Wills, Trusts & Estates Prof Blog

The Life Insurance Industry--Elder Abuse Interface

Johnny Parker (Professor of Law, University of Tulsa College of Law) has recently published his article entitled Company Liability for a Life Insurance Agent's Financial Abuse of an Elderly Client, 2007 Mich. St. L. Rev. 683 (2007).

Here is an excerpt from the introduction of his article:

The purpose of this Article is to examine the life insurance industry's role in financial elder abuse. Part I explains why elders are perfect fraud victims for life insurance companies and agents. It examines the intrinsic and extrinsic considerations that make elderly people the perfect prey for predators, such as rogue life insurance agents. Part II explores the extent to which insurance agents engage in financial elder abuse. While financial elder abuse is frequently attributed to a minority of unscrupulous insurance agents, Part II demonstrates that the problem is more widespread than the life insurance industry is prepared to acknowledge. Part III describes the story of one life insurance agent's financial elder abuse case that occurred in Oklahoma and culminated in litigation in 2005. While the story is typical in many respects, it was chosen primarily because of the agent's response when the scam was finally detected. Part III demonstrates that elders who are financially victimized by their insurance agents rarely, if ever, received full financial compensation. Consequently, Part III serves as the launch pad for the primary thesis: making out a case of company liability for a life insurance agent's financial elder abuse. Part IV explores the traditional legal theories typically used to impute liability to employers for torts committed by employees. This Part explains each theory in detail with emphasis on its appropriateness in the context of financial elder abuse.

DRA and Its Effect on Long-Term Care Services

Ellen O'Brien (Public Policy Institute at AARP, Washington, D.C.) has recently published her article entitled What Is Wrong with the Long-Term Care Reforms in the Deficit Reduction Act of 2005?, 9 Marq. Elder's Advisor 103 (2007).

Here is an excerpt from the conclusion to her article:

The DRA provides some modest relief to the federal, state, and local governments that jointly finance Medicaid, and it promises to target those resources more effectively. Although it is possible to imagine a scenario where public subsidies are reduced for upper middle-class individuals who are able to pay for their own care in order to improve the amount and quality of means-tested assistance for low-income individuals, the DRA is unlikely to deliver it. It remains to be seen how states will implement the DRA and how elderly applicants for Medicaid assistance will be affected. However, it is likely that much of the savings will accrue because those with very modest resources will spend more on care.***

Some may argue that advocates for better long-term care services were somewhat successful due to the DRA reforms that increased flexibility to expand home services, community-based services, and provided additional federal monies to pay for those services. However the fundamental goal of the DRA is to reduce public responsibility and increase private responsibility for long-term care. That is a worrisome trend. Changing course to reduce the already large burdens on those who need care will require better appreciation of the gaps in the current system, the impact of these gaps on individuals and families, and the feasibility and affordability of meaningful alternatives to the inadequate approach to financing that we have today.

Trustees Report Medicare’s “Serious Financial Status”

The following is from a press release issued by the U.S. Department of Health & Human Services on March 25, 2008, entitled Medicare Trustees Report Shows Serious Financial Status of Medicare Program:

In their annual report, the Medicare Trustees today announced that both the Medicare Hospital Trust Fund and the Supplementary Medical Insurance Trust Fund expenditures are growing faster than the rest of the economy. The Trustees report expenditures were $432 billion in 2007, or 3.2 percent of gross domestic product (GDP), and are projected to increase to nearly 11 percent of GDP in 75 years.

The Trustees report that Medicare’s Hospital Insurance (HI) Trust Fund will become insolvent earlier in 2019 than reported last year. HI expenditure growth is estimated to average 7.4 percent each year over the next 10 years, a higher rate than either Gross Domestic Product (GDP) or Consumer Price Index (CPI) growth. This year the HI Trust Fund will spend more than its income, and from 2009 through 2017, about $342 billion will need to be transferred from the Federal treasury to cover beneficiaries’ hospital insurance costs.***

Special thanks to Neil E. Hendershot, Esq. (Attorney at law, Goldberg Katzman, P.C., Adjunct Professor, Widener University School of Law) for bringing this article to my attention. You can read more on Neil's blog at PA Elder, Estate & Fiduciary Law Blog.

Deficit Reduction Act of 2005 and Healthcare Planning for the Elderly

Alison Barnes (Professor of Law, Marquette University Law School) has recently published her article entitled Long Term Care in the Political Balance, 9 Marq. Elder's Advisor 1 (2007).

Here is an excerpt from her article:

The Deficit Reduction Act of 2005 continued the long history of squeezing off Medicaid eligibility for aged people with disabilities who are not destitute.*** The Medicaid eligibility rules seek to utilize savings to pay for nursing facility care and recover expenditures from the value of assets generally exempt during the Medicaid recipient's lifetime, primarily the home.***

As one student*** inquired***: Do you mean that if I set aside assets to cover five years of nursing facility care (at $5,000 per month on average nationwide, or $300,000) then the government will pay for my nursing home care? That generally is correct[.]***

For the great majority, however, that set-aside is impossible. The question becomes: How much savings is “too much” to reserve from payment for nursing home care, and does society wish to scrutinize why the elderly owner seeks to set it aside from his or her support? ***

Deficit Reduction Act and State Administration of the Medicaid Program

Julia Belian (Visiting Associate Professor of Law, University of Missouri-Kansas City School of Law) has recently published her article entitled State Implementation of the Optional Provisions of the Deficit Reduction Act, 9 Marq. Elder's Advisor 63 (2007).

Here are excerpts from the conclusion to her article:

The Deficit Reduction Act is a complex piece of legislation that modifies an already complex federal law. It offers a myriad of complex options to states that were already operating widely divergent versions of the Medicaid program.***

Increasing health care costs force consumers to face difficult choices, and the government likewise feels the strain of rising costs. Whether Medicaid was “working” before the DRA became law is irrelevant because, regardless of the ability to get health care to those in need, the costs had reached the point of crippling state budgets. Post-DRA Medicaid is not inherently more complex than pre-DRA Medicaid. States can still choose to adopt different approaches to the various problems they face, all in the hopes of improving health care delivery and reducing health care costs. However, the new state options under the DRA do seem to change the landscape in key ways.***

David Kessler Forms Consulting Business to Protect the Elderly

David Kessler is a retired police commander and is now speaking on the topic of exploitation of the elderly.

Here is an excerpt from his website, Protecting the Elderly:

David M. Kessler is a retired Police Officer (former Commander of the Financial Crimes Unit) with the Dekalb County Police Department in Decatur, Georgia. He has dedicated his professional life to providing education and guidance for public and private sector professionals on the topic of exploitation of the elderly, and making certain those who prey on elderly victims are punished.

David was recruited by the Ohio Attorney General in 1999 to serve as Chief Investigator of the Attorney General's Consumer Protection Unit. Within this role, David's primary focus became the protection of senior citizens against those who would prey upon them.

With extensive knowledge and vast experience in the area of elder exploitation, David chose to leave the government sector in 2008 to form his own consulting business, Protecting The Elderly. As a keynote speaker and trainer on the topic of exploitation of the elderly, David addresses all facets of these crimes, including: Undue Influence, Sweetheart Swindles, Power of Attorney Thefts, and Home Improvement Scams.

Increasing Elder Abuse Calls for Legislative Action

Jane A. Black (J.D. Candidate 2008, St. John's University School of Law) has recently published her Note entitled The Not-So-Golden Years: Power of Attorney, Elder Abuse, and Why Our Laws Are Failing a Vulnerable Population, 82 St. John's L. Rev. 289 (2008).

Here is the conclusion to her Note:

While the allegations of financial abuse and neglect involving Astor may never be proven, the Park Avenue socialite's story brings to the forefront one of the gravest legal issues affecting the elderly in the twenty-first century. The selection of who will hold one's power of attorney is, undoubtedly, one of the most significant decisions an older individual will make. Depending on the type of power granted, such an individual has the ability to thwart the elderly's desired disposition of money after death, or worse, infuse fear, helplessness, and deceit into the final years of an elderly person's life.

Without immediate action by lawmakers though, there is no indication that financial exploitation of the elderly will subside. Abuse is certain to swell as longevity increases, technology improves, and the lines of communication become easier to cross. As evidenced from the cases and statistics above, the day has passed where the American legal system can fail to recognize elder abuse as a widespread attack on the most vulnerable members of our population. To combat these abuses, federal and state legislatures need to enact uniform laws and sanctioning mechanisms to create a legal system with a hard stance against abuse of the elderly.

Medicaid and Estate Planning

Rick B. Weaver (Attorney at Law, Shannon, Gracey, Ratliff & Miller, L.L.P.) has recently published his article entitled How Medicaid Planning Affects Other Issues, 71 Tex. B.J. 110 (2008).

Here is an excerpt from his article:
   

Many clients are wary of making large gifts because they believe their children will pay income tax on the gifts. While this is clearly not going to occur, clients who wish to make significant gifts in order to trigger the five-year look-back period do need to consider additional income taxes that may be paid by their children on the income earned by these gifted assets following the gifts. In most cases, the children are in a higher tax bracket than their parents. Over a number of years, the difference in the brackets can make a large difference in the overall tax paid by the family. Recent extensions in the look-back period from three to five years have given families incentive to make gifts earlier in an elderly client’s lifetime. This will only increase the potential negative income tax effect of these gifts.

Animal Hoarder Stereotype and the Elderly

According to Linda Wilson Fuoco, Animal hoarders proving difficult to contain, post-gazette.com, Dec. 10, 2007:

It began with neighbors complaining about odors coming from the unkempt Uniontown home last month. Humane officers donned biohazard suits and breathing masks before entering, and emerged with 14 cats, six ferrets, four rabbits, one boxer dog and one red-eared slider turtle.

But inside among the feces, garbage and debris were nine dead animals, including seven cats.***

While many hoarders do fit the stereotype of women over 60 years old who live alone and have very little income, the HARC report says there are no age, gender or socioeconomic boundaries.***

Special thanks to Neil E. Hendershot, Esq. (Attorney at law, Goldberg Katzman, P.C., Adjunct Professor, Widener University School of Law) for bringing this article to my attention.  You can read more on Neil's blog at PA Elder, Estate & Fiduciary Law Blog.

Fall Issue of Wake Forest's E-Clinic News

The Wake Forest University School of Law's Elder Law Clinic provides free legal assistance to moderate income seniors, and serves as a resource center for lawyers and other professionals.  In a partnership with the School of Medicine, the E-Clinic offers a unique opportunity to learn about medical and health law issues of older clients."

The Fall 2007 issue of the clinic's newsletter, E-Clinic News, is now available on-line so you may read about the activities of this innovative clinical program.

Financial Abuse of the Elderly

Suzanne E. Luna, (Attorney at Law, Law Office of Suzanne E. Luna, PC) has recently published her article entitled Financial Crimes Against the Elderly, Prob. & Prop., Jan./Feb. 2008, at 35.

Here is an excerpt from her article:

Financial exploitation of the elderly is rampant. Although many agencies and private caregivers are reputable and honest, a cottage industry has cropped up as the need to care for the elderly has increased at a staggering pace. The barriers to entry into this field are insignificant – a couple of sets of scrubs to look official, white nursing shoes, and a cell phone. Most nonmedical caregivers or “sitters” who help around the house with cleaning and meals do not make that much money per hour working for an agency, so there is a huge incentive for the entrepreneurial-minded among them to set up their own shops through which they can keep double the hourly rate without paying for such agency overhead as taxes and insurance. Many are legally unsophisticated, so taxes and insurance are not even considered necessary!

Should Older Individuals Be Entitled to a "Second Childhood"?

As more individuals survive for longer periods of time, these individuals have increasingly become the victims of various scams.  Should they have a defense of "old age" just like a young individual has the defense of "minority."

This is one of the issues discussed in Charles Duhigg, Shielding Money Clashes With Elders’ Free Will, NY Times, Dec. 24, 2007, from which the following excerpts are taken:

In the last few years, thousands of older Americans * * * have filed suits against companies and salespeople who have promoted dubious offers and schemes. These suits are unusual because the victims typically do not say they were intimidated or lied to, and they concede they freely made what turned out to be unwise decisions.

But because the plaintiffs are older, they argue, they should be less accountable for their mistakes.

These lawsuits raise controversial questions: In the eyes of the law, should the elderly be treated like adolescents, who are not entirely responsible for their poor decisions, but are also barred from making certain choices on their own? Or should they have autonomy, and therefore be accountable for their blunders?

“Figuring out how to protect senior citizens from victimization, even when it’s caused by their own mistakes, is one of the most important issues facing us right now,” said Sharon Merriman-Nai of the National Center on Elder Abuse. “If we don’t solve this, millions of older people will suddenly be reliant on their families or the government.”

“But we also have to figure out how to balance our desire to protect vulnerable seniors with their rights to autonomy,” Ms. Merriman-Nai said. * * *

“There is no business on earth that can function if its customers can say, ‘I’m tired of abiding by this contract, so I want out because I’m old,’”  [Terry J. Dyer] added. * * *

“If the law says that anyone over 65 is suddenly mentally incapacitated, then older people will have trouble buying homes or cars or country club memberships or insurance policies,” said Frank Keating, chief executive of the American Council of Life Insurers, a trade organization.

Advocates for the elderly, however, say there has to be some kind of recognition that older consumers are more vulnerable.

“We know that, statistically, seniors are at enormous risk for fraud,” said A. Kimberley Dayton of the Center for Elder Justice and Policy at the William Mitchell College of Law in St. Paul. “It’s foolish to ignore that. But there’s also a huge dilemma in determining when someone is just being eccentric, versus someone who is a victim of undue influence.” 

A Shocking Story of Suspected Elder Abuse at a Nursing Home

The following is from Scott Glover, A nursing home death, and a shocking phone call, LATimes.com, Dec. 19, 2007:

The day Rita Kittower buried her husband last month, the 83-year-old widow from Tarzana thought she had endured the worst life had to offer.

She had bade a tearful goodbye to her mate of 49 years, who had passed away in an exclusive assisted living facility in Calabasas. "He just stopped breathing," Kittower said she was told by a staff member. ***

Then came the anonymous phone call the day after the funeral.

A woman claiming to be an employee of the nursing home told Rita that her 80-year-old husband's death had been anything but peaceful. She said Elmore Kittower had been beaten to death by someone on the staff. ***

The suspect was arrested shortly after Kittower's death on suspicion of elder abuse, but the case was rejected by the district attorney's office. The suspect has denied any wrongdoing[.] ***

Elder Abuse in the U.S. and Possible Solutions

According to Tracy Breton, Response to elder abuse varies widely across U.S., projo.com, Dec. 16, 2007:

Every year, an estimated 2.1 million older Americans are victims of physical, psychological or other forms of abuse[.] ***

But the nation’s safety net for seniors is not nearly as good as it is for children.

A survey of all 50 states conducted by The Providence Journal over the past several months shows that even though most states have mandatory reporting laws for elder abuse, fewer than half of them have statewide, 24-hour-a-day hot lines to record complaints and offer immediate response. ***

If the Elder Justice Act — introduced in the U.S. Senate nearly six years ago — ever passes, it would provide hundreds of millions more in federal financing for adult protective services to the states — money to detect, investigate, prevent, prosecute and study elder abuse and to train more people who interact with victims.

Special thanks to Neil E. Hendershot, Esq. (Attorney at law, Goldberg Katzman, P.C., Adjunct Professor, Widener University School of Law) for bringing this article to my attention.

Elder Law and Guardianship CLEs

The State Bar of Texas is sponsoring the following seminars in Dallas at the Cityplace Conference Center:

• Advanced Elder Law Course 2008
  March 6, 2008
     
• Advanced Guardianship Course 2008
  March 7, 2008

Course highlights include:

• Expert Panels Discuss Public Benefits and Finance Issues
• Seven Strategies to Stay at Home Longer
• Attorney Ad Litem Certification
• Examining the Medical Expert Witness in a Guardianship Case
• ABA Enhancing Capacity Guidelines

Fall Issue of Penn State’s Elder Law and Consumer Protection Clinic News

Penn State’s Dickinson School of Law Elder Law and Consumer Protection Clinic is now in its seventh year of operation. Its students “represent older adults on referrals from central Pennsylvania’s Area Agencies on Aging.”

The Fall 2007 issue of the clinic's newsletter is now available on-line so you may read about the activities of this valuable clinical program.

Special thanks to Katherine C. Pearson (Professor of Law, The Dickinson School of Law) for making this newsletter available for my readers.

Medicare Updates

On November 15, 2007, the U.S. Department of Health & Human Services issued a press release entitled 2008 Open Enrollment for Medicare Part D Prescription Drug Coverage and Medicare Advantage Plans Begins Today.

Some of the highlights of the release include the following:

Medicare beneficiaries will be able to begin making enrollment changes in their health and prescription drug coverage for 2008[.]***The Medicare annual Open Enrollment Period for prescription drug plan runs from Nov. 15 through Dec. 31, 2007. ***

[“]The most recent satisfaction rate stands at 86 percent; the estimated average premium is 40 percent lower than originally estimated and total estimated costs are running $188 billion below initial projections.  Part D is a program that is working well and is helping Medicare beneficiaries with their prescription drug costs.”***

Starting [November 15, 2007], www.medicare.gov also provides beneficiaries with the five-star ratings of the quality and performance of plans that offer Part C and Part D services.  The plan ratings are intended to help people with Medicare choose an MA plan, a Medicare Advantage Prescription Drug Plan (MA-PDP), or a stand-alone Prescription Drug Plan (PDP) by combining cost and coverage information with quality and performance information.*** Part D (prescription drug plans) plans are rated on criteria such as customer service and providing drug pricing information.***

Another focus for this year’s open enrollment period involves signing up beneficiaries eligible for extra help, known as the Low Income Subsidy (LIS), to pay for their drugs. By providing information and enrollment assistance, CMS will encourage them to apply for the extra help and enroll in Part D.  For those LIS-eligible Medicare beneficiaries who may not have enrolled in part D in the past, CMS has announced that it is once again waiving the fee for late enrollment to make it easier to get these individuals the extra help they need.***

2007 NAELA Institute

On November 1 - November 4, 2007 in Memphis, the National Academy of Elder Law Attorneys is sponsoring its annual institute entitled It's Now or Never.

Here is a description of the program:

The 2007 Institute Steering Committee cordially invites you to join us as we explore important advocacy issues in elder law that will heighten your knowledge and increase the profitability of your practice. With the vast changes in the areas of Medicaid, Veteran’s Benefits, estate and Special Needs planning, the elder law attorney must sharpen and flex their advocacy muscle. You will learn not only skills for litigation avoidance but also the resources to be the advocate your client hired you to be in the many substantive and advanced areas of your practice.

Also note that

The Academic Diversity Task Force Committee has organized a one-day event for students selected from Law programs around the country to visit the NAELA Institute and learn about Elder Law. These students experience a half-day course with specific speakers and information about Elder Law before sitting in on Institute sessions and the opportunity to network with current NAELA Members. This program is made possible by funding from The Academic Diversity Task Force and donations to support student travel.

Are terms describing age-challenged individuals becoming pejorative in nature?

According to Joel Achenbach, The Rise of the Alpha Geezer, Washington Post, Sept. 9, 2007, at B03,

There are no old people anymore. The word "senior" is in disfavor; the folks at AARP often use the term "grown-up" to refer to our most tenured citizens. (And it's not the American Association of Retired Persons anymore, either: The group decided that because most of its members weren't retired, it should be just AARP, standing for nothing at all.) * * *

Disability rates for people over 65 go down by more than 2 percent a year, according to a long-term national survey published in 2006. The culture of being older has fundamentally changed, says Robert Butler, president of the International Longevity Center-USA and a professor of geriatrics at Mount Sinai School of Medicine in New York.

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

Elder Law: Readings, Cases, and Materials (3d ed.) Released

A. Kimberley Dayton (Professor of Law, William Mitchell College of Law), Molly M. Wood, Esq. (Stevens & Brand, LLP, Lawrence, Kansas), and Julia Belian (Visiting Associate Professor of Law, University of Missouri at Kansas City School of Law) have recently published the third edition of their book entitled Elder Law: Readings, Cases, and Materials.

Here is the publisher's description (LexisNexis):

As people age, they often face a bewildering array of legal issues, ranging from age discrimination to retirement planning, and elder abuse to assisted suicide. Elder Law: Readings, Cases, and Materials is designed to serve as the main textbook for courses and seminars on the intersection of law and aging. Thoroughly updated with new cases, COLA amounts, and URLs, the Third Edition of Elder Law includes new materials on kinship care giving, grandparent rights, and a lawyer’s duty to incompetent third parties. The authors have also expanded the coverage of SSI. New materials include the Medicare Modernization and Prescription Drug Act of 2003, an update on Social Security reform, expanded coverage of reverse mortgages and subsidized housing for the elderly, and recent tax legislation.

Elder Law is also accompanied by a documentary supplement, Elder Law: Statutes and Regulations. This companion volume contains selected federal and state statutes, uniform acts, federal regulations, the viatical settlements model regulation, and miscellaneous provisions.

Fourth Edition of "Elder Law: Cases and Materials" Released

Earlier on this blog, I discussed the forthcoming release of the Fourth Edition of Elder Law: Cases and Materials, by Lawrence A. Frolik (Pittsburgh) and Alison McChrystal Barnes (Marquette).

This book has now been released and is available from LexisNexis.

Here is a description of this book:

The Fourth Edition of Elder Law integrates new developments in law and policy into the familiar framework of past editions. A mix of the specific and the general, the book examines the response of our society to an aging population, the legal rights of the elderly, and the legal, economic, and health challenges of the elderly. The authors use carefully edited classic and new cases, excerpts from the experts, and descriptive commentary to challenge and instruct students. Questions and problems provide the instructor an opportunity to query students and expand their understanding of the material.

The perspectives of legal practice and legislative development receive due attention in chapters that cover income and employment, housing and supportive services, nursing home quality and costs, substitute health and final decision making, and elders and crime. The broad scope of the book builds on foundational legal education in property rights, civil and human rights, and government action, while permitting the teacher the opportunity to supplement or expand upon the material.

A Teacher’s Manual provides the authors’ pedagogical insights and answers to the Questions. In addition, the companion Statutory volume, Elder Law: Selected Statutes and Regulations, includes all relevant statutes and regulations.

Oscar -- The Cat that Fortells Death

Many times on this blog, I have discussed estate planning for pet owners.  Pet owners are often very concerned about how their pets will be cared for after death.  Little do they know that pets may be able to predict when their owners will die. 

It appears that a cat named Oscar (the picture accompanying this entry is not actually Oscar) has the ability to ascertain when patients in a Providence, Rhode Island nursing home are going to die.

According to AP, Cat plays furry grim reaper at nursing home, MSNBC, July 27, 2007:

His accuracy, observed in 25 cases, has led the staff to call family members once he has chosen someone. It usually means they have less than four hours to live. * * *

Oscar is better at predicting death than the people who work there, said Dr. Joan Teno of Brown University * * *

Doctors say most of the people who get a visit from the sweet-faced, gray-and-white cat are so ill they probably don’t know he’s there, so patients aren’t aware he’s a harbinger of death. Most families are grateful for the advanced warning, although one wanted Oscar out of the room while a family member died. When Oscar is put outside, he paces and meows his displeasure.

No one’s certain if Oscar’s behavior is scientifically significant or points to a cause. Teno wonders if the cat notices telltale scents or reads something into the behavior of the nurses who raised him.

Nicholas Dodman, who directs an animal behavioral clinic at the Tufts University Cummings School of Veterinary Medicine and has read Dosa’s article, said the only way to know is to carefully document how Oscar divides his time between the living and dying.

Compare Cats suck the breath from babies, sometimes killing them, Snopes.com, June 27, 2007 (concluding that this claim is an urban legend).

Subsidized, Mandatory Long-Term Care Insurance

Lawrence A Frolik (Professor of Law, University of Pittsburgh School of Law)spoke at the Notre Dame Journal of Law, Ethics & Public Policy symposium entitled “Long-Term Care for America's Elderly: Who Is Responsible, and How Will It Be Achieved?”. His remarks have been edited for publication in An Essay on the Need for Subsidized, Mandatory Long-Term Care Insurance, 21 Notre Dame J.L. Ethics & Pub. Pol'y 517 (2007).

Here are the concluding paragraphs:

The advantages of mandatory long-term care insurance are obvious. It would create a pool of funds from which to pay for much of the future long-term care costs. It would create national savings to meet a national expense. How much it would pay for each individual would depend upon the amount of the benefits, and that in turn would depend upon how high were the premiums. The rich, the middle class, and the poor would all benefit. The rich, who might be able to pay for their long-term care, would receive benefits that would increase the size of their estates or permit them to purchase better care. The middle class would be better able to preserve assets for their heirs and provide for a more comfortable life for a community spouse. In contrast to Medicaid, which only pays for nursing homes, mandated long-term care insurance benefits would also pay for assisted living and possibly home health care, thus providing the poor with funds to purchase long-term care in a variety of settings, and often at a lower price. And if the premiums of those with limited income were subsidized, they would have received even greater  value from the insurance. Those of any economic class, who died after only modest or even no long-term care expenses, would have received the value of the insurance coverage in the same way that fire insurance has value even if the house never has a fire. In short, all economic segments of society would benefit from mandatory long-term care insurance.

The costs of long-term care must be borne by someone. Why not by all of us through an insurance arrangement? By collective action, we can meet the need of the individual to pay for long-term care and thus reduce by a bit our being “exposed to every risk and hardship.”

Spring Issue of Wake Forest's E-Clinic News

The Wake Forest University School of Law's "Elder Law Clinic provides free legal assistance to moderate income seniors, and serves as a resource center for lawyers and other professionals.  In a partnership with the School of Medicine, the E-Clinic offers a unique opportunity to learn about medical and health law issues of older clients."

The Spring 2007 issue of the clinic's newsletter, E-Clinic News, is now available on-line so you may read about the activities of this innovative clinical program.

Deficit Reduction Act of 2005 & Illinois Law

In Impending Regs Affect Planning for Clients Facing Long-Term Care, 95 Ill B.J. 66 (2007), Helen Gunnarsson explains how Illinois "is on track to issue new regulations that will make it harder for clients who are headed for nursing-home care to hang on to assets."  Her article details how "[e]lder law and estate-planning practitioners need to be prepared with new strategies for the new rules."

Lillian Glasser Decision

Earlier on this blog, I reported on the case of Lillian Glasser and the battle to control her and her $25 million fortune.  See here, here, here, here, here, and here.

On March 8, 2007, the Superior Court Of New Jersey, Chancery Division – Probate Part Middlesex County issued its opinion.

Here are some of the highlights of this lengthy (82 page) opinion:

• Lillian's daughter, Suzanne Mathews, must return approximately $20 million to Lillian.
• Lillian's earlier will which leaves her estate equally to her two children (Suzanne Mathews and Mark Glasser) remains effective.
• A purported later will which Lillian executed with Suzanne's assistance will be ineffective.
• Lillian is deemed incapacitated and Joseph Cantanese is appointed as her new guardian of the person and Neuberger Berman (a financial planning firm) as guardian of her estate.
• The judge severely criticized Suzanne's conduct determining that she breached fiduciary duties, exerted undue influence over Lillian, and was untruthful with the court.
• Although the judge determined that Mark acted in good faith to assist Lillian, the judge was critical of Mark's "take no prisoners" tactics and his "less than candid" testimony.

According to Zeke MacCormack, Daughter ordered to repay millions, San Antonio Express-News, March 15, 2007, Mark has "heard talk of an appeal."

Special thanks to James Woo (Davidson & Troilo, San Antonio, Texas) for being the first person to bring the Glasser opinion to my attention.

Assisted Living Horrors Revealed

The following is from Neil E. Hendershot, Phila. Inquirer's "Shame of the State" Investigation, PA Elder, Estate & Fiduciary Law Blog, March 1, 2007:

On February 25, 2007, after an eight-month inquiry, the Philadelphia Inquirer published an extended article examining the condition of assisted living facilities in Pennsylvania. The conclusion appears in the article's first line: "Peer into the files of Pennsylvania's assisted-living industry and confront a catalog of horrors."

In "Shame of the State", Inquirer Staff Writer Ken Kilanian concludes: "Troubled facilities and lax state oversight have for years put residents of Pennsylvania's assisted-living homes at risk of assault, neglect -- and tragedy."

Home Care for the Elderly

With over 4 million Americans over the age of 85 and more expected as the baby boomers age, there is a tremendous increase in the need for long-term at home care.  Hiring a professional agency to supply this care can cost $150,000 or more per year.

Consequently, there is an increase in "gray market" care providers who work for substantially less money but who may be untrained, unskilled, and unsupervised.

See Jane Gross, New Options (and Risks) in Home Care for the Elderly, NY Times, March 1, 2007.

Adult Adoption Examined

Angela Chaput Foy (Associate, Halling & Cayo, S.C., Milwaukee, Wisconsin) has recently published her article entitled Adult Adoption and the Elder Population, 8 Marq. Elder's Advisor 109 (2006).

Here is the introduction to her article:

Elder adults face challenges that are unique to their current stage in life. Their health, means of income, and daily routine all may have changed from earlier periods in their life. With these changes, elders also may reevaluate their relationships. Adult adoption may be an option for elder adults who wish to form a familial relationship with someone to whom they are not currently related.

The first section of this article explores adult adoption: what it is, how it works and how it differs from minor child adoption. The second section then examines how adult adoption may affect the elder population: through traditional and non-traditional inheritance, formalizing relationships, and grandparents' rights. Lastly, the article reveals the risks that elders may face because of their involvement in an adult adoption. Although this article does recognize adult adoption as a means to form non-traditional families, it does not discuss adult adoption as a substitute for marriage; therefore, it does not discuss adult adoption as it may apply to homosexual couples.

Federal Funding for Geriatrics

For an excellent discussion of the possibility that President Bush will approve House Joint Resolution 20 which restores $31.5 million in federal funding for geriatics, see Neil E. Hendershot, Federal Geriatrics Funding Restoration Goes to President, PA Elder, Estate & Fiduciary Law Blog, Feb. 15, 2007.

Reverse Mortgages & Elder Law

California has recently (September 2006) enacted legislation designed to protect older individuals from reverse mortage fraud.  See Becky Bartindale, Governor signs bill to halt reverse mortgage scams, Oakland Tribune, Sept. 6, 2006:

The new law requires that before getting a reverse mortgage, people must receive independent advice about the pluses and minuses from a certified counseling agency that does not have a profit motive.

The law also requires that mortgage documents be translated into the language in which the loan was negotiated, ensuring that a borrower who doesn't speak English has full access to the complex financial information. And it blocks the questionable practice of requiring people to buy annuities they may not need.

Special thanks to Julia M. Wei (Law Offices of Peter N. Brewer, Palo Alto, California) for bringing this development to my attention.  Julia has also discussed this legislation on her blog.

Wealth Strategies Journal January/February 2007 Issue

The following articles have now been posted on the Wealth Strategies Journal and are available for download:

Emotional Issues In Estate Planning: "Planning Considerations In Naming A Guardian For A Minor Child" by Sarah M. Johnson

Abstract: Sometimes given short shrift by estate planning attorneys, the guardianship provision is often the most important aspect of a younger client's estate plan. This article aims to provide information and considerations for the counselor and client in the following areas: (1) the differences in state law regarding the appointment of guardians, (2) factors a parent should consider in naming a guardian, (3) the economics of the guardianship decision and (4) specific provisions regarding the guardian that may be included in the cient's Will.

Elder Law: “Watching The Watchman” by Professor Lawrence A. Frolik

Abstract: Very old, frail and demented elderly need a watchman, but they also need someone who is keeping an eye on the watchman. An essential aspect of planning for agents and surrogates is to provide oversight lest the watchman become the exploiter. As in so many aspects of life, a little planning can prevent a great deal of pain.

Asset Protection: "UTC Section 505(b) - Pandora Opens The Box" by Jonathan E. Gopman

Abstract: Estate planners frequently use Crummey Powers and 5  and 5 powers in plans without realizing such powers may expose trust assets to creditor claims. This article examines the asset protection consequences of using Crummey Powers or 5 and 5 powers in states that have enacted Uniform Trust Code Section 505(b).

Reducing Taxable Wealth Yet Keeping It All In the Family (Courts' Views On Best Method To Take Discounts) by Lance S. Hall

Abstract: Because of a series of IRS court victories in valuation cases, if taxpayers, estate planners, and valuation experts approach the valuation discounting process as they have in the past, there is a strong possibility that they have unwittingly increased the chance for audit, if audited, decreased the chance of favorable compromise and, if taken to Court, increased the chance of losing. This article explores a series of Court cases on the discount for lack of marketability issue that, when taken together, provide a road map to increase the likelihood of having the IRS and Tax Court accept the discount determined.

Delaware Asset Protection Trusts: Basics and Opportunities by William H. Lunger and F. Peter Conaty, Jr.

Abstract: This article describes the basic concepts of Delaware asset protection trusts and planning opportunities that such trusts offer.

The End of Bank Secrecy by Michael C. Durney

Abstract: For many years, there has been a widespread belief in European bank secrecy. However, as this article discusses, the customary rules of bank secrecy may well be a thing of the past and persons subject to U.S. tax had better be aware of this development.

Drafting A Marital Deduction Trust For Second Marriages, by Sebastian V. Grassi, Jr.

Abstract: Second marriages are common today. This article provides eighteen planning ideas to consider when designing marital deduction trusts for a second marriage situation where there are children from a prior marriage (or where the widow wants to control who inherits her estate after her (new) husband’s death).

Developing Confidence in Planning by Henry K. Hebeler

Abstract: While the future is inherently unpredictable, there are things that individuals can do to provide some insulation from uncertainties in retirement planning. This articles discusses such planning, the myth regarding success probabilities in financial planning, and how the foregoing impact retirement planning.

Elder Law in a Nutshell

Prof. Lawrence A. Frolik (University of Pittsburgh School of Law) and Prof. Richard L. Kaplan (University of Illinois College of Law) have recently published the fourth edition of their book, Elder Law in a Nutshell (Thomson-West).  Here is a description of the book:

This reliable source provides expert narration on the scope and diversity of elder law. The text addresses ethical considerations and health care decision-making issues. Discusses Medicare, Medigap, Medicaid, and long-term care insurance. Looks into living arrangements, guardianship, and benefits—Social Security, supplemental security income, veterans benefits, and pension plans. Also explores age discrimination in employment, elder abuse, and neglect.

Symposium on Ethical Standards for Elder Mediation

The Montgomery County Mediation Center, Institute for the Study of Conflict Transformation, and Temple University’s Elderly Law Project is sponsoring the First National Symposium on Ethical Standards for Elder Mediation on April 19-20, 2007 at the Temple University James E. Beasley School of Law.

The Symposium will feature Harry R. Moody, Nancy Neveloff Dubler and Robert Baruch Bush who will be joined by distinguished panelists from the fields of mediation, elder law, gerontology, bioethics, and geriatric healthcare in an effort to examine the ethical issues that arise during mediation involving older adults.

Elder mediation is a rapidly growing specialty of mediation practice and reflects the confluence of two trends: an increasing elder population and the growing appreciation of the value of mediation.  With the development of elder mediation practice has emerged a set of issues particular to the aging population.  The First National Symposium on Ethical Standards for Elder Mediation will bring together mediators and interested