Wills, Trusts & Estates Prof Blog

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

Monday, June 18, 2018

The Role of Elder Law Attorneys

LtcThe average life expectancy for a woman is now 85 years and for a man 81 years, meaning that people are living longer than they did even a decade ago. Each year around 12,000 Baby Boomers pass the 65 mark. With increased age brings along possible financial and age-related legal issues.

Because many of the elderly are divorced or have less children, family support has decreased compared to past generations. Public assistance programs are in place to help this problem, but some programs are complicated. Social Security may be straight forward but a person may need the advice of a professional when it comes to the informational mine field that is Medicaid to maximize its benefits. Even when government benefit programs are unavailable due to substantial wealth, asset transfers and management often need a guiding hand of a knowledgeable attorney.

Elder law attorneys focus on the client's quality of life, autonomy, and making their wishes a nexus for all decisions concerning their possible loss of mental capacity, guardianship, and healthcare decisions. They may work with nurses, social workers, and even personal injury attorneys to make sure that any plan if efficient and customized for their particular client.

See Jaclyn Lee & Lawrence A. Frolik, The Role of Elder Law Attorneys, Wealth Strategies Journal, May 30, 2018.

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

June 18, 2018 in Current Affairs, Elder Law, Estate Planning - Generally, Guardianship | Permalink | Comments (0)

Albany Attorney Admits to Stealing from Elderly Clients in $11.8 Million Estate Fraud

image from https://s3.amazonaws.com/feather-client-files-aviary-prod-us-east-1/2018-06-18/49b0d7c2-9794-46c1-a045-ee9732c86791.pngRichard J Sherwood, 58, pled guilty last week to money laundering and tax crimes stemming from a scheme to steal millions from estates of elderly clients that he was serving as attorney and fiduciary. Between Sherwood and his co-conspirator they stole a total of $11.8 million from an elderly couple, the wife's sister, and a client from Ohio that suffered from dementia.

Sherwood had been a practicing attorney in New York since 1988, primarily in the field of trusts and estates. He became the attorney for the couple of Warren and Pauline Bruggeman in 2006, as well as Pauline's sister Anne Urban, all of Niskayuna, New York. They all signed will directing the majority of their assets to be transferred to charities upon their deaths.

"Warren Bruggeman died in April 2009, and Pauline died in August 2011. At the time of her death, Pauline had personal and trust assets valued at approximately $20 million." Anne Urban passed away not long after in 2013. The conspirarcy also included the grabbing of funds from Julia Rentz, a resident of Ohio, who was suffering from dementia at the time of the thefts and died in 2013 as well.

Sherwood faces up to 20 years in prison, a maximum fine of $250,000, and up to 3 years of post-imprisonment supervised release. He also served as Guilderland Town Justice from 2014 until his arrest on February 23, 2018. He resigned his position on March 5.

See Albany Attorney Admits to Stealing from Elderly Clients in $11.8 Million Estate Fraud, US. Attorney's Office, Northern District of New York, June 11, 2018.

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

June 18, 2018 in Current Events, Elder Law, Estate Planning - Generally, Professional Responsibility, Trusts, Wills | Permalink | Comments (0)

Sunday, June 17, 2018

Article on Note: Solving America’s Long-Term Care Financing Crisis: Financing Universal Long-Term Care Insurance with a Mandatory Federal Income Tax Surcharge that Increases with Age

LtcZachary Anderson recently published an Article entitled, Note: Solving America’s Long-Term Care Financing Crisis: Financing Universal Long-Term Care Insurance with a Mandatory Federal Income Tax Surcharge that Increases with Age, 25 Elder L.J. 473-507, (2018). Provided below is an abstract of the Article:

As America’s elderly population rapidly grows, the number of elders that will require Long-Term Care (“LTC”) will correspondingly increase. Many elders lack the financial resources to pay for such care, and existing government programs that currently pay for LTC are underfinanced. While solutions have been proposed, no proposed solution has solved the core issue: how will millions of elders pay for LTC? It is imperative that a viable LTC financing reform solution be introduced and implemented. This Note analyzes a few of the many proposed solutions, establishes a framework that a viable solution should satisfy, and finally proposes a financing solution that could solve the LTC financing crisis.

June 17, 2018 in Articles, Elder Law, Estate Planning - Generally, Income Tax | Permalink | Comments (0)

Friday, June 15, 2018

Article on NOTE: Uncle Sam Killed Grandma: How The Estate Tax Can Help Alleviate Medicare Uncertainty

Uncle samAlexander G. Karl recently published an Article entitled, NOTE: Uncle Sam Killed Grandma: How The Estate Tax Can Help Alleviate Medicare Uncertainty, 26 Elder L.J. 443 (2018). Provided below is an abstract of the Article:

In the United States, Medicare is the single largest purchaser of medical services. This government program is primarily used by the elderly population. The future of Medicare is murky as there are many obstacles hindering its funding. It is more important than ever to ensure funding for this governmental program. The funding for Medicare has been reduced, even though the aging baby boomer generation has caused an exponential growth in enrollment.

Wealthy individuals who are in similar health conditions as those who are Medicare beneficiaries are subject to the Estate Tax. This tax is calculated based on the estate's value before it is passed to its heirs. As more baby boomers age, there will be more deaths and more estates that are taxable. Reformation of the Estate Tax will generate more revenue and, due to its relationship with Medicare, can justifiably be used to fund Medicare.

This Note: surveys the history and functionality of Medicare and the Estate Tax. This Note: also analyzes the impacts of budget cuts. It suggests a congressional policy change that would allow the collected Estate Tax revenue to fund Medicare. To do so, the Estate Tax must be reformed in two steps: (1) lower the exclusion amount while raising the maximum tax rate; and (2) limit the Grantor Retained Annuity Trusts to prevent large transfers of untaxed wealth.

 

June 15, 2018 in Articles, Current Events, Elder Law, Estate Planning - Generally | Permalink | Comments (0)

Thursday, June 14, 2018

Stan Lee May Need a Hero of His Own

image from https://s3.amazonaws.com/feather-client-files-aviary-prod-us-east-1/2018-06-14/89eb06f2-8f2b-43a3-85d2-ff261f41ada8.pngThe grandfatherly figure and creator of many beloved Marvel characters has found himself in the middle of a battle for his life, time, and fortune since the passing of his wife of 69 years, Joan, in July. A restraining order has been granted against Keya Morgan, 42, a memorabilia dealer who has been acting as 95-year-old Stan Lee's partner and representative, revealing that there is an active investigation against Morgan on claims of elder abuse against Lee.

According to the order, Morgan "inserted himself into the life of the Lee... taking advantage of Lee’s impaired hearing, vision and judgment, moving Lee from his longtime family home and preventing family and associates from contacting him." Morgan became acquainted with Lee after befriending J.C. Lee, the comic writer's daughter, and now has even stopped her from communicating with her father. When police and a social worker made a welfare check on Lee on Monday, Morgan called 911 and falsely claimed that this home was being burglarized. Morgan is serving two years probation for an unrelated act, but has been summoned to court to determine if this latest development violates the terms of his sentence.

On Morgan's Twitter bio, he refers to himself as "co-creator with Stan Lee." During a police interview with Lee he acknowledged that Morgan has been assisting him, but at times would forget Morgan's name.

See Andrew Dalton, L.A. Police Investigate Reports That Marvel Comics' Stan Lee is a Victim of Elder Abuse, Time, June 13, 2018.

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

June 14, 2018 in Current Events, Elder Law, Estate Planning - Generally, New Cases | Permalink | Comments (0)

Wednesday, June 13, 2018

A Lost Skill Among the Elderly: How to Have Fun

image from https://s3.amazonaws.com/feather-client-files-aviary-prod-us-east-1/2018-06-13/fbe70167-be93-4098-8afb-b6a531393e22.pngWhen one thinks of elder law it usually brings to mind nursing homes, finances, age-related diseases, insurance policies, etc. But what about things to do with the often abundant amount of leisure time? Older adults have much more time on their hands for fun - 7½ hours of leisure a day compared with 35-to-44-year-olds, who have only around 4 hours, according to a 2016 study by Merrill Lynch and Age Wave, a consulting firm specializing in age-related issues. Often, 48 hours of the week are spent in front of the television for retired adults because they have lost the skill to simple have fun and enjoy themselves.

The idea of an activity being "fun" depends on the person. It could be involves well thought out plans like traveling to a new locale or a smaller, spontaneous adventure like a sudden pick up game of softball.

Psychologist Elizabeth Skibinski-Bortman, 71, asks each client at their first session: “What do you do for fun?” Many do not have a response at all, while others take a minute to think of an answer. This does not mean they are glum or down, but simply that they have spent the last few decades of their lives working 40 hours a week and playing around always seemed to slip their mind.

Brenda Spradlin, 62, moved to Kentucky to be closer to her only grandchild and now plays pickleball 3 times a week at a local gym with other retirees. She said she did not have time to play and have fun while she was busy raising her children and succeeding at a rewarding career. "Now I do."

See Clare Ansberry, An Overlooked Skill in Aging: How to Have Fun, Wall Street Journal, June 2, 2018.

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

 

June 13, 2018 in Current Affairs, Elder Law, Estate Planning - Generally, Humor, Sports | Permalink | Comments (1)

Sunday, June 10, 2018

Article on Financial Exploitation of the Elderly: An Overview of Regulatory Action

image from https://s3.amazonaws.com/feather-client-files-aviary-prod-us-east-1/2018-06-10/7c55d861-2147-4a46-82ec-178db1634efd.pngChristine Lazaro recently published an Article entitled, Financial Exploitation of the Elderly: An Overview of Regulatory Action, Elder Law Studies eJournal (2018). Provided below is an abstract of the Article.

Financial exploitation of the elderly is a significant problem. In 2011, it was estimated that seniors lost on average, $2.9 billion as a result of financial abuse. By the year 2050, it is estimated that 83.7 million people will be aged 65 or older, double what it was in 2012. As a larger portion of the population becomes “elderly,” greater numbers are also suffering from cognitive impairment. Additionally, as people age, there is a decline in financial literacy.

This article examines the work done by securities regulators, the SEC, NASAA, and FINRA, to address the issues connected with financial exploitation of the elderly. The article discusses FINRA guidance to firms with respect to best practices for identifying and addressing financial exploitation of the elderly. It also provides an overview of the recently adopted NASAA Model Act to Protect Vulnerable Adults from Financial Exploitation, as well as FINRA Rules 2165 and 4512, which provide firms with tools to address suspected financial exploitation of seniors faster and more effectively.

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

Thursday, June 7, 2018

CLE on Protecting Assets While Qualifying for Medicaid

The National Business Institute is holding a conference entitled, Protecting Assets While Qualifying for Medicaid, which will be hold on Monday, July 30, 2018, at the Sheraton Erie Bayfront Hotel in Erie, Pennsylvania. Provided below is a description of the event.

Program Description

Get the Latest on Medicaid Application and Asset Planning Tactics

Middle class Americans seeking asset protection cannot afford to ignore the potentially devastating costs of nursing home and other long-term care. Nursing homes are among the most common and largest creditors an average American is likely to face in his or her lifetime, but only about 10% of the population has long-term care insurance. For the other 90%, Medicaid is the primary source of payment, so a basic understanding of the Medicaid asset protection process is vital for all professionals who work with seniors and their families. This course will provide an overview of asset protection concepts and strategies that elder law attorneys can use to legally and ethically protect assets while facilitating earlier Medicaid eligibility; and a set of crisis-management tools to prevent and correct inadvertent loss of benefits. Register today!

  • Learn what the income eligibility requirements are when applying for Medicaid.
  • Protect your clients' interests by knowing what's exempt and what's not.
  • Employ the most practical and effective asset transfer methods to comply with the spend-down requirement.
  • Explore crisis planning methods to restore Medicaid benefits as quickly as possible.
  • Guide clients through the Medicaid qualification process by knowing what's involved.

Who Should Attend

This basic-to-intermediate level seminar is designed for:

  • Attorneys
  • Nursing Home Administrators
  • Social Workers
  • Geriatric Care Managers
  • Trust Officers
  • Accountants and CPAs
  • Estate and Financial Planners
  • Paralegals

Course Content

  1. Applying for Medicaid - The Four Eligibility Requirements
  2. Pre-Need Asset Planning
  3. Trust-Based Medicaid Planning in Detail
  4. Crisis Planning and Assistance
  5. Using Special Needs Trusts - Sample Trust Review
  6. Applied Legal Ethics

Continuing Education Credit

Continuing Legal Education

Credit Hrs State
CLE 7.20 -  NJ*
CLE 7.00 -  NY*
CLE 6.00 -  PA*

Financial Planners – Financial Planners: 7.00

National Association of State Boards of Accountancy – CPE for Accountants/NASBA: 7.00 *

* denotes specialty credits

 

June 7, 2018 in Conferences & CLE, Disability Planning - Health Care, Disability Planning - Property Management, Elder Law, Estate Planning - Generally, Trusts | Permalink | Comments (0)

Monday, June 4, 2018

CLE on Using Trusts in Medicaid and Disability Planning

CLEThe National Business Institute is holding a conference entitled, Using Trusts in Medicaid and Disability Planning, which will be held on Wednesday, June 13, 2018 at the Ramada Plaza Portland in Portland, Maine. Provided below is a description of the event.

Program Description

Trust-Based Medicaid Planning Simplified

Most Americans will need nursing home care at some point in their lives. With the prohibitive cost of care and lack of financing options, preserving Medicaid eligibility has become a planning imperative. This incisive legal guide will give you all the tools to protect your clients' family assets while keeping their nursing home care funding options open. Register today!

  • Determine when a trust is needed and which trust structure best suits the situation.
  • Prevent unforeseen consequences with sample trust language and its detailed analysis.
  • Offer your clients more effective options when it comes to planning ahead for disability and nursing home care.
  • Review tax planning and reporting aspects of using income-only trusts.

Who Should Attend

This basic-to-intermediate level seminar is designed for:

  • Attorneys
  • Accountants
  • Financial Planners
  • Trust Officers
  • Geriatric Care Managers
  • Investment Advisers
  • Paralegals

Course Content

  1. Trusts Overview: Key Terms, Concepts, Parties, Governing Law
  2. Medicaid and Other Benefit Requirements the Trusts Need to Meet
  3. Using Third-Party Special Needs Trusts
  4. Trust Funding Techniques
  5. Income-Only Trusts (IOTs): When and How to Use Them
  6. Taxes and Medicaid Trusts

Continuing Education Credit

Continuing Legal Education – CLE: 6.50

Financial Planners – Financial Planners: 8.00

National Association of State Boards of Accountancy – CPE for Accountants/NASBA: 8.00 *

* denotes specialty credits

June 4, 2018 in Conferences & CLE, Disability Planning - Health Care, Elder Law, Estate Planning - Generally, Trusts | Permalink | Comments (0)

Article on 'Dignity in Living and in Dying': The Henry H. H. Remak Memorial Lecture

DeathGeorge P. Smith published an Article entitled, 'Dignity in Living and in Dying': The Henry H. H. Remak Memorial Lecture, Elder Law Studies eJournal (2018). Provided below is an abstract of the Article.

Although no express right to die with dignity is found in definitive instruments on human rights, the Charter of the United Nations nonetheless addresses the need to protect and safeguard the essential dignity and worth of the human person during life and, arguably, also at death. Indeed, the United Nations has taken an active role in codifying a mandate to ensure human dignity be given and observed within various contexts of International Law. A powerful interface exists between human dignity and the right to life; for, many of the claims to a right to die with dignity actually reaffirm a more general commitment to a shared life of loving and of being set within the framework of living a full life in dignity. Since the conclusion of World War II, a number of European constitutions, in particular, acknowledge presently dignity as a first principle, a constitutional value, a normative standard for policy making, a constitutional right or even an absolute right . The current debate over the issue of dignitary status is broadened contextually when notions of death with dignity are introduced and examined. This Article probes the efficacy of the present conflicts arising from this extended debate and concludes that the very right to self determination, dignity, and to life itself, should be acknowledged and respected especially at its end-stage. Clear evidence of this progressiveness is to be found, domestically, in the United States by state legislative actions which allow pharmacologic assistance at death for terminally ill individuals. These actions may be seen, and applauded, as a nascent response to similar global actions allowed, notably, in The Netherlands, Belgium, and Switzerland. Judicial responses to this matter, however, remain guarded and indecisive.

June 4, 2018 in Articles, Death Event Planning, Elder Law, Estate Planning - Generally, New Legislation | Permalink | Comments (0)