Wills, Trusts & Estates Prof Blog

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

Thursday, April 9, 2020

The Remote Witnessing of Estate Planning Documents During the COVID-19 Pandemic

DigitalGovernor Andrew Cuomo has signed various executive orders to address the issues faced by the state of New York and its residents during these unprecedented times as the country deals with the COVID-19 pandemic. On April 7, 2020, the Governor issued Executive Order 202.14 which modifies the laws concerning numerous documents pertaining to a person's estate plan.

The act of witnessing for the execution of certain instruments that is required under state laws is authorized to be performed utilizing audio-video technology. Those instruments include:

  • Last will and testament 
  • Lifetime trust
  • Statutory gifts rider to a statutory short form power of attorney
  • Real property instruments
  • Health care proxies
  • Instrument to direct the disposition of a person’s remains upon their death

See Cheryl L. Erato, The Remote Witnessing of Estate Planning Documents During the COVID-19 Pandemic, nyestatelitigationblog.com, March 8, 2020.

Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) and Ira Bloom (Justice David Josiah Brewer Distinguished Professor of Law, Albany Law School) for bringing this article to my attention.

April 9, 2020 in Current Affairs, Current Events, Death Event Planning, Disability Planning - Health Care, Estate Administration, Estate Planning - Generally, New Legislation, Technology, Trusts, Wills | Permalink | Comments (0)

Wednesday, March 25, 2020

CLE on Medicaid: Qualifying Clients for Immediate Care and Protecting Assets

CLEThe National Business Institute is holding a webcast entitled, Medicaid: Qualifying Clients for Immediate Care and Protecting Assets, on Friday, April 17, 2020 at Central: 9:00 AM - 4:00 PM. Provided below is the description of the event.

Program Description

Helping Clients Secure Nursing Home Coverage Without Destroying Family Assets

Medicaid planning is most effective when done ahead of time. Sadly, most clients seek help when the need for nursing home is urgent or when the loved one is already in the facility. Do you have all the tools at your disposal for tackling such tough cases? This practical guide zeroes in on the very techniques that work in the crisis situations - when the penalty period is already triggered or care is already being provided. Learn what asset transfer approaches are still available and how to make certain to protect family assets. Help clients make the best of a tough situation. Register today!

    • Clarify what types of asset transfers will NOT trigger penalty periods of ineligibility.
    • Get all the tools you need to provide for the spouse staying in the community.
    • Draft caregiver agreements that are sure to qualify for Medicaid compensation.
    • Learn what can still be done with an adverse Medicaid decision.
    • Protect the family home with techniques tailored to specific family dynamics and circumstances.

Who Should Attend

This Medicaid planning guide is designed for attorneys. It will also benefit nursing home administrators, accountants, geriatric care managers, care coordinators, social workers and paralegals.

Course Content

    • What Happens in an Emergency Medical Situation
    • Asset Purchase and Transfer Strategies
    • How to Transfer a Residence
    • Using Promissory Notes to Help Clients Currently in the Nursing Home
    • Life Care Contracts Between Parents and Children
    • Contesting Denial of Benefits, Penalty Period Dates and Other Adverse Medicaid Decisions
    • Providing for the Community Spouse
    • Legal Ethics in Medicaid Practice
    • Emergency Medicaid for Non-Qualified Non-Citizens and Undocumented Individuals

March 25, 2020 in Conferences & CLE, Disability Planning - Health Care, Disability Planning - Property Management, Elder Law, Estate Planning - Generally, Professional Responsibility | Permalink | Comments (0)

Thursday, March 19, 2020

Coronavirus Trusts? Suddenly Estate Planning More Popular Than Stockpiling Food as Advisors Arrange Wills and Trusts for Elderly Clients

CovidThe global pandemic of COVID-19 has numerous people thinking a question they have refused to face - what if? But now that they are, they are now also facing their own mortality, and realizing that they do not have the basic estate planning documents.

To protect yourself and your loved ones, now's a good time to make sure that you have the following four documents prepared and updated.

  • A will or revocable trust.
    • Many people choose a trust for the passage of assets to loved ones at death without the need for probate, but others can choose a will, especially those that have modest estates.
  • Beneficiary designations on financial accounts.
    • Many assets do not pass through a will or trust, such as an IRA, 401(k) account, or life insurance policy, and instead the proceeds go to the person you name as beneficiary of that account.
  • Healthcare durable power of attorney.
    • A durable power of attorney for healthcare will give the person you designate as your agent the ability to make the medical decisions you specify on your behalf. Check with your healthcare provider to see what they prefer to see in a healthcare power of attorney to ensure a smooth transition if you become incompetent.
  • Financial durable power of attorney.
    •  In the chance that you become incompetent, financial responsibilities continue. You can tailor your financial power of attorney as narrowly or broadly as you want, ranging from simply being able to pay bills on your behalf to making major changes to your investment portfolio.

See Roland McMillian, Coronavirus Trusts? Suddenly Estate Planning More Popular Than Stockpiling Food as Advisors Arrange Wills and Trusts for Elderly Clients, Wealth Advisor, March 17, 2020.

Special thanks to Jerry Cooper (Wealth Advisor) for bringing this article to my attention.

March 19, 2020 in Current Affairs, Disability Planning - Health Care, Disability Planning - Property Management, Estate Administration, Estate Planning - Generally, Trusts, Wills | Permalink | Comments (0)

Wednesday, March 11, 2020

The Limits of Dementia Treatment in Primary Care

DementiaA survey conducted through Alzheimer’s Association showed that Half of primary care physicians say their field is not prepared to handle the increasing number of people with dementia they expect to be treating in the next five years. Currently 40% of primary care physicians say they are “never” or only “sometimes comfortable” diagnosing dementia, which does not bode well as the population with dementia grows.

Also, 27% of the physicians that participated in the survey said that they are uncomfortable answering questions from patients pertaining to dementia, but in fact, most of the physicians said they received only “very little” training on dementia in their residencies.

See Shraddha Chakradhar, Flattening the Covid-19 Curve, Primary Care Physicians on Dementia, & the Pulsating Brain, STAT Morning Rounds, March 11, 2020.

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

March 11, 2020 in Current Events, Disability Planning - Health Care, Elder Law, Estate Planning - Generally, Science | Permalink | Comments (0)

Thursday, March 5, 2020

Nearly Half of CPA Advisors See Dementia in Some Clients

CpaThe American Institute of Certified Public Accountants (AICPA) has released their Personal Financial Planning (PFP) Trends survey this week and it sheds light on planning for cognitive decline is not following the trend of increased awareness. 28% of CPA planners say their clients plan to deal with diminished mental capacity in retirement on a reactionary basis, and 20% are ignoring the issue altogether, according to the survey. Unfortunately, nearly half - 48% - of all CPA financial planners reported they had a client exhibit signs of dementia or diminished capacity for the first time in the past year alone.

92% of CPA planners that do address client cognition ensure that powers of attorney and health-care proxies are in place, while 66% arranged for themselves to contact their client’s other professionals and relatives. “Managing cognitive decline is difficult for the client, their family and the CPA financial planner,” said Susan Tillery, chair of the AICPA’s PFP Executive Committee. “At times such as this, it is essential to be proactive by having a plan in place to deal with the financial demands of long-term care and other medical expenses associated with diminished capacity." 

Financial abuse and fraud is an apparent plague for older clients, with phone or internet scams, the inability to say no and identity theft as the most common. The emotional toll of being scammed was larger than the financial toll for their clients according to the CPAs. “Everyone is vulnerable to financial abuse and exploitation. However, the elderly are highly susceptible because companionship is an enticing allure for them. This can be due to the disintegration of the traditional nuclear family, death of spouse or friends, and the isolation that accompanies declining health,” Tillery said.

See Tracey Longo, Nearly Half of CPA Advisors See Dementia in Some Clients, Financial Advisor, March 4, 2020.

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

March 5, 2020 in Current Affairs, Disability Planning - Health Care, Disability Planning - Property Management, Elder Law, Estate Planning - Generally | Permalink | Comments (0)

Saturday, January 18, 2020

Rich People Don’t Just Live Longer. They Also Get More Healthy Years.

SandtimerPaola Zaninotto, a professor of epidemiology and public health at University College London, was a lead author a recent study published in The Journals of Gerontology: Series A. The study showed that the wealthy live longer and also have eight to nine more healthy years after 50 than the poorest individuals in the United States and in England.

The study analyzed data two existing data sets containing more than 25,000 people over 50. Instead of income, the study defined wealth as the person's financial assets such as their home and possessions, minus their debts. For Americans, the average wealth was $29,000 for the poorest group, $180,000 for the middle group and $980,000 for the richest group, Dr. Zaninotto said.In both countries, wealthy women tended to live 33 disability-free years after age 50 and wealthy men 31 disability-free years, while those that were poor eight to nine years less healthy years.

Race, social class and education level did not have any measurable effect on the results, but wealth did. “More wealth means it’s easier to get to your appointments and access additional services that would not be available to people with less,” said Dr. Corinna Loeckenhoff, who was not involved in the study and is the director of the Healthy Aging Laboratory at Cornell University. But there are other factors to consider in one's longevity, such as a healthy diet, exercise, and reducing stress. The researchers had previously found that older Americans tended to be less healthy than older Britons, largely because of obesity.

See Heather Murphy, Rich People Don’t Just Live Longer. They Also Get More Healthy Years., New York Times, January 16, 2020.

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

January 18, 2020 in Current Affairs, Disability Planning - Health Care, Estate Planning - Generally | Permalink | Comments (0)

Thursday, January 16, 2020

Dying in the Neurosurgical I.C.U.

BrainscanWhen a doctor diagnoses a patient with brain death, no matter what a doctor does, the organs and rest of the body inevitably follows. But when an injury is devastating to the brain but has not incurred in becoming brain dead, the decisions of the physician as well as the family of the patient can be much more difficult.

Often times inconsistent communication and support between medical staff members and families exacerbate the situation. A new field, neuropalliative care, seeks to focus “on outcomes important to patients and families” and “to guide and support patients and families through complex choices involving immense uncertainty and intensely important outcomes of mind and body.” Together, family members and neuro-I.C.U. caregivers can agree on the appropriate action when the patient has not provided a legal document dictating their wishes, including transitioning the patient to comfort care and allowing the patient to die.

Doctors often think it is most important to be precise and not make mistakes; to predict the future and provide patients and their families with medical certainty. But usually connection and empathy are far more important than certainty. Patients and families want to know that the physicians care about them and that they appreciate their pain in difficult circumstances.

See Joseph Stern, M.D., Dying in the Neurosurgical I.C.U., New York Times, January 14, 2020.

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

January 16, 2020 in Current Affairs, Disability Planning - Health Care, Estate Administration, Estate Planning - Generally, Science | Permalink | Comments (0)

Sunday, January 5, 2020

Older People Need Geriatricians. Where Will They Come From?

GeriatricsAs the population of the country ages, the need for geriatricians - doctors that specialize in caring for the elderly - also increases. Geriatrics became a board-certified medical specialty only in 1988, and though the demand for this type of physician is getting higher, the supply of them unfortunately is not. The number of fellowships that train geriatricians has not increased by much and therefore is virtually stagnant.

A federal model estimates that one geriatrician can care for 700 patients with complicated medical needs. Following this guideline, the country will need 33,200 of these doctors by the year 2025, and currently America has 7,000 - half of which do not practice full time.  It is estimated that 30% of Americans over the age of 65 needs a geriatrician, especially those that suffer from 3 or more chronic conditions and have reached the age of 85. Geriatricians earn on average $233,564 a year, much less than what anesthesiologists, radiologists, and cardiologists are compensated. This may be due to Medicare paying less than traditional insurances and often slower pay outs.

A miraculous influx of doctors specializing in geriatrics is highly unlikely, and thus geriatricians are taking an alternative approach. Dr. Mary Tinetti, chief of geriatrics at the Yale School of Medicine, says that the "most important thing geriatricians can do is make sure all their other colleagues” understand these patients’ needs, she said, including nurse-practitioners, physician assistants, therapists and pharmacists. Currently cardiologists and oncologists often focus on older patients. The Senate Committee on Health, Education, Labor and Pensions voted to reauthorize a $41 million program that educates health professionals in geriatrics just last month and is awaiting a floor vote.

See Paula Span, Older People Need Geriatricians. Where Will They Come From?, New York Times, January 3, 2020.

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

January 5, 2020 in Current Affairs, Disability Planning - Health Care, Estate Planning - Generally, New Legislation | Permalink | Comments (1)

Friday, December 27, 2019

Alzheimer’s Tests Soon May Be Common. Should You Get One?

AlzThough doctors could determine that a person had Alzheimer's disease by particular symptoms, a formal diagnosis could not be performed until examining the brain during an autopsy. This may be a thing of the past, with two diagnostics tests on the horizon - a blood test that can detect the protein beta amyloid and a brain scan that can detect the protein tau.

These types of diagnostic testing may become more widespread, and with proteins developing on a person's brain before symptoms of the disease appear, a diagnosis can be formed before a patient develops Alzheimer's most feared symptom - dementia. A positive test could help a person get their affairs in order and form a plan for their future. And a drug company, Biogen, claims to have the first treatment that may slow the course of the disease if begun early enough. But how would knowing that one day you may not recognize any of your loved ones affect your choices today? Medical insurance companies are banned from denying coverage for patients with Alzheimer's diagnoses, but nothing is stopping long-term care insurers or even life insurers from denying them.

Dr. Daniel Gibbs, 68, a neurologist in Portland, noticed little slip ups in his memory and decided to get brain scans for beta amyloid and partake in cognitive tests. He was diagnosed as being in the early stages of Alzheimer's disease, and now has severe worries about his future, going so far as telling his family that if he gets something like pneumonia, they should withhold treatment. 

See Gina Kolata, Alzheimer’s Tests Soon May Be Common. Should You Get One?, New York Times, December 20, 2019.

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

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

Monday, December 2, 2019

Article on How Reliant are Older Americans on State and Local Government Pensions?

PensionPhilip Armour, Michael Hurd, &Susann Rohwedder  recently published an Article entitled, How Reliant are Older Americans on State and Local Government Pensions?, Elder Law eJournal (2019). Provided below is an abstract of the Article.

State and local government pension plans cover about 19.5 million participants, and many participants are heavily reliant on these pensions for retirement income. Most of these plans, however, are underfunded. Based on data from the Health and Retirement Study, we examined the lifetime work histories of those observed at ages 67 to 72 in 2004, 2008, or 2014. Seventy-seven percent of single persons and 61 percent of couple households had never worked for state or local (S&L) government. Among those single and couple households who did work for S&L government, we found that they have on average more years of education and more economic resources. Among currently retired and near-retirement households, we compared economic preparation for retirement according to their lifetime employment in the S&L sector, and we examined how economic preparation would be affected if pension benefits were cut. Based on stochastic simulations, which account for uncertainty about length of life and out-of-pocket medical expenditures, we found that economic preparation for retirement among those with S&L government work histories would only be modestly reduced if their pension income were cut. Under a 50 percent cut to all pension income of households with any S&L sector work, only an additional three to four percent of these households would no longer be prepared for retirement. The change is modest because households with S&L employment have better preparation than other households; some of the cuts are paid for by reduced taxes; and the affected households will bequeath less.

December 2, 2019 in Articles, Current Affairs, Disability Planning - Health Care, Disability Planning - Property Management, Elder Law, Estate Planning - Generally | Permalink | Comments (0)