Wills, Trusts & Estates Prof Blog

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

Thursday, July 18, 2019

Article on The Timing of Testation

WillMark Glover recently published an Article entitled, The Timing of Testation, 107 Ky. L.J. 221-268 (2018-2019). Provided below is an abstract of the Article.

An adult can execute her last will whenever she wants. She can do so on her eighteenth birthday, or she can wait until she is on her deathbed. She can also execute her last will at any point between these two extremes. While the timing of testation is up to the individual testator, her choice has important implications for the law. These implications have been recognized primarily in the realm of will-interpretation, as when testation occurs can affect how courts attribute meaning to a will's words. By contrast, the implications of testation's timing for the law of will-authentication have been overlooked.

Will-authentication is the process by which the law separates purported wills that testators intended to serve as evidence of their estate plans from those that decedents did not want to be given legal effect upon their deaths. This article argues that the extent to which the testator's intent will be fulfilled if a correct will-authentication decision is made should be an important consideration for policymakers when crafting the law of will-authentication. Additionally, the article argues that the timing of testation can provide policymakers evidence of the likelihood that the testator's intent will be carried out if a will is correctly authenticated. By explaining how the timing of testation should inform how the law authenticates wills, this article provides policymakers a fresh perspective through which to evaluate potential reforms of the law.

In addition to highlighting the theoretical implications of testation's timing, this article provides an empirical analysis of testation's timing, which considers an original data set of over eighteen-hundred wills that were probated in Hamilton County, Ohio, in 2014. By comparing the date of execution of these wills with the date on which the testator died, this analysis provides a glimpse of when testation in fact occurs. Ultimately, when considered alongside the theoretical implications of testation's timing, this original empirical analysis can assist policymakers in crafting the law of will-authentication.

July 18, 2019 in Articles, Current Affairs, Estate Planning - Generally, Wills | Permalink | Comments (0)

Tuesday, July 16, 2019

Comment on What's Equitable Adoption Got to Do With It?: An Examination of Texas' 2017 Amendment and its Impact on Inheritance Rights

TexasLeah Towe recently published a Comment entitled, What's Equitable Adoption Got to Do With It?: An Examination of Texas' 2017 Amendment and its Impact on Inheritance Rights, 71 Baylor L. Rev. 239-266 (2019). Provided below is an [] of the Comment.

The practice of adoption dates back to ancient times, as biological parents have transferred their children to other adults who wanted the children for "love, labor, and property." Many historians have traced adoption in the United States to Massachusetts' passage of the first "modern" adoption law in the 1850s. Specifically, the Massachusetts Adoption of Children Act promoted the notion that adoption should benefit the welfare of children, rather than adult interests. Since Massachusetts' initial law, all other states continue to implement and reform legislation governing adoptions. As times change and family dynamics evolve, many states have evolved as well, allowing for adoption outside of the statutory, legal process under certain facts and circumstances. The right facts and circumstances often result in a posthumous adoption out of equity, also known as equitable adoption.

Texas has recognized the concept of equitable adoption since the 1930s. While the plain language of the relevant statute has long suggested that equitably adopted children should be treated the same as legally adopted children and natural children for inheritance purposes, the Texas Supreme Court has refused to interpret the statute this way. In response, Texas lawmakers in the 85th Legislative Session of 2017 proposed and passed House Bill 2271 (H.B. 2271), which amended the definition of "child" in Section 22.004 of the Estates Code to include equitable adoption. H.B. 2271 also added a subsection to Section 201.054 to define "adopted child." With these changes, Texas lawmakers have expressed their intent to finally provide the same inheritance rights to both legally adopted children and equitably adopted children.

This Comment will briefly provide some background on the history of adoption in Texas; the history and evolution of equitable adoption in Texas; insight into the 85th Texas Legislature's 2017 amendment, as it could impact intestate succession - and by relation, testate succession and other inheritance rights - in the future; predictions regarding Texas courts' likely response to this amendment; and finally, a peek into the shortcomings of this amendment.

July 16, 2019 in Articles, Current Affairs, Estate Administration, Estate Planning - Generally, New Legislation | Permalink | Comments (0)

Handbook of Practical Planning for Artists, Art Collectors, and Their Advisors

Slugg2Ramsay H. Slugg recently published a Book entitled, Handbook of Practical Planning for Artists, Art Collectors, and Their Advisors (2d ed. 2019). Provided below is a summary of the book.

Art is an asset of passion, as author Ramsay H. Slugg states, yet it also has unique and important financial characteristics. This makes art possibly the most difficult asset to incorporate into an overall estate and financial plan. Handbook of Practical Planning for Artists, Art Collectors and Their Advisors addresses two essential elements of art ownership: planning for the ultimate disposition of the art, including how to address the wealth represented by the art into any estate and financial planning, and also the practical considerations for collectors as they actively collect and plan for the art’s eventual disposition.

After a brief discussion of the art market generally, the book introduces and explains a client-focused process I use when advising art collectors. This process includes explaining both the income, estate and gift tax consequences of various options, as well as the important and often emotional non-tax considerations of collecting and disposing of art. The book also discusses the role and importance of other advisors who are involved in these decisions, including art advisors, risk management professionals and appraisers. To better illustrate the material, the book features enlightening case studies.

July 16, 2019 in Books - For Practitioners, Current Affairs, Estate Administration, Estate Planning - Generally | Permalink | Comments (0)

Doing These Five Things Could Decrease your Risk of Alzheimer’s by 60%

LeafyApproximately 50 million people have dementia worldwide, and that number is expected to triple by 2050, according to the 2018 World Alzheimer Report. The global cost of dementia in 2018 was roughly $1 trillion, a figure projected to double by 2030. But a study presented at the Alzheimer’s Association International Conference in Los Angeles this past weekend has some crucial suggestions to limit a person's likelihood on developing the condition by 60%.

The  Rush University Medical Center in Chicago followed 2,765 individuals over the span of about a decade, tracking their lifestyle and behavior choices. They assessed study participants’ lifestyles on five metrics: their diet, their exercise regimen, whether they smoked, their alcohol consumption and their “engagement in cognitive stimulation activities.” The researchers were expecting positive results for those that made healthier choices, but they were simply "astounded" by the magnitude of the results.  Individuals who ate a “high-quality diet," performed at least 150 minutes of exercise per week, did not smoke, limited themselves to one alcoholic beverage per day, and stimulated their brain two to three times a week were found to develop dementia 60% less than those that did none of these activities, or even just one of them.

The average ages of the participants were between 73 and 81, and contained both males and females as well as blacks and non-Hispanic whites. The study did not find any variances depending on race or gender. 

See Hannah Nattanson, Doing These Five Things Could Decrease your Risk of Alzheimer’s by 60%, New Study Says, Washington Post, July 14, 2019.

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

July 16, 2019 in Current Affairs, Disability Planning - Health Care, Estate Planning - Generally | Permalink | Comments (0)

Monday, July 15, 2019

Note on Informed Consent and Decision-Making After Loss of Competency in Dementia Patients: A New Model

AlzLauren Padama recently published a Note entitled, Informed Consent and Decision-Making After Loss of Competency in Dementia Patients: A New Model, 28 S. Cal. Interdisc. L.J, 173-201 (2018). Provided below is an introduction of the Note.

After receiving a diagnosis of Alzheimer's, journalist Greg O'Brien analogized his experience with the disease to a plug in a loose socket. The light from the lamp starts to flicker, so he pushes the plug back in to the socket. It flickers more; Greg now becomes frustrated as he continues to push the plug back in. Eventually, the plug falls out of the socket entirely, and the light is extinguished permanently. This metaphor tracks the progression of Alzheimer's as a typical patient loses his memory and other core cognitive functions. It does not, however, consider that the cognitive decline is typically accompanied by a revocation of medical autonomy.

Most adults are familiar with the myriad forms they are required to sign before receiving medical treatment. These consent forms are designed to reiterate a physician's warning of the risks and benefits of the procedures to ensure that the patient is fully informed before agreeing to the procedure. This basic idea was famously articulated by then Judge Cardozo when he noted, "Every human being of adult years and sound mind has a right to determine what shall be done with his own body … ." Since then, every jurisdiction has developed a doctrine of informed consent, which requires the doctor to make a "reasonable disclosure of the available choices with respect to proposed therapy and of the dangers inherently and potentially involved in each." The physician's efforts to apprise the patient of the risks and benefits of the treatment or procedure would, however, be futile if the patient were unable to evaluate the risks and benefits of the procedure and come to an informed decision on whether to accept or reject treatment. Thus, informed consent also requires that the patient have the capacity to consent  to treatment. For patients with Alzheimer's or dementia, the cognitive decline associated with the disease eventually precludes the patient from meeting the medically determined competency standards. This means that the patient can no longer give consent to receive or refuse treatment. The patient is therefore forced to rely on the judgment of the physician or another statutorily approved decision-maker for all medical decisions after loss of capacity.

Informed consent was created to preserve patient autonomy, but dementia effectively revokes a patient's right to consent or decline treatment. A dementia diagnosis is followed by a determination of incompetency at a time when critical treatment decisions are made, such as the decision to administer psychotropic medications. Most decision-makers follow a physician's treatment recommendation, which means psychotropic medications are frequently prescribed to manage symptoms of dementia. When patients refuse, caregivers in both professional and private settings covertly administer medication without the patient's knowledge or consent. 

This article explains the challenges facing both the medical and legal community as the aging population in the United States leads to an inevitable increase in the number of dementia patients. In particular, the variety of accepted instruments used to assess competency has created variability in who is considered incompetent, which forces the patient to rely on statutorily approved methods of decision-making, such as conservators, family members, and advance directives. Since requirements for each vary by jurisdiction, this paper primarily focuses on California law. After discussing the deficiencies with each form of decision-making in the context of concealment of psychotropic medication, this paper explores a new approach to decision-making that focuses on the patient as opposed to the physician's recommendations. The proposed model combines elements of enhanced consent and supported decision-making to create a new method of decision-making. This method of decision-making gives a patient in the early and moderate stages of Alzheimer's more control over her healthcare decisions by forcing decision-makers to communicate directly with the patient instead of assuming the patient's preference. This aims to preserve autonomy in early stages of Alzheimer's by shifting the focus from substituted decision-making to decision-makers actually assisting the patient in deciding whether to accept or reject psychotropic medication and then articulate that choice effectively to the physician.

This paper begins with an overview of dementia and one of the most commonly prescribed treatments for Alzheimer's patients: psychotropic medications. I then discuss informed consent, the right to refuse medication, and assessing capacity both generally and in Alzheimer's patients. After explaining the problems with current competency assessments, I then review the most common methods of decision-making after loss of capacity for Alzheimer's patients as well as alternative methods of decision-making used in other populations. I demonstrate the deficiencies in the statutorily approved methods of decision-making by applying each method to a common real-world problem of medication concealment. Lastly, I illustrate the benefits of utilizing my proposed model, a hybrid of enhanced consent and supported decision-making. This model aims to preserve patient autonomy in the early stages of Alzheimer's while also providing a tool to plan for the later stages of the disease.

July 15, 2019 in Articles, Current Affairs, Disability Planning - Health Care, Disability Planning - Property Management, Elder Law, Estate Planning - Generally | Permalink | Comments (0)

Friday, July 12, 2019

Article on Wrongful Prolongation of Life - A Cause of Action That May Have Finally Moved Into the Mainstream

HeartbeatSamuel D. Hodge, Jr. recently published an Article entitled, Wrongful Prolongation of Life - A Cause of Action That May Have Finally Moved Into the Mainstream, 37 Quinnipiac L. Rev. 167 (2019). Provided below is the introduction to the Article.

An elderly gentleman with multiple health problems was resuscitated following a near-death experience and vowed not to let it happen again. In an effort to signal his desire to prevent a repeat of such heroic efforts, he executed a do not resuscitate ("DNR") directive following his recovery. A short time later, he developed severe discomfort and was taken to a local emergency room where he was diagnosed with a ruptured aortic aneurysm. None of the medical staff bothered to read his DNR directive, resulting in the elderly man undergoing a potentially unwanted surgery to repair the life-threatening anomaly.

A physician subsequently discovered the DNR directive and discussed the issue with the patient. The man angrily reconfirmed his wish to shun resuscitation efforts and, in response, the physician placed a DNR order in the chart. The surgeon who had performed the complicated operation became furious when he saw the order and changed it back to a "full code," a directive to employ all life-saving measures. This reversal triggered a consultation with the hospital's ethicist, which ultimately resulted in the reinstatement of the patient's DNR order. The elderly man eventually died from a heart attack during his hospital stay, seemingly without any further intervention.

Historically, physicians were able to act with impunity concerning end-of-life decisions because the courts did not recognize an action for wrongful prolongation of life. Many in the medical community believed that if "you do intervene and you shouldn't have, the worst that will happen is that the patient will live a little longer and that you'll never be held accountable if you keep the patient from dying." This attitude is undergoing a metamorphous as an increasing number of patients who have signed DNR orders are suing or subjecting medical providers to disciplinary proceedings for saving their lives. This article will provide a historical background on DNR orders and the various legislative initiatives undertaken to ensure that medical providers honor a person's end-of-life wishes. It will then explore the evolution of the wrongful prolongation of life litigation in a chronological fashion, with a focus on the majority of cases that do not allow recovery and the more recent determinations that have offered patients relief for the failure to honor their end-of-life directives.

July 12, 2019 in Articles, Current Affairs, Estate Planning - Generally, New Cases | Permalink | Comments (0)

Wednesday, July 10, 2019

Article on The Prudence of Passivity: An Argument for Default Passive Management in Trust Investing

ResponsibletrusteeBryon W. Harmon & Laura A. Fisher recently published an Article entitled, The Prudence of Passivity: An Argument for Default Passive Management in Trust Investing, ACTEC L.J. Vol 44, No. 2, 147-182 (Spring 2019). Provided below is an abstract of the Article.

Trustees, like all investors, are exposed to a wide-ranging marketplace of investment vehicles, techniques, strategies, and theories. Trustees have a threshold choice to make with respect to the manner in which trust assets are to be invested. Active management - historically, a conventional approach - aims to "beat the market" and surpass benchmark returns by picking and choosing among individual securities based on the trustee's determinations that they are mispriced (i.e., undervalued) and/or by timing transactions based on forecasting. Alternatively, trustees may choose to simply invest in and own entire markets, or asset classes, and accept overall market returns by using low cost asset class index funds. This latter approach is known as passive investing, or indexing.

This article traces both the historical development of financial scholarship regarding investment practices and legal scholarship addressing the evolution of fiduciary duties. It then reviews the modern prudent investing rules governing trust investment and explores several major issues: (1) whether a passive approach is encouraged or even required by law, (2) why so few professional trustees seem to employing passive investment management and (3) whether recent case law focusing on the costs of investing in the contexts of ERISA is a harbinger of similar arguments in the private trust area.

We conclude with a recommendation that a passive investment strategy become the default standard for corporate and professions trustess under modern iterations of the prudent investor rule.

July 10, 2019 in Articles, Current Affairs, Estate Administration, Estate Planning - Generally, Professional Responsibility, Trusts | Permalink | Comments (0)

Monday, July 8, 2019

Alzheimer’s Research is Getting a Reboot at Small Companies Focused on the Immune System

AlzA Colorado health care start-up called Partner Therapeutics is researching an almost 30-year-old leukemia medication and how it can regulate the immune system as a treatment for Alzheimer’s disease. This change in research trajectory is seen as a result of billions of dollars used in vain by major pharmaceutical companies seeking treatments for the removal of amyloid plaques, an accumulation of debris on brain tissue that is a key sign of Alzheimer’s.

So as bigger companies are backing away from the area, small businesses and start-ups are filling the gap. As of last year, there are only around 70 potential Alzheimer’s therapies in various stages of clinical trials, in addition to 22 remaining amyloid-targeting drugs, according to industry trade group Pharmaceutical Research and Manufacturers of America. In comparison, there are roughly 1,100 drugs for cancer, 445 for other neurological diseases, and 200 for heart disease and stroke in development.

Researchers at the Rocky Mountain Alzheimer’s Disease Center are leading a trial of Leukine in 40 Alzheimer’s patients. In mice with Alzheimer’s disease, the same protein contained in Leukine cleared amyloid debris from the brain while also reversing memory loss. But other drugs by bigger companies that showed promise in mice also failed, so there odds may still be long.

See Christopher Rowland, Alzheimer’s Research is Getting a Reboot at Small Companies Focused on the Immune System, Washington Post, July 3, 2019.

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

July 8, 2019 in Current Affairs, Disability Planning - Health Care, Estate Planning - Generally, Science | Permalink | Comments (0)

Friends Make a Pact To Retire and Die Together

ChampagneA band of seven women in China are living out an agreement made many years prior: to retire and live out their lives under the same roof after they all turned 60. The women have known each other for 20 years and just last year they pooled their money together to buy and renovate a large brick house in a village roughly an hour away from the city of Guangzhou.

Now featuring floor-to-ceiling glass windows with views of paddy fields, a tea room, a pool, and separate bedrooms upstairs, the house is the perfect place for the women to retreat to during their retirement. The women spend their time cooking, barbecuing, singing, and drinking tea under the moon. With each woman putting in work and mastering a different skill, the chances of fighting are diminished. 

See Marie Lodi, Friends Make a Pact To Retire and Die Together, The Cut, July 2, 2019.

Special thanks to Molly Neace for bringing this article to my attention.

July 8, 2019 in Current Affairs, Estate Planning - Generally, Humor | Permalink | Comments (1)

Friday, July 5, 2019

How to Talk to Your Financial Advisers About a Chronic Illness

MeetingThere are plenty of misconceptions about chronic illnesses, and as a society Americans do not understand how to deal with others that are facing them. If you or are loved one is facing a chronic illness, financial advisors should be made aware so that appropriate planning can be performed in a safe and comfortable place.

Many people believe that chronic illnesses are only an ailment of the elderly, but the truth is that 60% of those living with one are between the ages of 18 and 64. If you are living with a chronic condition, before you even meet initially with your financial advisor, you should make them aware if they should supply any necessary accommodations. As empathetic as a your advisor may be, they may not understand the physical assistance your disease or condition may require you to need. If there are cognitive impairments or a neurologist condition, ensure that your financial advisor understand what your needs are and where mental ability stands.

Clients should give advisers express permission to ask any questions so that they can understand all your needs and provide as comfortable a meeting as possible.

See Martin Shenkman, How to Talk to Your Financial Advisers About a Chronic Illness, Forbes, July 5, 2019.

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

July 5, 2019 in Current Affairs, Estate Administration, Estate Planning - Generally, Professional Responsibility | Permalink | Comments (0)