Wills, Trusts & Estates Prof Blog

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

A Member of the Law Professor Blogs Network

Thursday, January 29, 2015

Video on Mandatory Reporting of Elder Abuse

LawDavid Tate (San Francisco/California litigation attorney) created a video entitled, Mandated Elder & Dependent Adult Abuse Reporting – Then What’s Next – Community Response. In the three -minute video, Tate describes what happens after elder abuse is reported to state agencies and what the reporter of abuse should and must do under California mandatory reporting laws. Tate suggests three areas of improvement to help reduce elder abuse:

  1. additional resources
  2. education and awareness
  3. better developed and coordinated community response

January 29, 2015 in Elder Law | Permalink | Comments (0) | TrackBack (0)

Monday, January 26, 2015

A Devastating Practice In Debt Collection

Lillian PalmeroWhen Lillian Palermo became incapacitated at age 80, her husband and power of attorney regularly rolls his wife’s wheelchair at a nursing home in Manhattan.  Yet last summer, after Mr. Palermo disputed nursing home bills that doubled Mrs. Palermo’s copays and complained about employees who dropped his wife on the floor, Mr. Palermo was shocked to find a guardianship petition filed by the nursing home, asking the court to give a stranger full legal power over Mrs. Palermo.

Few people are aware that a nursing home can take such a step.  However, the growing practice has become routine, illustrating the power nursing homes wield over residents and families amid changes in financing of long-term care. 

In a random sample of 700 guardianship cases filed in Manhattan over a decade, researchers found that more than 12 percent were brought by nursing homes.  Lawyers and others agree that nursing homes primarily use such petitions as a means of bill collection.  At least one judge has ruled that the tactic is an abuse of the law, but the petitions force families into costly legal ordeals. 

While it is a drastic measure, nursing home lawyers argue that using guardianship to secure payment for care is better than suing an incapacitated resident who cannot respond. 

See Nina Bernstein, To Collect Debts, Nursing Homes Are Seizing Control Over Patients, The New York Times, Jan. 25, 2015.

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

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

January 26, 2015 in Disability Planning - Health Care, Disability Planning - Property Management, Elder Law, Estate Planning - Generally, Guardianship | Permalink | Comments (0) | TrackBack (0)

Why Social Security Won't Cover Retirement

Social security 1

One of the most financially disastrous mistakes you can make is to assume that Social Security will cover your retirement.  This is particularly dangerous because if you do not realize that mistake early on, it may be too late.

While Social Security does play an important role in retirement plans for millions of Americans, the odds are high that it will not be enough to fund your retirement by itself.  Below are three key reasons why:

  1. Social Security is not designed to be your only source of retirement income.  Social Security’s benefit calculation is not designed to provide you much more than a buffer against abject poverty in your old age. 
  2. Social Security’s Trust Funds are emptying, which may cause benefits to decrease by 23%.  The $1,328 that a typical retiree receives today would become the inflation-adjusted equivalent of $1,022 in 2033, once the Trust Funds empty.  Even if Congress tries to remedy the problem, this has generally consisted of some combination of tax hikes or benefit cuts.
  3. The demographic tides are shifting against Social Security’s funding model.  Social Security is a “pay as you go” system in which your taxes pay for the current recipient’s benefits.  This works fairly well so long as there are enough people paying into the system.  However, as the population ages and a smaller portion participate in the workforce, Social Security’s funding is becoming stretched. 

Regardless of what happens to Social Security in the future, the reality has been that if you want a comfortable retirement, you need to save above and beyond.

See Chuck Saletta, 3 Reasons Social Security Won’t Cover Your Retirement, The Motley Fool, Jan. 24, 2015.

January 26, 2015 in Elder Law, Estate Planning - Generally, Non-Probate Assets | Permalink | Comments (0) | TrackBack (0)

Approaching Issues of Capacity

Writing 2

While capacity can be an issue at any age, it is statistically most common among the elderly.  Many people decline in mental and physical ability as they age and capacity becomes a concern.  However, it is a well-known pillar of capacity law that practitioners cannot assume that capacity is an issue.  It is the professional’s responsibility to probe and verify in order to confirm or dispel any concerns surrounding an assessment of capacity. 

An advisable way to approach extracting issues of capacity with an elderly individual is through delicate conversation and encouraging openness.  Though it is important to avoid offending clients who may be uncomfortable, this is a crucial issue to ensure proper estate planning.  Sometimes, apparent symptoms of incapacity can result from cultural differences between client and lawyer.  Other times, apparent cultural issues can mask signs of incapacity.  As a lawyer, information regarding capacity may govern whether or not you can take instructions or act for the person, or whether any will prepared will ultimately be valid. 

See Ian M. Hull, How Lawyers Should Approach Issues of Mental Capacity, The Huffington Post Canada, Jan. 24, 2015.

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

January 26, 2015 in Disability Planning - Health Care, Disability Planning - Property Management, Elder Law, Estate Planning - Generally, Professional Responsibility, Wills | Permalink | Comments (0) | TrackBack (0)

Friday, January 23, 2015

Family Files Suit Claiming Tom Benson Incompetent to Control New Orleans Saints, Pelicans

Tom Benson

The struggle for control of the New Orleans Saints and Pelicans escalated Thursday when family members associated with Rita Benson LeBlanc filed a lawsuit claiming that the teams’ owner and family patriarch Tom Benson is incompetent and is being directed by a manipulative wife and her allies of the sports empire. 

The suit was filed one day after Tom Benson unexpectedly announced plans to transfer future ownership of the clubs to his wife, Gayle, cutting off his daughter, Renee LeBlanc and his two grandchildren, Ryan and Rita LeBlanc.  The lawsuit seeks to block the succession change and presents numerous claims that Benson is mentally and physically unfit to manage his personal or business affairs.  The petitioners (named as Renee, Rita and Ryan LeBlanc) are also requesting an independent board-certified geriatric psychiatrist to examine Benson. 

The suit attempts to paint Gayle Benson as a “gold-digging opportunist who has taken advantage of her husband’s unfit state of health and ostracized family members in grasping for power and riches.”  Petitioners are asking the court to appoint Renee LeBlanc as executor of Benson’s sports and business ventures, with Rita LeBlanc in a secondary position.

See Jeff Duncan and Manuel Torres, Rita Benson LeBlanc, Family File Suit Claiming Tom Benson Incompetent to Control New Orleans Saints, Pelicans, The Times Picayune, Jan. 22, 2015.

See also Jeff Duncan, New Orleans Saints, Pelicans Ownership Shocker: Wife Gayle, Not Granddaughter Rita, Will Control Empire After Tom Benson Dies, The Times Picayune, Jan. 21, 2015.

Special thanks to Sarah Elizabeth Gelfand (George Washington University Law School) for bringing these articles to my attention.   

January 23, 2015 in Disability Planning - Property Management, Elder Law, Estate Administration, Estate Planning - Generally | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 21, 2015

Cruising Through Life

Cruise ship

After 86-year-old Lee Wachtstetter’s husband died, she decided to sell their ten-acre Fort Lauderdale home and become a permanent luxury cruise ship.

She is known on the Crystal Serenity as Mama Lee, and has been living on the 1,070 passenger vessel for nearly seven years.  “My husband introduced me to cruising,” she said.  “During our 50-year marriage we did 89 cruises. . . The day before my husband died of cancer in 1997, he told me, ‘Don’t stop cruising.’  So here I am today living a stress-free, fairy-tale life.”

Since being aboard the ship Mama Lee has done at least a hundred different cruises, and has been to almost any country that has a port.  Living on the Serenity this year will cost her $164,000, which covers the costs of her single-occupancy seventh deck stateroom, regular and specialty restaurant meals with available lunch and dinner beverages, gratuities, nightly ballroom dancing with dance hosts and Broadway-caliber entertainment.  “I’m so spoiled I doubt that I would ever be able to readjust to the real world again.”

See Si Liberman, Woman Pays $164K Per Year to Live on Luxury Cruise Ship, KSDK.com, Jan. 19, 2015.

January 21, 2015 in Elder Law, Estate Planning - Generally | Permalink | Comments (0) | TrackBack (0)

Thursday, January 15, 2015

Medicaid Benefits Denial Reversed 6 Days After Applicant Dies

Elder CareNeva Holt, a Tennessee resident and small business owner, was denied Medicaid assistance for nursing home care after a determination that she transferred land to grandchildren that could have been used as an asset to generate income for her nursing home care. Holt's family arranged for her to be cared for by a disabled caregiver after she left the nursing home, and appealed the decision by TennCare to deny her Medicaid benefits. On Jan. 7 her family successfully got the decision reversed due to a ruling by an assistant commissioner for the Tennessee Department of Human Service that Holt did not have an ownership interest in the land. However, the decision came six days after the 88-year-old grandmother died.

See Tom Wilemon, Tenn. Woman Gets Medicaid Help - 6 Days After Her Death, USA Today, Jan. 14, 2015.

January 15, 2015 in Disability Planning - Health Care, Elder Law | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 13, 2015

Decade Long Scam Convinced Man He Was a Husband, Father to Take His Millions

JailTen years ago, a scam was launched to swindle Raines Tree Farm heir Ralph Raines Jr., now 67-years old, out of his fortune through a decade long con that included a fake marriage and child, according to Oregon prosecutors. The alleged con-artists that duped Raines out of up to $20 million are mother-daughter duo Rachel Lee, 43, and Porsha Lee, 25.  Rachel Lee met Raines in 2004 and gained his trust by becoming a caretaker for his father in 2006. In 2008, the then 17-year-old Porsha Lee adopted a persona as a UK resident named Mary Marks in need of a green card and wanting Raines to father a child with her, and convinced Raines to be a sperm donor to help her achieve her goal of mother-hood. The mother-daughter team then convinced Raines that Porsha was his wife and that Porsha's nephew was Raines' son. Both women have pled guilty, but have not yet been sentenced. Despite the guilty pleas and being left with only $200,000 remaining of his family fortune, Raines maintains that he has a son with his wife Mary Marks.

See Joel Christie, Mother-Daughter Con Artist Duo 'Spent 10 Years Scamming Elderly Farming Heir Out of $20 Million After Convincing Him He Had a Son Named Giorgio Armani', Daily Mail, Jan. 8, 2015.

Special thanks to Brian Cohan (Attorney at Law, Law Offices of Brian J. Cohan, P.C.) for bringing this article to my attention.

January 13, 2015 in Elder Law, Estate Planning - Generally | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 7, 2015

Doctors Up Against Medicare and Medicaid Pay Cuts

Medical expenses

In 2015, it will become increasingly more difficult for Medicare and Medicaid patients to see a doctor.  According to the Department of Health and Human Services, doctors who still accept Medicare patients could see an average reduction of 21.2 percent in Medicare reimbursement rates.  Furthermore, Medicaid physicians taking Medicaid patients could see an average reduction of 42.8 percent. 

Not only could doctors be in for a bruising this financial year, patients (both seniors and the poor) may not be able to find a doctor who will take them. 

Now that Republicans are in charge, they will likely want to offset the additional cost of the “doc fix” with other budget cuts.  On the other hand, Republicans might attach the doc fix to legislation they do not want, which would limit some of the Environmental Protection Agency’s overreaches, or rolling back part of President Obama’s amnesty executive order.  While there will be bipartisan support for some type of doc fix, it could get bogged down in legislative maneuvers.

See Merrill Matthews, Doctors Face A Huge Medicare And Medicaid Pay Cut In 2015, Forbes, Jan. 5, 2015.

January 7, 2015 in Current Affairs, Disability Planning - Health Care, Elder Law, Estate Planning - Generally | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 6, 2015

Perceptions of Aging

AgingThe realities of an aging population, which is expected to consist of over 83 million Americans that are at least 65-years-old by 2050, has some concerned that negative attitudes toward older individuals is creating a divided society and negative consequences.

A 2012 study from the Yale School of Health of Facebook groups that were created by individuals in their 20's revealed that a majority of groups reviewed expressed negative views toward the older generation, including calls for older individuals to be banned from daily activities, such as shopping. However, a study by social psychologist Ellen Langer and epidemiologist Becca Levy suggests that some commonly expected differences between younger and older individuals may be caused by cultural expectations, as the study revealed that there was less of a difference in memory ability between Chinese individuals on different ends of the age spectrum, where it is believed less ageism exists culturally, than the American participants.

In an attempt to address the affects of negative perceptions of aging, proponents of the age-acceptance movement advocate programs and initiatives that integrate and create interdependence between older and younger individuals.

See Anne Karpf, The Liberation of Growing Old, The New York Times, Jan. 3, 2015.

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

January 6, 2015 in Elder Law | Permalink | Comments (0) | TrackBack (0)