Wills, Trusts & Estates Prof Blog

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

Saturday, January 12, 2019

Article on Elder Law Issues and Recent Developments 2018

ElderlawElizabeth Ruth Carter recently published an Article entitled, Elder Law Issues and Recent Developments 2018, Wills, Trusts, & Estates Law eJournal (2018). Provided below is an abstract of the Article.

These CLE materials provide an overview of the recent developments in Elder Law that occurred between 2017-2018. Topics include legislative and jurisprudential developments in consumer protection, crimes against the elderly, mandate and interdiction, and medical law changes. Attention is also given to the Tax Cuts and Jobs Act.

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

CLE on Elder Law and Medicaid Planning: Everything You Need to Know

CLEThe National Business Institute is holding a 2-day conference entitled, Elder Law and Medicaid Planning: Everything You Need to Know, on Wednesday, April 17, 2019 - Thursday, April 18, 2019 at Capital Center Property LLC in Indianapolis, Indiana. Provided below is a description of the event.

Program Description
Everything You Need to Know to Represent Elderly Clients
Rising medical costs, health insurance changes, and looming Social Security Fund depletion have intensified concerns over long-term care funding. Are you doing everything you can to help each client develop a comprehensive plan to ensure proper quality of life in the golden years? Join our expert faculty for two days of intensive study on planning and coordinating government benefits, and emerge better prepared to face the challenges of today's Medicaid and elder law practice. Register today!

  • Get two full days of estate planning training, so you can help clients protect assets and qualify for continuing care benefits.
  • Review medical and financial Medicaid eligibility criteria in detail.
  • Explore new continuing care options that allow for more independence.
  • Get solutions to real-life ethical dilemmas often faced in elder law practice.
  • Qualify eligible clients for veteran's benefits and maintain your VA accreditation.
  • Plan for the tax consequences of asset transfers on spenddown requirement compliance.
  • Minimize Medicaid estate recovery through intricate understanding of the process.
  • Make better use of special needs trusts.

Who Should Attend
This basic-to-intermediate level, two-day seminar is designed for attorneys. It may also be of value to estate and financial planners, trust officers, paralegals, accountants, tax professionals and nursing home administrators.

Course Content

DAY 1

    • Long-Term Care Planning: Types, Cost, and Funding Options
    • Tax Considerations
    • Powers of Attorney
    • Medical and End-of-Life Decisions
    • Medicaid Benefits and Eligibility Rules
    • Preserving Family Assets When Qualifying for Medicaid
    • Medicaid Application Procedure and Tactics

DAY 2

    • Obtaining Veteran Benefits
    • Special Needs Trusts: Creation, Taxation, Administration
    • Medicaid Post-Eligibility Issues
    • Coordinating Benefits and Other Income Sources
    • Liability/Litigation Issues in Elder Law
    • Ethical Dilemmas

January 12, 2019 in Conferences & CLE, Disability Planning - Health Care, Disability Planning - Property Management, Elder Law | Permalink | Comments (0)

Thursday, January 10, 2019

Dementia May Never Improve, but Many Patients Still Can Learn

DementiaDr. Linda Clare, a clinical psychologist at the University of Exeter, directed a recent trial of cognitive rehabilitation in England and Wales. She has been studying cognitive rehabilitation and it evolved out of methods used for patients with brain injuries. The trial found that this therapy can help patients with dementia learn and preserve everyday tasks that they are struggling with.

Dr. Clare emphasizes that the therapy cannot reverse dementia and patients with not score higher on mental ability tests. But it can improve their capacity to perform the activities that they have decided will help them manage themselves. Those improvements persist over months, perhaps up to a year, even as participants’ cognition declines in other ways.

As pharmaceutical methods have failed, cognitive rehabilitation may be the future for many patients struggling with the illness. A smaller trial of cognitive rehab by Belgian researchers found that patients with early Alzheimer’s disease remained better able to do their chosen activities after a year. In the United States, Dr. Laura Gitlin, dean of the College of Nursing and Health Professions at Drexel University, has developed something called the Tailored Activity Program (T.A.P.). It is a similar therapy with the goal of reducing the troubling behaviors that can accompany dementia, such as repeated questions, wandering, rejecting assistance, verbal or physical aggression. A pilot study found that with T.A.P., the frequency of such behaviors decreased compared to a control group

See Paula Span, Dementia May Never Improve, but Many Patients Still Can Learn, New York Times, January 4, 2019.

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

January 10, 2019 in Current Affairs, Disability Planning - Health Care, Elder Law, Estate Planning - Generally, Science | Permalink | Comments (0)

Wednesday, January 9, 2019

Estate Planning Resolutions For 2019: How to be a Grown-Up in The New Year

WilltestamentNew Year, New Me! That seems to be the mantra for many people when January rolls around, coming up with redundant resolutions. But this year, a resolution that could be resourceful and highly beneficial would be to get a head-start of this perennial to-do list:

  • Write a Last Will and Testament:
    • Every person over the age of 18 should have this document to lay out the disposition of your assets and the guardianship of your children in the event you die.
  • Make a Power of Attorney:
    • This can include the power to bank, file taxes, and even sell and purchase real estate on behalf of another individual.
  • Execute a Health Care Proxy:
    • It is vital in this day and age to make your wishes known to your appointed agent, including your preferences for care in the event you suffer from a terminal illness with no chance of survival
  • Purchase a Life Insurance Policy:
    • This is not for you but for your family and loved ones after you pass away, making it easier financially for them.
  • Check Beneficiary Designation Forms:
    • Make certain that a proper beneficiary or secondary beneficiary is designated for all accounts, including retirement or insurance accounts.
  • Consider Long-Term Care and Disability Insurance:
    • If the unexpected occurs, this type of policy can supplement your income or pay a benefit toward home or nursing care.
  • Consult with a Financial Advisor:
    • The advisor may work together with your attorney to make certain you have a solid and comprehensive estate plan.
  • Talk to Your Parents and Grandparents About their Estate Plans:
    • When parents and children ultimately have to switch roles it is best to now what the older generation's wishes are.
  • Consider Burial Options:
    • Though it may be a morbid subject that you do not want to dwell on, it is a subject that needs to be discussed with your family.
  • Inventory Your Assets:
    • Take a survey of everything you own from real property, personal property, and intellectual property, and if there is a question as to rights of ownership, try to resolve them before those issues are passed on to your heirs.

See Cori A. Robinson, Estate Planning Resolutions For 2019: How to be a Grown-Up in The New Year, Above the Law, January 8, 2019.

Special thanks to Carissa Peterson (Hrbacek Law Firm, Sugar Land, Texas) for bringing this article to my attention.

January 9, 2019 in Current Affairs, Death Event Planning, Disability Planning - Health Care, Disability Planning - Property Management, Estate Planning - Generally, Wills | Permalink | Comments (0)

Friday, January 4, 2019

CLE on Ed Slott and Company's 2-Day IRA Workshop - Las Vegas 2019

Vegas1Ed Slott and Company's is holding a 2-Day IRA Workshop on February 22-23, 2019, in Las Vegas, Nevada. Provided below is a description of the event.

Your target market's demographics preview an overflow of new business opportunities:

  • IRAs are the nation's largest retirement account with $8.2 trillion in total nationwide assets ... and growing!
  • 2.5 million Baby Boomers turned age 70.5 last year ... can you imagine the influx of RMD questions coming your way?
  • 10,000 Boomers retire every day - many with large company retirement plans and no plan on how to best protect those assets

Instant IRA Success is your answer to capturing your share of this growing marketplace. Our educational IRA experience includes:

  • 400+ page course manual
  • Valuable CE credits
  • Client-saving Q&A opportunities with America's IRA Experts
  • A detailed analysis of the most recent tax law changes, case studies, private letter rulings, Congressional action and Supreme Court rulings to keep you on the cutting-edge of retirement, tax law and IRA distribution planning

January 4, 2019 in Conferences & CLE, Disability Planning - Health Care, Disability Planning - Property Management, Estate Administration, Estate Planning - Generally | Permalink | Comments (0)

Monday, December 17, 2018

New York woman claims a guardian was appointed for her even though not needed

GuardianPhyllis Funk, a 77 year old woman living in New York City, has a master's degree from Columbia University, a pilot license, used financial advisors in both New York and in Maine, and previously freelanced for the Times. But when she crawled under her covers after the 2016 election, she claims she just wanted to shut the world out for a bit of time. Funk says she was not suicidal, but depressed. But when the manager of her building tried to evict her for not paying her rent for months, Adult Protective Services stepped into her apartment in March, 2017, and she entered the world of adult guardianship.

In the eyes of New York States, Funk is considered an "incapacitated person" and unable to manage her personal and financial needs on her own. In the state, anyone can petition to have someone declared incapacitated. A judge may then appoint a family member or a third party, often a lawyer, to be guardian over the person’s physical needs, financial affairs or both. “It’s worse than incarceration,” she said. “At least in prison you have rights.”

In November, the United States Senate Committee on Aging called for a major overhaul in the guardianship system. The Committee is worried that some guardians have used their position over vulnerable people and then “liquidate assets and savings for their own personal benefit.” Funk says she should have hundreds of thousands of dollars to her name, mostly inherited from her parents, but that she has "no access to her accounts."

In a country that guarantees the right to life, liberty and the pursuit of happiness, at what point does a person forfeit the right to make bad decisions?

See John Leland, I'm Petitioning... for the Return of My Life, New York Times, December 7, 2018.

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

December 17, 2018 in Current Affairs, Current Events, Disability Planning - Health Care, Disability Planning - Property Management, Elder Law, Estate Planning - Generally, Guardianship | Permalink | Comments (0)

Monday, December 10, 2018

Cancer and Marital Status: Singles may get Less Aggressive Treatment than Married People

PillsThough you may have heard that married adults are more likely to survive cancer than singles, there is an aspect of that that has yet to make headlines: patients with spouses are more likely to get surgery or radiotherapy treatment.

When determining treatment, patients are often asked if they have adult children or spouses to help them cope and manage the side effects. A review of 59 studies based on the Surveillance, Epidemiology, and End Results Program (SEER), maintained by the National Cancer Institute, covering over 7.3 patients with 28 different forms of cancer showed reported significant differences in treatment rates between married and unmarried patients.

Unmarried patients were more likely to refuse, but the proportion was small. Of 278,015 unmarried patients whose physicians recommended surgery, 1,441 refused. For radiation, it was 1,055 out of 79,303. Conspicuously absent from these studies is any analysis of the physician's role in recommending treatment.

Psychiatrist Jonathan Metzl, author of "Prozac on the Couch," says doctors view stereotyping "as bad, something we're supposed to eliminate." But judgements are inherent to human nature, and even doctors are humans. "Frame the discussion in terms of what the patient actually needs, rather than focusing on whether it's provided by people in specific roles," says Susan Brown, co-director of the National Center for Family & Marriage Research. "Our whole system is built around traditional family roles, and that doesn't work for many people."

See Joan DelFattore, Cancer and Marital Status: Singles may get Less Aggressive Treatment than Married People, Chicago Tribune, December 3, 2018.

Special thanks to Naomi Cahn (Harold H. Greene Professor of Law, George Washington University School of Law) for bringing this article to my attention.

December 10, 2018 in Current Affairs, Disability Planning - Health Care, Elder Law, Estate Planning - Generally, Science | Permalink | Comments (0)

Tuesday, November 27, 2018

The Future of Aging Just Might be in Margaritaville

MargTimes are changing. The fastest growing age demographic in America is now between the ages of 85-94. People are living longer, having less children, and less immigrants are coming. The Census Bureau predicts by the year 2034, people over the age of 65 will outnumber those under 18 for the first time. This shift is evidence around the globe.

Senior citizen communities that are formed for reasons beyond religion, military, and failing health may be the secret to enjoying a person's golden years. The recently built Maragitaville in Daytona Beach, Florida, promises fun, sun, and camaraderie for those "55 and better." But it comes with a hefty $10,000 deposit and monthly expenses, which the majority of older Americans cannot afford. 30% of those 65 and older have an annual income below $23,000, according to a study by the Kaiser Family Foundation, and the least expensive house in Maragitaville is easily 10 times that.

But the change is still brewing: There are cruise ships and floating condos that cater to the wealthy; the Villages, outside of Orlando, has dozens of golf courses and feature enrichment programs; University of Arizona is developing a 20-story senior-living facility it calls “the world’s coolest dorm.” Can redesigning the physical environment where seniors live can redefine the way we experience aging itself? The mood of these facilities are vastly different. No more set times with drab cafeterias. Now there are come and go restaurants, delis, and take out joints is these communities, giving a level of freedom that was previously hidden away.

See Kim Tingley, The Future of Aging Just Might be in Margaritaville, New York Times, November 17, 2018.

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

November 27, 2018 in Current Affairs, Disability Planning - Health Care, Elder Law, Estate Planning - Generally, Music | Permalink | Comments (0)

Sunday, November 25, 2018

Who Can Set Up the ABLE Account?

Gavel-simpleABLE accounts were Congress via the passage of the Achieving a Better Life Experience (ABLE) Act in 2014 and allow people with disabilities to save for disability-related expenses while maintaining eligibility for government benefit programs such as Social Security and Medicaid. A person can save up to $15,000 per year and a maximum of $100,000.

But who can open an account for the disabled person? Family members? The parents? Or in certain circumstances, the disabled person? ABLE accounts can be set up either by the account beneficiary (the person with disabilities), or that person’s parent, legal guardian or another person with power of attorney. If the beneficiary is opening an account, they must be 18 years or old and have the cognitive ability to understand what they are doing.

One big hindrance, however: the disability must have begun before the age of 26. This excludes many individuals that have become disabled later life, whether by a physical accident, medical condition, or neurological disease. Both houses of Congress have the ABLE Age Adjustment Act in front of them, which would increase the age of onset from 26 to 46.

See Who Can Set Up the ABLE Account?, ElderLawAnswers.com, November 12, 2018.

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

November 25, 2018 in Current Affairs, Disability Planning - Health Care, Disability Planning - Property Management, Estate Planning - Generally | Permalink | Comments (0)

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)