Elder Law Prof Blog

New Book on Estate Planning

Looking for that perfect gift for the Boomer in your life?  Check out this new book, just for Boomers.  Harry Margolis has published Get your Ducks in a Row: The Baby Boomers Guide to Estate Planning. The book is available for purchase on Amazon.

The website provides this summary

If  you’re over 55, you probably know you need an estate plan. What you might not know is how to create one. Questions about cost, confusion about options, and difficulty talking about subjects like disability and death can make the process of preparing for the future seem overwhelming. That’s probably why most people put it off—even though the results of doing nothing can sometimes be devastating.

What you need is a guide that explains the process clearly and comprehensively, in terms you can understand and actually use. Get Your Ducks in a Row: The Baby Boomers Guide to Estate Planning tells you everything you ever wanted (or perhaps never wanted) about estate planning.

Written by elder law and estate planning expert Attorney Harry S. Margolis, Get Your Ducks in a Row: The Baby Boomers Guide to Estate Planning takes you through the estate planning process step by step. Whether you’re currently creating a plan, getting ready to start, or looking for an explanation of documents you’ve already signed, this book will provide the information you need, including:

• Answers to the most common estate planning questions
• Common estate planning terms, demystified
• The Five (or Six or Seven) Essential Documents everyone over 55 needs (and how to fill them out)
• An overview of more complex estate planning scenarios
• Help deciding when it’s time to consult an attorney
• And more...

Featuring practical advice and easy-to-follow examples gleaned from the author’s 30-plus years of experience in elder law and estate planning, Get Your Ducks in a Row: The Baby Boomers Guide to Estate Planning will help you take control, make a plan, and ensure your family—and yourself—a secure and comfortable future.

The book is divided into 3 sections:  (1) "The Five or Six or Seven Essential Documents, (2) Special Situations in Estate Planning and (3) Creating a Plan.  Each section has a number of chapters addressing relevant topics. I particularly liked chapter 6, "'Bonus' essentials," which covers beneficiary designations, digital assets, bank and investment accounts, life insurance and more.  The conclusion notes that all of us need to have an estate plan, but many folks don't--for various reasons---, and there are limits, and risks, to folks doing their planning without an attorney's guidance. Harry closes the book with this: "[f]inally, it's time for baby boomers to plan. It can make all the differ3ence for your family. don't wait. Enjoy the process."

PS, In the interest of full disclosure, I've known Harry for a long time. He's a prolific writer in the field of elder law.

More Student Views on Current Events

Frequent readers of this blog know that this semester I had my students write posts about their observations on recent events.  The semester has ended and I have a final post from a student to share with you.

Jeidy Beltran writes about aging in place.

THE COST OF AGING IN PLACE

 Kaiser Health News recently published the article “For Boomers Reframing Aging, Age-Proofing A Home Won’t Come Cheap,” discussing the high investments older persons are incurring when retrofitting their homes to be able to “age in place.” According to the article, “by 2050, almost one-quarter of Americans will be 65 or older,” and what living arrangements and services will be available to them is the million-dollar question. Most of the common options are moving in with relatives or moving to a care facility. The article states that baby boomers are not attracted to either of those options and it is quite understandable why – they want to preserve their autonomy and independence. Nevertheless, many are left without an option given that aging in place and preserving the highest amount of independence can be considered a luxury and available to those who are most affluent.

According to Kaiser, “in a recent survey of 1,000 people age 65 and older, 80% of respondents were concerned about their ability to age in place due to financial reasons. About 60% said that they have less than $10,000 in savings (including investments and retirement plans).” Given that in this day in age, neither communities or homes are suited for “aging in place,” accomplishing it can present quite a hurdle. Most communities are not people focused, meaning that they do not have the necessities within walking distance. Also, most homes are either not single-story or they do not have the necessary modifications to allow one to age in place (narrow doors and hallways, low toilet seats, bathtubs rather than walk in showers with grab bars…etc.). Given that everyone has a different view of what aging in place signifies, retrofitting a home and when it is done can vary. Some may start looking into their forever home from the time they purchase their first home or by the time they start planning for retirement and possible disability, while others undertake the task when presented with a disability that requires such modifications. Home modifications can also vary in degree. They can be as little and inexpensive as “adding grab bars or lever doorknobs” to highly expensive changes such as “widening doorways or lowering light switches.” The article commented on a couple in Texas who undertook the task of completely modifying their home and including all that might be necessary in case they might need it in the future, which could easily cost them $300,000 just for renovations.

My initial concern with aging in place was that people would deplete their funds in achieving their “dream” and aging in place appropriate home, but would fail to account for the future need of services. After reading the article and seeing that some people build their home with the expectation that a caregiver might live in the home makes me think that some people are thinking of the possibility that they might need services after all. The choice between wanting to preserve as much independence as possible, requiring services, and the financial burdens of each is a hefty one, but I believe that if properly planned, aging does not have to be so complicated. Have you thought about this? If so, have you analyzed your situation and weighed the pros and cons of each of the housing options?

Recent Survey on Needs of Older Adults in Tampa Bay Area, Florida

The Area Agency on Aging for Pinellas-Pasco (Florida) along with the Pinellas Community Foundation  did a Community Assessment Survey of Older Adults  (CASOA):

The Community Assessment Survey of Older Adults, or CASOA, is a printed survey that was sent to 10,000 randomly selected households across every Pinellas and Pasco zip code in which at least one resident was known to be aged 60 and over. The Pinellas Community Foundation and the Area Agency on Aging of Pasco-Pinellas joined forces to conduct this comprehensive needs assessment of the area’s aging community.

The survey, which is available here offers key findings in 9 categories:

Overall Community explores how older residents view the community overall, how connected they feel to the community and overall feelings of safety, as well as how likely residents areto recommend and remain in the community.

. . .

Health and Wellness Of all the attributes of aging, health poses the greatest risk and the biggest opportunity for communities to ensure the independence and contributions of their aging populations. Health and wellness, for the purposes of this study, included not only physical and mental health, but issues of independent living and health care.

. . .

Housing  The movement in America towards designing more “livable” communities –those with mixed-use neighborhoods, higher-density development, increased connections, shared community spaces and more human-scale design –will become a necessity for communities to age successfully.

 . . .

    Outdoor Spaces and Building Generally, communities that have planned for older adults tend to emphasize access --access to parks, green spaces, buildings, and places where the public wants to gather. Accessibility of public places in a community has a major effect on older residents’ quality of life, allowing them to remain mobile, access services, participate in productive activities and engage socially.

. . .

Transportation and Streets Mobility access increases the likelihood that seniors will be engaged with the community and the economy. Because the US is currently highly reliant on automobiles, older drivers may become concerned with their dependency on others for transportation because they can become isolated without their motorized mobility. Those that reside in livable communities where they can reach their destinations easily and comfortably on foot or in public transportation are more likely to remain engaged in their communities and to demonstrate signs of successful aging.

. . .

Social Participation, Inclusion and Education Opportunities. A “community” is often greater than the sum of its parts, and having a sense of community entails not only a sense of membership and belonging, but also feelings of emotional and physical safety, trust in the other members of the community and a shared history.

. . .

Volunteer and Civic Engagement Productivity is the touchstone of a thriving old age. This section of the report examines the extent of older adults’ engagement in the Pasco-Pinellascommunity as determined by their time spent attending or viewing civic meetings, volunteering or providing help to others.

. . .

Job Opportunities People in the U.S. are working longer and retiring at an older age than they did 20 years ago. Of all developed countries, the U.S. has the highest labor force participationof adults age 65 and older. Older adults are postponing retirement for a variety of reasons: improved health, to benefit from delayed pension plans, to accumulate additional wealth, and because the knowledge worker economy is less physically demanding than jobs in the economy of 20 years ago. Some experts believe that older workers will become an untapped resource for economic stability when Baby Boomers begin retiring.

. . .

Community Information Sometimes residents of any age fail to take advantage of services offered by a community just because they are not aware of the opportunities. The educationof a large community of older adults is not simple, but when more residents are made aware of attractive, useful and well-designed programs, increasing numbers of residents will benefit from becoming participants.

. . .

The summary of the results are available here.

 

American Society on Aging 2020 Annual Conference

Registration is open for the American Society on Aging 2020 annual conference in Atlanta, Aging 2020: Examining the Needs of Today's Diverse Older Adults set for March 24-27, 2020. Take a look at the extensive agenda to identify sessions that are can't miss.  It promises to be a great conference! #AiA20 #Aging2020

(PS-I'm on the board and reviewed some of the proposals, so I know it will be great!)

Save the Date: Reframing Elder Abuse on Social Media Webinar

Here's a save the date announcement about an important upcoming webinar on Friday January 24, 2020 at 8 a.m. est, 11 pst. 

National Adult Protective Services Association (NAPSA) and National Center on Elder Abuse (NCEA) presents:

How to Reframe Elder Abuse on Social MediaWebinar

Over the past few years, the NCEA’s Reframing Elder Abuse project, an initiative to change the way we talk about elder abuse with the public has built momentum. The project aims to demonstrate how we can restructure our communities to put elder abuse on the public agenda, generate a sense of collective efficacy on the issue, and boost support for systemic solutions to prevent and address it. Social media can be the first, and in some ways, the easiest place to begin to reframe how the public thinks about elder abuse. During this webinar, participants will review best practices in public communications on elder abuse based on an evidence-based strategy and receive tips and resources in social media application.

Mark your calendars to register for the webinar, once registration is open.

New Resource on Hoarding Disorders

The National Center on Law & Elder Rights released a new FAQ on hoarding disorders. Frequently Asked Questions: Hoarding Disorders and Older Adult discusses several important FAQs including how to differentiate between hoarding and clutter or being unorganized, how hoarding is different than collecting, available tools to identify potential hoarding disorders, what to do when hoarding is a factor in the person’s eviction, therapies for treating hording, resources and more. Corresponding PowerPoint slides from a legal training webinar are available here.  Accompanying materials on self-neglect can be accessed here with the link to the webinar recording here.

More on Caregiving

A couple of recent articles are worth mentioning.  First, the New York Times ran an article about millennial caregivers, For Millennials Making Their Way, a Detour: To Caregiving.

For baby boomers who fretted about every aspect of their children’s lives, here’s another worry for the list: Their children may become their caregivers while also handling the pressures of young adulthood. One-fourth of the 40 million caregivers in the United States are millennials, ranging from their early 20s to late 30s, according to a report by the AARP Public Policy Institute.

These caregivers are members of what an expert on aging ,.. calls the panini generation: “They are feeling the heat, and they are feeling pressed.”

As the article notes, for millennial caregivers the timing comes at the beginning of their careers, rather than in their late middle age or older, as it has for previous generations. Think about the financial implications for the millennials, not only for the present, but also for their futures. A look at some statistics helps crystallize the issues.

A change in family structure is one reason for the large number of millennial caregivers.... “Boomers had their kids at a later stage of their life than their own parents, and they had fewer children to provide the care....”

Also, many boomers are divorced and single, leaving caregiving to their children rather than to a spouse....And those younger caregivers are more likely than older caregivers to be men, according to a SCAN-financed poll by The Associated Press-NORC Center for Public Affairs Research.

Younger caregivers spend an average of 21 hours a week on those tasks, usually for a parent, grandparent or close friend, according to AARP. And more than half perform such difficult jobs as helping someone bathe or use the toilet and preparing injections.

Next, frequent contributor and reader of this blog, Professor Naomi Cahn, provided me with a link to a caregiving article she recently had published. Thanksgiving for Caregiving provides some data about caregivers and those who need care, and then offers some tips for caregivers on work/life/caregiving balance.

Are Physicians and Attorneys Speaking the Same Language When Talking About Competency or Capacity?

One of the most frequent search phrases that brings internet users to our Elder Law Prof Blog is the phrase "competency vs. capacity."  The search leads readers to a post from 2006 that summarizes an article written by two experienced psychiatrists, Phillip J. Resnick and Renee Sorrentino, originally published in December 2005 in Psychiatric Times. The article -- and often our blog post -- is frequently quoted or cited for the following passage:

This [clinical] consultation request reflects a common misconception regarding the issue of competence.  Competence is a legal state, not a medical one.  Competence refers to the degree of mental soundness necessary to make decisions about a specific issue or to carry out a specific act.  All adults are presume to be competent unless adjudicated otherwise by a court.  Incompetence is defined by one's functional deficits (e.g., due to mental illness, mental retardation or other mental condition), which are judged to be sufficiently great that the person cannot meet the demands of a specific decision-making situation, weighed in light of its potential consequences. . . . Only a court can make a determination of incompetence.

 

In contrast, psychiatric consultants can and should opine about a patient's capacity to make an informed decision or judgment.  Capacity is defined as an individual's ability to make an informed decision.   Any licensed physician may make a determination about capacity.  Forensic psychiatrists, however, are especially suited to assess a person's mental status and its potential for interfering with specific areas of functioning.  An individual who lacks capacity to make an informed decision or give consent may need to be referred for a competency hearing or need to have a guardian appointed.  The psychiatric consultation results in an opinion regarding whether such actions are indicated. 

 

Moreover, competence is issue specific.  Some physicians who misconstrue competence to be a global, black or white issue will ask psychiatric consultants for a broad consultation on whether the patient is competent or not.  The response of the psychiatric consultant should be, "Competent for what?"    

 

An additional challenge, however, is that in the years since that particular article was written, there has been a strong movement in law to dispense almost entirely with the "incompetent" label for legal purposes, especially when we are talking about the individual's ability to make informed decisions, whether for health care or other matters in life.  The incompetent label is viewed as unnecessarily and inappropriately stigmatizing.  The legal trend is to focus on capacity evaluations.  This trend also rejects global incompetency labels, and is often tied to an evaluation of function for specific tasks.  Perhaps the two professions are moving in the same direction when concerns are identified about cognition, focusing on an evaluation of the individual's "capacity for what?"   

Earlier this week, I was part of a fascinating discussion with a panel that included Dr. Samuel Hammerman, who wears many professional hats including that of a practicing pulmonary and critical care physician; Dr. Charles J. Duffy, a professor of neurology with deep professional interest in dementia; and Rabbi Ron Muroff, who set exactly the right tone for compassionate discussion.  Okay -- we all admitted our introduction sounded like the start of a joke about walking into a bar.....

We took up this topic of "capacity" or "competence" in response to two cases drawn from real life, where patients with serious physical health concerns also have compromised cognition and are rejecting admission or treatment at a hospital. Our audience, members of the Cardozo Society (lawyers) and the Maimonides Society (health care professionals) of the Jewish Federation of Greater Harrisburg, were very engaged and of enormous help in the discussion.  I walked out of the room energized and ready to get back to a long-planned article updating this topic (as soon as I find that elusive commodity, time!).  

Caregiving Technology and Reliability

I read last week about a technology problem with a diabetes monitor, A glitch in diabetes monitors serves as a cautionary tale for health tech. Although primarily about this particular device, the article observes that the reliability on this kind of health tech means it's too important for it to malfunction.  Some of the things my students and I always discuss in the context of using technology for aging in place is the reliability of the technology, informed consent to its use, privacy of data collected and the cyber security of those companies that store the data.  As this article illustrates, when we rely on technology to keep people safe, we need the technology to be reliable. It's early days yet as far as the use of technology to age in place and how well it will function over the long haul.

The Task Force on Research & Development for Technology to Support Aging Adults Committee on Technology  of the National Science & Technology Council issued a report, Emerging Technologies to Support an Aging Population.   Section VIII of the report, Cross-Cutting Themes. addresses these issues and others, including system dependability, privacy and security, times when the systems are unavailable, vulnerabilities, and more. 

These are issues that lead to a robust class discussion, and even a few good topics for students' scholarly papers.

 

 

 

Blood Test for Alzheimer's?

Professor Naomi Cahn, the incoming chair of the AALS section on Aging & Law, sent me this recent article,  The Hunt for a Blood Test for Alzheimer’s Disease wherein "[r]esearchers hope circulating biomarkers will enable earlier detection and better monitoring of the neurodegenerative disorder—and perhaps help usher in new treatments." The article identifies updates in research and summarizes some blood tests being tried to help with diagnosis.

A number of questions and issues remain to be resolved before many of the biomarkers found in the blood are ready for use in trials, much less for clinical care... [with] [o]ne issue that researchers must account for is individual variability....  “People are so different [and] there’s a lot of things we still don’t know how to even control for in terms of statistical analyses.” Age and APOE4 carrier status, for example, can change the levels of some AD biomarkers independently of whether an individual has the disease.

The story also notes the existence of technical challenges and challenges of consistency. So far scientists haven't found the definitive diagnosis, nor the cure, but they are surely working hard to do so.

 

Updates from Missouri

I was in Missouri last week for a couple of days and had a chance to visit with some great people. First, I had the privilege to meet Dr. Erin Robinson and Dr. Clark Peters from the School of Social Work at Mizzou.   The work they are doing in gerontological social work is quite interesting. At some point our conversation segued into the role of technology in caregiving for older adults, and Dr. Robinson shared with me the research and activities of the Mizzou Center for Eldercare & Rehabilitation Technology, whose "mission is to create technology for proactive healthcare that helps older adults and people of all ages and needs to lead healthier, more independent lives."   We also talked about the University's foray into housing for elders, known as TigerPlace. which is a partnership between Americare and the Mizzou Sinclair School of Nursing.

On Friday, I attended day two of the winter symposium of the Missouri Chapter of NAELA (MoNAELA), The two day program had a robust agenda of general sessions and two tracks, advanced and basics. These folks are a great bunch of people who are quite knowledgeable and caring.

 

 

Medicare Mistakes Need Do-Over?

Last week Kaiser Health News reported on mistakes on the Medicare website, which may have causes probelms for beneficiaries chosing their plans during open enrollment. Website Errors Raise Calls For Medicare To Be Flexible With Seniors’ Enrollment explains the extent of the problem.

The overhauled Plan Finder debuted at the end of August, and 2020 plan information was added in October. Over the past three months, Plan Finder problems reported to CMS by the National Association of Insurance Commissioners, the National Association of Health Underwriters, and state and national consumer advocates included inaccurate details about prices, covered drugs and dosages, and difficulty sorting and saving search results, among other things.

CMS made almost daily corrections and fixes to the website, which is the only tool that can compare dozens of private drug and medical plans ― each with different pharmacy networks, covered drugs and drug prices. The website provides information for more than 60 million people with Medicare and their families, as well as state Medicare counselors and the representatives who answer the 800-MEDICARE help line.

Unsurprisingly, the article notes that some folks signed up before corrections were made, which may not become apparent to them until they use the plan in 2020.  Which leads me to my next point.

Sen. Bob Casey of Pennsylvania, the senior Democrat on [the Senate Special Committee on Aging], also said Medicare needs to reach out so people know they can request a “special enrollment period” if they discover next year they made a wrong choice due to inaccurate Plan Finder information.

“People with Medicare must be aware that this reprieve exists and should not have to jump through hoops to qualify,” he said. The administration should “use all means necessary” to let beneficiaries know about their options for a special enrollment period.

Fifteen Senate Democrats, led by Casey, sent a letter  Thursday to Medicare Administrator Seema Verma asking the agency to “widely publicize the existing SEP for people who were misled by information” in the Medicare Plan Finder and to make switching plans easy.

The Associated Press reported on that at the end of last week. Senators urge Medicare to allow seniors a drug plan do-over:

 

In its statement Friday, Medicare said it wants to ensure that seniors “are confident in their decisions and happy in the coverage they choose.”

Medicare said it’s always had the ability to grant do-overs, “but this year we’re doubling down on ensuring that choosing their Medicare coverage is a simple and painless experience for beneficiaries.”

Medicare officials told AP that if seniors had problems with the plan finder and were unhappy with the outcome, they could call 1-800-MEDICARE and request to make a switch.

Agency officials said beneficiaries don’t need to use any technical language, only explain what their issue is to the call center representative. No documentation or screen shots will be required.

Stay tuned. This may not be over.

Who is Going to Buy Boomers' Homes?

Here's an interesting question: The Silver Tsunami: Which Areas will be Flooded with Homes once Boomers Start Leaving Them?   It's a good question; an important one.   Here are some highlights from the article:

• Over the next 20 years, more than a quarter (27.4 percent) of the nation’s currently owner-occupied homes are likely to hit the market as their current owners pass away or otherwise vacate their homes.
• Places likely to be most impacted by this upcoming Silver Tsunami include both retirement hubs (Miami, Orlando, Tampa and Tucson) and regions where young residents have left (Cleveland, Dayton, Knoxville and Pittsburgh). The impact of the Silver Tsunami is also likely to vary greatly across different areas within metros.
• The places likely to be least impacted include those with vibrant economies featuring fast growth and affordable housing that act as magnets for younger residents (Atlanta, Austin, Dallas and Houston).
• Housing released by the Silver Tsunami will provide a substantial and sustained boost to housing supply, comparable in magnitude to the fluctuations that new home construction experienced in the 2000s boom-bust cycle.
• It seems likely that, in the coming two decades, the construction industry will need to place a greater focus on updating existing properties, in addition to simply building new homes.

The article suggests we look for this tsunami to "hit" between 2020-2030.  Where will it hit the hardest?

The Silver Tsunami will strike nationwide, impacting between one-fifth and one-third of the current owner-occupied housing stock in every metro analyzed.

Well-known retirement destinations, including Miami, Orlando, Tampa and Tucson, will experience the most housing turnover in the wake of the Silver Tsunami. If the number of future retirees choosing to make these places home during their golden years fails to match generations past and local housing demand fades, these areas may end up with excess housing.

The article contains important statistics ranking areas most and least likely to be affected.  The article also discusses a ray of sunshine within this tsunami-the housing turnover is likely to serve as a substitute for new construction.

Get your tsunami preparedness kit together---you've been warned :-)

Thanks to Professor Mark Bauer for sending me the article.

 

Stories About Alzheimer's

Two recent stories about Alzheimer's caught my eye, and I wanted to share them with you here.  The day after Thanksgiving, the Today Show ran a story, Caregiver for Alzheimer's Patient Shares Family's Struggles. The caregiver wife tells the story of their lives and the financial impact when her husband, a lawyer, was diagnosed at age 61 with early onset Alzheimer's. The summary describes the story, "Millions of Americans selflessly care for loved ones with Alzheimer’s disease and one family is opening up about their struggles on TODAY. Many people are calling for a nationwide program for caregivers, reports special anchor Maria Shriver." Senator Amy Klobuchar appears in the story, as her dad has Alzheimer's. The story mentions pending bills in Congress, including the Alzheimer's Caregivers Support Act. The link to the 3:22 minute video is available here.

The second story, an opinion piece in the New York Times, The Unending Indignities of Alzheimer’s   aired December 1, 2020. It highlights the obstacles family members face in trying to find the necessary care for the individual with Alzheimer's....

But while his family, and his physician, agree on the need for more advanced care, his health insurers do not. Medicare does not generally cover long-term nursing home care. Medicaid does, but only when it deems those services “medically necessary” — and that determination is made by insurance agents, not by the patient’s doctors. The state of New Jersey, where my parents live, recently switched to a managed care system for its elderly Medicaid recipients. Instead of paying directly for the care that this patient population needs, the state pays a fixed per-person amount to a string of private companies, who in turn manage the needs of patients like my father. On paper, these companies cover the full range of required offerings: nursing homes, assisted-living facilities and a suite of in-home support services. In practice, they do what most insurance companies seem to do: obfuscate and evade and force you to beg.

The author writes how the family is piecing together the care the best they can.  She writes "[t]he real problem is not my father’s level of functionality; it’s the lack of available Medicaid beds and the absurdly high cost of any meaningful alternative. For example, there’s a lovely assisted-living facility just two miles from my parents’ apartment. But it costs $8,000 a month, on average, and does not accept my father’s insurance."

BTW, know someone who is a caregiver? Even though National Caregivers' Month (November) is behind us, thank a caregiver.

Elder Law Issues as Part of Candidate Platforms

Although our semester has ended, my students are still paying attention to the elder law issues in the news, including those issues that are being mentioned as part of the presidential candidates' platforms. During the semester, we talk abut news stories regarding elder law issues or elders.  We may have started with a discussion of Medicare for All, but we soon moved beyond that onto other issues.  Most recently, a student send me a link to a YouTube video about the importance of long-term care, put out by one of the Democratic candidates for President (it's important right now to state that I'm not focusing on politics or a particular candidate, but that candidates are realizing the importance of issues affecting elders in the U.S.). In this video, the 102 year old, Dorothy, has run out of money for her care. Even though it's ultimately an endorsement about a specific candidate, the points made in the video are important and are faced by so many older Americans. 

Thanks Jenna for sending this to me and good luck on your exams!