Wills, Trusts & Estates Prof Blog

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

Saturday, November 17, 2018

Article on Preparing to Age in Place: The Role of Medicaid Waivers in Elder Abuse Prevention

AgeivismTara Sklar & Rachel Zurew recently published an Article entitled, Preparing to Age in Place: The Role of Medicaid Waivers in Elder Abuse Prevention, Elder Law eJournal (2018) Provided below is an abstract of the Article.

Over the last four decades, there has been a steady movement to increase access to aging in place as the preferred long-term care option across the country. Medicaid has largely led this effort through expansion of state waivers that provide Home and Community-Based Services (HCBS) as an alternative to nursing home care. HCBS include the provision of basic health services, personal care, and assistance with household tasks. At the time of this writing, seven states have explicitly tailored their waivers to support aging in place by offering HCBS solely for older adults, individuals aged 65 and over. However, there is growing concern about aging in place contributing to greater risk for social isolation, and with that increased exposure to elder abuse. Abuse, neglect, and unmet need are highly visible in an institutional setting and can be largely invisible in the home without preventative measures to safeguard against maltreatment. This article examines the seven states with Medicaid HCBS waivers that target older adults, over a 36-year period, starting with the first state in 1982 to the present. We conducted qualitative content analysis with each waiver to explore the presence of safeguards that address risk factors associated with elder abuse. We found three broad categories in caregiver selection, quality assurance, and the complaints process where there are notable variations. Drawing on these findings, we outline features where Medicaid HCBS waivers have the potential to mitigate risk of elder abuse to further support successful aging in place.

November 17, 2018 in Articles, Current Affairs, Disability Planning - Health Care, Elder Law, Estate Planning - Generally, New Legislation | Permalink | Comments (0)

Friday, November 16, 2018

Article on The 2017 Tax Act's Potential on Bank Safety and Capitalization

Tax actMark J. Roe & Michael Troege recently published an Article entitled, The 2017 Tax Act's Potential on Bank Safety and Capitalization, Tax Law: Tax Law & Policy eJournal (2018). Provided below is an abstract of the Article.

Much has been written and discussed in banking circles about recent rollbacks in prudential regulation, with some seeing the rollbacks as unsafe and others seeing them as allowing stronger financial action. Undiscussed is that the basic taxation of the corporation in the United States — and banks are taxed like ordinary corporations — has a profound impact on the level of debt and equity throughout the economy and in the banking system in particular, and that recent changes to the tax code could affect bank safety, stability, and capitalization levels.

We analyze here how and why the 2017 tax act will incentivize banks to be better capitalized, albeit modestly so. For those worried about regulatory rollbacks that decrease bank safety, this tax incentive — which has been unremarked upon and not analyzed in the academic literature, as far as we can tell — offsets some recent regulatory rollbacks. And, more important analytically and potentially for policy, we show that this tax change, if properly expanded, would have a major beneficial safety impact on banks. Properly reformed, the taxation of banks (1) can substantially improve bank safety, at a level that may well rival the improvements from post-crisis regulation and (2) can be done in a revenue-neutral way.

November 16, 2018 in Articles, Current Affairs, Estate Administration, Estate Planning - Generally, New Legislation | Permalink | Comments (0)

Japanese Use Robot Animals to Comfort Elderly

NatgeoPhoto by @dguttenfelder | Mrs. Kotajima, age 100, Mrs. Uehara, 84, and Mrs. Shimizu, 92 share their elder care home with companion puppy and baby seal robots. The popular science fiction of many cultures depicts the rise of robots as an ominous threat. But the Japanese have long portrayed robots as friends and heroes and embrace humanoid robot technology. Increasingly, the Japanese are looking to robotic solutions for society's needs. On assignment for @natgeo in Tokyo.

See National Geographic, Instagram, November 11, 2018.

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

 

November 16, 2018 in Current Affairs, Disability Planning - Health Care, Elder Law, Estate Planning - Generally, Humor, Travel | Permalink | Comments (0)

Thursday, November 15, 2018

How to Choose the Right Guardian

BabyhandIf you have minor children, selecting the right person to be the guardian for them in the tragic instance that you die or become incapacitated is one of the most important planning decisions that you have to make. Failing to do so could put the future of your precious offspring in the hands of an impersonal court system.

Tackling the responsibility of another person's child or children is not one that should be taken lightly, and thus should be accepted willingly and with a complete understanding of the duty. A proper guardian should be reliable and stable, with sound judgment and values that are similar to your own so the person can be an appropriate surrogate parent. Though being a family member is often seen as a necessary factor in being a guardian, it is not required. But having an established and caring relation with the child or children can be considered immensely valuable.

Children can be inherently expensive, from sports to education to medical bills. Asking a person to be the guardian for your children is also asking them to be responsible for their financial obligations as well. Therefore, it is important to work with a knowledgeable estate planner who can help arrange financial support not only directly for your child, but also if necessary, for the personal costs that the guardian incurs in taking care of your children. Depending on the circumstances and the people or person you choose, the trustee for your children's trust can be the same person or different from the person who choose to be the children's guardian.

See Cheryl E. Hader & Jonathan Kane, How to Choose the Right Guardian, Kramer Levin, November 8, 2018.

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

November 15, 2018 in Current Affairs, Estate Administration, Estate Planning - Generally, Trusts, Wills | Permalink | Comments (0)

Tuesday, November 13, 2018

Article on Tax as Part of a Broken Budget: Good Taxes Are Good Cause Enough

TreasuryStephanie Hunter McMahon recently published an Article entitled, Tax as Part of a Broken Budget: Good Taxes Are Good Cause Enough, Tax Law: Tax Law & Policy (2018). Provided below is an abstract of the Article.

The federal budget is a myth. Despite being a myth, Congress uses the budget to limit its choices by linking its revenue-raising and spending powers under a federal debt ceiling. Through its self-imposed limits, Congress puts tremendous pressure on how it calculates its budget, and that calculation generally assumes any tax provisions will raise revenue when the law becomes effective. However, many tax provisions require additional direction to ensure they operate as the budgetary process expects. That task falls to the Treasury Department and the Internal Revenue Service (IRS) as a bureau of the Department. Consequently, limiting the production of tax rules that implement, interpret, and sometimes limit possible interpretations of tax statutes is problematic because their projected revenue is used to balance the budget. Nevertheless, these Treasury Department rules are under attack on the grounds that their issuance fails to comply with the Administrative Procedure Act (APA). The APA generally requires notice and comment for the promulgation of rules, a costly process in terms of time and agency resources. This Article argues that there should be a wider acceptance of the good cause exception for the speedier issuance of tax regulations and other IRS-level implementing materials in order to satisfy Congress’s revenue expectations.

November 13, 2018 in Articles, Current Affairs, Estate Planning - Generally, Income Tax, New Legislation | Permalink | Comments (0)

Monday, November 12, 2018

Corpse Hotels Cater to Japan's Waiting Dead

HotelJapan has seen an exponential increase in its aging population, and the reality of this statistic is that there has also been a significant increase in the number of the dead, with a record of 1.34 million last year. With the small country unable to bury their loved ones that passed on, families must cremate them. But in many urban areas there is a wait for crematories, often up to a full week.

In the interim, people are turning to corpse hotels, where their deceased family member can await cremation in tasteful, competitively priced comfort, and families can say farewell at their leisure.  Those moments can be conducted with the help of an automated coffin-retrieval system, which quietly trundles the correct casket up from the storage area. Gone are the sterile environments of morgues, instead replaced by private viewing rooms and even suites that resemble the first floor of a traditional Japanese home where families can dine together with a perspex coffin containing the body. Management is particularly proud of the miniaturized refrigeration unit that makes this possible.

Corpse hotels are attempting to ease the tide, as it is predicted that between now and 2040 the death toll will continue to rise to a peak of 1.7 millions annually.

See Leo Lewis, Corpse Hotels Cater to Japan's Waiting Dead, Financial Times, November 7, 2018.

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

November 12, 2018 in Current Affairs, Death Event Planning, Elder Law, Estate Planning - Generally, Travel | Permalink | Comments (0)

Article on Age, Time, and Discrimination

AgetimeAlexander A. Boni-Saenz recently published an Article entitled, Age, Time, and Discrimination, Wills, Trusts, & Estates Law eJournal (2018). Provided below is an abstract of the Article.

Discrimination scholars have traditionally justified antidiscrimination laws by appealing to the value of equality. Egalitarian theories locate the moral wrong of discrimination in the unfavorable treatment one individual receives as compared to another. However, discrimination theory has neglected to engage seriously with the socio-legal category of age, which poses a challenge to this egalitarian consensus due to its unique temporal character. Unlike other identity categories, an individual’s age inevitably changes over time. Consequently, any age-based legal rule will ultimately yield equal treatment over the lifecourse. This explains the weak constitutional protection for age and the fact that age-based legal rules are commonplace, determining everything from access to health care to criminal sentences to voting rights. The central claim of this Article is that equality can neither adequately describe the moral wrong of age discrimination nor justify the current landscape of statutory age discrimination law. The wrong of age discrimination lies not in a comparison, but instead in the deprivation of some intrinsic interest that extends throughout the lifecourse. Thus, we must turn to non-comparative values, such as liberty or dignity, to flesh out the theoretical foundation of age discrimination law. Exploring this alternative normative foundation generates valuable insights for current debates in discrimination theory and the legal regulation of age.

November 12, 2018 in Articles, Current Affairs, Elder Law, Estate Planning - Generally | Permalink | Comments (0)

Discussing the Issue of Aging Parents

DinnerThe recent changes in the tax law may induce several families to bring up the uncomfortable topic of aging parents this holiday season. But these types of conversations can offset the possibility of any unpleasant surprises in the future.

The decision will ultimately be up to the parents, but even if children are to be the ones that bring up the subject, preparation and research should be done beforehand. Durable power of attorney, health care agent and executor are all positions that have certain responsibilities and requirements. Each one should be discussed with family members or close friends, or if those parties are not acceptable (or they decline), other arrangements should be considered.

A frank discussion of parental assets may make it easier for children to understand the overall planning objectives and decision-making process. An understanding of parental assets can also help with long and short term planning, ranging from tax strategies and charitable giving to options in the event of a long-term care illness. The increase in the standard deduction many people will no longer itemize deductions, and the increased federal estate tax exemption of $11,180,000 may make some charitable donations obsolete - for tax benefit purposes. Beneficiaries may also benefit from a step-up basis for highly appreciated assets, thus saving in capital-gains taxes.

See Kristin Shirahama, Discussing the Issue of Aging Parents, Financial Advisor, November 6, 2018.

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

November 12, 2018 in Current Affairs, Disability Planning - Health Care, Disability Planning - Property Management, Elder Law, Estate Planning - Generally, Estate Tax, Gift Tax, New Legislation, Wills | Permalink | Comments (0)

Sunday, November 11, 2018

Article on Abandoning Realization and the Transition Tax: Toward a Comprehensive Tax Base

Tax actHenry Ordower recebtly published an Article entitled, Abandoning Realization and the Transition Tax: Toward a Comprehensive Tax Base, Tax Law: Tax Law & Policy eJournal (2018). Provided below is an abstract of the Article.

The Tax Cuts and Jobs Act of 2017 imposed a tax, the “transition tax,” on as much as 31 years of undistributed, accumulated corporate income. This article focus on that transition tax as it evaluates the function and constitutionality of the tax and considers whether the transition tax might serve as a model for addressing the broader problem of deferred income in the United States. The article views the transition tax as joining the expatriation tax and other mark to market inclusion provisions in abandoning any pretext that there is continued vitality in the realization principle as something more compelling than any other longstanding and obsolescing tax principle. Recommending that Congress seize the Tax Cuts and Jobs Act moment and discard the general rule deferring the inclusion of gain in income through a realization requirement in favor of the annual marking to market of all the taxpayer’s property, the article models a general mark to market transition tax after the new transition tax on deferred foreign income. The proposal recommends inclusion of the net gain in taxpayers’ incomes at significantly reduced rates of tax, including one rate for liquid assets and a lower rate for illiquid assets and an opportunity to pay the tax in installments. Following the initial inclusion under this transition tax, gain and loss would be included annually consistent with comprehensive tax base definitions under an accrual system of taxation based on marking to market. Growth or decline in the value of taxpayers’ property would be taken into account income annually. In some instances permitting some taxpayers to defer payment of the tax until disposition of the property may be desirable but the continued deferral might incur an interest charge.

November 11, 2018 in Articles, Current Affairs, Current Events, Estate Planning - Generally, New Legislation | Permalink | Comments (0)

Saturday, November 10, 2018

Article on Testamentary Freedom and Family Protection in Scotland

ScotlandKenneth Reid recently published an Article entitled, Testamentary Freedom and Family Protection in Scotland, Wills, Trusts, & Estate Law eJournal (2018). Provided below is an abstract of the Article.

In a sense, testators in Scotland are free to do as they please, for a will is not challengeable on the ground of having failed to provide for children, or a spouse, or some other relative. Yet, regardless of what a will says or does not say, a child or spouse of the deceased is entitled to a fixed share of the deceased’s estate. Since 1964 this has been confined to the deceased’s movable estate and there is no claim in respect of immovable property. Where a deceased is survived by both spouse and children, the movable estate is divided into three – one-third for the spouse, one-third to be shared among the children, and one-third to be disposed of in accordance with the will. Where only a spouse, or only children, survive, the division is into two equal parts and not three. These ‘legal rights’ of the children and surviving spouse are personal rights against the executor of the deceased and are satisfied by payment in money.

This paper considers the history of legal rights in Scotland, their scope and calculation, the rules on discharge, the requirement to collate lifetime advances, and the requirement to choose between legal rights and an express bequest in the will.

Legal rights are of medieval origin, and have survived various attempts to change them. In recent years, the position of children has been seen as especially controversial. On one view, children should have merely a maintenance claim from the deceased’s estate, in cases of proved need. On another view, a child’s position in the family should continue to be recognised by means of a fixed share in their late parent’s estate. In the absence of consensus on this issue, the Scottish Government has recently rejected a package of reforms proposed by the Scottish Law Commission. Uncertain as to what the future should hold, Scotland has chosen to stick with rules developed, unthinkingly, in the distant past.

November 10, 2018 in Articles, Current Affairs, Disability Planning - Property Management, Elder Law, Estate Administration, Estate Planning - Generally, Wills | Permalink | Comments (0)