Wills, Trusts & Estates Prof Blog

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

Saturday, May 16, 2020

Fearing Covid-19, Older People Alter Their Living Wills

CoronavirusMinna Buck, 91, had been following the craze surrounding COVID-19. Last month, Buck decided to revise a document specifying her wishes if she were to become critically ill. Buck's revision included the words, "No intubation" in big letters in order to make her wishes clear. 

Minna Buck was aware that she would likely not survive a serious infection like COVID-19, so she wanted to be sure that she would not be put on a ventilator under any circumstances. Buck, who lives in a continuing care retirement community in Denver, selflessly stated, "I don't want to put everybody through the anguish." 

For the older community, ventilators symbolize a lack of personal control as well as the power of technology. In other words, the fear of being put on a ventilators is a terrifying thought for these communities. This makes COVID-19 an even more terrifying thought, since respiratory failure is a signature symptom of the illness. The harsh reality is that those in their 80s or 90s, will not have a good chance of defeating the illness, even if put on a ventilator; and the risk is even greater for those who have underlying health conditions. 

Like Buck, Joyce Edwards, who is 61, also revised her advanced directive to state that she did not want to be put on a ventilator if she were to have COVID-19. Edwards said that she had her quality of life in mind when she made the decision and she felt that being placed on a ventilator would keep her from enjoying the things she loves most.

For the seniors, COVID-19 forces them to face these issues. Being placed on a ventilator can work one of two ways: One, the ventilator could help assist you in your uphill battle of recovery; or two, you could spend your last days hooked up to a machine that is essentially robbing you of your last days. The decision is yours!

See Fearing Covid-19, Older People Alter Their Living Wills, SFGate, May 9, 2020.

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

May 16, 2020 in Current Events, Disability Planning - Health Care, Elder Law, Estate Planning - Generally, Wills | Permalink | Comments (0)

Thursday, April 30, 2020

Remote Notarization Law Now Available in Massachusetts

WilltestamentThe number of states that have recently passed legislation to allow remote notarization for estate planning documents during the ongoing pandemic is quickly growing. Massachusetts is number 45 with Governor Baker signing the bill into law on April 27th.

There are certain guidelines that must be followed.

  • The allowance only lasts until three days after the end of the state of emergency, which has been extended to May 18th.
  • Only attorneys and paralegals under their supervision may notarize estate planning documents: wills, trusts, durable powers of attorney, and HIPAA releases.
  • All remote notarization sessions must be recorded and the recording saved for 10 years.
  • The notary must sign a supplemental affidavit verifying a number of facts, including that the person signing the documents and all the witnesses were in the state of Massachusetts.
  • The notarization is not effective until the notary receives and compiles all original signature pages, notarizes the document, and completes supplemental affidavit.

For the immediate future this is great news, but the question remains: why is this law not permanent? Also, why do all the witnesses need to be in Massachusetts? 

See Laura Goodman & Harry S. Margolis, Remote Notarization Law Now Available in Massachusetts, Margolis.com, April 28, 2020.

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

April 30, 2020 in Current Affairs, Current Events, Death Event Planning, Disability Planning - Health Care, Disability Planning - Property Management, Elder Law, Estate Planning - Generally, New Legislation, Wills | Permalink | Comments (0)

Do You Want to Die in an I.C.U.? Pandemic Makes Question All Too Real

Covid2Many older American's with chronic health issues, even if they have not contracted the novel coronavirus, are asking themselves a difficult question: if given the choice, would like want to die in a hospital's intensive care unit? Edo Banach, president of the National Hospice and Palliative Care Organization, recently had that conversation with his 69-year-old mother, Cheryl Goldman. She told her son that she would rather stay at home and receive hospice care instead of being admitted and being placed on a ventilator.

“It’s the kind of conversation everyone should be having with their loved ones,” Banach said. Depending on the source, one-third to two-thirds of Americans have not executed an advanced directive, which outlines what medical treatments they would accept or refuse and also designates a decision maker to act on their behalf if they become incapacitated. Many seniors and their families focus on do not resuscitate orders which deals with whether patients would want to be resuscitated after cardiac arrest. But advanced directives are the documents that involve the question of ventilation and intubation, which involves a tube inserted down the throat, connected to a ventilator that pushes air into the lungs. After an extended period of time on a ventilator - usually two weeks - doctors commonly perform a tracheostomy, creating a surgical opening in the windpipe that replaces the swallowed tube.

“After elderly people have been on a ventilator, they’ve often already developed physical debilitation, difficulty swallowing, bedsores,” said Dr. Kosha Thakore director of palliative care at Newton-Wellesley Hospital in Massachusetts. Further medical issues can be physical or cognitive or both, and are often permanent. Though the question may be hard to ask of loved ones, during these uncertain times it is becoming critical - "If you got really sick, would you want to take a chance and be placed on a ventilator? Or would you prefer to pass at home?"

See Paula Span, Do You Want to Die in an I.C.U.? Pandemic Makes Question All Too Real, New York Times, April 24, 2020.

Special thanks to Matthew Bogin, (Esq., Bogin Law) for bringing this article to my attention.

April 30, 2020 in Current Affairs, Disability Planning - Health Care, Elder Law, Estate Planning - Generally | Permalink | Comments (0)

Saturday, April 25, 2020

CLE on Primer on Life Insurance and Basic Structuring

CLEThe Section of Real Property, Trust & Estate Law of the American Bar Association is presenting a webinar entitled, Primer on Life Insurance and Basic Structuring, on Tuesday, April 28, 2020 at 1:00 pm - 2:30 pm EST. Provided below is a description of the event.

This fundamentals program will provide an overview of commonly used life insurance products and basic structuring to give planners the tools to advise clients who own or are considering purchasing a life insurance policy.

The topics covered will include:

    • Types of insurance products
    • Suitability
    • Taxation
    • Life insurance trusts in general
    • Considerations for life insurance trust trustees

Speaker include:

    • Bruce Tannahill, Mass Mutual, Phoenix, AZ
    • Melisa Seyhun, Merrill Lynch, Chicago, IL

April 25, 2020 in Current Affairs, Disability Planning - Health Care, Disability Planning - Property Management, Estate Planning - Generally, Income Tax, Trusts | Permalink | Comments (0)

Sunday, April 19, 2020

CLE on Electronic Wills: Recent Developments, State Legislation, the New Uniform Electronic Wills Act, and More

CLEThe American Law Institute is holding a webcast entitled, Electronic Wills: Recent Developments, State Legislation, the New Uniform Electronic Wills Act, and More, on Monday, April 20, 2020 at 1:00 - 2:00 pm Eastern. Provided below is a summary of the event.

Why You Should Attend

The “electronic wills” movement has become a hot topic in recent years and continues to stir debate while gaining cautious acceptance. Further, the Uniform Electronic Wills Act was recently approved by Uniform Law Commission and is now ready for consideration by the states. What is meant the term electronic will? What are the reasons behind this movement and what are the controversial elements associated with electronic wills?

What You Will Learn

Electronic wills are gaining wider acceptance as more states permit wills and other estate planning documents to be signed entirely electronically. Join us for a 60-minute webcast to find out the latest developments involving electronic wills, and the opportunities and risks associated with signing estate planning documents electronically.

Our faculty have been closely involved in the electronic wills movement for years and will discuss:

- Fundamental Elements of Will Statutes

- Factual Scenarios from Actual Electronic Will Cases

- Types of Electronic Wills

- Legal, Technological, and Market Factors Influencing the Electronic Wills Movement

- Legislative Activity in the United States

- The Uniform Electronic Wills Act

- How States are Responding to Proposed Legislation

- Perspectives on the Impact of Electronic Wills Movement on Professional Practices


All registrants will receive a set of downloadable course materials to accompany the program.

Who Should Attend
Estate planning and financial planning professionals will benefit from our experienced panelists’ insights as to where the law may be headed and how the electronic wills movement might impact their professional practice.

April 19, 2020 in Conferences & CLE, Current Affairs, Disability Planning - Health Care, Disability Planning - Property Management, Estate Planning - Generally, Technology, Wills | Permalink | Comments (0)

Friday, April 17, 2020

If Not Now, When? New Legislation Simplifies Estate Planning in the Time of Coronavirus

ElecNew Jersey has now joined many other states that have enacted laws to allow for digital or remote notarization of estate planning documents during the COVID-19 pandemic. Governor Murphy has signed legislation that was sought by the legal bar to allow real estate closing, estate planning, and other legal transactions to move forward while maintaining social distancing through electronic communications.

A will does not require a notary but does require two witnesses in New Jersey, but to make it a self-proving a notary is required, which means that the will can be admitted to probate without the witnesses needing to be tracked down to attest to the signing. Health care directives require either a notary or two witnesses, although it is standard procedure to have both. Powers of attorney must be notarized. Now neither the witnesses nor the notary have to remain six feet away, but rather can witness remotely through Facetime, Zoom, or any other video application.

See Shana Siegel, If Not Now, When? New Legislation Simplifies Estate Planning in the Time of Coronavirus, National Law Review, April 15, 2020.

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

April 17, 2020 in Current Affairs, Current Events, Disability Planning - Health Care, Disability Planning - Property Management, Estate Planning - Generally, New Legislation, Wills | Permalink | Comments (0)

During These Grim Times, Estate Planning Offers Peace of Mind

Covid2Due to the increased air of mortality because of the coronavirus pandemic, suddenly people are rushing to call estate planners and tax attorneys. “In recent weeks, I’ve gotten calls from people I haven’t heard from in 10 years,” Tom O’Rourke said. One of them was a healthy 85-year-old that wanted to ensure that their advance directive containing explicit instructions to not be placed on a ventilator was iron clad with no possibility of misinterpretation.

“All of a sudden, they turn on the TV at night and they see young people, old people, famous people, rich people, poor people, all kinds of people getting coronavirus,” he said. “And I think it strikes a chord with them and makes them realize that they’re not going to be around forever.”

The simple advice for this stressful time? Review everything. Make sure that the person or persons listed on your advance directive and medical power of attorney is someone in whom you have total confidence and who is geographically nearby. “The only thing you can be confident of is things are going to change,” O’Rourke said. “And things do change over time and that, many times, is when you need to revisit your estate plan.”

See Peter Musurlian, During These Grim Times, Estate Planning Offers Peace of Mind, Federal News, April 15, 2020.

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

April 17, 2020 in Current Affairs, Current Events, Disability Planning - Health Care, Estate Planning - Generally | Permalink | Comments (0)

Thursday, April 16, 2020

Will Your Health Care Wishes Be Followed?

AdvancedirectiveThis highly unprecedented time has put health decisions to the forefront of many people's minds. If you or a loved one is required to be hospitalized, one of the first questions asked will be whether there is a Medical/Health Care Power of Attorney or a Living Will, otherwise known as an Advanced Directive.

The Medical or Health Care Power of Attorney allows a person to name another individual, known as the agent, to make health care decisions if you are unable to do so due to becoming incapacitated. They may also speak to your health care providers for any health care needs or services that may arise. The Living Will or Advanced Directive details what kind of life-sustaining interventions you might want if you have a terminal condition or if you fall into an irreversible coma. This type of guidance can allow for continuous family harmony when tragedy strikes.

Many states have online sources for these documents, and several states have recently passed statutes allowing digital notarization.

See Lisa Paine, Beth Cohn and Stephanie Fierro, Will Your Health Care Wishes Be Followed?, JaburgWilk.com, April 13, 2020.

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

April 16, 2020 in Current Affairs, Disability Planning - Health Care, Estate Planning - Generally, Technology | Permalink | Comments (0)

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)