Elder Law Prof Blog

October issue of ABA's "Bifocal" now available

The October issue of Bifocal, e-Journal of the ABA Commission on Law and Aging is now available for pdf download.

The issue is also available online on the Bifocal homepage.

What's inside this issue?

Cover Article
Managing Someone Else’s Money
The Consumer Financial Protection Bureau contracted with the Commission on Law and Aging to develop the series of easy-to-understand booklets to help financial caregivers.

Features
The Village Movement
by Candace Baldwin
Over the past 10 years, an innovative aging-in-the-community model to emerge is the Village model, which creates a wide array of supports and facilitates the creation of social networks of older adults in service to each other.

An Introduction to Funding Long-Term Care without Medicaid
by Eileen Walsh and Whitney Wilson
This article will define long-term care and discuss the importance of planning for long-term care funding for ourselves, our families, and our clients. This article will also highlight ways to fund long-term care without Medicaid.

How Seniors Can Protect Themselves from Health Care Scams
by Daniel Joslyn
Tips and resources highlighted at the recent Federal Trade Commission (FTC) Roundtable event on “Consumer Protection and the Healthcare Marketplace.”

Elder Law Attorneys: First Line of Defense in Financial Elder Abuse
by Stuart D. Zimring
In many cases, an Elder Law attorney can be the first line of defense against fiduciary elder abuse. Proper counseling, planning, and drafting of estate planning documents can build protective mechanisms, safeguards, and checks and balances into the estate plan to protect the elder for years to come.

Book Review: Alzheimer’s and the Law

Book Review: Veterans Appeals Guidebook

Theater Review: The Velocity of Autumn

National Guardianship Network Launches New Website

Brooklyn Law School Launches Elder Rights Clinic

FEMA: Removing Barriers to Alert Accessibility

Inside the Commission
Inside the Commission
Updates on staff speaking engagements and new resources.

ABA Policy Update
On August 13, 2013, at the American Bar Association Annual Meeting, the following two resolutions proposed by the Commission on Law and Aging were adopted by the ABA House of Delegates.

2013-2014 Commission on Law and Aging
A roster of this year's Commission, along with biographies of our four new Commissioners.

The 4th Meeting of the United Nations Open-Ended Working Group on Ageing

Fall Intern Profiles

Event and CLE Update
Event Update
Upcoming events from the Commission and other organizations

 

To subscribe to Bifocal or to submit news items or a manuscript for consideration, contact editor Andrea Amato.

Senate Special Commitee on Aging Upcoming Hearing

Put this on your calendars. The Senate Committee on Aging will hold a hearing on November 6th at 2:15 on transportation issues facing elders.

NFPA launches refreshed older adult fire and fall safety program

The National Fire Protection Association (NFPA) has produced a new version of Remembering When™:  A Fire and Fall Prevention Program for Older Adults. Program materials, available for download at no cost, are widely used by fire departments and other safety educators interested in reaching older adults with fire and fall prevention messages developed especially for them. The revised program includes updated fire and fall statistics, safety messaging, trivia, art work, and inclusion of “younger” older adults.
 
Since 1999, Remembering When has been implemented in communities throughout North America to help thousands of older adults learn strategies to help them live safely at home for as long as possible. The program’s foundation remains the same:  the 16 key safety messages–eight fire prevention and eight fall prevention–developed by experts from national and local safety organizations and focus group testing in high fire-risk states. The program will continue to be implemented through group presentations, home visits, and as part of smoke alarm installation and fall intervention programs. All of the revised training materials are available online.
 
“Over the next decades, the population of older adults will increase dramatically,” said Karen Berard-Reed, senior project manager for NFPA. “The new version targets adults who are just entering their older years. We hope to encourage these ‘younger’ older adults to develop important safety habits that will carry them through their senior years and help those around them develop safer behaviors.”
 
Representatives of fire departments and home visit agencies across the United States and Canada that have been chosen to participate in the Remembering When conference December 1-3, 2013 in Boston, will be the first trained with updated materials.

Photo by Kim Dayton.  All rights reserved.

Art for Everyone

A few weeks ago I posted about our rocking elder law students who were painting with the residents with dementia at a local nursing home. I was interested to see an article in the New York Times on October 25, 2013 by Tanya Mohn who wrote about steps taken by museums and galleries to make their exhibits accessible to all.

Welcoming Art Lovers with Disabilities describes the efforts of a number of art museums and galleries not only to make their exhibits accessible for everyone, but to provide visitors with the ability to experience the art.  Here is a mention of just a few of the institutions featured in the article. 

The Metropolitan Museum  of Art (NY) offers an exhibit of art made by those individuals who have no or little vision.  These artists "created works inspired by objects in the museum’s collection that were described to them by sighted instructors and that they were also allowed to touch."  Another part of the Museum offers a tour  in sign language and there are periodic "multisensory stations" that allow a hands-on experience (touch, smell, descriptions and music). In fact, the Met offers a number of programs for visitors who have special needs or with sensory limitations, including individuals who have no or partial sight, are deaf or have hearing loss, have dementia, or with intellectual disabilities.  I took a look at the Met's programs for individuals with dementia and their caregivers, and noticed that they have several options, including "multisensory activities" and a specifically created program at the Cloisters museum and accompanying gardens, known as "Sights and Scents".

The New York Times article also describes the "mobile multimedia guide" offered at the Boston Museum of Fine Arts wing-Arts of America. In Chicago, the article notes, the Art Institute is looking into 3-D printing for art reproduction which would allow patrons to investigate the "sensory elements of objects" not possible in a traditional exhibit.  This, the article notes, would be particularly helpful for those with Alzheimer's.  The article includes a program at the U. of Fla. Samuel P. Harn Museum of Art, which has a "road show" called "Art for Life" where they take programs to long term care facilities for those residents unable to make a trip to the museum. 

The article discusses many more efforts by various museums and shows how a little ingenuity and application of technology can make art available to everyone.

Sixth Circuit Upholds Community Spouse Annuity in Medicaid Eligibility Appeal

In Hughes v. McCarthy, decided October 25, 2013, the Sixth Circuit reversed a distict court judgment and approved the right of an Ohio Medicaid applicant to receive coverage for her nursing home care, without penalties tied to her husband's purchase of a single premium annuity.  The husband's actuarily sound annuity named himself as the primary beneficiary, using $175,000 from his IRA account. 

For more on the case including details about the couple's history of spenddown and the type of annuity, see ElderLawGuy Jeff Marshall's recent blog post.

By the way, in reaching its decision, the Sixth Circuit appellate court cites analysis from National Senior Citizens Law Center's Eric Carlson, pointing to his chapter in Matthew Bender's Long-Term Care Advocacy treatise. 

Correct me if I'm wrong, but I think there are now appellate decisions from five circuits approving Medicaid eligibility based on specific facts involving spousal annuities: the 2d Circuit (Lopes case), 3rd Circuit (James case), 6th Circuit (Hughes case), 8th Circuit (Geston case), and 10th Circuit  (Morris case). Am I missing any key appellate cases in this fast moving arena?

For links to several of these cases, see my September post on the Geston case.

Intriguing Concept: On-Line Objective Data for Comparisons in Senior Living Options

Part of my recent legal research and writing focuses on state regulation, accountability, and resident rights at Continuing Care Retirement Communities or CCRCs.  In one of my early articles I wrote about  what I thought might be a niche for elder law attorneys who could advise prospective CCRC residents about the ins and outs of CCRCs, particularly on contracting issues. 

Turns out a Financial Planner and CPA have decided to make a business out of offering advice to consumers on CCRCs. Recently I had the chance to talk to Brad Breeding (the financial planner) and Ken Taylor (the accountant).  The idea started when they were getting questions from clients about CCRCs near their base in North Carolina and realized there was a wider consumer market for critical information. In 2009 they started working on a web-based consulting tool for prospective CCRC residents and others who are thinking about retirement options.   

The resulting company is LifeSite Logics, offering "a central database of objective data" about CCRCs across the country.  Sounds like Brad and Ken have the start on a strong data set, and are already offering comparable data on several hundred CCRCs.  The search price is about $40.  Most important, the two seem determined to stay objective about their data points; they report they aren't backed by any CCRC operators or developers.     

In addition, their LifeSite Logics website offers some free background and educational documents on CCRCS, including some information on contract (A, B, C or "other")  types.  

I have to say I've often thought "A, B & C"  labels are potentially confusing to the public.  This is  especially true for the financial risks associated with "refundable fee" contracts which may  look to the average consumer like "life-care" contracts that are usually associated with the "A" label, but are closer to "Type C" fee-for-service contracts when carefully analyzed.  Further, these letters are not "grades" for the facilities or contract types, another point of potential confusion.   

Good luck, Ken and Brad, on a promising start for what looks to be a very consumer-friendly product.  

Hearth Program Celebrated for Leadership in Nonprofit Advocacy Work

At their annual meeting this week in Dallas, LeadingAge celebrated the good works of another nonprofit, the Hearth program in Boston, Massachusetts, awarding Hearth one of their top awards for "Excellence in Leadership." 

Hearth is dedicated to "the elimination of homelessness among the elderly through housing, outreach and advocacy."  They identify strategic goals, including increasing the supply of permanent, affordable and supportive housing in Greater Boston, as well as support for national initiatives directed to end elder homelessness.  Hearth also facilitates elders' access to specific services, including legal services. Hearing about their projects, going back to 1991, was definitely a feel good moment at the conference.

Congratulations, Hearth! 

More on the CFPB Managing Others' Money Series

Yesterday I blogged about the 4 new booklets from the CFPB and Andrea Amato from the ABA Commission on Law & Aging kindly added a comment that provided further information. Andrea serves as the editor of BIFOCAL, the Commission's website and their various books and publications.   In case you missed her comment, I've posted it here:

The ABA Commission on Law and Aging was contracted to write these guides and there are more great resources coming down the pike: state-specific guides and replication tips are planned. There will be more information in this month's issue of Bifocal, the Commission's ejournal, which will be distributed this Thursday (10/31).

If you are not a subscriber to BIFOCAL, the link to  view the online issues is here.  According to the website, you can subscribe to BIFOCAL for free by sending an email to Trisha Bullock, [email protected] with the word "subscribe" in the subject line. And by the way, if you haven't visited the Commission's website recently, you should make it a regular practice (like reading this blog!) You can also follow the Commission on social media, including Twitter (ABALawandAging). The Commission Rocks!

Age-Friendly Cities

In browsing the Robert Wood Johnson Foundation website recently, I found their October 10, 2013 post about age-friendly cities.  The post notes that New York recently released its report noting progress on becoming age-friendly.

In  New York, the mayor's office along with the city council and the NY Academy of Medicine are collaborating to develop this initiative.   Age-Friendly NYC was named by the International Federation on Aging as the "best age-friendly initiative in the world." There are over 50 initiatives to make NYC more elder-friendly, contained in a 130 page report.

In reviewing the recently released progress report, I was interested to read about some of the actions completed in New York, including funding for NORCs for a variety of programs (see ¶ 20) and the transformation of a number of existing senior centers into "Innovative Senior Centers" which

 provide enhanced programming, including robust wellness programs, additional access to health care services, arts and cultural programs, and new technological and volunteer opportunities. ISCs will work with individual center members to obtain baseline health information upon enrollment and will measure critical health outcomes over time.

I also thought the "market ride" program clever--using school buses while not needed to transport the kids to transport NY elders from the senior centers to grocery stores and farmers' markets (get it--market ride), as well as to cultural events (see ¶ 47). You can read more about current initiatives in New York here.  The Age-Friendly NYC progress report is available here.

There is a significant amount of information available on the website, in addition to the reports mentioned here. The Big Apple is rocking it on creatively making the city age-friendly!

Elder Justice: 9 Principles Recommended for Federal Involvement on Elder Abuse

At the LeadingAge annual meeting in Dallas, earlier this week, I attended a round table session hosted by representatives of the Elder Justice Working Group (EJWG), a component of the Elder Justice Coordinating Council (EJCC).  The two presenters sought response from the audience, which included individuals from CCRCs, nursing homes, senior housing authorities and other providers of senior living or senior care, to the EJCC's Principles for Action (developed from 9 proposals of the EJWG) aimed at improving national awareness and response to elder abuse, neglect and exploitation. 

Here are the first 3 of 9 Principles:

"1. Support the investigations and prosecution of elder abuse, neglect and financial exploitation cases,

2. Support and protect elder victims by improving identification of elder abuse and enhancing response and outreach to victims.

3. Develop a national Adult Protective Services system based upon standardized data collection and a core set of service provision standards and best practices."

For addtional information on recommended federal action, including the other 6 principles, see details reported at the most recent, September meeting of the EJCC. 

Our LeadingAge roundtable session focused on practical concerns, including the frustrations felt by some in the room in reporting suspected abuse at a local level,  but seeing no response.

I was struck by the very diverse makeup of the individuals choosing to attend a session on elder abuse, both in terms of race and geography, drawing from Maine to Hawaii -- and on to Guam, and thus strongly supporting the EJCC's concerns about nationalized data collection and the need for standardized reporting. 

Northeastern Expands LLM Program to Include Health Policy and Law

Northeastern School of Law's dynamic new LLM program expands this year to offer a specialization in health policy and law. Designed to meet the needs of lawyers who are working in health policy and law and hope to enhance their skills, or lawyers who wish to enter this rapidly growing field, the program is affiliated with Northeastern University's Program on Health Policy and Law. LLM students also have the opportunity to take advantage of the university's interdisciplinary expertise in health policy and law by enrolling in relevant courses in the D'Amore-McKim College of Business, the Bouvé College of Health Sciences and the College of Social Sciences and Humanities.

In May, the law school graduated its first LLM class, comprised of 11 members — six women and five men — from every corner of the globe: three are from Africa (Nigeria and Cameroon), three are from Eurasia (Turkey), two are from South America (Argentina and Brazil), one is from Southeast Asia (Cambodia), one is from Oceania (Australia), and one is from Southern Europe (Greece). 

For more information, visit www.northeastern.edu/law/llm.

Consumer Voice Seeking Applicants for Executive Director

The National Consumer Voice for Quality Long-Term Care is a Washington D.C. based, national nonprofit founded as The National Citizens' Coalition for Nursing Home Reform (NCCNHR) in 1975 by Founder, Elma Holder and 12 citizen advocacy groups working at the local and state level to protect the rights, safety, and dignity of America’s long-term care residents.  Members of The Consumer Voice's governing board and leadership council include long-term care consumers and a diverse group of national, state and local leaders advocating for quality long-term care nationwide. The Consumer Voice also operates the National Long-Term Care Ombudsman Resource Center in partnership with The National Association of States United for Aging and Disabilities.

RESPONSIBILITIES OF THE EXECUTIVE DIRECTOR:
The executive director is the chief executive of the organization and reports to and works in partnership with the governing board.  The director is responsible for developing the organization’s $1.2 million budget and management and direction of staff and consultants.  Principal duties include: providing leadership to guide and advance the organization’s role as a national leader in bringing the consumer voice to long-term care policy; assuring sound financial management and accountability; fund development (securing adequate funding to carry out the organization’s mission); and leading and managing the programmatic and administrative activities of the organization efficiently and effectively to implement the mission of The National Consumer Voice.
Provide leadership to guide and maintain the organization’s national role as a leader in bringing the consumer voice to long-term care policy:

• Maintain and build upon relationships with other organizations and individuals to collaborate in receiving consumer input and promoting consumer perspectives in national and state public policy discussions.
• Expand and grow The Consumer Voice Action Network.
• Identify new opportunities for promoting The Consumer Voice's mission and activities including support of and partnerships with long-term care ombudsmen, citizen advocates, family councils, resident councils, the community of persons with disabilities and others seeking quality long-term care. 
• Take an active role in planning and implementing the organization’s meetings and conferences.
• Represent the organization and the consumer viewpoint in national discussions of long-term care policy in national coalitions when appropriate and necessary.  
• Liaison with national organizations involved in long-term care; i.e.: the Administration on Aging, the Centers for Medicaid and Medicare, the Alzheimer’s Association, AARP and other relevant organizations. 
• Serve as ex-officio member of the organization’s governing board and its committees.
• Public speaking and reasonable travel.

Fund Development

•  Assure effective fund development to maintain programs and operations as well as building capacity to further implement the organization's mission
• Sustain, develop and cultivate relationships with grantors, donors, and corporate supporters.
• Write grant proposals.
• Lead efforts to raise funds through direct solicitation, special events, etc.

AND MORE!! 

TO APPLY:
Please email an application (on subject line, type: Consumer Voice: ED). Include a letter of interest, resume, and salary requirements. Email by November 30, 2013 to:
William Lamb
Consumer Voice Governing Board President
[email protected]
The Consumer Voice is an equal opportunity employer

Consumer Financial Protection Bureau Managing Other's Money Series

The CFPB announced on October 29, 2013 the release of 4 new booklets for individuals managing the money of another.  These booklets  are part of the CFPB series of booklets on different topics. These new booklets cover POAs, guardianships, trustees and Social Security Rep Payees/VA Fiduciaries.  The booklets are written in an easy to read and understand format, with examples, questions and answers, definitions, a discussion of duties, helpful tips and a list of resources.  The booklets run between 22-28 pages (depending on the booklet) and are a great resource for students and clients.  The booklets are available for download as pdfs.  Here's the best part-you can order print copies for free, including bulk orders. This ROCKS!

More on the Graying of the Prison Population

Over the weekend, we got a very nice email from a recent grad of Albany Law School, Benjamin  Pomerance, who wrote us to tell us that as part of a yearlong fellowship, and that

[he wrote] a 107-page published report on law and policy issues confronting elderly prisoners in the United States ... [and] moderated a Continuing Legal Education panel discussion on this topic. The number of elderly inmates in America has increased 282% since 1995, and continues to rise sharply today. Given that prisons are not environments conducive to the needs of elderly individuals, this recent phenomenon of "aging behind bars" has forced states to examine their legal obligations toward these older prisoners.

Benjamin let us know that he is happy to share copies of his report. The Albany Law Government Law Center sent out paper copies, but he will provide an electronic one.  

Benjamin is currently an Excelsior Fellow in New York, ran the NAELA student chapter, was the recipient of the NYSBA Elder Law Section Scholarship, and received the 2012 NYSBA President's Pro Bono award, among other things. His email is [email protected].  Benjamin, sounds like you are well on your way to ROCKING it in Elder Law!

Download Elderly Prisoners Report

 

Teaching About Medicare, Medicaid, Social Security and More

I'm getting to that part of the semester where I'm going to be teaching about the entitlement programs. I always cover the health care and income programs as the last part of the semester.  We all know how complicated these programs are to understand, so I like to use visuals,  in addition to PowerPoint, to help my students get a mental picture of these programs. 

I have a clip of a comedy sketch which explains the drug cards before Part D went into effect, which I use to help set up a discussion of the history and policies of Part D.  I like to use the Families USA Medicare Part D illustration of the donut hole.  It's clear, concise and you can see the "light bulbs" go on when the students work their way through the chart.

If you like to use videos, take a look at the Medicare Part D Donut Hole video available on YouTube by the Robert Wood Johnson Foundation. (Oh and there are a lot of videos about Medicare-who knew). Want to learn about how Medicare works with Social Security Disability? Watch the video from CMS.

By the way, if you haven't taken a look at the Families USA website, you should. It has lots of good information on a number of relevant topics, including a "Medicaid Expansion Center".

For Social Security, I ask the students to examine the retirement calculator, so they can apply the discussion regarding the future of Social Security and saving for retirement to themselves. I also like to pull up the Retirement Planner "chart" during class for full retirement age.   The Medicare Rights Center has  great two page document that sets out the differences between original Medicare and Part C.

There are lots of different things out there we can use to help our students learn about these programs--the issue is time (much like study aids-we have to pick the most effective ones). I was hoping you might be willing to share what you do in your classes when you cover this material-post a comment or email one of us.

Check out this 3-part webinar on elder law and ethical issues

The Center for Elder Rights Advocacy, a partner in the National Legal Resource Center, is hosting a three-part webinar series on Elderlaw & Ethics.  Prof. Kimberly O'Leary, Director of 60+Elderlaw Clinic at Thomas M. Cooley Law School,has developed methodical approaches to identifying and handling some of the most challenging ethical issues that elderlaw attorneys face.  

Each hour-long webinar in the series will focus on one of the issues we are most likely to face:

•  Competency, 11/14/2013, 2-3p EasternTime   Register Now for Webinar 1

This webinar will present steps for attorneys to follow to determine whether a new client has sufficient competency to engage in the attorney-client relationship and how to handle a situation where a question of competency arises during representation.  Participants will be given resources to analyze these issues, and the presenter will examine examples by using a step-by-step process.

• Confidentiality, 12/12/2013, 2-3p EasternTime Register for Webinar 2

This webinar will present steps for attorneys to follow to ensure they are keeping client’s privacy in an elderlaw practice.  It will explore the traditional “who is the client?” issue that often arises in elderlaw as well as typical ways practitioners engage the assistance of third parties to help their clients.  Participants will be given resources to analyze these issues, and the presenter will examine examples by using a step-by-step process.

• Multi-representation, 1/16/2014, 2-3p EasternTime Register for Webinar 3

This webinar will present steps for attorneys to follow when asked to represent more than one client in an issue.  It will explore representing couples as well as members of the same family.  It will NOT discuss class action representation. Participants will be given resources to analyze these issues, and the presenter will examine examples by using a step-by-step process.

All webinars will be held through gotomeeting.com and will be from 2pm to 3pm EasternTime. You have to register for each webinar individually. 

India news: Parent dumping will not be tolerated in Guruvayur

Via the New Indian Express:

State Women’s Commission member Prof K A Thulasi held a sitting on the Guruvayur temple premises here on Friday following reports of rise in elders being dumped at the temple by their children.  Thulasi, who spoke to around 25 people, directed the Thrissur RDO to submit a detailed report regarding parents being dumped in Guruvayur.  Strict action would be initiated against those who abandon their aged parents in Guruvayur under the Welfare of Parents and Senior Citizen’s Act 2007, which allows parents to take their children to court.  In cases involving children abusing parents and driving them out of home, asking them to part with their property or transfer them to their names, the transactions which took place after 2007, will be nullified, she said. 

A detailed report describing the plight of the elderly people in Guruvayur will be submitted to the government.  The report on the elderly will include recommendations  to set up more rehabilitation centres in areas which are vulnerable for these kinds of acts, Thulasi said.

Many of the elderly people to whom the Commissioner spoke on Friday expressed their willingness to meet their children and spend rest of their lives with family.

Read more in the New Indian Express.

Related articles

Abandoning of elders at temples worries Kerala

NaCCRA: Consumers of Senior Living Discuss Future for Continuing Care

The fall meeting of the National Continuing Care Residents' Association (NaCCRA) in Dallas on October 27 was attended by CCRC residents from at least a dozen states, including Arizona, California, Connecticut, Florida, New Jersey, North Carolina, Oregon, Pennsylvania, Texas, Virginia, Washington, and D.C. 

The morning workshop focused on "Imagining CCRCs of the Future," starting with round table discussions that identified 25 topics deemed important to the future of the industry, including planning for consumers who may have less financial resources while also seeking greater services; interest in building more diverse communities; and the importance of training for emerging leaders.  From the broad list, the group identified 7 priorities for NaCCRA in the coming year and beyond, accompanied by specific action recommendations.  Stay tuned!

In the afternoon, members of NaCCRA were part of a panel discussion on "Resident Engagement" led by Ron Herring, the President-Elect of NaCCRA.  The panelists were Ellen Handler, President of ORANJ, the residents' organization in New Jersey; Marilyn Kennedy, Chief Operating Officer for Episcopalian Senior Communities in the San Francisco area, and Mary Ann Colwell, a resident at St. Paul's Towers, one of Episcopalian Senior Communities' CCRCs. 

Handler presented highlights from successful advocacy on the part of the New Jersey group in achieving state legislation requiring resident membership on governing boards of CCRCs, and, most recently, mandating threshold rights for residents in "independent living."  Kennedy and Colwell talked about the 10 year history of progress in their communities, building multiple pathways for residents to participate in the life of their communities, including working with provider representatives to plan for the future.  Kennedy discussed the role of California state law that helped to frame the provider/resident discussions. 

The audience included provider representatives. During the Q & A that followed the panelist presentations, the interaction generated observations about effective roles for residents on governing boards and key board committees (such as finance and quality), including success stories from communities. Several people remarked on the "process" of resident engagement, as it takes time for true engagement to become engrained as the culture of the community.

The NaCCRA meeting was part of the opening day action at the national meeting of  LeadingAge, the national trade group for nonprofit senior living providers, which runs through October 29. 

Tips for Elder Law Prof Blog Readers: Comments and Subscriptions

Readers sometimes send emails to us, rather than adding comments to an individual post.  That's great, of course.  We welcome all forms of communication about the contents of the blog, especially ideas, topics, links to new academic articles or presentations, or news items. 

Also, for those readers who may be new to this website, when Kim, Becky or I write a "post" we can (and usually do) open the post for "Comments." Readers can add a Comment to the individual post.  We review Comments before releasing them for publication.  Thus, there will often be a small delay before a comment is made public.  A couple of readers have mentioned to me problems with the "Comment" function.  I know it can be frustrating to type something twice.  One option is to type the comment first in Word, and then cut and paste that into the "Comment window."  Thus, if something goes awry the first time, you at least don't have to retype.

Also, we welcome "subscribers" to the Elder Law Prof Blog.  No cost, of course! Subscribers receive an email periodically (no more than once per day and less often if there are no new posts) that provides  summaries of new posts and direct links to individual items.  You can unsubscribe at any time (directions for unsuscribing are at the bottom of the email).  The link for subscriptions appears at the top of the Elder Law Prof Blog. 

Do-It-Yourself Wills: Penny Wise & Pound Foolish?

This semester in my course on Wills, Trusts & Estates we have talked about the trend in modern cases to resolve conflicts over wills and trusts by attempting to respect the "intent" of the testator or settlor, even when imperfectly expressed in a written document.  But, there are often lines beyond which courts will not go to supply missing words or resolve ambiguity.  

In Estate of George Zeevering, decided by an intermediate appellate court in Pennsylvania on September 26, 2013, the court was facing an incomplete do-it-yourself will.  The testator had not consulted with a lawyer.  He attempted to make specific bequests.  One bequest was deemed a "nullity" because the property was already titled in the names of the decedent and a son as joint tenants with right of survivorship.  The father also stated that the "failure of this will to provide any distribution" to three of his daughters was "intentional." 

However, there was no provision made in the will for any residuary and the residuary estate, after payments of debts, totaled over $200,000. 

The appellate court upheld the distribution of the residuary to all of the children:

"[I]t was proper for the orphans' court to conclude that where the intent of the testator is not clear from the will, where the will fails to dispose of a decdent's entire estate, and where the will fails to provide a residuary clause, the residuary estate is to be distributed under intestacy laws."

Hat tip to ElderLawGuy Jeffrey Marshall who has been folllowing the Zeevering case on his blog.