Wills, Trusts & Estates Prof Blog

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

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Monday, July 28, 2014

Caring for an Ailing Spouse


When one spouse has a chronic illness there are obvious challenges facing the couple.  Provided below are various answers from couples as to how they have made their difficult situation work.  Not only do they say that it takes love, mutual devotion, acceptance and a positive outlook, but they also credit friends and family, medical professionals and social services for help. 

  • Privilege to Provide Care.  David Steiner took care of his wife, Mary, who was confined to a wheelchair for 12 years and says it was a privilege.  “I am so grateful for the time we had and the help I had from all of the health care professionals over the years . . . I learned from her and from them how very precious life is.” 
  • Significance of Support.  Deborah Ruppert suffers from three conditions, and her husband handles household chores.  The couple does not have a car so they rely on the Red Cross Ride Connection and friends for transportation.  Deborah says that has been the key to maintaining a healthy marriage, “There is NO good way to do this in the current nuclear family oriented society we have,” stressing that a village approach would help partners share the burden of caregiving together.
  • Pay it Forward.  Brie Stoianoff cares for her husband Kevin who has multiple sclerosis.  While it is stressful to raise a four-year-old, deal with MS and work, Brie and her husband have found positive ways to respond to MS.  They have raised more than $200,000 for MS research through Bike MS. 

See Liza Kaufman Hogan, When One Spouse is Healthy and the Other Isn’t, Forbes, July 25, 2014.

July 28, 2014 in Elder Law, Estate Planning - Generally | Permalink | Comments (0) | TrackBack (0)

Sunday, July 27, 2014

Article on Physician Aid in Dying

Hospital care

David Orentlicher (Indiana University, Robert H. McKinney School of Law), Thaddeus Mason Pope (Hamline University School of Law) and Ben A. Rich (University of California, Davis) recently published an article entitled, The Changing Legal Climate for Physician Aid in Dying, JAMA, Vol. 311, No. 19, 1961-1962 (2014); Indiana University Robert H. McKinney School of Law Research Paper No. 2014-24.  Provided below is the abstract from SSRN:

While once widely rejected as a health care option, physician aid in dying is receiving increased recognition as a response to the suffering of patients at the end of life. With aid in dying, a physician writes a prescription for a life-ending medication for an eligible patient. Following the recommendation of the American Public Health Association, the term aid in dying rather than "assisted suicide" is used to describe the practice. In this Viewpoint, the authors describe the changing legal climate for physician aid in dying occurring in several states.

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

July 27, 2014 in Articles, Disability Planning - Health Care, Elder Law, Estate Planning - Generally | Permalink | Comments (0) | TrackBack (0)

Financial Elder Abuse Often Difficult to Catch

Elder CareElder abuse is a problem that has many legal and financial professionals concerned. When the abuse is in the form of physical abuse or neglect, then Adult Protective Services may step in. Unfortunately, when financial abuse is occurring it is less likely that APS will be able to make a case to get involved, especially when is in the form of undue influence by a close family member. Many professionals are now advocating that estate planners and financial advisors start viewing themselves as one line of defense for this type of elder abuse, and speak up when they witness financial abuse of the elderly.

See Carolyn Rosenblatt, Can Financial Advisors Protect Aging Clients From Financial Abuse?, Forbes, July 7, 2014.

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

July 27, 2014 in Elder Law, Estate Planning - Generally | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 23, 2014

Dying Man's Will Rejected

Will On Tuesday, a Sacramento Superior Court judge refused to validate a will that a lawyer claimed to be the last wishes of a dying friend.  The will would have given all but a small portion of Joseph Herb O’Brien’s estate to a mutual friend. 

Judge Christopher Krueger said the will filed on behalf of local veterinarian Kenneth Pawlowski did not meet the standard of “clear and convincing evidence” that O’Brien was of a sound mental state when he signed his testament.  “Indeed, the evidence points to the conclusion that Mr. O’Brien was extremely weak and actually in the process of dying,” Krueger wrote.  The judge said there was significant evidence that O’Brien wanted to modify the will that he had left in a trust that provided for a stepson with drug problems.  However, the judge expressed there was a “very significant doubt on Mr. O’Brien’s capacity at the time of execution.”

Although no one exercised undue influence upon Mr. O’Brien, the proponent of the will was unable to show that the will in this case was intended by the decedent to be his will at the time he put his mark on it. 

See Andy Furillo, Sacramento Judge Rejects Dying Man’s Last-Minute Will, The Sacramento Bee, July 23, 2014.

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

July 23, 2014 in Elder Law, Estate Administration, Estate Planning - Generally, Wills | Permalink | Comments (0) | TrackBack (0)

Double Dipping Exceptions

Retirement benefits

Many baby boomers that are expecting to retire with ample social security benefits upon retirement, may have to think again.  Unfortunately, under the Windfall Elimination Provision (WEP), individuals may not be eligible for all the Social Security benefits that are expected.

Before 1983, people working in both public and private jobs could collect a full pension when they retired, in addition to Social Security, so long as they qualified.  However, the enactment of the WEP ended this “double dipping.” 

Yet, there is a big exception.  You are excepted from the WEP under certain circumstances—one of which is that you had 30 years or more of “substantial” earnings.  When calculating this number you must take several things into account including the fact the WEP will never be more than one-half your non-Social Security pension and living adjustments.  The age at which you take the benefits also comes into play; retiring at your full retirement age, or later, will change your benefit profile. 

See Amanda Alix, Social Security Twist for Boomers with Public, Private Jobs, USA Today, July 21, 2014.

Special thanks to Laura Galvan (Attorney, San Antonio, Texas) for bringing this article to my attention.

July 23, 2014 in Elder Law, Estate Planning - Generally, Non-Probate Assets | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 22, 2014

The Shortcomings of Joint Accounts

Joint accountWhile many people may view joint accounts as an effective way to avoid probate since joint property passes automatically to the joint owner at death, there are several drawbacks to joint ownership of investment:

  1. Risk. Joint owners of accounts have total access and the ability to use the funds for their own purposes.  Additionally, the funds are available are available to the creditors of all joint owners and could be considered as belonging to all joint owners should they apply for public benefits or financial aid. 
  2. Inequity. If a senior has one or more children on certain accounts, at death some children may end up inheriting more than others.  There is no guarantee that all of the children will share equally.
  3. Unexpected. If a child passes away before the parent, a system based on joint accounts can fail.  It may be necessary to seek conservatorship to manage funds or they may pass to surviving children with nothing or a small portion going to the deceased child’s family. 

Joint accounts are not entirely cumbersome and can work well in several situations.  When a senior has just one child and wants everything to go to him, joint accounts can be a great way to provide for succession and asset management.  Also, joint accounts can be useful to put one or more children on one’s checking account to pay customary bills and have access to funds in the event of incapacity or death. 

See Three Reasons Why Joint Accounts May Be A Poor Estate Plan, Elder Law Answers, July 18, 2014. 

July 22, 2014 in Disability Planning - Property Management, Elder Law, Estate Planning - Generally, Non-Probate Assets | Permalink | Comments (0) | TrackBack (0)

Monday, July 21, 2014

529 Plans for Grandparents


Many grandparents want to help their grandchildren pay for college, but do not know the best way of going about it.  According to a Fidelity Investments study, nearly half of grandparents expect to contribute to their grandkids’ college savings, with more than a third expecting to give $50,000 or more.  While very generous and thoughtful in nature, these contributions can also have significant tax and estate planning benefits for grandparents. 

A 529 plan is a college savings investment account that provides tax-free growth as long as the money is put toward tuition and most types of college expenses such as fees and books.  Grandparents can use 529 accounts to procure tax deductions or diminish the value of their taxable estates. 

One way to showcase 529 accounts is to highlight their advantages over other savings strategies.  For example, grandchildren who receive Series EE bonds as gifts can later be inundated with federal income taxes on the interest if they do not use funds for college.  Contrastingly, a 529 plan provides for tax-free distribution.  It also allows grandparents to give the funds to another grandchild if the intended recipient does not go to college. 

One of the caveats of a 529 plan is that it could make a grandchild ineligible for financial age.  This is because once the money is withdrawn for the beneficiary, it will count as income that schools use to determine financial aid awards.  However, grandparents can avoid this problem by waiting until their grandchild’s junior or senior year to distribute the money. 

See Robyn Post, Your Practice—Selling Grandparents on the Perks of 529 College Savings Plans, Reuters, July 18, 2014.

July 21, 2014 in Elder Law, Estate Planning - Generally, Gift Tax, Income Tax | Permalink | Comments (0) | TrackBack (0)

Mickey Rooney’s Heartfelt Speech On Elder Abuse

Mickey RooneyAs I have previously discussed, Mickey Rooney, who died earlier this year, was the victim of elder abuse. He spoke publically about his experience at a Senate hearing in 2011. Part of his testimony can be seen here.

Rooney used the platform he had to talk boldly about the terrible experience he was put through, call for an end to the problem of elder abuse, and told fellow victims that they are not alone and plead for them to speak out about their elder abuse.

See Alana Karsch, A Former Movie Star and Veteran Gave a Passionate Speech About a Topic No One Wants to Discuss, Upworthy, July 2014.

Special thanks to Laura Galvan (Attorney, San Antonio, Texas) for bringing this article to my attention.

July 21, 2014 in Current Affairs, Elder Law | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 15, 2014

Estate Planning for Alzheimers

Old people holding hands

Alzheimer’s is a devastating disease that affects many Americans every year.  If diagnosed early enough, a person with Alzheimer’s disease will likely retain the mental capacity to sign an estate plan.  These documents should include a Power of Attorney for healthcare, Power of Attorney for property, and a will.  It is vital that these documents are signed in a timely manner, as any delay could prevent the patient’s meaningful input as the cognitive impairments worsen. Provided below are a few steps to guide an Alzheimer’s patient when creating a plan:

  1. Power of Attorney Documents.  These designate to a loved one to make healthcare and asset management decisions when the person affected with Alzheimer’s is no longer capable of making decisions for themselves.  When naming someone to hold Power of Attorney, select an individual you trust to carry out your wishes and act in your best interests.
  2. Last Will and Testament. A will allows the Alzheimer’s patient to finalize their legacy and distribute their estate.  The will should include burial and funeral wishes as well.
  3. Time is of the Essence. Since Alzheimer’s is a progressively declining illness, prompt action is required.  The longer the passage of time from diagnosis to document signing, the more likely the Alzheimer’s affected person will be deemed incompetent.
  4. Finalizing the Plan. Sit down and have a conversation with family and loved ones to discuss healthcare plans and wishes, including discussion of nursing home placement or in-home care.

See Maria Shriver, Life Ed: Protecting Wishes And Assets of Alzheimer’s Patients, NBC News, July 14, 2014.

July 15, 2014 in Disability Planning - Health Care, Disability Planning - Property Management, Elder Law, Trusts | Permalink | Comments (0) | TrackBack (0)

Minnesota Addresses Thefts by Court-Appointed Guardians

MinnesotaAfter the discovery of abuse by court-appointed guardians in Minnesota, the state audited 24 random accounts handled by Alternate Decision Makers, Inc. The findings uncovered problems with ten accounts ranging from missing documents to possible indications of theft. Allegations of theft by the guardians include unreasonably high fees accessed, missing property, and personal items sold off after the protected person died. The suspicious accounts discovered by auditors are being sent to judges for review and to be remedied.

See James Eli Shiffer, Conservator’s Thefts Prompted 24 State Audits, Star Tribune, July 14, 2014.

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

July 15, 2014 in Current Affairs, Disability Planning - Health Care, Disability Planning - Property Management, Elder Law, Guardianship, Professional Responsibility | Permalink | Comments (0) | TrackBack (0)