Wills, Trusts & Estates Prof Blog

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

Sunday, March 31, 2019

New Study Shows an Eye Scan Can Detect Signs of Alzheimer's Disease

EyeThe Duke Eye Center have discovered that the small blood vessels in the retina at the back of the eye of patients with Alzheimer's are altered through the help of a new, non-invasive device. The researchers also revealed that they can distinguish between people with Alzheimer’s and those with only mild cognitive impairment. The study, published online in Ophthalmology Retina, a journal of the American Academy of Ophthalmology, brings forth a quick and inexpensive way to detect the disease in its early stages.

The imaging used in the research is called optical coherence tomography angiography (OCTA). It enables physicians to see blood vessels in the back of the eye that are smaller than a strand of hair. Researchers have focused several studies on the retina because it is an extension of the brain and shares many similarities with it, and thus the changes within the retina may mirror the changes within the brain in Alzheimer's sufferers.

The study consisted of using OCTA to study the retinas in 70 eyes of 39 Alzheimer’s patients with 72 eyes of 37 people with mild cognitive impairment, as well as 254 eyes of 133 cognitively healthy people. The researchers found that those with Alzheimer's had loss of small retinal blood vessels at the back of the eye and that a specific layer of the retina was thinner when compared to people with mild cognitive impairment and healthy people.

See New Study Shows an Eye Scan Can Detect Signs of Alzheimer's Disease, Science Blog, March 11, 2019.

March 31, 2019 in Current Events, Elder Law, Estate Planning - Generally, Science, Technology | Permalink | Comments (0)

Article on Decision and Persuasion: Re-Conceiving the Role of the Planner Where Undue Influence is Suspected

ActecJames C. Milton and Katheleen R. Guzman recently Article entitled, Decision and Persuasion: Re-Conceiving the Role of the Planner Where Undue Influence is Suspected, ACTEC Law Journal, Vol. 44, No. 1, 137 - 143 (Winter 2019). Provided below is an introduction of the Article.

Our population is aging. Blended familiar are becoming more common, complex, and multi-generational. Conservatorships have increased, along with the incidence of elder and financial abuse claims. While financial abuse is nothing new, modern sociocultural and familiar dynamics have compelled renewed legislative attention where profound decisional control is granted to proxies over the property of those they are supposed to protect. Often, that trust is misplaced. As these data converge and interact, the growth curve in undue influence claims will continue to accelerate, along with attendant and alter estate planning strategies. The world is rapidly changing, and it appears that there is "no turning back."

Into this context comes a timely piece exploring leading edge research over the effect that recent psychological and neuroscientific discoveries might hold for planning and litigation. In Undue Influence: The Gap Between Current Law and Scientific Approaches to Decision-Making and Persuasion, Dominic Campisi, Evan Winet, and Jake Calvert reveal the under-appreciate role that the sub- or unconscious mind plays with complex decision making, and the presumably equally underdeveloped "psychology of percussion" that influencers might wield in search of a desired outcome. As Campisi el al. make clear, an integrated understanding of both should feature prominently or those wishing to avoid, press, or defend an undue influence claim, particularly give the exacerbating effects of age and cognitive decline upon tendencies toward triggered decision making. It takes but a quick look at such undue influence factor as "susceptibility to influence" to see why. How might the law respond?

March 31, 2019 in Articles, Disability Planning - Health Care, Disability Planning - Property Management, Elder Law, Estate Planning - Generally, Guardianship, Science | Permalink | Comments (0)

Saturday, March 30, 2019

Is It Time? Making End of Life Decisions for Pets

PawheartPets are furry loved ones for many people and families, and like any loved one, you hate to see them in pain. Though you want them to be around as long as possible, sometimes their quality of life can be so low that it is more humane to put them down. The New York Times has provided a scale that is adapted from "Canine and Feline Geriatric Oncology: Honoring the Human-Animal Bond," by Alice Villalobos, D.V.M. If you are able to provide support that improves certain areas of the animal's life, it may be an option to extend your precious time with them.

Pet caregivers can use this Quality of Life Scale to determine whether to continue supportive care for an aging or sick pet or whether euthanasia is a more compassionate option. Move the slider to reflect your pet's score in each category, using a scale of 0 (very poor) to 10 (best). Your score should be based on the pet's quality of life on its own or with whatever level of supportive care works for you.

See Tara Parker-Pope, Is It Time? Making End of Life Decisions for Pets, New York Times, March 19, 2019.

Special thanks to Lewis Saret (Attorney, Washington, D.C.) for bringing this article to my attention.

March 30, 2019 in Current Affairs, Estate Planning - Generally | Permalink | Comments (1)

Friday, March 29, 2019

Article on Re-Considering Undue Influence in the Digital Age

ActecJodie Distler recently published an Article entitled, Re-Considering Undue Influence in the Digital Age, ACTEC Law Journal, Vol. 44, No. 1, 131-137, (Winter 2019). Provided below is an introduction of the Article.

In a thought-provoking article (the "Article") sitting in the intersection of legal scholarship and psychological study, Dominic J. Campisi, Evan D. Winet, and Jake Calvert explored the understating of a person's susceptibility to undue influence and methods by which an influencer and intentionally or unintentionally exploit common human behavior to the influencer's own benefit. Campisi, Winet, and Calvert apply the six basic categories of persuasion tactics from Robert Cialdini's, Influence: The Psychology of Persuasion to the decision-making processes involved in lifetime and testamentary assets transfers. They caution that "in evaluating the susceptibility of people to undue influence and elder abuse tactics, it is important to focus on the actual cognitive processes by which most people make decisions. The author agrees with this advice and further argues that the emerging laws authorizing electronic estate planning documents, remote notarizations, and e-signature processes could increase the opportunity for undue influence by allowing influencers, in the absence of attorney involvement in the estate planning process, to leverage those principles of persuasion.

March 29, 2019 in Articles, Current Affairs, Elder Law, Estate Planning - Generally, Professional Responsibility | Permalink | Comments (0)

Allegations Of Abuse Marred Stan Lee’s Last Years — A Guardianship Might Have Protected Him

GuardianshipStan Lee was the beloved grandfather icon of many in the comic book and pop culture realms, and his death last November at the age of 95 saddened millions. But his legacy, unfortunately, was marred in the last years of his life by accusations of elder abuse and financial mismanagement by those closest to him. The idea that the people that should have been protecting the creator of so many heroes was actually taking advantage of him shocked the world.

But this is not an isolated incident, as there are many more people that are aging into their 90's and suffering for mental and health issues, and thus more vulnerable to others. Those a carefully constructed estate plan can protect assets after death, it does not always help them while they are still living. This is where a guardianship can aid the elderly. Though it is the most restrictive means of providing for the care of an individual with mental incapacities, it provides more protection than a power of attorney or other alternatives.

Guardians are appointed by and monitored by the court and are subject to court oversight and various court reporting requirements. Powers of attorney only report to a principal, and thus financial abuse can continue for years without anyone else being aware. According to the Senate Aging Committee, an estimated 1.3 million adults are under the care of guardians, either family members or professional guardians. Late last year, the Senate Aging Committee issued a report recommending ways to improve the guardianship program, including enhanced monitoring, criminal background checks of guardians, and improved training of newly appointed guardians.

See Cozen O'Connor, Allegations Of Abuse Marred Stan Lee’s Last Years — A Guardianship Might Have Protected Him, Lexology, March 13, 2019.

Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.) for bringing this article to my attention.

March 29, 2019 in Current Affairs, Disability Planning - Health Care, Disability Planning - Property Management, Elder Law, Estate Planning - Generally, Guardianship | Permalink | Comments (0)

Trump Tax Reform Causing Freak-Outs in Rich New York Area Towns

TaxcalcThe Tax Cut and Jobs Act (TCJA) of 2017 lowered taxes for many Americans, but for those that live in high-income-tax, high-property-tax areas such as New Jersey and New York City, the results of the Act are more confusing.

The implication is due to the new limit of state and local taxes, which will apply to about 11 million taxpayers across the country according to a February estimate from the U.S. Treasury Inspector General for Tax Administration. The states that had a high number of citizens affected attempted to pass workarounds for the cap, but the Internal Revenue Services shot these attempts down. The April 15th deadline is looming large for many of these taxpayers as those with more money and thus more complicated tax returns tend to wait until the deadline is near to file. 

Now real estate professional are stepping in to try to benefit from the situation. South Florida developers have set up sales offices in Manhattan, angling to lure tax-weary finance workers with the promise of sunshine and no state income tax. Local realtors are highlighting the tax benefits of changing towns as they hope to compete. There is even a neighborhood in New Jersey that is advertising that they have lower municipal tax because of a lack of sidewalks, professional firefighters and a public high school.

For those who do not want to move, the obvious solution is to complain -- ideally to a tax court.

See Patrick Clark, Trump Tax Reform Causing Freak-Outs in Rich New York Area Towns, Financial Advisor, March 21, 2019.

Special thanks to Joel C. Dobris (Professor of Law, UC Davis School of Law) for bringing this article to my attention.

March 29, 2019 in Current Affairs, Estate Planning - Generally, New Legislation | Permalink | Comments (1)

Thursday, March 28, 2019

Article on The Tax and Practical Aspects of the Installment Sale to Spousal Grantor Trust

Trusts2William R. Culp, Jr., Paul M. Hattenhauer, and Briani Bennett Mellen recently published an article entitled The Tax and Practical Aspects of the Installment Sale to Spousal Grantor Trust, 44 ACTEC L.J. 63 (2019). Provided below is an abstract of the article.

The familiar installment sale to a grantor trust, where a taxpayer sell property to his or her wholly-owned grantor trust, is an effective technique to shift assets among family members on an income and estate tax efficient basis. A variation on this traditional technique is a sale by a trust beneficiary to a grantor trust treated as wholly-owned by the beneficiary's spouse (the "spousal grantor trust sale"). Similar to the traditional grantor trust sale, the spousal grantor trust sale accomplishes a freeze on the value of the consideration received on the sale for estate tax purposes. However, the spousal grantor trust sale provides several meaningful advantages over the traditional grantor trust sale, including the potential ability of the selling spouse to be a beneficiary of the trust, possess a special testamentary power of appointment over trust property, or serve as trustee of the spousal grantor trust. This article analyzes the tax and practical aspects of an installment sale to a spousal grantor trust, and how it differs from a traditional grantor trust sale.

March 28, 2019 in Articles, Current Affairs, Estate Administration, Estate Planning - Generally, Trusts | Permalink | Comments (0)

Getting Married? It's Time To Plan For Retirement

WeddingcakeThere are several milestones in a person's life, and for many people ones of those milestones is getting married. Possibly several years beyond that is retirement as a married couple, and that time takes special planning.

  • How are you using your retirement accounts?
    • Employer‐sponsored retirement accounts, including IRAs and 401(k)s, can be orchestrated to work together for many married couples, even if one spouse is not employed or has a job that does not have a retirement account.
  • Are you protecting your property?
    • Many states have the legal principles of community property or as tenants in the entireties. Neither party can sell jointly owned property without the permission of the other spouse, and in the case of litigation, it protects the other spouse's interest in the property.
  • Do you need a prenuptial agreement?
    • Second marriages have a stronger need for prenuptial agreements, as both parties may come into the marriage with an abundance of their own assets as well as their own children.
  • Retirement planning in the case of death or divorce.
    • The surviving spouse is able to claim the higher Social Security benefit, whether his or her own or not. Upon the death of one spouse, the other will inherit the IRAs and 401(k) as a spousal beneficiary.
  • The Overall Lesson.
    • Do not got broke planning for the giant party of a wedding, and focus on the planning of the marriage.

See Eric Brotman, Getting Married? It's Time To Plan For Retirement, Forbes, March 26, 2019.

Special thanks to Joel C. Dobris (Professor of Law, UC Davis School of Law) for bringing this article to my attention.

March 28, 2019 in Current Affairs, Disability Planning - Property Management, Elder Law, Estate Administration, Estate Planning - Generally | Permalink | Comments (0)

Wednesday, March 27, 2019

Article on Making Directed Trusts Work: The Uniform Directed Trust Act

LawJohn D. Morley and Robert H. Sitkoff recently published an Article entitled, Making Directed Trusts Work: The Uniform Directed Trust Act, ACTEC Law Journal, Vol. 44, No. 1, Winter 2019. Provided below is an abstract to the Article.

Directed trusts have become a familiar feature of trust feature in spite of considerable legal uncertainty about them. Fortunately, the Uniform Law Commission has just finished work on the Uniform Directed Trust Act (UDTA), a new uniform law that offers clear solutions to the many legal uncertainties surrounding directed trusts. This article offers an overview of the UDTA, which particular emphasis on four areas of practical innovation. The first is a careful allocation of fiduciary duties. The UDTA's best approach is to tale the law of trusteeship and attach it to whichever person holds the powers of trusteeship, even if that person is not formally a trustee. Thus, under the UDTA the fiduciary responsibility for a power of direction attaches primarily to the trust director (or trust protect or trust advisor) who holds the power, with only a diminished duty to avoid "willful misconduct" applying to a directed trustee (or administrative trustee). The second innovation is a comprehensive treatment of non-fiduciary issues, such as appointments, vacancy, and limitations. Here again, the UDTA largely absorbs the law of trusteeship for a trust director. The UDTA also deals with new and distinctive subsidiary problems that do not arise in ordinary trusts, such as the sharing of information between a trustee and a trust director. The third innovation is a reconciliation of directed trusts with the traditional law of cotrusteeship. The UDTA permits a settlor to allocate fiduciary duties between cotrustees in a manner similar to allocation between a trust director and directed trustee in a direct trust. The final innovation is a careful system of exclusions that preserves existing law and settlor autonomy with respect to tax planning, revocable trusts, powers of appointment, and other issues. All told, if appropriately modified to fit local policy preferences, the UDTA could improve on the directed trust law of every state. The UDTA can also be used by practitioners in any state to identify the key issues in a directed trust to find sensible, well-drafted solutions that can be absorbed into the terms of a directed trust.

March 27, 2019 in Articles, Current Affairs, Estate Administration, Estate Planning - Generally, New Legislation, Non-Probate Assets, Trusts | Permalink | Comments (0)

Study: Music Is Powerful Enough To Resist Alzheimer’s & Dementia

MusicheartThe Journal of Prevention of Alzheimer's Disease claims that the distressing effects of the condition can subside for short periods of time when the patient hears songs that are important to them from their past.

Particular songs that call to us can ignite a certain physical response when we listen to them. This sensation, called Autonomous Sensory Meridian Response, or ASMR, appears to sear those songs harder into our brains. Because this tingling response catalogs those songs differently, the melodies can cause the condition's heartbreaking symptoms to fade temporarily while the sufferer listens to them.

Jeff Anderson, M.D., Ph.D., associate professor in Radiology at the University of Utah Health, says: “In our society, the diagnoses of dementia are snowballing and are taxing resources to the max. No one says playing music will be a cure for Alzheimer’s disease, but it might make the symptoms more manageable, decrease the cost of care and improve a patient’s quality of life.”

See Karlie Powell, Study: Music Is Powerful Enough To Resist Alzheimer’s & Dementia, Your EDM, March 24, 2019.

March 27, 2019 in Current Affairs, Disability Planning - Health Care, Estate Planning - Generally, Music, Science | Permalink | Comments (0)