Thursday, June 18, 2015
Earlier this week I recommended Atul Gawande's book, Being Mortal: Medicine and What Matters in the End, and I offered an excerpt from his discussion of how doctors are impacted by practical limits on their goals as solvers of problems. But the book is about more than just medicine. Another compelling chapter traces attempts to avoid "nursing homes" and the once cutting edge trend of "assisted living" as an alternative:
The idea spread astoundingly quickly. Around 1990, based on [Keren Brown] Wilson's successes, Oregon launched an initiative to encourage the building of more homes like hers. Wilson worked with her husband to replicate their model and to help others do the same. They found a ready market. People proved willing to pay considerable sums to avoid ending up in a nursing home, and several states agreed to cover the costs for poor elders.
Not long after that, Wilson went to Wall Street for capital, to build more places. Her company, Assisted Living Concepts, went public. Others sparing up with names like Sunrise, Atria, Sterling, and Karrington, and assisted living became the fastest growing form of senior housing in the country. By 2000, Wilson had expanded her company from fewer than a hundred employees to more than three thousand. It operated 184 residents in eighteen states. By 2010, the number of people in assisted living was approaching the number in nursing homes.
But a distressing thing happened along the way. The concept of assisted living became so popular that developers began slapping the name on just about anything. The idea mutated from a radical alternative to nursing homes into a menagerie of watered-down versions with fewer services. Wilson testified before Congress and spoke across the country about her increasing alarm at the way the ideas was evolving....
For more, see Chapter 4 of Being Mortal, titled "Assistance." The other intriguingly-named chapters are "The Independent Self," Things Fall Apart," "Dependence," "A Better Life," "A Better Life," "Letting Go," "Hard Conversations," and "Courage."
June 18, 2015 in Consumer Information, Current Affairs, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Medicaid, Property Management, Retirement, State Statutes/Regulations | Permalink | Comments (0)
Tuesday, June 16, 2015
Last fall, I blogged about In re Skinner, a case in which one son was trying to prevent a brother from obtaining a discharge in bankruptcy court of a "filial support" judgment to a long-term care facility. Both brothers had been sued, but one brother, Thomas, had defaulted on the suit, resulting in a default judgment as to his liability. The bankruptcy court concluded that Brother William lacked standing" to prevent Brother Thomas' discharge of debt to an assisted living facility for care of their mother.
In May, 2015 the United States District Court for the Eastern District of Pennsylvania affirmed the bankruptcy court's dismissal of the adversary proceeding, concluding that "William Skinner has not adequately alleged that he is a bankruptcy creditor of Thomas Skinner. He therefore lacks standing to bring an action challenging the dischargeability of Thomas Skinner's debts."
The additional allegations described in the District Court opinion -- which are reminiscent of the allegations of misuse of Powers of Attorney in Presbyterian Medical Center v. Budd (Pa. Super. 2013) -- demonstrate the complicated nature of filial support suits for family members. This is especially true in Pennsylvania where courts seem to be treating claims of statutory liability as "joint and several" in nature, and not proportional based on fault. For the latest see In re Skinner, 2015 WL 3400943, (E.D. Pa. May 27, 2015).
UPDATE October 2015: On June 30 2015, William Skinner filed an appeal to the Third Circuit. As of early October, briefing is underway.
June 16, 2015 in Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Cases, Health Care/Long Term Care, Medicaid, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Friday, June 12, 2015
I enjoy reading newspapers when I travel as they provide another window into what is on the minds of local people. Last week, I came across what appeared to be a regular column addressing questions of law, with the title: "Wills: Don't Wait Until Tomorrow." The article began:
"Often completion of a will is seen as a bad omen, as acceleration of a fact that should naturally occur but, you hope, not soon. However, the [proper] execution of this document, in addition to giving possessions according to one's wishes, can prevent future litigation."
Sound advice, correct? The opening was followed by descriptions of procedures for use with informal or holographic wills versus formal wills that are executed before a notary. What intrigued me, however, was this advice on how to avoid litigation over estates was in Granma, the "official newspaper of the Central Committee of the Communist Party of Cuba." While visiting Cuba for the first time last week as part of a small Penn State Faculty group tour, I was surprised to learn there was more private ownership of property than I had expected in Cuba. Now I would be interested in knowing more about how and why any disputes over bequests or inheritance of privately owned assets or property tend to arise in Cuba.
In Cuba, as in other Latin American countries, lawyers can have a specific role as a "notary" in formalizing documents including wills; this role is not the same as the more ministerial role of notaries as witnesses in the U.S.
It appears that in Havana, execution of a will can also include filing it with a central Registry, or, in other provinces, with an office in the local court. To preserve confidentiality, the testator has the option of registering only certain basic data, such as his or her name and date of completion of the will, and the identity of the notary, rather than the full content of the bequests.
The translation of this article from its original Spanish, written by Onaisys Fonticoba, is mine -- and is admittedly a bit rough, even with the help of Google Translate. Granma is also published on the internet in several languages, including English, although the editions are not identical. Granma, the name of the newspaper, is a tribute to the name of the "yacht" used by Fidel and his fellow fighters when he returned to Cuba in 1956.
Wednesday, May 20, 2015
This week I attended the 16th Annual Meeting of the Massachusetts Life Care Residents Association (MLCRA) near Boston. Having last met with the group in 2011, I was impressed with the residents' on-going commitment to staying abreast of legal and practical developments affecting life care and continuing care (CCRC) models for senior living. Their organization has some 800 individual members, representing a majority of the communities in the state.
My preparation for the meeting gave me the opportunity to read one of those troubling "unpublished" -- but still significant -- opinions that shed light on attempts to make consumer protections stick. Here the "contract" trumped the statute.
In a February 2014 decision in Krens, v. 1611 Cold Spring Road Operating Company, a son who sought refund of his deceased mother's $282,579 partially "refundable" Entrance Fee was denied relief by a Massachusetts appellate court, despite the fact that Massachusetts law expressly mandated that a continuing care contract "shall provide" for a refund to be paid "when the resident leaves the facility or dies." The reasoning? The actual contract provided merely that the refund could be paid "within 30 days of actual occupancy of the vacated unit by a new resident." More than three years had elapsed since the mother's passing, apparently without the unit being "resold" or rented, and therefore the CCRC operating company took the position that no refund obligation had been triggered.
May 20, 2015 in Consumer Information, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Housing, Property Management, Retirement, State Cases, State Statutes/Regulations | Permalink | Comments (1) | TrackBack (0)
Monday, May 18, 2015
Publically-traded Brookdale Senior Living, founded in 1978, has grown to become the largest owner and operator of "senior living" communities in the U.S., including for-profit continuing care retirement communities (CCRCs). Thus, it is good to keep an eye on the finances of Brookdale for those of us interested in the long-term financial health of CCRCs and other senior housing options.
Steve Monroe at Irving Levin Associates notes that Brookdale "was no different than the rest of the market, posting sharp drops in first quarter occupancy" for 2015:
"The legacy Emeritus [a component of Brookdale, following a 2014 merger] properties posted a 110 basis point decline from the fourth quarter of 2014, and a whopping 200 basis point decline from a year ago. The legacy Brookdale properties dropped 80 basis points sequentially and 110 basis points from a year ago. This was not good news, but not unexpected. Oddly enough, the legacy Brookdale properties had a 250 basis point increase in community operating margin to 35.2% despite the occupancy declines. The Emeritus properties had a 90 basis point sequential drop in margin, which makes more sense."
How do you achieve a significant increase in "operating margin" despite "occupancy declines?" A good question to ponder. Steve Monroe continues: "The reasons for the legacy Brookdale improvement were a combination of cost controls and more pricing flexibility. Move-ins have been increasing, which is great, but 'cost controls' always make me nervous, especially with the current acuity creep. Stay tuned."
The reference to "acuity creep" is to the increase in average age and frailty of new residents, compared with past years (especially before the financial crisis of 2008-10). This trend impacts CCRCs in several ways, both in terms of market appeal to healthier potential residents, and operating costs tied to an earlier need for higher levels of care. An additional question may be whether low interest rates have supported a bubble in certain segments of senior housing despite the softer occupancy rates, and whether an eventual return to higher capitalization rates will result in lower values and additional consequences.
Along that same line, the Philadelphia Inquirer published a recent article in their "retirement" news edition, noting "Continuing-Care Retirement Community Choice Requires Diligence," by Harold Brubaker, with tips on what to ask if you are a consumer considering a CCRC option.
Wednesday, May 13, 2015
One option for seniors needing more income late in life is using the equity in their homes, and "reverse mortgages" may make it possible for the older homeowner to stay in the home longer. The Washington Post recently explored the option of having family members serve as the source of reverse mortgage funding. When the Kids Provide a Reverse Mortgage for Mom and Dad outlines potential pros and cons of family-based financing, starting with the mechanics of the loan:
Here’s a simplified example: Say you and two siblings want to help Mom and Dad, who are in their late 70s. You and your siblings are all doing well enough that you have at least some cash to spare. Ultimately, you want to retain your parents’ house for the estate once your parents pass away, keep costs to a minimum and sell the property only when you, not a faraway bank, choose to do so.
So you sit down with Mom and Dad and determine that, at least for the foreseeable future, they will need about $1,500 in additional income a month. You and your siblings agree to apportion the payments among yourselves in some way, maybe a commitment of $500 a month each for a period of years. You also pick an interest rate that achieves a win-win result for you and your parents — say, 3 percent annually. That’s much lower than a commercial lender would charge but higher than what you’ve been earning on your bank deposits or money market funds. There are no required fees upfront — hey, it’s Mom and Dad.
Thanks to Maryland elder law attorney Morris Klein for the pointer to this article.
Monday, April 27, 2015
Recent news reports in the Sarasota Herald-Tribune have focused on "elder guardianships" in Florida. The articles include:
- The Kindness of Strangers: Inside Elder Guardianship in Florida, a three part "special project."
- A Civil Dispute Over Guardianship, detailing a conflict between co-trustees for a man in his 90s over costs of care. One trustee was concerned about what appear to be charities named as remainder beneficiaries and was described as making "imaginative" use of a guardianship to challenge the wife's role as the other named trustee. A sidebar in this article describes bills pending in the Florida legislature seeking to clarify the legal effect of a "power of attorney" when a guardianship petition is filed.
- Film to Detail Horror Stories from Florida Guardianship, describing a video project to share "stories about Florida's adult guardianship system," supported by a local "nonprofit organization called Americans Against Abusive Probate Guardianship."
April 27, 2015 in Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)
Sunday, April 26, 2015
Sunday's New York Times has a feature article on aging and financial skills, and the message is not "just" for individuals with dementia:
"Studies show that the ability to perform simple math problems, as well as handling financial matters, are typically one of the first set of skills to decline in diseases of the mind, like Alzheimer’s, and Ms. Clark’s father-in-law, who suffered from mild dementia, was no exception. Research has also shown that even cognitively normal people may reach a point where financial decision-making becomes more challenging."
The article gives several example of individuals who were vulnerable to exploitation, because of their reduced interest in or understanding of financial decisions. David Laibson, an economics professor at Harvard, one of the researchers cited in the article said "he believed that crystallized intelligence tended to plateau when people reached their 70s." Further, "he wishes all 65-year-olds would start by simplifying their financial lives, reducing the money clutter to just a few mutual funds at a reputable institution."
The article, As Cognition Slips, Financial Skills Are Often the First to Go, offers several links to recent reports and studies, as well as examples of "early signs."
Hat tip to Penn State's Dickinson Law 1L student Spencer Flohr for sharing the link to this article -- and noting the probable relevance to law students' studies of trusts and estates law. Good catch!
April 26, 2015 in Cognitive Impairment, Consumer Information, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Property Management | Permalink | Comments (1) | TrackBack (0)
Wednesday, April 22, 2015
Most of my family likes the PBS television show "This Old House." (Not me: I prefer "International House Hunters.") I have a good friend-- we'll call her Louise -- who is getting ready to celebrate her 90th birthday and has the ability to turn a good phrase. For years she has been saying her plan was to stay in her home, a lovely "old house" built in the 1920s, until "whatever happens next." (She also refers to my writings here for Elder Law Prof as my "blobs.")
Recently, however, Louise admitted to considering a new plan. One thing after another in "this old house" was going wrong. First it was her land-line phone that would intermittently crackle and pop, eventually making all calls impossible. Next it was seemingly random problems with loss of electricity to one side of the house or the other. Finally, when everything in the kitchen lost power, she got serious. Soon there was a big trench behind the house, as the electricians tried to locate the problem.
Eventually they found about a 4 foot length of burned wiring in the ground, inside of the buried conduit leading to the house (!). They explained the wiring in and to Louise's house was just "too old." Fortunately, my friend could afford the massive repairs (not cheap), but that still meant living with her daughter 45 minutes away, and commuting to meet with the workers during the weeks without any power. And as she asked, "what's next?" Her house is about 3 years older than Louise.
Louise's story plus a recent article from the Patriot News got me thinking. In Harrisburg, PA, the mayor was proposing a way to help a 92 year-old-woman get help to deal with sewer line repairs from the street to her house that cost $10,000. Helping one person -- the proposal was for $2,000 -- was just the tip of the iceberg (so to speak -- I'm running out of metaphors). The article explained:
Friday, April 17, 2015
Scott E. Townsley, a very bright attorney, an adjunct associate professor at UMBC's Erickson School of Aging Studies, and a principal with CliftonLawsonAllen LLP, invited me to join him recently for a presentation to the 2015 Mid-Atlantic Region Resident Council Conference in Silver Spring, Md. (The lovely D.C. area cherry trees were in full bloom that day.)
Our theme was "Hot Topics in Continuing Care." Scott, a regular consultant to nonprofit CCRCs, used his deep experience in senior housing to outline his perspective on the biggest issues facing CCRCs. In preparation for my part, I reached out to my contacts in resident groups around the country and asked them to share with me their biggest concerns.
We then trimmed down our two respective lists and used a Point/Counter Point approach to the debate. Do any of our readers remember 60 Minutes' James Kirkpatrick and Shana Alexander? (Okay, how about Dan Aykroyd and Jane Curtin's lampoon of the Point/ Counter Point format? I think it is fair to say that we were less political than the first combo, and more polite -- if less humorous -- than the SNL crew. But we had fun.)
With a tip of the hat to David Letterman in borrowing his "top ten" format, here is a very distilled version of my list of Resident Concerns:
10. What does it really mean to be a nonprofit CCRC in 2015?
9. Do we need to worry about conversions of nonprofit CCRCs to for-profit?
8. What is the right response to the trend that residents are older and more disabled, even when first entering the community?
April 17, 2015 in Consumer Information, Dementia/Alzheimer’s, Discrimination, Health Care/Long Term Care, Housing, Property Management, Retirement, State Statutes/Regulations, Web/Tech | Permalink | Comments (4) | TrackBack (0)
Thursday, April 16, 2015
The U.S. Department of Labor has released a new proposed rule intended to protect consumers from conflicts of interest among an array of folks who want to give advice about how and where to invest 401(c) and IRA retirement funds. The new rule would impose a "fiduciary duty" standard on those advisors, rather than the current, lower "suitability" standard for investment advice.
A DOL press release explains the goal:
"This boils down to a very simple concept: if someone is paid to give you retirement investment advice, that person should be working in your best interest," said Secretary of Labor Thomas E. Perez. "As commonsense as this may be, laws to protect consumers and ensure that financial advisers are giving the best advice in a complex market have not kept pace. Our proposed rule would change that. Under the proposed rule, retirement advisers can be paid in various ways, as long as they are willing to put their customers' best interest first."
Today's announcement includes a proposed rule that would update and close loopholes in a nearly 40-year-old regulation. The proposal would expand the number of persons who are subject to fiduciary best interest standards when they provide retirement investment advice. It also includes a package of proposed exemptions allowing advisers to continue to receive payments that could create conflicts of interest if the conditions of the exemption are met. In addition, the announcement includes a comprehensive economic analysis of the proposals' expected gains to investors and costs.
The New York Times covers the new rules in "U.S. Plans Stiffer Rules Protecting Retiree Cash," and notes the history of opposition to this kind of reform from -- surprise, surprise -- the "financial services industry." There is a 75-day window for public comments on the latest proposal.
Perhaps my biggest surprise was the remarkably "consumer friendly" presentation of the proposed change by the Department of Labor on its webpage, beginning with this simple video describing conflicts of interest.
Tuesday, April 14, 2015
The Washington Post reminds us that changes to federal law for government-backed reverse mortgages, adiopted in 2014, are about to kick in:
"Interested in a reverse mortgage without a lot of hassles? Better get your application in fast. As of April 27, the federal government is imposing a series of extensive 'financial assessment' tests that will make applying for a reverse mortgage tougher — much like applying for a standard home mortgage.
[D]uring the years of the recession and mortgage bust, thousands of borrowers fell into default because they didn’t pay their required property taxes and hazard insurance premiums. On top of that, real estate values plunged, producing huge losses on defaulted and foreclosed properties for the FHA. The losses got so severe that the Treasury Department had to provide the FHA with a $1.7 billion bailout in 2013, the first in the agency’s history since its creation in the 1930s.
All of which led to the dramatic changes coming April 27. Applicants are now going to need to demonstrate upfront that they have both the 'willingness' and the 'capacity' to meet their obligations. Reverse-mortgage lenders are going to pull borrowers’ credit reports from the national credit bureaus, just as they do with other mortgages.illion bailout in 2013, the first in the agency’s history since its creation in the 1930s."
For more details see the full Post article at Window Is Rapidly Closing to Get Hassle-Free Reverse Mortgage.
Tuesday, March 31, 2015
As we have described often on this Blog, there is a fair degree of concern about whether members of the public understand the potential significance of a Power of Attorney before they sign the document. Apparently the U.S. is not alone in this concern.
Recently, Northern Ireland's Law Society (for comparison purposes, an organization which somewhat of a hybrid of the American Bar Association and a state's licensing board or disciplinary authority), issued an interesting pamphlet about "enduring powers of attorney" or EPAs, to serve as a guide for members of the public, using a Q & A format. EPAs are similar to our durable POAs, and, of course, their utility depends on being executed in advance of any need. Topics addressed include:
- Do I lose control when I sign an EPA?
- Is this just a note of my wishes?
- Do I need an EPA if I have a will?
- If I don't have investments or property is there any point?
- What if all my assets are jointly owned?
- Can I have more than one attorney [agent]?
- Who should I appoint as my attorney [agent]?
- What power does an attorney [agent] have?
- What responsibilities does my attorney [agent] have?
- Is my attorney [agent] paid for work undertaken?
- Can I change my mind and revoke an EPA?
- If I recover my capacity, who is in charge of my affairs?
- Is it expensive to make an EPA?
You are curious about the answers, aren't you! For the cleanly written answers to these questions, access the PDF from the Law Society here. Thank you to my Dickinson Law colleague Laurel Terry for the pointer.
Friday, March 27, 2015
As reported in the ABA Journal, "A New Jersey lawyer has been sentenced for 10 years in prison for her part in a scheme to steal $3.8 million from 16 elderly victims:"
Prosecutors say the group took control of the finances of their victims by forging a power of attorney or obtaining one under false pretenses. They then added their names to the victims’ bank accounts and transferred the victims’ funds into accounts they controlled. As part of a plea deal with prosecutors, Lieberman has agreed to pay $3 million in restitution and testify against her co-defendants.
Here are more details. And here. And here. And here. And according to one news source, the attorney actually served on the New Jersey Supreme Court's Ethics Committee while already engaged in misusing client funds. Hat tip to retired New York Attorney Karen Miller, now living in Florida, for sharing a link to the ABA Journal article on this sad set of facts.
Tuesday, March 24, 2015
Has Acceptance of Same Sex Marriage Created Opportunities for Recognition of Other "Family Relationships?"
Columbia Law Professors Elizabeth S. Scott and Robert E. Scott have a new article, "From Contract to Status: Collaboration and the Evolution of Novel Family Relationships." They describe the successful movement to achieve marriage rights for LGBT couples as creating potential opportunities for recognition of other legal relationships that do not depend on "traditional" notions of marriage or family, such as "cohabiting couples and their children, voluntary kin groups, multigenerational groups, and polygamists."
In analyzing relationships that may gain greater legal recognition, the authors examine the possible influence of statutory obligations, including Pennsylvania's filial support laws used to impose care obligations on adult children, or more recent statutes granting visitation rights to grandparents:
"Probably the strongest candidate for full family status is the linear family group composed of grandparent(s), parent(s), and child(ren). It is clear that this familiar type of extended family can function satisfactorily to fulfill family functions. Further, the genetic bond among the members, together with well-defined family roles, reinforces already existing norms of commitment and caring. The primary challenge for these extended families may be the creation of networks with other similar families pursue their goals of increasing public support and attaining official family status.More complex multigenerational groups pose a greater challenge because they are less familiar to the public and less likely to be bound by family-commitment norms than are linear family groups. Partly for this reason, regulators may find it more difficult to verify the family functioning of these unconventional multigenerational groups."
The article was published in the Columbia Law Review, March 2015.
Monday, March 16, 2015
GW Law Professor Naomi Cahn and Amy Zeittlow, affiliate scholar with the Institute of American Values, have collaborated on a new article that is fascinating. In "Making Things Fair: An Empirical Study of How People Approach the Wealth Transmission System," to be published in a forthcoming issue of the Elder Law Journal, they ask fundamental questions about whether traditional laws governing testate and intestate wealth transmission reflect and serve the wishes of most Americans. Professor Cahn previews the article as follows:
Based on an empirical study of intergenerational care for Baby Boomers, the article shows how the inheritance process actually works for many Americans. Two fundamental questions about the wealth transfer system guided our analysis of the data: 1) does the contemporary inheritance process respond to the changing structure of American families; and 2) does it reflect the needs of the non-elite, who have not traditionally been the focus of the system?
Our study shows that the formal laws of the inheritance system are largely irrelevant to how property is transferred at death. While the contemporary trusts and estates canon focuses on the importance of planning for traditional forms of wealth in nuclear families, this study focuses on the transmission of wealth that has high emotional, but low financial, value. We illustrate how the logic of “making things fair” structured how families navigated the distribution process and accessed the law. Consequently, the article recommends that law reform should be guided by the needs of contemporary families, where not only is wealth defined broadly but also family is defined broadly, through ties that are both formal and functional. This means establishing default rules that maximize planning while also protecting familial relationships.
The article is part of a new book by the authors titled "Homeward Bound," with planned publication in 2016, and the authors welcome comments and suggestions.
March 16, 2015 in Books, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Property Management, State Cases, State Statutes/Regulations, Statistics | Permalink | Comments (0) | TrackBack (0)
Tuesday, March 10, 2015
In Draper v. Colvin, petitioner sought judicial review of SSA's denial of her application for SSI benefits. Her claim was sympathetic, as "[e]ighteen-year-old Stephany Draper suffered a traumatic brain injury in a car accident in June 2006."
In an admittedly "hard line" ruling on March 3, the 8th Circuit rejected her argument that her parents' intent to establish a valid third-party-settled special needs trust, using proceeds from a settlement of a personal injury suit on her behalf, should permit her to claim SSI.
The ruling means that over $400,000 will be treated as "available resources," thus requiring spend down before she would be eligible for benefits. The court explained (minus citations):
Admittedly, some evidence in the record supports Draper's claim that her parents intended to act in their individual capacities. Draper's parents identified themselves individually as settlors and trustees, and the trust document explicitly states that it was established “pursuant to 42 U.S.C. § 1396p(d)(4)(A)," a provision which notes that a third party, such as a parent, must create the special needs trust for the benefit of the disabled person. Nevertheless, as discussed [earlier in the opinion], other facts provide substantial evidence to support the conclusion that Draper's parents acted using the power of attorney when establishing the trust.
The Court continued on to its tough bottom line:
March 10, 2015 in Cognitive Impairment, Estates and Trusts, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Property Management, Social Security, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)
Friday, March 6, 2015
Harvard Law Professor Robert H. Sitkoff is speaking at University of Illinois School of Law on Monday, March 9. The topic is "Revocable Trusts & Incapacity Planning: More then Just a Will Substitute."
Here are details provided by Illinois Law Professor Richard Kaplan:
The use of trusts has evolved from means of transferring property to mechanisms for managing assets and more recently, to will substitutes for avoiding probate and simplifying post-death transfers. But lawyers increasingly use revocable trusts in planning for possible client incapacity to avoid the costs and publicity associated with custodianship and guardianship. State-level reforms of trust law to accommodate older uses of these devices are not, however, well-suited to this newer use of trusts, and this lecture will examine those reforms in this context.
Professor Sitkoff was the youngest professor to receive a chair in the history of Harvard Law School. He previously taught at New York University School of Law and at Northwestern University School of Law. After graduated from the University of Chicago Law School with High Honors, he clerked for then Chief Judge Richard A. Posner of the United States Court of Appeals for the Seventh Circuit. Professor Sitkoff is an active participant in trust and estates law reform. He is a liaison member of the Joint Editorial Board for Uniform Trusts and Estates Acts within the Uniform Law Commission and has been a member of several drafting committees for acts involving trusts and estates matters. Sitkoff is also a member of the American Law Institute’s Council and has served on the consultative groups for the Restatement (Third) of Trusts and the Restatement (Third) of Property: Wills and Other Donative Transfers.
Word from Dick Kaplan is that Rob's presentation will be available (eventually) via a recording, and his presentation will also be captured as an article in University of Illinois' Elder Law Journal.
My students often ask why all casebooks can't be as engaging to read as the "Dukeminier" text on Wills, Trusts & Estates -- and I suspect one reason is that Rob Sitkoff, although uniquely prolific and gifted, is still only human and cannot write them all!
Postscript: I asked Rob to send me something other than his "official" Harvard photo. The one above seems to capture his spirit and the smile I sometimes detect in his footnotes.
Pennsylvania Bar Association Program on New Rules of Professional Conduct & Disciplinary Enforcement
On Wednesday, March 25, 2015 (1:30 to 3:30 p.m.), the Pennsylvania Bar Association (PBA)'s Elder Law Section is hosting a panel session at the annual PBA Section/Committee Day to discuss important changes in the Pennsylvania Rules of Professional Conduct and the Disciplinary Enforcement Rules.
Several of the recent changes, including rules mandating greater oversight for trust accounts, timelier handling of complaints, and specific new prohibitions or restrictions on attorney involvement in marketing of "investment products," were a response, at least in part, to serious cases of attorney misconduct resulting in tragic financial losses for individuals. In some instances the clients were older persons who entrusted large retirement assets to the care of a small number of attorneys.
In planning the program, Elder Law Section Chair Jacqui Shafer commented that the program reflects the continuing commitment of the Bar and the Section to take affirmative steps to address and prevent misappropriation of funds from any client, including vulnerable seniors and their families.
Panelists include experienced private practitioners in elder law or estate planning practices and representatives of the Disciplinary Board and PBA's Legal Ethics and Professional Responsibilities Section. Several participants were members of the Pennsylvania's recent Supreme Court Elder Law Task Force.
Here is the link for more details on the program, including the link for required registration (free, including lunch). The deadline for on-line registration is March 20.
March 6, 2015 in Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Legal Practice/Practice Management, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)
Thursday, March 5, 2015
Yesterday I wrote about the Utah Supreme Court decision rejecting application of Nevada law to determine the nature of an asset protection trust. Would the same result occur if the claimant was an "ordinary" creditor, rather than a spouse and co-settlor?
One way to get in on the discussion would be the ABA's "Jurisdiction Selection Series" on "Domestic Asset Protection Trusts." And as luck would have it, the next in the series of 5 webinar sessions covers Arizona, Maryland, New Hampshire --- and Nevada law. The program is Tuesday, April 14, 2015, and will be followed by a session on June 9, 2015 covering Hawaii, Kentucky, South Dakota and Utah. Here are some of the topics to be addressed:
- What is an inter vivos QTIP trust and how can it help my clients?
- Will domestic self-settled asset protection trusts benefit my clients?
- Do the costs of creating a trust in one state for creditor protection or taxation benefits really outweigh the creation of such a trust in another?
- Is the trust really protected from creditors?
- Can the trust be used to avoid the income tax in the grantor's state of residence?
- Can a same sex couple benefit from the use of these trusts?
- Is using an offshore trust better?
A number of states have laws governing "full blown self-settled asset protection trusts" or permit some form of similar trust. Here is the link to the details about registration, cost and timing for all of the ABA sessions.
Hat Tip to Penn State Law Professor James Puckett for sharing the timely info on this series.