Wills, Trusts & Estates Prof Blog

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

Tuesday, December 5, 2017

Limiting State Medicaid Agency Attempts to Expand the “Any Circumstances” Test: An Analysis of Massachusetts’ Multiyear Legal Battle Over the Use of Irrevocable Trusts in Long-Term Care Planning

image from https://s3.amazonaws.com/feather-client-files-aviary-prod-us-east-1/2017-12-05/f6368f9c-8601-416f-b71e-60c12ba4f175.pngThe use of irrevocable trusts as a tool for long-term care planning has historically been problematic. Though the federal Medicaid statute allows for the use of such trusts, Congress, along with state and federal courts, has not taken kindly to their real-world application. The past few years have seen increasing conflict between individuals wanting to use this planning measure and state Medicaid agencies. Trust litigation in Massachusetts, where appellate court decisions regarding Medicaid cases have a far-reaching impact, has shown that zealous advocacy on the part of elder attorneys may continue to push courts to more fairly and consistently apply federal law.

See Lisa M. Neely, Limiting State Medicaid Agency Attempts to Expand the “Any Circumstances” Test: An Analysis of Massachusetts’ Multiyear Legal Battle Over the Use of Irrevocable Trusts in Long-Term Care Planning, NAELA News, 2017.

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

December 5, 2017 in Elder Law, Estate Planning - Generally, Trusts | Permalink | Comments (0)

How the Elder Law Attorney Can Help the Personal Injury Attorney

NAELA logo bwClients receiving settlements must consider the effect these incoming monies may have on their Medicaid, Medicare, Supplemental Security Income, or Social Security Disability Income. It falls to their attorney to warn these clients of the potential loss of certain benefits. Failure to do so can result in a malpractice claim. Stand-alone special needs trusts (SNTs) and pooled special needs trusts (PSNTs) may be used to preserve these benefits. SNTs may utilize a family or corporate trustee. The drawback to these options is that corporate trustees can be expensive, and family trustees can be incompetent. PSNTs are run by a non-profit organization that usually has extensive experience managing assets in special needs trusts. Because assets are pooled, PSNTs tend to have better investment opportunities along with lower fees. 

See Joanne Marcus & Karen E. Dunivan, How the Elder Law Attorney Can Help the Personal Injury Attorney, NAELA News, 2017.

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

December 5, 2017 in Elder Law, Estate Planning - Generally, Professional Responsibility, Trusts | Permalink | Comments (0)

Wednesday, November 29, 2017

CLE on Planning for Incapacity: Financial Powers of Attorney, Health Care Directives, and Ethical Challenges

0000000 CLEThe American Law Institute is holding a conference entitled, Planning for Incapacity: Financial Powers of Attorney, Health Care Directives, and Ethical Challenges, which will take place on Wednesday, December 6, 2017, via telephone seminar and audio webcast. Provided below is a description of the event:

Why You Should Attend

Do you find yourself going to standard forms to draft durable powers of attorney and health care directives—after carefully constructing a customized will and/or trust to meet your client’s planning objectives? Are you aware of ethical obligations in connection with representing clients with diminishing capacity?

Protecting your client in life is just as important as easing the orderly disposition of property after death. Powers of attorney and health care directives are significant tools that ensure that the clients’ wishes are honored and financial assets are protected while they are incapacitated.

Join experienced estate planners for an in-depth exploration of how to effectively draft and use durable powers of attorney and health care directives. Faculty will also address ethical obligations of attorneys to protect clients’ financial interests and minimize their financial exploitation if clients become unable to conduct their own affairs.

What You Will Learn

Topics of discussion will include:
Financial Powers of Attorney
Health Care Directives
Ethical considerations, including interaction of Model Rules 1.6 and 1.14

Who Should Attend

Estate Planners who represent disabled and elderly clients will benefit from this focus on preserving and managing assets and preserving estate planning goals in the event of disability or other incapacity.

Tuition for the telephone seminar includes a set of electronic course materials and access to the telephone seminar.

Tuition for the webcast includes a set of electronic course materials and access to the webcast.

November 29, 2017 in Conferences & CLE, Disability Planning - Health Care, Elder Law, Estate Administration, Estate Planning - Generally | Permalink | Comments (0)

Sunday, November 12, 2017

CLE on Protecting Assets While Qualifying for Medicaid

0000000 CLEThe National Business Institute is holding a conference entitled, Protecting Assets While Qualifying for Medicaid, which will take place on Thursday, November 30, 2017, at the Omaha Marriott in Omaha, NE. 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. Crisis Planning and Assistance
  4. Trust-Based Medicaid Planning in Detail
  5. Using Special Needs Trusts - Sample Trust Review
  6. Applied Legal Ethics

Continuing Education Credit

Continuing Legal Education – CLE: 6.00 *

Financial Planners – Financial Planners: 7.00

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

* denotes specialty credits

November 12, 2017 in Conferences & CLE, Elder Law, Estate Planning - Generally | Permalink | Comments (0)

Monday, October 30, 2017

CLE on 43rd Annual Trust and Estate Conference

0000000 CLEUSC Gould School of Law's is holding a conference entitled, 43rd Annual Trust and Estate Conference, which will take place on Friday, November 03, 2017, at the The Westin Bonaventure Hotel in Los Angeles, CA. Provided below is a description of the event:

For over 40 years, USC Gould School of Law's estate planning conference has provided California practitioners with high-quality continuing education, customized for trust, estate planning and probate professionals.

Click here for the complete programming guide for the 43rd Annual Trust and Estate Conference.

Practical and Realistic Solutions to Issues in Probate, Trust, Estate Planning and Elder Law

With over 500 registrants, the Conference allows professionals to learn from both the speakers and their professional colleagues in attendance. The Conference is specially crafted for attorneys, trust officers, accountants, financial planners, professional fiduciaries, financial institution executives, underwriters, insurance advisors, wealth management professionals, paralegals, fiduciary officers and other professionals in the trust and estate planning field. Speakers typically share "how to" techniques and forms used in their practices. Attendees are provided with practical syllabus materials in both print and electronic formats, including an annually-updated Trust and Estates Directory of Los Angeles, Orange and San Diego counties. CE units are available for lawyers, accountants, financial planners and professional fiduciaries. Legal specialization credits are available in Taxation Law and Estate Planning, Trust and Probate Law.

High-Quality Education

The 43rd Annual Trust and Estate Conference featured some of the best names in trust and estate. USC Gould Professor Edward McCaffery will speak at lunch on the future of estate planning. Popular returning speakers Professor Jack Barcal (USC Leventhal School of Accounting), Jeffrey Dennis-Strathmeyer and David Lane once again kicked off the Conference with an update of recent Federal tax law, California legislation and case law. 

Other speakers throughout the day will include: Robert Barton (Holland & Knight), Gail Cohen (Fiduciary Trust International), Jeryll Cohen (Freeman Freeman & Smiley), Jody Jenkins (Fiduciary Trust International), Arnold Kahn (Holland & Knight), Linda Retz (Law Offices of Linda J. Retz), Sheri Samotin (LifeBridge Solutions), Geraldine Wyle (Freeman Freeman & Smiley) and Marshall Zolla (Law Offices of Marshall S. Zolla).

Click here for the complete programming guide for this year's Conference.

We will again have audio recordings of the Conference available to purchase. The recordings will include all the sessions and will be delivered post-Conference. You may receive CLE credit for sessions you did not attend in person. You cannot claim additional credit for listening to the audio recording of a session you attended.

 The 42nd Annual Trust and Estate Conference sold out, so be sure to register early.

Sponsorship Opportunities

There are many opportunities to sponsor the 43rd Annual Trust and Estate Conference, including the sponsorship of meals, receptions, breaks and give away items. Sponsorship starts at $3,000. Let us tailor your sponsorship opportunity to best serve your needs. Click here for more information.

Social Media

Follow us socially on Facebook/USCLawCLE and Twitter (@USCGouldCLE) for the latest news and updates on our speakers and programming. Find us online using the #USCTrust.

October 30, 2017 in Conferences & CLE, Elder Law, Estate Planning - Generally, Trusts | Permalink | Comments (0)

Tuesday, October 10, 2017

How the Elderly Lose Their Rights

Senior-financial-abuseRudy North once began his days in the relative comfort of his own home, reading newspapers and novels at his leisure. His wife of fifty-seven years, Rennie, recovering from lymphoma and suffering with neuropathy, was a bit slower but just as pleased to greet the day. Both were living happily together with daily assistance from a nurse who provided Rennie aid with bathing and dressing. This delightful routine ended abruptly and without warning upon the unexpected entrance of April Parks into their once-tranquil lives.

Parks was the owner of A Private Professional Guardian, a company specializing in gaming the legal and medical systems, with the help of complacent judges and crooked medical staff, in order to obtain guardianship over elderly individuals in order to siphon away their assets through fees and expenses. Unbeknownst to the Norths, Parks had attained a letter from a physician’s assistant indicating the Norths posed a substantial risk for mismanagement of their own medications. Jon Norheim, the Clark County guardianship commissioner at the time, granted Parks’s request to become guardian for the Norths. This had essentially become routine, as Norheim granted Parks a guardianship about once per week. Neither Rudy nor Rennie were subject to any formal testing or psychological evaluation prior to the complete and total stripping of their civil liberties.

After a long and arduous struggle and substantial intervention by third parties, the Norths are now living with their daughter in a converted office. They have few assets, as Parks gorged her seemingly insatiable appetite on their life savings. Despite a substantial amount of blame that can laid at the feet of the Nevada legal system, it appears as though the victims of this schema have little recourse for remedy.

See Rachel Aviv, How the Elderly Lose Their Rights, The New Yorker, October 9, 2017.

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

October 10, 2017 in Current Events, Disability Planning - Health Care, Elder Law, Estate Planning - Generally, Professional Responsibility | Permalink | Comments (0)

Thursday, September 28, 2017

Article on Elder Law Issues and Recent Developments 2016-2017

Elder-LawElizabeth Ruth Carter recently posted an Article entitled, Elder Law Issues and Recent Developments 2016-2017, Wills, Trusts, & Estate Law eJournal (2017). Provided below is an abstract of the Article:

These materials are part of the 2017 LSU Recent Developments CLE. The paper includes recent ethical developments; scam and abuse prevention and reporting; recent developments in mandate and interdiction; recent developments in Louisiana's medical consent law, recent developments in living wills and advance directives; recent developments with anatomical gifts and bodily remains; tax; and recent developments in criminal law.

Special thanks to Robert H. Sitkoff (John L. Gray Professor of Law, Harvard Law School) for bringing this article to my attention.

September 28, 2017 in Articles, Conferences & CLE, Elder Law, Estate Planning - Generally, Estate Tax, Income Tax, Wills | Permalink | Comments (0)

Saturday, September 23, 2017

CLE on Elder Law and Medicaid Planning: Everything You Need to Know

0000000 CLEThe National Business Institute is holding a conference entitled, Elder Law and Medicaid Planning: Everything You Need to Know, which will take place on Wednesday, September 27, 2017, at the Hilton Garden Inn Rochester Downtown in Rochester, NY. Provided below is a description of the event:

Program Description

Everything You Need to Know to Represent Elderly Clients

Rising medical costs, health insurance changes, looming Social Security Fund depletion and baby boomers' retirement have intensified concerns over long-term care funding. Are you doing everything you can to help each client develop a comprehensive plan to ensure proper quality of life in the golden years? Join our expert faculty for two days of intensive study on planning and coordinating government benefits, and emerge better prepared to face the challenges of today's Medicaid and elder law practice. Register today!

  • Get two full days of estate planning training, so you can help clients protect assets and qualify for continuing care benefits.
  • Review medical and financial Medicaid eligibility criteria in detail.
  • Explore new continuing care options that allow for more independence.
  • Find new LTC funding sources to help clients maintain the quality of life they're used to.
  • Get solutions to real-life ethical dilemmas often faced in elder law practice.
  • Plan for the tax consequences of asset transfers on spenddown requirement compliance.
  • Minimize Medicaid estate recovery through intricate understanding of the process.
  • Make better use of special needs trusts.

Who Should Attend

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

  • Attorneys
  • Estate and Financial Planners
  • Trust Officers
  • Paralegals
  • Accountants
  • Tax Preparers
  • Nursing Home Administrators

Course Content

DAY 1

  1. Medicaid Benefits and Eligibility Rules
  2. Preserving Family Assets When Qualifying for Medicaid
  3. Medical and End-of-Life Decisions
  4. Medicaid Application Procedure and Tactics
  5. Ethical Dilemmas

DAY 2

  1. Long-Term Care Planning: Types, Cost, and Funding Options
  2. Tax Considerations
  3. Powers of Attorney
  4. Special Needs Trusts: Creation, Taxation, Administration
  5. Medicaid Post-Eligibility Issues

Continuing Education Credit

Continuing Legal Education

Credit Hrs State 
CLE 14.40 -  NJ*
CLE 14.00 -  NY*
CLE 12.00 -  PA*

Continuing Professional Education for Accountants – CPE for Accountants: 14.00 *

National Association of State Boards of Accountancy – CPE for Accountants/NASBA: 14.00 *

* denotes specialty credits

September 23, 2017 in Conferences & CLE, Disability Planning - Health Care, Elder Law, Estate Planning - Generally | Permalink | Comments (0)

Wednesday, September 13, 2017

Article on Note: Nursing Home Abuse of Agents: Creditor Misuse of New York's Revised Durable Power of Attorney

Elder abuseWilliam P. Davies recently published an Article entitled, Note: Nursing Home Abuse of Agents: Creditor Misuse of New York's Revised Durable Power of Attorney, 79 Alb. L. Rev. 1433 (2015/2016). Provided below is an abstract of the Article:

According to the Third Restatement of Agency, “[a] written instrument may make an agent’s actual authority effective upon a principal’s loss of capacity, or confer it irrevocably regardless of such loss.” A commonly used device that confers agency, and does not terminate upon incapacity, is known as a Durable Power of Attorney (“DPOA”). While such a device can be useful to avoid government and court involvement in the event of incapacity, it can also be dangerous. Without proper safeguards, the agent under a DPOA can use the device to exploit an elderly principal. Due to the danger of abuse of the principal at the hands of the agent, state legislatures have enacted various measures to protect principals. However, as this paper sets out, some reforms that combat DPOA abuse may be contrary to the purpose of the device. One of these reforms is the Special Proceeding available to third parties pursuant to the New York General Obligations Law section 5-1510(3), which in its current form allows creditors to bypass the protections offered by New York Debtor Creditor law. 
In order to understand how the special proceeding came to be in its current form, this paper will discuss the history of the DPOA on a national scale, its application in New York, and the various measures taken by New York and other states to ensure agents do not abuse the power granted to them by principals who are no longer competent to manage their affairs. 

September 13, 2017 in Articles, Disability Planning - Health Care, Elder Law, Estate Administration | Permalink | Comments (0)

Wednesday, July 26, 2017

The Ethics of Adjusting Your Assets to Qualify for Medicaid

Tumblr_m44fzypxpc1qbr0g2o1_1280Medicaid qualifications tend to vary from state to state. Generally, there exist some asset thresholds that may not be exceeded in order to qualify for aid. With Republicans in Congress seeking legislation aimed at reducing Medicaid benefits, ethical concerns regarding hiding wealth in order to achieve qualification have been forced back into the limelight.

There are two well-defined perspectives when it comes to hiding assets: those that refuse to do it, and those who are perfectly willing to hide their property in order to qualify for Medicaid. Janet Kinzer offered a poignant rebuke to those hiding assets: “People who engage in such planning are privileged enough to be aware of it and can afford the legal fees. Shouldn’t tax dollars only go toward the care of people who lack such access?”

While a fair point, there are a number of rebuttals, including the general unavailability of benefits for those suffering from dementia and other degenerative diseases; maladies that often require highly skilled care and constant supervision for extended periods of time. When faced with the very real possibility of exhausting every penny of saved wealth and leaving nothing to children in order to pay for long-term care, this ethical consideration becomes a bit less black-and-white for many. 

A quick warning, if you are ethically comfortable hiding assets to gain Medicaid benefits, be sure to hire a qualified attorney to help with the process. The intricacies of hiding assets is extremely convoluted, complex, and may have unintended consequences if undertaken without competent legal assistance.

See Ron Liber, The Ethics of Adjusting Your Assets to Qualify for Medicaid, The New York Times, July 21, 2017.

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

July 26, 2017 in Current Events, Elder Law, Estate Planning - Generally, New Legislation, Trusts | Permalink | Comments (0)