mental capacity and undue influence
  • ethical considerations: what the lawyer can and cannot do

October 9, 2014 in Conferences & CLE, Elder Law, Estate Planning - Generally | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 7, 2014

Keys to Being a Health Care Proxy

Hospital care

Being a health care proxy can be one of the most serious responsibilities conferred upon you.  This power to make medical decisions for your loved ones in case he or she cannot, encompasses talking with your loved one’s medical tam about treatment choices and deciding on a course of action.  It may also entail making end-of-life decisions.  Below are some guidelines in taking on such massive responsibilities:

  • Be able to say no. You do not always have to be someone’s health care proxy if they ask.  “It may be hard enough coping, even without the added responsibilities of making health care decisions.  But it is an important way to help someone you care about.”
  • Understand the lingo. There are three kinds of health care proxies: agent, surrogate and guardian.  In all cases, a proxy is a person who can make health care decisions for someone else.
  • Talk it over. “Spend time discussing the wishes of the individual at the time you agree to serve as the agent.  Discuss religious and moral beliefs to know how they would make decisions on medical care.  Do not be afraid to address the issues.”
  • Get access to records. You should have access to your loved one’s medical records and any information you need about the patient’s health or health care.  Ask for clear explanations so you can understand the patient’s medical condition and what treatment options are available.

See Pamela Yip, Learn Your Loved One’s End-of-Life Wishes While You Can, Dallas News, Oct. 3, 2014.

October 7, 2014 in Disability Planning - Health Care, Elder Law, Estate Planning - Generally, Guardianship | Permalink | Comments (0) | TrackBack (0)