Wills, Trusts & Estates Prof Blog

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

Saturday, August 27, 2016

Article on the New Divorce Phenomenon

Elder divorceArlene G. Dubin & Rebecca A. Provder (Moses and Single LLP) recently published an Article entitled, The Gray Divorce Phenomenon, (2016). Provided below is a summary of the Article:

An 82 year old client wanted a divorce from her husband of 57 years. When asked why, she responded, “I want to live a little before I die.”

A study conducted in 2014 reveals that the divorce rate for individuals 50 and older has doubled in the last 20 years. Two decades ago, individuals 50 and older accounted for about 10% of divorces. Recently, the divorce rate for this age group spiked to approximately 25%. What’s more, approximately half of those divorces occurred in first marriages.

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

August 27, 2016 in Articles, Current Events, Elder Law, Estate Planning - Generally | Permalink | Comments (0)

Wednesday, August 24, 2016

For-Profits Join PACE Program

InnovageInnovAge is a company that uses private equity money to aggressively expand a Medicare program, Program of All-Inclusive Care for the Elderly (PACE), that keeps older and disabled people out of nursing homes. Before, only nonprofits were allowed to run this type of program, but the gates have opened to for-profit companies with the hope of expanding the services faster. In exchange for monthly payments from Medicare and Medicaid, PACE programs pay for all doctor’s visits, medications, rehabilitation, daily needs, and hospitalization. This capped monthly payment forces organizations to invest in maintaining a patient’s health to avoid large hospital bills. Critics, however, note that caring for elders is full of abuse, something that is correlated with increased commercialization of the industry.

See Sarah Varney, Private Equity Pursues Profits in Keeping the Elderly at Home, NY Times, August 20, 2016.

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

August 24, 2016 in Current Events, Death Event Planning, Disability Planning - Health Care, Elder Law, Estate Planning - Generally | Permalink | Comments (0)

Monday, August 8, 2016

New Medicare Law Requires Notice of Substantial Out-of-Pocket Medical Costs

Medicare lawAs of Saturday, a new Medicare law is in force that requires hospitals to notify patients of the possibility that they could incur substantial out-of-pocket medical costs if their stay is more than 24 hours without being formally admitted. The problem stems from patients who are under “observation”—for fear of Medicare penalizing over inappropriate admissions—making them liable for large hospital bills; further, Medicare will not pay for any subsequent nursing home care, unless the patient was an inpatient for three consecutive days. Patients can expect to start receiving these warnings in January. With this new law, the estimated notices per year are 1.4 million.

See Robert Pear, New Medicare Law to Notify Patients of Loophole in Nursing Home Coverage, NY Times, August 6, 2016.

Special thanks to Jerry Borison (Professor of Law, University of Denver Strum College of Law) for bringing this article to my attention.  

August 8, 2016 in Current Events, Elder Law, New Legislation | 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)

Thursday, August 4, 2016

Severely Ill Patients Express Their Thoughts on What Is Worse Than Dying

Worse than dyingFor patients with severe illnesses, dying is normally not the worst thing they face. A recent study reports that a majority of those patients think that bowel and urinary incontinence and having to rely on a breathing machine are worse than a looming death. A majority, however, agreed that being in a wheelchair, being at home all day, and being in moderate pain are much better than death. Studies also show that large percentages of healthy people consider severe dementia to be worse than death. Furthermore, researchers noted that these feared states might at some point become more tolerable once they are experienced. Ultimately, we know that further research is needed to improve patient outcomes.

See Sara G. Miller, What’s Worse Than Death? Dementia and Breathing Machines, Patients Say, Fox News Health, August 2, 2016.

August 4, 2016 in Disability Planning - Health Care, Elder Law | Permalink | Comments (0)

Tuesday, August 2, 2016

Article on an Age Toward Progressive Retirement

Social security retirementAnne Alstott recently published an Article entitled, Introduction, A New Deal for Old Age: Toward a Progressive Retirement, Yale L. School, Public L. Research Paper No. 570 (2016). Provided below is an abstract of the Article:

As America’s haves and have-nots drift further apart, rising inequality has undermined one of the nation’s proudest social achievements: the Social Security retirement system. Unprecedented changes in longevity, marriage, and the workplace have made the experience of old age increasingly unequal. For educated Americans, the traditional retirement age of 65 now represents late middle-age. These lucky ones typically do not face serious impediments to employment or health until their mid-70s or even later. By contrast, many poorly educated earners confront obstacles of early disability, limited job opportunities, and unemployment before they reach age 65.

America’s system for managing retirement is badly out of step with these realities. Enacted in the 1930s, Social Security reflects a time when most workers were men who held steady jobs until retirement at 65 and remained married for life. The program promised a dignified old age for rich and poor alike, but today that egalitarian promise is failing. This introductory chapter to A NEW DEAL FOR OLD AGE outlines a progressive program that would permit all Americans to retire between 62 and 76 – but would offer more generous benefits for early retirement for workers with low wages and physically demanding jobs. The chapter also sketches the case for a more equitable version of the outdated spousal benefit and a new phased-retirement option to permit workers to transition out of the workforce gradually.

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

August 2, 2016 in Articles, Elder Law, Estate Planning - Generally | Permalink | Comments (0)

Thursday, July 28, 2016

Questionare to Help Identify Those at Risk for Alzheimer's

Alzheimers3A group of neuropsychiatrists and other experts introduced a 34-quetstion checklist to help identify those at a greater risk for Alzheimer’s. The questions are grouped into domains, including areas like interest, motivation, and drive; mood or anxiety symptoms; ability to delay gratification and control behavior; following social norms; and strongly held beliefs.

See Draft Checklist on Mild Behavioral Impairment, NY Times, July 25, 2016.

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

July 28, 2016 in Current Events, Elder Law | Permalink | Comments (0)

Wednesday, July 27, 2016

Alzheimer's Effect on Women v. Men

Alzheimers2Historically, statistics show that Alzheimer’s Disease effects women way more often than men—nearly two thirds of those suffering from the disease are women. It has long been the theory that women live longer and therefore have more time to develop the illness. An annual Alzheimer’s conference, however, has created a different theory for this uneven statistic, reporting that fewer men are being accurately diagnosed and that physicians should pay more attention to younger patients.

Looking at one state’s brain bank, of the brains that were affected by Alzheimer’s, 51% were men and 49% women. Women are often diagnosed at older ages and have more typical symptoms compared to men who are normally younger when the disease strikes and have atypical symptoms. Another factor affecting historical research is how the disease affects women’s brain differently than men’s, often attacking the hippocampus and cortex respectively. The conference also reported several other visible risk factor differences between men and women.

See Tara Bahrampour, Men May Get Alzheimer’s as Much as Women; We Just Haven’t Known How to Spot It, Washington Post, July 26, 2016.

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

July 27, 2016 in Current Events, Elder Law | Permalink | Comments (0)

Increasing Awareness of Thieves Targeting Elders

Elder abusePolice were called to investigate a case of elder abuse by a woman who befriended an 81-year-old man with dementia and depression. The man, who had once been a missile systems analyzer for the Air Force, now sat broken in his home with a woman accused of stealing his money. This 56-year-old woman befriended him, banked with him, and married him all within seven days of meeting him. At the time of investigation, she had already embezzled more than $65,000 from the man. Following her arrest, a judge sentenced her to two years in prison for the exploitation of a vulnerable adult and ordered her to repay the victim the total stolen amount. This story represents the increasingly targeted practice of thieves against elders who are trusting and living alone. 

See Dan Morse, Elderly, Lonely and Suffering from Dementia – To Thieves, the Perfect Mark, Washington Post, July 25, 2016.

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

July 27, 2016 in Current Events, Elder Law, Estate Planning - Generally | Permalink | Comments (0)

Article on Sexual Advance Directives

Legal capacity to consentAlexander A. Boni-Saenz recently published an Article entitled, Sexual Advance Directives, 68 Ala. L. Rev. (2016 Forthcoming). Provided below is an abstract of the Article:

Can one consent to sex in advance? Scholars have neglected the temporal dimension of sexual consent, and this theoretical gap has significant practical implications. With the aging of the population, more and more people will be living for extended periods of time with cognitive impairments that deprive them of the legal capacity to consent to sex. However, they may still manifest sexual desire, so consenting prospectively to sex in this context serves several purposes. These include protecting long-term sexual partners from prosecution by the state, ensuring sexually fulfilled lives for their future disabled selves, or preserving important sexual identities or relationships. The law currently provides a device for prospective decision-making in the face of incapacity: the advance directive. The central claim of this article is that the law should recognize sexual advance directives. In other words, people facing both chronic conditions that threaten their legal capacity to make decisions and institutional care that threatens sexual self-determination should be able to consent prospectively to sex or empower an agent to make decisions about sex on their behalf. To justify this claim, the Article introduces a novel theory of sexual consent — the consensus of consents — that diffuses the longstanding philosophical debates over whether advance directives should be legally enforceable. With this normative foundation, the Article then draws on insights from criminal law, fiduciary law, and the law of wills to fashion a workable regime of sexual advance directives that adequately protects individuals from the risk of sexual abuse.

July 27, 2016 in Articles, Elder Law | Permalink | Comments (0)