Wills, Trusts & Estates Prof Blog

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

Monday, February 28, 2011

Planning for Chronic Illnesses

Chronic Illness Martin M. Shenkman (Attorney at Law, Paramus, NJ) and Joshua S. Rubenstein (Attorney at Law, New York, NY) recently published their article entitled Chronic Illness Practical Planning and Drafting, Part 1, 25 Prob. & Prop. 36 (Jan./Feb. 2011).  The introduction is below:

Chronic illness is far more common than most practitioners realize. Addressing the implications of these health issues is essential to best serve clients. More than 400,000 people live with multiple sclerosis (MS), and estimates are that in total 120 million Americans live with some type of chronic illness. Of those ages 65 to 74, 26% have had their lives significantly affected by chronic illness. Twentytwo percent of the population is estimated to be living with two or more different chronic illnesses. More than 5 million Americans have Alzheimer’s disease (AD). AD accounts for approximately 70% of dementias in Americans age 71 and older. Recent headlines evaluated the issues surrounding the famous New York socialite Brooke Astor, who, at age 101 with Alzheimer’s disease, executed a will and a series of codicils, all of which are subject to challenge. AD is the fifth leading cause of death for those age 65 and older. Parkinson’s disease (PD) is also not rare; about 1% of all those over age 65 are diagnosed with PD. This makes PD second only to AD in terms of the number of people affected. The prevalence of these issues necessitates that practitioners have techniques available to them to assist clients facing the problems wrought by chronic illness.

This is not an elder law issue. Chronic illness does not discriminate in favor of older clients. About one-quarter of PD cases are diagnosed before age 60 (young onset PD, “YOPD”). YOPD has been diagnosed at ages as early as 30 years. So a significant portion of PD clients may have had their careers and savings negatively affected because of the early onset of their illness. A small percentage of those with AD are diagnosed in their 50s, or perhaps earlier (young onset AD). MS is typically diagnosed between ages 20 and 50 but has also been diagnosed in young children.

Many clients who live with chronic illnesses are fortunate not to experience symptoms significant enough to modify planning for health-related issues. For clients experiencing, or likely to experience, significant symptomsas their chronic illness progresses, planning and drafting are obviously affected. What planning and drafting modifications might be useful in these situations? Although the concepts are not technically complicated, the issues receive inadequate attention relative to their importance in terms of the number of clients affected, as well as the importance to those affected. It is hoped that the following discussion will serve as a catalyst for new ideas for planning and drafting for clients living with chronic illnesses.

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