Wills, Trusts & Estates Prof Blog

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

Tuesday, August 14, 2018

Why are Nursing Homes Drugging Dementia Patients Without Their Consent?

NursinghomeAccording to government data, nursing homes are still giving dementia patients medication to treat schizophrenia, mostly for its sedative purposes rather than to treat the disease. The usage has gone down from 1 in 4 nursing homes in 2012 to 1 in 6 nursing homes in 2018, but the truth of the matter is that these facilities are still administrating an improper drug, often without a necessary diagnosis or the patient's consent.

Why? The reasons include, "misperception by nursing home staff that the medications can help people with dementia; a lack of awareness of their dangers, despite the black box warnings; lack of training in dementia care; and, perhaps most significant, to compensate for understaffing. Nursing homes have been exaggerating levels of nursing and caretaking staff for years, according to an analysis of federal data by Kaiser Health News."

See Hannah Flam, Why are Nursing Homes Drugging Dementia Patients Without Their Consent?, Washington Post, August 10, 2018.

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

August 14, 2018 in Current Affairs, Elder Law, Guardianship | Permalink | Comments (0)

Friday, August 10, 2018

Gray Divorce Boom: A Retirement Train Wreck

DivorceWith increased life expectancies increasing, people are also deciding to divorce later on in life. As people live longer, their expectations for what later life looks like have changed. As Americans, we place a high value on fulfillment and feel entitled to our own happiness, no matter our age. And the reason older couples decide to divorce are the same as younger couples - unforeseen issues, infidelity, or simply growing apart. Over the past few decades, greater options for women in the work world have led many to seek independence if they are unfulfilled or are suffering abuse from a spouse. (According to the National Center for Health Statistics, approximately 80% of divorces are initiated by women.) 

The fallout from a divorce can take years to recover from, both emotionally and financially. And though no couple wants to talk about divorce, it is the job and role of the financial planner to make sure their clients are prepared for all outcomes for the future. A client should be honest with their professionals, and lay out all expenses that they expect to pay for with or without a divorce - such as education for children or grandchildren, major home repairs, family health issues, new cars, and so on.

See Greg Sullivan, Gray Divorce Boom: A Retirement Train Wreck, Financial Advisor, August 2018.

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

August 10, 2018 in Current Affairs, Elder Law, Estate Planning - Generally | Permalink | Comments (0)

Thursday, August 9, 2018

Spouses Need to Think Carefully About When to Take Social Security Benefits

SSWhen a person decides to take Social Security is important as it determines the amount of benefit to be received. Social Security benefits are maximized if the person waits until they are 70. A spouse is usually entitled to an amount equal to half of the higher earner’s benefits. Once the spouse dies, the survivor is entitled to 100 percent of the deceased person’s benefit.

Social Security makes up an average of 40% of people’s retirement income and “is more valuable than most people think,” said Diane Pearson a wealth advisor and shareholder at Legend Financial Advisors in Pittsburgh.

"One of the first questions everyone asks about Social Security is: Will it be there in the future? Pearson said yes. The $2.9 trillion Social Security Trust Fund is enough money to pay 100 percent of the benefits due to retirees through 2034, at which point benefits will be reduced to 77 percent of what is due unless changes are made."

See Karen DeMasters, Spouses Need to Think Carefully About When to Take Social Security Benefits, Financial Advisor, August 8, 2018.

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

August 9, 2018 in Current Affairs, Elder Law, Estate Planning - Generally | Permalink | Comments (0)

You May Have Signed a Living Will, but Scary Mistakes can Happen at the ER

DNRMisunderstandings involving documents meant to guide end-of-life decision-making are “surprisingly common,” said Williams-Murphy, medical director of advance-care planning and end-of-life education for Huntsville Hospital Health System in Alabama. A new report out of Pennsylvania, treats mix-ups involving end-of-life documents as medical errors — a novel approach. Pennsylvania health-care facilities reported nearly 100 events relating to patients’ “code status” — their wish to be resuscitated or not, should their hearts stop beating and they stop breathing. In 29 cases, patients were resuscitated against their wishes. In two cases, patients weren’t resuscitated despite making it clear they wanted this to happen.

The problem, Regina Hoffman, executive director of the Pennsylvania Patient Safety Authority and co-author of the report, explained that doctors and nurses receive little if any training in understanding and interpreting living wills, DNR orders and Physician Orders for Life-Sustaining Treatment (POLST) forms.

Make sure you have ongoing discussions about your end-of-life preferences with your physician, your surrogate decision-maker, if you have one, and your family, especially when your health status changes. Without these conversations, documents can be difficult to interpret.

See Judith Graham, You May Have Signed a Living Will, but Scary Mistakes can Happen at the ER, Washington Post, August 5, 2018.

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 9, 2018 in Current Affairs, Elder Law, Estate Planning - Generally, Science, Technology | Permalink | Comments (0)

Monday, August 6, 2018

How Long $1 Million Lasts in Retirement

PalmchairSaving a nice $1 million for retirement used to be the goal for most people, but now it may not be enough depending on where you plan to live out your days. Andrew DePietro, a research and data analyst at personal finance site GoBankingRates, comments that inflation, real estate prices, and cost of living causes that once "golden standard" of a million to go a bit less each year.

States like Mississippi, Oklahoma and Arkansas appear to have the greatest length of time before the million is spent, where retirees could live a life of leisure for a quarter of a century. The state where the dollar will last the shortest? Hawaii, the island state where citizens spend roughly 30 percent more for household items and a retiree will go through that million in a bit less than a dozen years. Rounding out the short end of the time spectrum are New York, California, and Alaska.

See Jessica Dickler, How Long $1 Million Lasts in Retirement, CNBC, August 6, 2018.

August 6, 2018 in Current Affairs, Elder Law, Estate Planning - Generally | Permalink | Comments (0)

Article on Postmortem Austerity and Entitlement Reform

SSReid K. Weisbord recently published an Article entitled, Postmortem Austerity and Entitlement Reform, Wills, Trusts & Estates Law eJournal (2018). Provided below is an abstract of the Article:

This Essay proposes a novel policy of "postmortem austerity" to address the unsustainable, rapidly escalating cost of federal entitlement programs following the 2017 tax reforms. If Social Security and Medicare continue on their current path to insolvency, then they will eventually require austerity reforms absent a politically unpopular tax increase. This Essay argues that, if austerity becomes necessary, federal entitlement reforms should be implemented progressively in a manner that minimizes displacement of benefits on which individuals relied when saving for old age. A policy of postmortem austerity would establish new eligibility criteria for Social Security and Medicare that postpone the effective date and economic consequences of benefit ineligibility until after death. All individuals would continue to collect federal entitlements during life, but at death, wealthy decedents would be deemed retroactively disqualified from part or all of Social Security and Medicare benefits received during life. The estates of such decedents would then be liable for repayment of disqualified benefits.

August 6, 2018 in Articles, Current Affairs, Death Event Planning, Disability Planning - Health Care, Elder Law, Estate Planning - Generally | Permalink | Comments (0)

‘Too Little Too Late’: Bankruptcy Booms Among Older Americans

BankruptcyA study conducted by the Consumer Bankruptcy Project has determined that the rate of people 65 and older filing for bankruptcy is three times what it was in 1991. This frightening statistic is attributed to the rising costs of medical care, vanishing pensions, and inadequate savings as well as a shift from government and employers bearing financial risk to individuals, who are bearing an ever-greater responsibility for their own financial well-being as the social safety net shrinks.

A small stumble can create the fall that leads an older American to feel it necessary to file for bankruptcy. Bankruptcy can offer a fresh start for people who need one, but for older Americans it “is too little too late,” the study says. “By the time they file, their wealth has vanished and they simply do not have enough years to get back on their feet.”

Cheryl Mcleod of Las Vegas filed for bankruptcy in January after struggling to make her mortgage and medical bills. “I am 70, and I am working for less money than I ever did in my life,” she said. “This life stuff happens.” Ms. Mcleod said she hoped that filing for bankruptcy would help her catch up on her mortgage so she could stay in her home. “I am too old to move out of here,” she said. “I am trying to stay stable.”

See Tara Siegel Bernard, ‘Too Little Too Late’: Bankruptcy Booms Among Older Americans, New York Times, August 5, 2018.

 

August 6, 2018 in Current Affairs, Elder Law, Estate Planning - Generally | Permalink | Comments (0)

Sunday, August 5, 2018

Your Money: How to deal With the Paperwork Scramble After a Spouse Dies

ProbateAmidst the anguish of mourning the loss of a beloved spouse, the stress can be compounded by the process and paperwork of changing the title of all the assets that were jointly owned to now having a sole owner. The process - probate - can by time-consuming, expensive, and public, which is why many people try to avoid it if possible.

Financial adviser David Demming out of Aurora, Ohio recommends that clients with simple family structures use “pay-on-death” or “transfer-on-death” designations on all assets, rather than the legal structure of an estate trust. “If you are not trying to control from the grave, you don’t need a trust,” Demming said.

If a family dynamic is more complex financial advisers recommend legally structuring assets in trusts, regardless of the total amount of your assets. This can be especially important for blended families and those with special needs. Qualified retirement accounts like IRAs and 401(k)s, pensions and joint life insurance policies come with varying sets of rules about how they are inherited by spouses.

See Beth Pinsker, Your Money: How to deal With the Paperwork Scramble After a Spouse Dies, Reuters, June 18, 2018.

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

August 5, 2018 in Current Affairs, Death Event Planning, Elder Law, Estate Administration, Estate Planning - Generally, Non-Probate Assets, Trusts | Permalink | Comments (0)

Friday, August 3, 2018

Article on Undue Influence: The Gap Between Current Law and Scientific Approaches to Decision-Making and Persuasion

ChanceryDominic J. Campisi, Evan D. Winet, & Jake Calvert recently published an Article entitled, Undue Influence: The Gap Between Current Law and Scientific Approaches to Decision-Making and Persuasion, 43 ACTEC L.J. 359 (Spring 2018). Provided below is an abstract of the Article:

"And the devil hath power t'assume a pleasing shape. Yea, and perhaps out of my weakness and my melancholy, as he is very potent with such spirits, abuses me to damn me."

Financial elder abuse encompasses a broad set of situations and misconduct involving the vulnerability of disabled and aged individuals to predation by relatives, employees, strangers and professionals. Financial elder abuse is an offshoot of long-standing principles and remedies for undue influence and fraud in estate planning and gifts, as well as disputes over enforcement of contracts and unjust enrichment.

English Courts, as any viewer of Masterpiece Theatre, or reader of Dickens or Trollope knows, have long dealt with undue influence. Francis Bacon, ruling in the High Court of Chancery in 1617, found undue influence where the 80 year old George Lydiatt, "being weak of body and understanding and having a great estate of goods and lands" was influenced by Anne, who

did so work upon his simplicity and weakness and by her dalliance and pretence [sic] of love unto him and of intention after the death of her then husband to marry him, and by sundry adulterous courses with him and sorcery and kindred, telling him something they would poison him and sometimes that they would rob him, whereby she obtained his personal estate by transfers and execution of a will disinheriting his kindred?

August 3, 2018 in Articles, Current Affairs, Elder Law, Estate Planning - Generally, Wills | Permalink | Comments (0)

Monday, July 30, 2018

New Alzheimer’s Drug Slows Memory Loss in Early Trial Results

TreeFor the first time in a large clinical trial, a drug was able to both reduce the plaques in the brains of patients and slow the progression of dementia. The trial involved 856 patients from the United States, Europe and Japan with early symptoms of cognitive decline. They were diagnosed with either mild cognitive impairment or mild Alzheimer’s dementia, and all had significant accumulations of the amyloid protein that clumps into plaques in people with the disease, said Dr. Lynn Kramer, chief medical officer of Eisai, a Japan-based company that developed the drug.

Many other drugs have managed to reduce amyloid levels but they did not ease memory decline or other cognitive difficulties. In the data presented Wednesday, the highest of the five doses of the new drug — an injection every two weeks of 10 milligrams per kilogram of a patient’s weight — both reduced amyloid levels and slowed cognitive decline when compared to patients who received placebo.

See Pam Belluck, New Alzheimer’s Drug Slows Memory Loss in Early Trial Results, New York Times, July 25, 2018.

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

July 30, 2018 in Current Affairs, Disability Planning - Health Care, Elder Law, Estate Planning - Generally, Science, Technology | Permalink | Comments (0)