Wills, Trusts & Estates Prof Blog

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

Thursday, May 23, 2019

Article on The Enigma of End-of-Life Decisions in Advance Directives

AdvancedirectiveGregory S.C. Huffman recently published an Article entitled, The Enigma of End-of-Life Decisions in Advance Directives, Real Property, Trust and Estate Law Journal, Vol. 53 No. 2 (Fall 2018/Winter 2019). Provided below is an abstract of the Article.

This Article discusses advance health-care directives and the subjective, personal choices one must make for a future unknown situation. This Article first examines legal issues created by the various available types, and then moves into religious and philosophical views effecting a person's end-of-life choices. Issues involving a person's health, age, and financial and emotional situation are also discussed. Because a directive does not normally go into effect until a person can no longer make a medical decision, the Article also discusses quality-of-life issues arising from a minimally conscious state, a vegetative state, a locked-in state, and coma. There is then a discussion of the default position courts and medical providers take when no advance directive has been filled out, and the risks of leaving a person's end-of-life decisions to an agent. This Article concludes that an advance directive tends for most to be an enigma because so few have ever thought out the many complex issues raised by this type of document.

May 23, 2019 in Articles, Death Event Planning, Disability Planning - Health Care, Estate Planning - Generally | Permalink | Comments (0)

Wednesday, May 22, 2019

Terry Semel’s Alzheimer’s Battle: Inside the Family War Over the Hollywood Titan’s Care

SemelFormer Warner Brothers and Yahoo executive, Terry Semel, had been on the top of his game for over two decades as he revolutionized the movie business. But last year, at the age of 75, it became public knowledge how the movie titan's family were fighting amongst themselves as Terry could no longer handle his own finances or personal business due to Alzheimer's. His son, Eric Semel, filed a petition for the court to appoint a temporary conservator for his father. Eric claims that his stepmother, Jane, "was in serious breach of her fiduciary duties" after placing Terry in a nursing home two years prior.

Terry, his son claimed, had been reduced to living in a 500-square-foot bedroom at the Motion Picture & Television Fund retirement community in Woodland Hills, against his expressed wish to remain at his home, a 13,000-square-foot Bel-Air mansion. There were also accusations of Jane refusing to allow Terry to leave the facility, not taking him for regular physician visits, and ordering healthcare staff to change or eliminate certain medications. Jane disputes the claims, saying that Terry “is not the man he once was. He is sometimes confused and sometimes upset, but those are functions of his disease, not anything that anyone has done to him.”

How did a multi-millionaire Hollywood mogul with multiple sumptuous homes in all the posh neighborhoods end up in a two-room unit in a retirement home? Terry was diagnosed with Alzheimer's in 2011, but according to Jane, he had wanted to keep it a secret from his friends and colleagues. Jane largely oversaw decisions about his treatment and care as he declined and after a fall, Jane moved Terry to the retirement home. Eric believes the Bel-Air home should have instead been made appropriate for his father to continue to reside in.

See Stacy Perman, Terry Semel’s Alzheimer’s Battle: Inside the Family War Over the Hollywood Titan’s Care, Los Angeles Times, May 3, 2019.

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

May 22, 2019 in Current Affairs, Current Events, Disability Planning - Health Care, Estate Administration, Estate Planning - Generally, Film, New Cases, Television | Permalink | Comments (0)

Fears About Parents' Finances Causing Some U.S. Adults to Cut Spending

TiaaAccording to an online survey conducted by TIAA consisting of 1,003 American adults, 27% of adult children lack confidence in their parents’ financial security, and are twice as likely to lack confidence in their own retirement. The older the generation, the more concerned they are about their parent’s financial security, according to the results of those surveyed: 35% of Generation Xers and 26% of baby boomers believed their parents were in good or excellent financial circumstances, compared to 52% of millennials.

Many of the next generations also believe that they will be handling their own personal finances better than their parents did. 39% of Generation Xers and 35% of baby boomers disagreed that their parents’ approach to saving and investing is admirable and one to emulate, while only 25% of millennials felt the same.

Dan Keady, chief financial planning strategist at TIAA, noted that people’s financial habits and retirement planning are shaped by the experiences of their parents. “The confidence that millennials have about their parents’ finances may actually create a false sense of security, especially when individuals mistakenly believe they will receive an inheritance when their parents don’t have the same plans or intention.”

See Jacqueline Sergeant, Fears About Parents' Finances Causing Some U.S. Adults to Cut Spending, Financial Advisor, May 20, 2019.

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

May 22, 2019 in Current Affairs, Disability Planning - Health Care, Disability Planning - Property Management, Estate Planning - Generally | Permalink | Comments (0)

Monday, May 20, 2019

Article on Long-Term Care and the Tax Code: a Feminist Perspective on Elder Care

ElderlawNancy E. Shurtz published an Article entitled, Long-Term Care and the Tax Code: a Feminist Perspective on Elder Care, 20 Geo. J. Gender & L. 107-194 (2018). Provided below is an abstract of the Article.

Elder care is an increasingly important sector in the comprehensive health care matrix in the United States. It is a realm of particular import to women: women live longer, develop degenerative conditions at higher rates than men, and are more likely to receive and provide care. Women earn less income, possess less net wealth, and are far more likely to live in poverty. Public policies regarding elder care add to the increasing strain on women by systematically rejecting home-based caregiving labor as “legitimate” economic activity, rendering it unworthy of subsidized support. As a result, a secondary policy bias develops, favoring institutional (market) elder care over home-based options, which creates demonstrably poor health and life-quality results and adds substantial monetary costs to both affected individuals and taxpayers. This Article examines the state of elder care—especially in the long-term context—and its impact on the lives of women as both care recipients and caregivers. Employing various strains of feminist thought, this Article establishes elder care as an integral component of feminist concern and examines current policy approaches that incorporate tax-based and non-tax-based reforms to stimulate improvements to the elder care industry, raise life quality outcomes, expand elder care choices, and encourage higher participation in caregiving labors in an area of vital need.

May 20, 2019 in Articles, Current Affairs, Disability Planning - Health Care, Elder Law, Estate Planning - Generally | Permalink | Comments (0)

Sunday, May 19, 2019

Legal-Ease: What to do When Facing a Nursing Home Decision

NursinghomeThe decision whether to place an aging parent in a nursing home, provide in-home care, or move them in with their adult children can be an extremely difficult one. This decision can be prompted by illness, injury, or a series of absentmindedness. The tight-knit nature of the families in the Midwest can motivate people to try to care for their loved ones themselves. But even for a medical professional, the toll of being a caretaker for a loved one usually becomes too mentally and physically overwhelming.

There are three steps that should be undertaken as soon as possible to determine if the correct path should be a nursing home, assisted living or professional in-home healthcare.

  • First, ensure that the loved one has updated his or her powers of attorney and living will (advanced directives). These legal documents are necessary for another person to make financial and/or medical decision for another individual.
  • Second, develop a financial plan under the advice of an attorney. This should include an analysis of all assets, liabilities, monthly income and monthly expenses. Investigate Medicaid's five-year lookback rule to determine eligibility for the program.
  • Third, work closely with the attorney so that the agent does not become personally liable for the long-term care bills of the aging individual and asset transfers can be accommodated at the proper times. This can ensure that applications for Medicaid and other programs are not done too soon nor too late.

See Lee R. Schroeder, Legal-Ease: What to do When Facing a Nursing Home Decision, Lima Ohio, May 11, 2019.

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

May 19, 2019 in Current Affairs, Disability Planning - Health Care, Disability Planning - Property Management, Elder Law, Estate Planning - Generally | Permalink | Comments (0)

Wednesday, May 15, 2019

What Should I Do With My Inheritance?

CypresThe coming $30 trillion wealth transfer from baby boomers to the next generation has been presented in many pieces, and has a number of people thinking about their potential inheritance. As a prudent planner, an individual should have already planned for certain aspects of their retirement without the expectation of an inheritance. But how can you adjust your plan if you are almost positive that you will be getting a good to decent sized inheritance?

There are certain variables that make it difficult to account for an inheritance, such as families being against talking about it, investments may change, and people are living longer than before. The morbid truth is that with people living longer they tend to use up what would be the next generation's inheritance on living costs and long term care for themselves. Have an in-depth conversation with grandparents about possibly helping out now with the youngest generation - the grandkids - rather than waiting to pass on their estate in bulk on their deathbed.

See Ben Carlson, What Should I Do With My Inheritance?, A Wealth of Common Sense, May 14, 2019.

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

May 15, 2019 in Current Affairs, Disability Planning - Health Care, Disability Planning - Property Management, Estate Administration, Estate Planning - Generally, Trusts, Wills | Permalink | Comments (0)

Tuesday, May 14, 2019

Comment on Retiring the One-Party Consent Statute for Long-Term Care Residents' Rooms

NursinghomeLynsie Zona recently published a Comment entitled, Retiring the One-Party Consent Statute for Long-Term Care Residents' Rooms, 50 Ariz. St. L.J., 1347-1378 (2018). Provided below is the introduction to the Comment.

A recent article in the Arizona Daily Star opened with a heartbreaking story: A woman learned that her father had not received a critical medication during a month's stay at an assisted living facility. His health declined rapidly, and he died a few months later. The article featured an interview with a Tucson attorney, who noted that litigation often prompts long-term care facilities to make improvements. According to the attorney, "[i]f facilities are being looked at and watched more closely, they generally will attempt to do better." But litigation comes too late for some families hoping to protect their loved ones. Instead, families may turn to technology to watch their relative's facility more closely and ensure their loved ones are being cared for properly.

The use of an electronic monitoring device ("EMD"), such as a camera, in a long-term care resident's room raises critical ethical and legal questions regarding privacy and responsibility. Currently, most states, including Arizona, rely on wiretapping statutes to govern the use of EMDs in long-term care residents' rooms. In theory, long-term care residents in one-party consent states should be able to capture conversations to which they are a party without seeking the permission of any other party. But the nuanced environment of long-term care complicates the legal analysis, because a resident's room is a home, a health care facility, and a workplace. In states with one-party consent statutes, reliance on wiretapping statutes is inefficient, and exposes facilities and residents to unnecessary risks through uncertainty about rights and responsibilities. Tailored statutes governing EMDs in long-term care facilities clarify the rights and responsibilities of facilities, residents, and residents' family members.

EMD legislation addresses a modern reaction to enduring concerns about inadequate treatment in long-term care facilities. These laws require facilities to permit a resident to use an EMD and outline responsibilities of facilities, residents, and family members. While efforts to legislate the use of EMDs in long-term care facilities span nearly two decades, success has been slow. Only six states have passed legislation addressing EMDs in long-term care facilities. But several factors indicate that EMD legislation may become more popular in state legislatures. First, advances in technology have made it easier than ever to capture and share disturbing videos of elder abuse or neglect in long-term care facilities. A rash of news stories featuring these videos have captured public interest, drawing attention to EMDs. Second, families are interested in using technology to "validat[e] good care." One study found that more than half of individuals with a relative in a nursing home would be likely to request a camera in their relative's room. Finally, the discourse surrounding the most recent EMD legislation suggests that stiff resistance from the long-term care industry may have softened a bit. But the long-term care industry remains wary of efforts to permit residents to install EMDs in their rooms.

This Comment advocates for balanced, thoughtful legislation that permits long-term care residents to use an EMD without interference, but allows a facility to adopt custom EMD procedures. Although the proposed statutory language could benefit any one-party consent state, the approach is tailored for Arizona. The state's demographics, and a recent Arizona Supreme Court decision addressing claims of elder abuse, make Arizona an ideal framework for EMD legislation analysis. Part II examines Arizona law addressing elder abuse, then describes ongoing struggles within the long-term care industry. Part II.C provides a brief overview of one-party consent laws, focusing on Arizona's wiretapping statute. Part III.A describes the privacy concerns surrounding EMDs in long-term care residents' rooms. Part III.B highlights failed EMD legislation efforts and explores the strength of the long-term care industry's influence in state legislatures. Part III.C introduces EMD legislation in four one-party consent states and compares key provisions. Part IV draws upon the provisions in Part III.C and proposes EMD legislation language for Arizona that balances a family's desire to protect a long-term care resident while providing flexibility for the facility.

May 14, 2019 in Articles, Current Affairs, Disability Planning - Health Care, Estate Planning - Generally, New Legislation | Permalink | Comments (0)

Monday, May 13, 2019

Article on It’s Still Me: Safeguarding Vulnerable Transgender Elders

TransflagSarah Steadman recently published an Article entitled, It’s Still Me: Safeguarding Vulnerable Transgender Elders, 30 Yale J.L. & Feminism 371-399 (2018). Provided below is an abstract of the Article.

Transgender individuals have many reasons to be concerned about their welfare in the current political and legislative climate. Transgender elders are especially vulnerable. They are more likely to be disabled than the general elder population. Moreover, transgender elders profoundly fear a future when they must rely on others to maintain and protect their gender identity and dignity. This fear is alarmingly realistic because if a transgender elder becomes incapacitated or requires institutional care, they are likely to face discrimination and other harms by their caretakers.

May 13, 2019 in Articles, Current Affairs, Disability Planning - Health Care, Elder Law, Estate Planning - Generally | Permalink | Comments (0)

Sunday, May 12, 2019

CLE on Medicaid Update 2019: Knowledgeably Advise Clients on the New Medicaid Changes

CLEThe National Business Institute is holding a seminar entitled, Medicaid Update 2019:Knowledgeably Advise Clients on the New Medicaid Changes, on Thursday, June 6, 2019, from 9:00 AM to 4:30 PM at the Illinois Business & Industry Services in Naperville, Illinois. Provided below is a description of the event.

Program Description

Knowledgeably Advise Clients on the New Medicaid Changes

Do you have the most current information relating to the impact of the new Medicaid changes? Are you confident in your ability to advise your clients due to these changes? Join us at this seminar to not just learn what changes have been made, but also gain insight into how the changes will affect your clients. Get yourself up to speed - enroll today!

  • Gain valuable insight into Medicare Part A through D so you can help clients ensure that hospital services, medications and medical visits are covered.
  • Help clients make smart financial planning decisions with a solid understanding of the new framework.
  • Avoid precedence conflicts by analyzing the new federal reforms versus your state's Medicaid policies.
  • Review the possible financial outcomes and get tips for helping with planning decisions in light of the Medicaid changes.
  • Guide clients through the Medicaid qualification process by knowing what's involved.
  • Translate the recent Medicaid reforms into the day-to-day practice skills you'll need to advise your clients.
  • Understand limitations on Medicare, long-term insurance and HMO coverage so your clients can plan for uncovered expenses.

Who Should Attend

This basic level seminar is designed for those who need to stay current on the latest in Medicaid law and practice, including:

  • Attorneys
  • Accountants
  • Insurance Professionals
  • Nursing Home Administrators
  • Paralegals

Course Content

  • State and Federal Medicaid Laws Update
  • Qualifying Clients for Medicaid and Medicare Benefits
  • Planning Tips and Traps
  • The Medicaid Application and Appeals Process
  • Understanding Medicare Parts A Through D, Veterans' Benefits and the Impact on Medicaid Benefits
  • Limitations on Medicare, Long-Term Insurance and HMO Coverage
  • Medicaid Estate Recovery

May 12, 2019 in Conferences & CLE, Current Affairs, Disability Planning - Health Care, Estate Planning - Generally, Income Tax, New Legislation | Permalink | Comments (0)

Many Americans Will Need Long-Term Care. Most Won’t be Able to Afford It.

LtcIn an annual survey conducted by Genworth, the average cost of a 1-bedroom apartment in an assisted living facility in Oklahoma is $3,425 per month, and is expected to increase to $4,600 in the next decade. For Gretchen Harris, 72 of Norman, Oklahoma, this may not be feasible. She currently makes $4,600 on her pension and Social Security, and even if she sells her beloved home, the cost of getting older may be too much for her.

This is the fear of many in middle America. They make too much to qualify for Medicaid but do not make enough to pay the extravagant costs of long-term care, an industry that often caters to well-off individuals. A recent analysis in Health Affairs, pointedly titled “The Forgotten Middle,” defined middle-income Americans from the 41st to the 80th percentile in terms of financial resources and investigated home many of these American seniors will be caught in that terror.

By 2029, approximately 14.4 million people will fall into the middle-income category, almost double the current number. 60% of these individuals will need canes, walkers or wheelchairs to remain mobile, the analysis estimated, and 20% will need extensive help with activities of daily living, such as bathing and dressing. These are better educated Americans that are not subject to poverty, but still may not be able to afford the care that they will depend on.

See Paula Span, Many Americans Will Need Long-Term Care. Most Won’t be Able to Afford It, New York Times, May 10, 2019.

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

May 12, 2019 in Current Affairs, Disability Planning - Health Care, Disability Planning - Property Management, Elder Law, Estate Planning - Generally | Permalink | Comments (0)