Wills, Trusts & Estates Prof Blog

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

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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)

The Medicare Star System


For the last five years, Medicare has been assigning hotel-style ratings to nearly every nursing home in the country.  An examination of this rating system has found that many top-ranked nursing homes have been given a seal of approval that is based on incomplete information and can mislead consumers, investors, and others about the home’s conditions. 

The Medicare ratings are based in large part on self-reported data by the nursing homes that the government does not verify.  The ratings do not take into account entire sets of potentially negative information, including fines and other enforcement actions by state authorities, as well as complaints filed by consumers.  For example, the State of California fined a five star rated nursing home $100,000 (highest penalty possible) for causing the death of a woman who was given an overdose of a powerful blood thinner.  Furthermore, this nursing home has been the subject of around a dozen lawsuits from patients and their families claiming substandard care. 

Widespread acceptance of the ratings system is leading to use beyond the eldercare industry.  Beginning this year, Medicare plans to introduce similar five-star ratings for hospitals, dialysis centers and home health care agencies.  Federal officials say that while the rating system can be improved, it incentivizes nursing homes to get better.  Unfortunately, some nursing homes are not improving, but rather, learning how to game the rating system. 

See Katie Thomas, Medicare Star Ratings Allow Nursing Homes to Game the System, The New York Times, Aug. 24, 2014. 

August 26, 2014 in Disability Planning - Health Care, Elder Law, Estate Planning - Generally | Permalink | Comments (0) | TrackBack (0)

Unparalleled Alzheimer's Novel Applauded

Hospital care

Matthew Thomas, 39, published a great American novel about Alzheimer’s—a disease that will impact the lives and estate plans of thousands.  Thomas devoted ten years of his life to writing We Are Not Ourselves, much of that time was while he was working as a high-school English teacher.  Last year, his book was auctioned for $1 million.  The book was subsequently featured as one of the Buzz Books for 2014 at Book Expo America. 

The book tells the story of Ed Leary, a college professor in his early 50s, and his wife Eileen, a nurse, put the pieces together during Ed’s devastating disease.  The book chronicle’s Ed’s gradual demise, in addition to the emotional and financial impact it has on Eileen and Ed’s son. 

Although fiction, this is a story Thomas knows well.  He was 19 when his own father was diagnosed with early Alzheimer’s.  Thomas says his father’s diagnosis with Alzheimer’s was a “protracted and delayed death sentence.” 

See Deborah L. Jacobs, Debut Author Hits the Jackpot with Novel About Alzheimer’s, Forbes, Aug. 25, 2015.

August 26, 2014 in Books - Fiction, Disability Planning - Health Care, Elder Law, Estate Planning - Generally | Permalink | Comments (0) | TrackBack (0)

Monday, August 25, 2014

Powerless with Power of Attorney

Power of attorney

Power of attorney has always been an inexpensive way to give someone the right to act on another person’s behalf.  Yet, the power is not absolute and when it fails, the consequences can be disastrous. 

For Christine, a 62-year-old woman in Connecticut, experienced the powerlessness power of attorney embodies.  After sorting out their parents’ estate, Christine’s older brother promised he would set his own affairs in order so they would not face the same messy process.  He drafted a will, titled accounts to transfer to them on death, and drew up a power of attorney should he become incapacitated.  Years later, when Christine’s brother began suffering from severe dementia, he needed indefinite care.  Christine knew there would be no problem paying for this since he had done well financially.  However, when she looked at the power of attorney, she noticed he used her legal first name, Carol, which she had abandoned.  It was not until she went to bank after bank explaining the situation, was she denied access to his accounts to pay for his care.  “They said ‘Go get your marriage certificate’ . . . . I had my birth certificate, passports, a driver’s license.  But they did not have the name my brother had on that form.” 

Estate planners say that Christine’s experience is not uncommon.  Banks routinely try to deny the appointed person any right to have access to accounts.  One valid reason for banks’ hesitancy is because a power of attorney can be used to commit elder fraud.  Banks have been sued for giving access to accounts without properly checking the person named in the power of attorney. 

A better option all around might be a revocable trust.  It allows people to put their property in a trust while they are still alive, using it as they normally would.  “Banks are more comfortable with this because you’re funding it now while you’re competent.”  Provisions can also be written into revocable trust documents that allow future trustees to put in assets that were forgotten when the trust was created. 

See Paul Sullivan, Power of Attorney Is Not Always a Solution, The New York Times, Aug. 22, 2014.

Special thanks to Matthew Bogin (Law Offices of Matthew B. Bogin) for bringing this article to my attention.

August 25, 2014 in Disability Planning - Health Care, Disability Planning - Property Management, Elder Law, Estate Administration, Estate Planning - Generally, Trusts | Permalink | Comments (0) | TrackBack (0)

Resource Guide: Money Smart for Older Adults

Money SmartThe Federal Deposit Insurance Corporation (FDIC) and Consumer Financial Protection Bureau (CFPB) have made available a resource guide entitled Money Smart for Older Adults. The guide provides information for financial planning and, avoiding and addressing elder financial exploitation. Provided below is the introduction to the guide:

With over 50 million Americans aged 62 and older1, Older Adults are prime targets for financial exploitation both by persons they know and trust and by strangers. Financial exploitation has been called “the crime of the 21st century” with one study suggesting that older Americans lost at least $2.9 billion to financial exploitation by a broad spectrum of perpetrators in 2010.2

A key factor in some cases of elder financial exploitation is mild cognitive impairment which can diminish an older adult’s ability to make sound financial decisions.

This epidemic is under the radar. The cases tend to be very complex and can be difficult to investigate and prosecute. Elders who lose their life savings usually have little or no opportunity to regain what they have lost. Elder financial abuse can result in the loss of the ability to live independently; decline in health; broken trust, and fractured families.

Awareness and prevention is the first step. Planning ahead for financial wellbeing and the possibility of diminished financial capacity is critical. Reporting and early intervention that results in loss prevention is imperative.

Money Smart for Older Adults is designed to provide you with information and tips to help prevent common frauds, scams and other types of elder financial exploitation in your community. Please share this information as appropriate.

August 25, 2014 in Books, Disability Planning - Property Management, Elder Law, Estate Planning - Generally, Resource Links | Permalink | Comments (0) | TrackBack (0)

Saturday, August 16, 2014

Widow of Casey Kasem Planning Burial in Norway

NorwayAs I have previously discussed, news that Casey Kasem’s body may be headed to Norway was released last week. Now, an article in a Norwegian newspaper and the private investigator for Kerri Kasem, Casey Kasem’s daughter, have confirmed that Kasem will be buried in Norway despite his wishes to be buried in Forest Lawn. It is unknown where in Oslo, Norway Kasem will be buried or why Jean Kasem, Kasem’s widow, chose the location. Kerri has alleged that Jean abused Kasem, but the foreign burial may create jurisdictional issues for building an elder abuse case.

See Tim Appelo, Casey Kasem to be Buried in Norway, Hollywood Reporter, Aug. 14, 2014.

Special thanks to Shaneesa Ashford for bringing this article to my attention.

August 16, 2014 in Current Affairs, Current Events, Death Event Planning, Elder Law, Estate Planning - Generally | Permalink | Comments (0) | TrackBack (0)

Friday, August 15, 2014

Attorney Sentenced for Embezzling from Elderly Woman

Elderly financial abuse

As I have previously discussed, financial abuse of elders has been deemed “the crime of the 21st Century.”  On Thursday, a Fairfax County attorney was sentenced to six years in prison for embezzling nearly $500,000 while he was entrusted to care for an elderly woman and her estate. 

James Kincheloe, 67, was convicted of a single count of embezzlement in which he entered an Alford plea (he did not admit guilt but acknowledged prosecutors had enough evidence for conviction).  Judge Jane M. Roush ruled that Kincheloe must repay more than $483,000 to the estate of Pearl Buckley, a Fairfax City resident who passed away in 2009. 

Prior to Ms. Buckley’s death, Kincheloe entered into an agreement with her to manage her personal affairs at a rate of more than $9,700 a month, which is three times Ms. Buckley’s income. 

See Justin Jouvenal, Attorney James Kincheloe Jr. Gets Six Years for Embezzling from Elderly Woman, The Washington Post, Aug. 14, 2014.

August 15, 2014 in Elder Law, Estate Planning - Generally, Malpractice | Permalink | Comments (0) | TrackBack (0)

Thursday, August 14, 2014

Preventing Financial Abuse of Elders

Old people holding hands

Kiplinger’s has labeled financial abuse of the elderly “the crime of the 21st Century.”  This should come as no surprise, as a new study in the Journal of General Internal Medicine reported that as many as one in twenty older adults in America may be victims. 

The question then becomes what can be done to curb this growing ignominy? 

Fortunately, there are new efforts aimed at getting lawyers to spot and report financial fraud targeting older Americans.  The nonprofit Investor Protection Trust and its sister organization, the Investor Protection Institute have teamed up with the American Bar Association (ABA) to launch the Elder Investment Fraud and Financial Exploitation (EIFFE) Prevention Program Legal. 

The EIFFE Program has potential to succeed, as lawyers can be among the first to spot problems.  “We knew that a lot of attorneys—not just elder law attorneys—are helping seniors with estate plans and wills and powers of attorney, so they would be in a position to spot someone who could potentially be at risk of financial exploitation.”  Nine of ten practicing attorneys said they are willing to participate in a program to learn about detecting, preventing and redressing elder investment fraud and financial exploitation.

See Richard Eisenberg, Promising Effort to Curb Elder Financial Abuse, Forbes, Aug. 13, 2014. 

August 14, 2014 in Elder Law, Estate Planning - Generally, Professional Responsibility | Permalink | Comments (0) | TrackBack (0)

New Case on Elder Abuse

Gavel2A case decided by the California Court of Appeals last year that narrowed the interpretation of the Patient's Bill of Rights, has been denied review by the California Supreme Court. In Samuel Nevarrez v. San Marino Skilled Nursing and Wellness Centre, et al., an elderly man sued the nursing home that he was a former resident of for elder abuse regarding injuries from multiple falls. The nursing home was issued a class A citation by the California Department of Public Health as a result of the incident. The appeals court ruled that evidence of the citation should not have been allowed into evidence and that the $7,000 jury award was excessive, because the statutory cap for damages for a violation of the Patient's Bill of Rights is $500 total not per incident.

See Jonathon E. Cohn & Pamela Shu, California Court of Appeal Limits Scope of Patient Rights Claims in Elder Abuse Cases, Mondaq, Aug. 12, 2014.

August 14, 2014 in Disability Planning - Health Care, Elder Law, New Cases | Permalink | Comments (0) | TrackBack (0)