Thursday, April 30, 2020
The AALS Section on Law and Aging is joining forces with the Sections on Civil Rights, Disability Law, Family and Juvenile Law, Minority Groups. Poverty, Sexual Orientation, Gender-Identity Issues, Trusts & Estates and Women in Legal Education to host a program for the 2021 Annual Meeting, scheduled to take place in San Francisco in January. The theme for the program is appropriately broad -- "Intersectionality, Aging and the Law."
I like this definition of "intersectionality":
The interconnected nature of social categorizations such as race, class, and gender as they apply to a given individual or group, regarded as creating overlapping and interdependent systems of discrimination or disadvantage. Example: "Through an awareness of intersectionality, we can better acknowledge and ground the differences among us."
We need great presenters!
We are interested in participants who will address this subject from numerous perspectives. Potential topics include gray divorce, incarceration, elder abuse (physical or financial), disparities in wealth, health, housing, and planning based on race or gender or gender identity, age and disability discrimination, and other topics. The conception of the program is broad, and we are exploring publication options.
If you are interested in participating, please send a 400-600 word description of what you'd like to discuss. Submissions should be sent to Professor Naomi Cahn, email@example.com, by June 2, 2020, and the author[s] of the selected paper(s) will be notified by July 1, 2020.
AALS is planning on hosting the annual meeting from January 5-9 and I personally feel the overall theme for the conference is apt in these fraught times: The Power of Words
April 30, 2020 in Advance Directives/End-of-Life, Cognitive Impairment, Consumer Information, Current Affairs, Discrimination, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Grant Deadlines/Awards, Health Care/Long Term Care, Housing, International, Legal Practice/Practice Management, Programs/CLEs, Property Management, Science, Statistics, Webinars, Weblogs | Permalink | Comments (0)
Friday, April 10, 2020
Florida passed a remote notarization last legislative session that went into effect at the beginning of the year, with an electronic wills statute following. Recently we have seen a lot of states enacting emergency legislation or governors signing executive orders to authorize remote notarization. So many are stepping up, it's hard to keep track of which state has done what. The American College of Trusts & Estates Counsel (ACTEC) just released a chart, current as of April 8, 2020 that lists the various states authorizing this as well as state-specific details. The chart is available here. Check it out and bookmark it!
Tuesday, March 10, 2020
ACTEC (American College of Trusts & Estate Counsel) is devoting a volume of its Journal to Elder Law! Here's the info about the call for papers.
The American College of Trust and Estate Counsel announces a Call For Papers on the following topic:
With an aging generation of Boomers and increasing estate tax exemptions, the practice and study of trusts and estates may be driven less by tax planning and more by a host of other issues confronting an older population. Those issues may be broadly grouped under the term "Elder Law."
A special issue of the ACTEC Law Journal will be devoted to a discussion of the intersection of Trusts and Estates and Elder Law and will be comprised of brief articles (2,000 word maximum). The conception of Elder Law is broad and intended to encompass all matters of legal concern that a trusts and estates lawyer might address for an aging client – or a client who is concerned about aging. Suggested topics include retirement planning, financial planning and wealth management, guardianship, disability and medical care, end-of-life planning, incapacity, powers of attorney, health care proxies, nursing homes and long-term care planning, special needs trusts, Medicare, Medicaid, Social Security, elder abuse (physical or financial), age discrimination, family succession planning, grandparent visitation rights, and classic core trusts and estates topics like wills, trusts, intestacy, probate administration, and nonprobate transfers.
Procedure for proposals: Authors wishing to contribute to this special volume should send a brief proposal to Professor Alyssa A. DiRusso, Editor, ACTEC Law Journal, at firstname.lastname@example.org. Please include “ACTEC Elder Law” in the subject line of your e-mail.
Proposals are due by April 1, 2020. Early submissions are encouraged as proposals will be reviewed on a rolling basis. Given the brevity of each article, articles that delve into one or two topics in detail will normally be preferred over more general articles. We encourage submissions by authors from a variety of backgrounds, including those actively involved in fiduciary administration or the practice of law.
Final articles will be due by August 1, 2020 and will be published in the ACTEC Law Journal, Volume 46 Issue 1.
March 10, 2020 in Consumer Information, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Federal Statutes/Regulations, Health Care/Long Term Care, Medicare, Other, Social Security | Permalink | Comments (0)
Monday, December 23, 2019
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.
Wednesday, December 4, 2019
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.
Monday, November 18, 2019
Judgment Dismissing Suit Against University's Elder Law Clinic & Government Officials Affirmed by Louisiana Appellate Court (But There Is More to the History for Professors to Discuss)
Last week, the Louisiana Court of Appeals affirmed the dismissal of a lawsuit involving a will that was allegedly prepared by someone in the Southern University Elder Law Clinic. The complicated proceedings involve a challenge by an elderly decedent's only surviving child, who was not named as a beneficiary in the new plan. Instead the new will created a testamentary trust benefiting the decedent's great-grandchildren and great-niece. The daughter's first suit sought to annul her mother's will and remove the person nominated in the will to be executor and trustee. In addition, the Elder Law Clinic's Director was allegedly named in the will to serve as the estate's attorney. That suit was reportedly settled after a third person was named by the court as executor and trustee for the mother's estate, presumably also ending any role for the Clinic or the Clinic Director in the estate administration.
Less than a year later, the daughter initiated a second suit "for damages," naming the Director of the Elder Law Clinic and government officials as defendants and alleging, in essence, the defendants conspired to cause the decedent to believe immediate family members were stealing from her. In the most recent ruling, the core issue was whether the daughter had standing to bring such a cause of action, after dropping her challenge to the will itself. The Court of Appeals concluded the only party with standing to bring such a suit was the executor of the decedent's estate, explaining:
Furthermore, Ms. Antoine [the daughter] acknowledged she is not a named legatee in her mother’s will. Additionally, she is not a forced heir since she was over the age of twenty-three when her mother died, and she does not allege she was permanently incapable of caring for herself due to mental incapacity or physical infirmity.... Because Ms. Antoine is neither a forced heir nor a legatee named in Ms. Plummer’s will, she has no interest in her mother’s estate. Despite Ms. Antoine’s arguments to the contrary, any rights she may have had if her mother had died intestate are irrelevant since her mother died testate.... Accordingly, the trial court correctly found that Ms. Antoine had no right of action and sustained the exceptions of no right of action.
For more, see Antoine v. East Baton Rouge Council on Aging, et al, at 2019 WL 6044634 (Ct. App. First Cir., Louisiana, November 15, 2019).
As a former director of an elder law clinic, I can empathize with challenges that can arise in student-staffed clinics. We used to caution our law students that there is no such thing as a "simple will" that seeks to disinherit a close family member -- emotions run high in those cases, especially if there are significant assets -- and we recommended seasoned attorneys for such matters.
It turns out the Louisiana matter is even more of a cautionary tale than I first thought, and not one with a clear message.
While researching some of the history of the will contest, I learned there was a third suit, a civil rights claim, in which the Director of Southern University's Elder Law Clinic, a tenured professor, is the plaintiff, alleging she was wrongfully terminated by the University because of matters alleged in the Antoine suits.
In September 2019, the United States District Court for the Northern District of Louisiana dismissed the former faculty member's suit. For more on that, see Jackson v. Pierre, et al., 2019 WL 4739294 (U.S.D.C., N.D. Louisiana, September 27, 2019). Although the dismissal turns on fairly standard procedural issues, those who teach estate planning courses, or who supervise either law school clinic programs or law school-affiliated will-drafting programs, should find it worth reading and discussing.
Wednesday, August 21, 2019
From the New York Times, a window into what can happen when the high profile matriarch of a family either had "no" estate plan, or perhaps left behind three handwritten written documents that "could" be treated as wills.
Family squabbles over celebrity estates are not rare, as infighting over the estates of Prince, James Brown and, more recently, Tom Petty, have made clear. But Franklin’s case is especially complex because determining how she wanted her assets distributed involves deciphering whether any of the three hand-scrawled documents found in her home three months ago — one of them under the couch cushions — should be embraced as her will.
When [Aretha] Franklin died, at age 76, her family believed she had no will. Under Michigan law, that meant her estate would be divided equally among her sons. With that understanding, the sons approved the appointment of a cousin, Sabrina Owens, as the estate’s personal representative, or executor.
But if any will is accepted by the probate judge overseeing the estate, that formula for the distribution of assets would be upended, with far-reaching consequences for Franklin’s sons, whose earnings could change — some drastically, depending on which will is declared legitimate. Ms. Owens’s status as executor would also be in jeopardy.
“The wills changed everything,” Charlene Glover-Hogan, a lawyer for Kecalf Franklin, the singer’s youngest son, said at a contentious court hearing on Aug. 6.
My thanks to my colleague, Professor Laurel Terry, for this link!
Friday, July 26, 2019
The Pennsylvania Bar hosted our annual Elder Law Institute in Harrisburg on July 18 and 19. One of my favorite parts of the conference every year is the opening session, when Marielle Hazen gives a "year in review" on legislative and regulatory changes, and Rob Clofine does the same for case law. This year, Marielle began with a survey of the audience (250+) and asked attendees about frequency of issues arising in their practices. She asked about Medicaid, Medicare, estate planning, special needs planning and more. The most hands went up when the question was about guardianships. That surprised many at first, but then Rob Clofine also pointed out that several of his "top 10 cases" for the year involved disputes arising in the context of guardianships. As I'm now involved in a very big project about education for guardians in Pennsylvania, the informal survey is another reminder of the growing need for better planning to avoid unnecessary guardianships, as well as the concerns among families that can arise when a guardian must be appointed by a court. I'll write more about these issues and my project soon.
I wasn't able to stay for the whole conference (I really should own stock in Southwest Airlines!), but I did serve as a moderator for a 90-minute session on Continuing Care Retirement Communities in Pennsylvania. Our panelists included attorneys Linda Anderson (addressing topics from the perspective of consumers and their family members), Karen Feather, Special Assistant for Licensing in Pennsylvania's Insurance Department, and Kimber Latsha, who has deep experience representing both for-profit and non-profit CCRCs in Pennsylvania. In addition, in the audience we had Dave Sarcone, Associate Professor of International Business and Management at Dickinson College, who coauthored an article with me earlier in the year about Ongoing Challenges for Pennsylvania Continuing Care and Life Plan Communities. The session proved to be, shall we say, vibrant, with lots of interaction between panel members and the audience, and with fairly strong opinions emerging at times.
Points of strongest interaction included issues surrounding an individual or couple's assets. CCRCs typically use an underwriting process for both health and financial qualifications for applicants seeking to become new residents. Applications require disclosure of "assets" -- and the question was whether that meant "all" assets, or only those the individual or couple believe are needed in order to qualify for admission. One concern is whether an individual is "allowed" to spend "other" assets without seeking permission from the administrators of the CCRC. A similar question arose in connection with "refundable" entrance fees. In states, such as Pennsylvania, without deadlines for refunds, the waiting period can stretch to months or even years. We learned that the Pennsylvania Department of Insurance has recently revisited that fact, and is issuing new guidelines to providers about reasonable waiting periods. I can see another article in my future on these topics.
July 26, 2019 in Consumer Information, Current Affairs, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Housing, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Tuesday, July 23, 2019
The Uniform Electronic Wills Act permits testators to execute an electronic will and allows probate courts to give electronic wills legal effect. Most documents that were traditionally printed on paper can now be created, transferred, signed, and recorded in electronic form. Since 2000 the Uniform Electronic Transactions Act (UETA) and a similar federal law, E-SIGN have provided that a transaction is not invalid solely because the terms of the contract are in an electronic format. But UETA and E-SIGN both contain an express exception for wills, which, because the testator is deceased at the time the document must be interpreted, are subject to special execution requirements to ensure validity and must still be executed on paper in most states. Under the new Electronic Wills Act, the testator's electronic signature must be witnessed contemporaneously (or notarized contemporaneously in states that allow notarized wills) and the document must be stored in a tamper-evident file. States will have the option to include language that allows remote witnessing. The act will also address recognition of electronic wills executed under the law of another state. For a generation that is used to banking, communicating, and transacting business online, the Uniform Electronic Wills Act will allow online estate planning while maintaining safeguards to help prevent fraud and coercion.
Thursday, June 6, 2019
One piece of good news from Alabama that caught my eye was the passage of a new law regarding pensions and Special Needs Trusts. Here is the press release from the firm of one of the attorneys integrally involved in this legislative effort:
A new act has been passed by the Alabama Legislature and signed into law by the Governor that will allow participants in the Retirement Systems of Alabama (“RSA”) pension plan to direct proceeds to pass to a special needs trust for a beneficiary with a disability who receives government benefits. Sirote & Permutt shareholder, Katherine N. Barr, a member of the firm’s Private Clients Trusts and Estates Group, recognized the need for this important statutory change when doing estate planning for RSA employees and retirees who wanted to leave their RSA pensions to children with disabilities receiving SSI and Medicaid. The RSA provisions required the pension payment to be paid directly to the child, which caused a loss of these critical government benefits in most cases. With input from RSA, Ms. Barr prepared legislation to correct this problem. State Senator Cam Ward from Alabaster, Alabama introduced the legislation as SB 57 this session and State Representative Matt Fridy from Montevallo, Alabama introduced to it the House. Both the House and Senate passed it unanimously. Governor Ivey signed the legislation on May 22, 2019. The Act covers all RSA retirement plan participants and will become effective August 1, 2019. Ms. Barr states that it took more than three years to obtain this result. This legislation will benefit individuals with disabilities for years to come by allowing them to receive the pension payments in a manner that will not affect their Medicaid and SSI payments. The pension can now be directed to a certain type of special needs trust upon the death of the plan participant. The trust can be set up in advance or following the participant’s death. The Alabama Family Trust can be designated to receive the benefit, as can a private trust.
Well done Katherine!
Monday, April 1, 2019
Kristen Lewis has published a really great article in the March 2019 issue of Estate Planning Magazine. Planning Challenges for Beneficiaries With Special Needs. To accommodate adequately the particular circumstances of beneficiaries with special needs, multiple trusts may be required provides a comprehensive discussion of 10 challenges faced by estate planners when a beneficiary has special needs.
Consider the opening of this article
Disabilities do not discriminate based on a family’s socio-economic status. Families of great wealth have children or other beneficiaries with disabilities at the same rate as families of modest means. Estate planning attorneys, and the other allied professionals who serve these families, are no longer able to take the position that “We don’t do special needs planning,” or worse yet, recommend that the child or other beneficiary with a disability simply be disinherited (which is likely grounds for malpractice). A recent study by the Centers for Disease Control and Prevention concluded that the prevalence of Autism Spectrum Disorder (ASD) has risen to one in every 68 births in the U.S. A more recent study concluded that the estimated prevalence of children in the U.S. with a “parent-reported” diagnosis of ASD is now one in 40. The 2010 U.S. Census reported that almost 20% of the U.S. civilian non-institutionalized population claimed to have a disability. With statistics like these, estate planners and allied professionals must become, and remain, educated about the tools and techniques available to help clients secure the future of beneficiaries with disabilities within the broader context of estate planning. A critical first step is recognizing, and knowing how to overcome, the most common challenges to effective special needs planning. (citations omitted)
Read this article, then save it to your library as a resource. You will be glad you did!
PS-shameless plug: Mark your calendars for Stetson Law's 2019 Special Needs Planning Institute for October 16-18, 2019. Registration opens July 1. #StetsonSNT2019
Thursday, February 28, 2019
With the recent death of Karl Lagerfeld who is survived by his famous cat, Choupette, it is timely to think about pet trusts as part of estate planning. The story was covered by many news outlets. Here is info about the one that ran in CBS News, Karl Lagerfeld's cat to inherit a fortune, but may not be richest pet.
Choupette, a Burmese cat, stands to inherit a chunk of the designer'sestimated $300 million net worth, after he wrote her into his will in 2015, according to Le Figaro. Lagerfeld confirmed in an interview with Numéro last year that she, among others, would be an heiress to his vast fortune. "Don't worry, there is enough for everyone," he said. Among Choupette's most admired traits? "She doesn't talk," Lagerfeld told Numero in an earlier interview... Though Lagerfeld is German, the pair resided in France, where the law prohibits pets from inheriting their owners' wealth. German law, however, allows one's wealth to be transferred to an animal.
In the U.S., as the article notes, pet trusts are recognized but there may be limits on the amount, referencing the case of Leona Helmsely's dog, Trouble.
Friday, January 4, 2019
Recent news reports are focusing on the history of Frenchwoman Jeanne Calment, who died in 1997 at the purported age of 122 years and 164 days, a record that is still unsurpassed.
Some are convinced that she was not that old, and the possible motivation for the fraud is interesting. Did a daughter assume the identity of her mother, rather earlier in the history, to avoid paying inheritance taxes? One researcher notes the lack of any evidence of dementia as a clue.
For more, see "Researchers Claim World Record for Longest Life a Case of ID Fraud" from CBS News.
Wednesday, December 19, 2018
The more I work in the field of elder law, and teach classes, the more I am convinced that enterprises who market to families and seniors fail to realize greater transparency can help their commercial products and enterprises succeed.
Thus, it is useful to read a New York Times' column on annuities, one that appears to be the first of a series. The author, Ron Lieber, begins his column on The Simplest Annuity Explainer We Could Write:
Annuities can be complicated. This column will not be.
After I wrote two weeks ago about getting tossed out of the office of an annuity salesman, there was a surprising clamor for more information about this room-clearing topic. One group of readers just wanted a basic explainer on how annuities work. For that, read on.
Another group of readers worried that those hearing of my experience might assume that all annuities are bad, and that all people who sell them use subterfuge to do so. Neither of those is true: Next week, I’ll introduce you to some reasonable people who are trying to use certain annuities in new and improved ways.
My thanks to Dickinson Law colleague Laurel Terry for the heads up!
Monday, December 17, 2018
University of Cincinnati College of Law Professor of Practice Emerita Marianna Brown Bettman has a very interesting and well-written Blog report on the Ohio Supreme Court's December 12th decision in Embassy Healthcare v. Bell. The issue is under what circumstances a surviving spouse can be held liable for her deceased husband's nursing home costs under a statutory theory of "necessaries." Lots to unpack here.
December 17, 2018 in Consumer Information, Current Affairs, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Friday, November 16, 2018
We all know that caregiving can be a 24/7/365 job. And many caregivers are working full time and caregiving part-time, while others leave their jobs to caregive. In those situations, it is no less important for caregivers to save for their own retirement, no matter how hard that may seem to be. US News ran a story, Caregivers Should Save for Retirement which focuses on caregiving for someone with special needs. The article highlights the issues
ADVANCES IN MEDICINE and technology are allowing Americans – including those with special needs and disabilities – to enjoy longer, fuller lives. Still, as a caregiver, the emotional, physical and financial toll can be draining and could potentially prevent you from being able to plan for your own future. Research shows 30 percent of caregivers are not saving and investing for their own retirement because of the time and cost required for caring for those with special needs.
The article suggests the following for the caregiver: check out the available programs and benefits, continue savings and don't forget to invest, consider the implications of your financial situation on the individual with special needs who is applying for means-tested assistance, be aware of the impact of well-meaning relatives making a testamentary gift for the individual, and housing options and their various levels of care to name a few. The article also discusses special needs trusts and ends with this:
The key takeaway is that planning for your financial future, while at the same time ensuring continuity of care for a loved one, can be extremely complex, but you don't have to do this alone. Leveraging professional resources and revisiting your plan periodically can help keep you on track as your needs, and the needs of your family, continue to evolve.
Wednesday, October 24, 2018
A notice about an upcoming continuing legal education program struck me as an apt sign of the times in elder law planning. The Pennsylvania Bar Institute explains:
Many clients are members of "modern family" structures. Our experienced faculty — with different legal perspectives — will explore the issues and opportunities available when planning for the long term care needs of clients in blended and non-traditional families. At the intersection of family law and elder law, they will examine various techniques, including long term care planning for clients with children from previous marriages and planning for unmarried partners.
Receive practical guidance on counseling clients
• Representation and conflict issues
• Information gathering tips
Examine issues at the intersection of family law and elder law
• Pre and post nuptial agreements
• Cohabitation agreements
• Gifts to divorced or separated children, alimony & child support issues
Explore long term care planning tools and techniques
• To marry or not to marry for long-term care
• Use of irrevocable trusts
• High assets/income: private pay, life insurance, and long term care insurance
• Spousal refusal
• Transfers by the community spouse after Medicaid eligibility
• To gift or not to gift: single individual vs. community spouse
For more, see Long Term Care Planning for Blended and Non-traditional Families, scheduled for first airing on November 27, 2018.
October 24, 2018 in Current Affairs, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Housing, Legal Practice/Practice Management, Programs/CLEs, State Statutes/Regulations | Permalink | Comments (0)
Tuesday, October 23, 2018
In a perfect world, everyone will be able to handle all of their own affairs, right until the day they die. In a perfect world, even if that was not possible (or even desirable), there is always some trustworthy family member or friend to step in to help.
Alas, it isn't a perfect world. For a number of years, when I was supervising an Elder Law Clinic, our clients sometimes needed the assistance of a professional agent or guardian, someone who was experienced in providing fiduciary management services for people of modest means, and who had a track record and references to demonstrate competence. We also wanted to see their certificate of insurance or bonding.
Recently I was looking for a guest speaker for a Nonprofit Organization Law class and I reached out to a company in my address book. I learned it had ceased doing business. In contrast to the dramatic stories from locations such as New Mexico, where nonprofit entities failed to carryout their fiduciary duties, Neighborhood Services, based in Lancaster, Pennsylvania found it necessary to close their doors for 300 vulnerable clients because of gaps in charitable funding.
Some clients had behavioral health needs. Approximately 150 of the clients were incapacitated people living in nursing and personal care homes in a multiple county region. New representatives were needed for all of them. A 2017 news story explained:
Founded in 1964, nonprofit Neighborhood Services fell over $400,000 in debt after losing most of its United Way funding a couple of years ago and failing to secure key federal grants, said Stanley, who joined the agency in October 2015 as its woes were mounting.
The agency, which never prioritized fund-raising, has lost several staff members in recent months and currently employs five.
Neighborhood Services’ most visible role has been serving as the representative payee for more than 150 clients with intellectual disabilities, mental illness or addiction issues. The agency received the clients’ monthly disability checks and prioritized the payment of their rent and other basic needs.
"I'll miss all the staff," said Nathan Wilson, 57, who relied on Neighborhood Services to manage his finances. "Whenever I need extra, they always get it for me."
This history is a reminder that more than good intentions are needed to run a successful nonprofit organization.
October 23, 2018 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Thursday, October 4, 2018
I teach contract law and I teach elder law, and often those silos overlap. But recently someone asked me whether a "power of attorney" was a contract. Somehow I had not not considered this topic before. My first reaction was "no, not usually," although certainly POAs have contract-like implications once the agent takes action using the POA as authority. I tend to think of POAs and similar appointments of an agent as bound by rather distinct "fiduciary law" obligations, as well as the limitations of the language in the POA itself and any statutory law, rather than traditional contract law principles. But perhaps my first instinct is wrong. One significance of categorization is when determining what statutes of limitation applies to any violation. It turns out the issue usually arises in the context of liability for allegations of misuse of authority.
What do you think? At least one court believes POAs are contracts, at least for purposes of applying principles of interpretation. A Court of Appeals opinion notes, when deciding whether family-member agents had authority to "self-deal" when handling real estate transactions in the name of the principal, that "Because a power of attorney is a contract, we interpret its provision pursuant to the rules of contract interpretation. . . . " See Noel v. Noel, 225 So. 3d 1114, 1117(Louisiana Ct. of Appeals, 2017).
For additional perspectives see the discussion of the Alabama Supreme Court, including the dissent, in Smith v. Wachovia Bank, 33 So. 3d 1191, 1202 (Ala. 2009).
October 4, 2018 in Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (3)
Thursday, September 27, 2018
First the bad -- or at least frustrating -- news. On Thursday, September 27, we received word that Senate Bill 884, the long-awaited legislation providing key reforms of guardianship laws in Pennsylvania, was now "dead" in the water and will not move forward this year. Apparently one legislator raised strong objections to proposed amendments to SB 884, amendments influenced by recent high-profile reports of abuse by a so-called professional guardian who had been appointed by courts in multiple cases in eastern Pennsylvania.
The objections reportedly focused on one portion of the bill that would have required both law guardians (typically family members) and professional guardians to undergo a criminal background check before being appointed to serve. The amendment did not condition appointment on the absence of a criminal record, except where proposed "professional guardians" had been convicted of specific crimes. For other crimes or for lay guardians, the record information was deemed important to permit all interested parties and the court to make informed decisions about who best to appoint.
What is next? Pennsylvanians will look to new leadership in the 2019-20 session in the hope for a new bill that resolves differences and that can make it through both houses. In the meantime, the courts are already moving forward with procedural reforms, adopted in 2018 at the direction of the Pennsylvania Supreme Court.
And that leads us to a more positive note about guardianship reform in Pennsylvania. Pennsylvania Common Pleas Judge Lois Murphy testified this week during a Senate Judiciary Committee meeting about the Pennsylvania Courts' new Guardianship Tracking System (GTS). It is now operational in 19 counties (out of 67 total counties) in Pennsylvania, including coming online in the major urban counties for Philadelphia and Pittsburgh. Judge Murphy reported that GTS is "already paying dividends," and she gave the example of a case in which the reporting system triggered a red flag for an estate worth more than $1 million, much higher than originally predicted, making appointment of different guardian more appropriate.
Judge Murphy predicts that as the tracking system becomes operational statewide, it should generate valuable answers, such as how many persons are subject to guardianships at any point in time, how much in assets are under management, what percentages of the pointed guardians are family members (as opposed to professionals), and what percentages of those served are over or under age 60. The hope is that GTS will also permit coordination of information about appointed guardians in state courts with information in the federal system on those appointed as Social Security representative payees, thus, again, providing more comprehensive information about trustworthiness of such fiduciaries.
You can see Judge Murphy's testimony, and hear her reasons for criminal background checks and appointment of counsel to represent alleged incapacitated persons, along with the views of retiring Senator Greenleaf and Senator Art Haywood, in the recording of the September 24 hearing recording below.
Judge Murphy testifies from approximately the 35 minute mark to the 43 minute mark, and again from 1 hour 33, to one hour 44.
Bottom line for the week -- and perhaps the session? You can certainly grow old just waiting for guardianship reform in Pennsylvania.
September 27, 2018 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Housing, Property Management, Social Security | Permalink | Comments (0)