Wills, Trusts & Estates Prof Blog

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

Monday, April 18, 2016

Why It Is Uncommon For Americans To Have Advanced Directives?

AgingAn advanced directive is a tool that enables people to have control over their future and what type of end-of-life care they will receive.  This article discusses how uncommon it is for Americans to use this estate planning tool.  The two forms of directives that are discussed in this article are instruction directives and proxy directives.  It explains the requirements for each of these two directives and the process that people have to go through to create an advanced directive.  Making decisions about end-of-life care can be stressful for people, but it is important to tackle these issues now so that people can have control over their lives.  People who put these decisions off might end up having these decisions made for them.  Advanced directives can protect patients when they are most vulnerable. 

See Jamie Zuckerman, Why Do So Few Americans Have Advanced Directives?, Wealth Management, April 18, 2016.

Special thanks to Jim Hillhouse for bringing this article to my attention.

April 18, 2016 in Disability Planning - Health Care, Elder Law, Estate Planning - Generally, Guardianship, Wills | Permalink | Comments (0)

Thursday, April 14, 2016

In Japan, Expansion Of Guardianship System Comes With Highs And Lows

Japan SealIn 2000 the Japanese legislature, dismayed by the number of seniors that lacked the ability to manage their own affairs, instituted a new nationwide system for guardianship. Since that time, the number of cases in the system has steadily increased in no small part due to the large number of retirees that reside in the country. But with that increase came a downside, the number of cases involving guardian misconduct began to rise as well. In response, the government instituted special trust accounts that require court approval for withdrawals by the guardian and, more recently, passed rules that further increased the oversight of the courts after a number of guardians were caught using ward's money for luxury items and gambling. Despite these setbacks, the Diet seeks to expand the program since the majority of individuals who lack the mental capacity to conduct their own business still greatly exceeds the number of guardians appointed.

See, Financial misconduct by legal professionals acting as guardians hits record high, The Japan Times, April 13, 2016.

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

April 14, 2016 in Current Affairs, Guardianship | Permalink | Comments (0)

Friday, April 8, 2016

New Book On Texas Guardianship Laws

ArticleThe 3rd Edition of the Texas Guardianship Manual has recently been published by Texas Bar Books and is now available on their website. Provided below is a description of the book:

The newly revised and updated Texas Guardianship Manual is a valuable resource for lawyers administering guardianships. The manual is organized by the logical sequence of events occurring during the administration process. Each chapter contains a detailed table of contents; each contains practice notes concerning the topic of the chapter. The forms take up the greater part of most chapters. The uniform format of practice notes and forms is designed to enhance readability and ready reference and to accommodate easier word-processing use of the forms.

The 2015 supplement updates the Texas Guardianship Manual, to include a new chapter discussing public benefits available to help support the ward. The chapter provides a detailed overview of both means-tested and non-means-tested benefits as well as benefits available through the Department of Veterans Affairs. The chapter highlights implications for the guardianship process and planning options for accessing those benefits and includes a sample form for creating a qualified income trust.

April 8, 2016 in Books - For Practitioners, Guardianship | Permalink | Comments (0)

Wednesday, March 30, 2016

CLE On Advanced Texas Guardianship Law

CLEThe State Bar of Texas is hosting a CLE entitled, Advanced Guardianship Law 2016, which will take place at the Westin Hotel Galleria on April 14, 2016, live. Provided below are some details on the event:

Course Highlights Include:

  • Guardianship Legislative Update
  • Uniform Adult Guardianship and Protective Jurisdiction Act
  • Role of the Ad Litem: Expanded Duties of the Ad Litem and the Attorney Ad Litem
  • How 2015 Changes are Affecting Your Practice
  • Mental Illness and the Perception of Mental Illness and Diminished Capacity
  • 4th Hour Ad Litem Certification - Supports and Services
  • Litigation - Recurring Topics, Latest Trends, and Pattern Jury Charges
  • Modification / Restoration
  • Concluding Guardianship Proceedings
  • Conflicts in Representation

March 30, 2016 in Conferences & CLE, Guardianship | Permalink | Comments (0)

Monday, March 28, 2016

Oklahoma Bill Would Prevent Non-Citizens From Being Guardians

OklahomaA bill that has been introduced in the Oklahoma Senate would make it impossible for non-citizens to act as a legal guardian. The bill's sponsor stated that being a non-resident makes it impossible for a background check to be performed on potential guardians although he admitted that the proposal could result in close family members being unable to be appointed due to their citizenship status. But other supporters of the legislation noted, in addition, that the fact the proposed guardian could be sent out of the country involuntarily created a risk for the ward. However, critics of the bill noted that many people are being cared for by relatives that are undocumented and would be stripped of the ability to fully take care of those placed in their care. In any event, the bill is still in the early stage of the legislative process and has yet to be worked out in a joint House and Senate committee.

See Brian Hardzinski, Senate Bill Would Bar Non-Citizens, Undocumented Residents From Becoming Legal Guardians, KGOU, March 26, 2016.

March 28, 2016 in Current Affairs, Guardianship | Permalink | Comments (0)

Friday, March 18, 2016

Important Distinctions Between A Conservatorship And Guardianship

Elderly careA conservatorship and guardianship both involve decision-making power, but one typically deals with finances while the other deals with health-related affairs.  Conservatorships and guardianships come into play when a person loses the capacity necessary to be able to make decisions for themselves.  People can designate who will be their guardian and conservator in a living will.  If a person who loses capacity does not have a living will and their intentions cannot be ascertained a court will typically appoint someone to serve in the roles of conservator or guardian if needed.  The same person can serve in both roles or the court might choose different people to fill the role if they determine it is in the best interest of the individual in need.  The person must be competent in their ability to fulfill the fiduciary responsibilities that are required. 

See What Is the Difference Between Conservatorship and Guardianship?, The Motley Fool, March 18, 2016.

March 18, 2016 in Elder Law, Estate Planning - Generally, Guardianship, Trusts, Wills | Permalink | Comments (0)

Monday, March 14, 2016

Important Information About Living Trusts

Living trustThis article discusses some of the important things that people should know about a popular estate planning tool known as the Revocable Living Trust (RLT). These estate planning tools typically involve an agreement between the Trustmaker (also known as a Grantor or Settlor), Trustee, and beneficiary. One of the benefits of a RLT is that it allows for the uninterrupted management of the trust assets even if the Grantor or Beneficiary loses legal capacity. This means that the trust assets would not have to be put through the difficult process of living probate. Death probate can also be avoided if the Trustmaker dies because these types of trust instruments are typically not filed with any court. It is important to put careful thought into the titling of trust assets and the selection of a responsible and competent Trustee. People should not attempt to create a RLT themselves and should seek out assistance from a professional estate planning attorney.

See 5 Important Things to Know About Living Trusts, Wealth Management, March 10, 2016.

Special thanks to Jim Hillhouse for bringing this article to my attention.

March 14, 2016 in Estate Planning - Generally, Guardianship, Trusts | Permalink | Comments (0)

Friday, March 11, 2016

What To Know About Assisted Living And Other Residential Care

ABLEAs the population continues to age there are more people living in assisted living care communities. Some people are even saying that “assisted living is the new nursing home.” According to a study put out by the Centers for Disease Control more than 730,000 people lived in these types of communities in the year 2010. This study also showed that the nursing home population dropped about 20 percent from 2000 to 2010. The costs of assisted living communities can range depending on the circumstances. For example, there are facilities that care for dementia patients while other facilities do not have a dementia unit. This article provides other interesting statistics about assisted care living, but if people are thinking about this as an option they should do their research and visit some of these facilities themselves.

See Howard Gleckman, What Assisted Living and Other Residential Care Looks Like, Forbes, March 11, 2016.

March 11, 2016 in Disability Planning - Health Care, Elder Law, Estate Planning - Generally, Guardianship | Permalink | Comments (0)

Thursday, March 10, 2016

Guardianship Reform Becomes Campaign Issue In Election

Mental capacityThe problems with guardianship courts has become a campaign issue in the 2016 presidential election. Many activists and family members of people who were abused are gathering signatures for a petition entitled “Senior Lives Matter” that asks all five presidential candidates what they will do to protect senior citizens from abusive court appointed guardians. This issue will continue to become more urgent in the future as the population of senior citizens continues to rise. People across the nation are putting more pressure on lawmakers to do more to reform the guardianship system. There are many incapacitated senior citizens that can be vulnerable to both financial and physical abuse and neglect. The petition which calls for action from presidential candidates can be found here.

See Darcy Spears, Guardianship reform hits campaign trail, ABC 13 Action News, March 8, 2016.

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

March 10, 2016 in Current Affairs, Elder Law, Estate Planning - Generally, Guardianship | Permalink | Comments (0)

Wednesday, February 24, 2016

New Book On Texas Guardianship Laws

ArticleThe 3rd Edition of the Texas Guardianship Manual has recently been published by Texas Bar Books and is now available on their website. Provided below is a description of the book:

The newly revised and updated Texas Guardianship Manual is a valuable resource for lawyers administering guardianships. The manual is organized by the logical sequence of events occurring during the administration process. Each chapter contains a detailed table of contents; each contains practice notes concerning the topic of the chapter. The forms take up the greater part of most chapters. The uniform format of practice notes and forms is designed to enhance readability and ready reference and to accommodate easier word-processing use of the forms.

The 2015 supplement updates the Texas Guardianship Manual, to include a new chapter discussing public benefits available to help support the ward. The chapter provides a detailed overview of both means-tested and non-means-tested benefits as well as benefits available through the Department of Veterans Affairs. The chapter highlights implications for the guardianship process and planning options for accessing those benefits and includes a sample form for creating a qualified income trust.

February 24, 2016 in Books - For Practitioners, Guardianship | Permalink | Comments (0)