Wills, Trusts & Estates Prof Blog

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

Monday, November 11, 2019

Here’s a Way You Can Help Fight Alzheimer’s

AlzMicrosoft founder Bill Gates has become a prevalent advocate for Alzheimer's Disease in recent years, and believes that finding enough volunteers to participate in medical studies that will help us understand the disease better is a compounding problem. As the population ages, more and more individuals are suffering from this terrible condition. Nearly 6 million Americans are living with the disease today, and it is estimated that by 2050, the number could be as high as 14 million.

No new drug for Alzheimer's has been presented in over 15 years, in part due to the fact that clinical studies for the disease run 4 to 8 years compared to 1.5 years with studies for cardiovascular diseases. After the expensive process of diagnosing Alzheimer's, it is still difficult for a potential patient to enter into a clinical trial. 1 out of 10 people screened for certain types of Alzheimer’s trials will actually qualify, and 80% of do not meet their recruitment goals on time. So how can these issues be resolved?

  • Increase awareness of Alzheimer’s disease so patients start seeking help earlier in the disease’s progression.
  • Develop better diagnostics so that doctors can detect the disease sooner and help people enroll in the right clinical trials, including blood tests.
  • Raise awareness of—and  hopefully openness to—clinical trials among doctors and patients alike.

See Bill Gates, Here’s a Way You Can Help Fight Alzheimer’s, Gates Notes, November 5, 2019.

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

November 11, 2019 in Current Affairs, Disability Planning - Health Care, Estate Planning - Generally, Science | Permalink | Comments (0)

Tuesday, October 29, 2019

Preplanning for Medicaid Benefits - a Critical Step in Caregiving [Tennessee]

MedicaidIn Chattanooga, Tennessee, the cost of skilled care for chronic conditions such as Alzheimer's disease within a nursing home can run as high as $7,000 to $10,000 per month. If these numbers are seem daunting, one should start preplanning now for the possibility of turning to government benefits such as Medicaid.

The path towards Medicaid eligibility for long-term care is no walk in the park; regulation changes and clarifications, application forms, modernization of online portals, and other issues can be major pitfalls for any client. Here are some tips on how to navigate the path:

  • Learn about the basic benefits, resource limits, eligibility criteria, and evidence requirements at your state's government website
  • Gather important asset information (Medicaid has the right to know about the last five years, known as the look-back period)
  • If your assets or income exceed Medicaid's allowance, research appropriate ways to "spend down" without giving assets away or attempting to hide assets - make sure to only take advice from knowledgeable sources
  • Be aware that the most common reason for a denial of benefits is insufficient evidence

See Sally Brewer, Preplanning for Medicaid Benefits - a Critical Step in Caregiving, Chambliss Law, October 4, 2019.

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

October 29, 2019 in Current Affairs, Disability Planning - Health Care, Elder Law, Estate Planning - Generally, New Legislation | Permalink | Comments (0)

Sunday, October 20, 2019

CLE on Qualifying for Medicaid: Asset Purchase, Transfer, and Spenddown Tactics

CLEThe National Business Institute is holding a teleconference entitled, Qualifying for Medicaid: Asset Purchase, Transfer, and Spenddown Tactics, on Thursday, January 23, 2020 at 12:00 pm to 1:30 pm. Provided below is a description of the event.

Program Description

Complying With Lookback Requirements and Guarding Family Assets

Medicaid remains one of the major sources of funding long-term care. To help your clients afford assisted care without impoverishing their families, you need accurate information on the Medicaid eligibility rules and planning techniques. This practical legal guide will give you knowledge you can apply immediately. Register today!

    • Find new ways to qualify with the Medicaid spenddown requirements.
    • Learn common actions that trigger penalty periods and how to determine their duration.
    • Take full advantage of hardship waivers and monthly spousal allowance.

Who Should Attend

This Medicaid legal guide is designed for attorneys. It will also benefit accountants and paralegals.

Course Content

    • Medicaid Asset Limits and Excluded Assets
    • Prepayment of Qualified Expenses
    • The Lookback Period and Timing of Transfers
    • Calculating and Minimizing Penalty Periods
    • Hardship Waivers and Monthly Spousal Allowance
    • Other Planning Options
    • "Medicaid Pending" - What Can be Done When the Need for Nursing Home is Immediate

October 20, 2019 in Conferences & CLE, Current Affairs, Disability Planning - Health Care, Elder Law, Estate Administration, Estate Planning - Generally, New Legislation | Permalink | Comments (0)

Wednesday, October 2, 2019

Article on The Kindest (Tax) Cut: A Federal Tax Credit for Organ Donations

OrgandonationSally Satel & Alan D. Viard published an Article entitled, The Kindest (Tax) Cut: A Federal Tax Credit for Organ Donations, Tax Law: Tax Law & Policy eJournal (2017). Provided below is an abstract of the Article.

We discuss how to design a federal tax credit for organ donations that would help ease the pressing shortage of donated kidneys, saving thousands of lives and sparing many from dialysis.

October 2, 2019 in Articles, Current Affairs, Disability Planning - Health Care, Elder Law, Estate Planning - Generally, New Legislation, Science | Permalink | Comments (0)

The Longevity Files: A Strong Grip? Push-ups? What Actually can Help You Live to a Ripe Old Age

ExerciseThere are certain physical feats that can increase your chances of living a long life, including being able to perform 50 pushups, going from sitting on the floor to standing without the use of your hands, having an overall firm grip, or increasing your walking speed. But each of these skills have the message in the end: strength, nimbleness, and overall health.

Generally, fit people can walk faster, perform more pushups, and easily stand up from sitting cross-legged on the floor compared to a frail person. “There’s no question that exercise is the biggest anti-aging medicine there’s ever going to be — it’s really huge,” Gordon Lithgow says, chief academic officer at Buck Institute for Research on Aging. Michael Joyner, a physician and human physiology researcher at the Mayo Clinic, states that even just 10 to 15 minutes of exercise per day can be beneficial. The measurable benefits plateau after a person reaches an hour a day, meaning if they are exercising for longer than 60 minutes they are doing it for another reason other than longevity.

And exercise keeps your brain healthy, too. “Exercise has better effects on cognitive performance than sitting around playing brain games,” Stanford Center on Longevity founding director Laura L. Carstensen says. A 2006 study in Neuroscience found that exercise spurs the brain to release growth factors that promote new connections between neurons, contributing to the brain's health. There is even research suggesting that strength training can reverse some age-related changes in your muscles.

See Christie Aschwanden, The Longevity Files: A Strong Grip? Push-ups? What Actually can Help You Live to a Ripe Old Age, Washington Post, September 28, 2019.

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

October 2, 2019 in Current Affairs, Disability Planning - Health Care, Elder Law, Estate Planning - Generally, Science | Permalink | Comments (0)

Sunday, September 29, 2019

CLE on Medicaid: Maximizing Excluded Assets

CLEThe National Business Institute is holding a webcast entitled, Medicaid: Maximizing Excluded Assets, on Wednesday, November 6, 2019 at 9:00 AM - 4:00 PM Central. Provided below is a description of the event.

Effective Approaches to Medicaid Eligibility Planning
Satisfying the spenddown requirement to ensure your client qualifies for Medicaid is a tough balancing act. One of the most effective levers in this planning is to maximize excluded assets. This practical guide will give you the knowledge and skills you'll need to ensure your clients use all the tactics at their disposal to qualify for Medicaid as early as needed, without excessive burden on their families. From simple approaches like gifting to the more complex Medicaid trusts - learn what works and get sample documents to ensure all your approaches are implemented impeccably. Register today!

 

    • Get an updated overview of Medicaid resource and transfer eligibility.
    • Evaluate common planning techniques and when they are most (and least) effective.
    • Maximize purchase and prepayment methods without undue hardship for your clients.
    • Save drafting time with sample Medicaid trust provisions.
    • Review the application and appeals process to ensure compliance and maximize chances of success.
    • Gain effective asset transfer tactics when time is of the essence.

Who Should Attend

This Medicaid legal guide is designed for attorneys. It will also benefit accountants and paralegals.

Course Content

    • Medicaid Asset Eligibility: Commonly Overlooked Excluded Assets
    • Purchasing Excluded Assets, Prepayment of Future Expenses, and Converting Countable Assets: Top Tips and Techniques
    • Anticipating the Tax Consequences of Medicaid Planning
    • Addressing Assets in Application, Appeals, and Fair Hearings Process
    • Coordination with Other Asset-Based Benefits Eligibility
    • Using Trusts to Maximize Excluded Assets
    • Asset Transfers in Crisis Planning
    • Can You Prove to Medicaid that an Asset Transfer Should NOT be Penalized?
    • Legal Ethics in Medicaid Planning

September 29, 2019 in Conferences & CLE, Current Events, Disability Planning - Health Care, Disability Planning - Property Management, Estate Administration, Estate Planning - Generally, Trusts | Permalink | Comments (0)

Saturday, August 31, 2019

The Legal Dangers of Living Together

WeddingcakeAccording to the U.S. Census Bureau, the number of unmarried couples who 50 and over shot up 75% between 2007 and 2016. For many it is because they have already experienced one difficult divorce and are nervous to entangle themselves and their possessions again. But simply living together can end up being complex because estate planning laws were written to favor married couples.

If one partner has a medical emergency and has not executed a health care power of attorney, the other partner cannot make any decisions for them. They would be considered "legal strangers." If they were married, however, not having the document would not hinder the healthy partner from making appropriate choices. Unmarried couples also need to get signed HIPAA releases so medical information can be released to them. Death of one partner can also create more woes. Without the proper legal documents, the surviving partner won’t be entitled to make decisions regarding the donation of the deceased’s organs or arrange for the person’s burial or cremation.

When there is a financial imbalance and one partner has promised to take care of the other, with no trust or will in place can cause serious problems for an unmarried couple. If the wealthier one dies intestate, their assets will be distributed according to the intestacy laws of their state and an unmarried partner is not recognized as an heir. On the other hand, if they were married and died intestate in a community property state, the surviving spouse is automatically entitled to inherit as much as half the value of the deceased’s assets.

See Brad Wiewel, The Legal Dangers of Living Together, Next Avenue, August 28, 2019.

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

August 31, 2019 in Current Affairs, Disability Planning - Health Care, Estate Administration, Estate Planning - Generally, Intestate Succession, Non-Probate Assets, Trusts, Wills | Permalink | Comments (0)

Thursday, August 22, 2019

CLE on Estate Planning for Every Phase of Life

CLEThe National Business Institute is holding a webinar entitled, Estate Planning for Every Phase of Life, on Wednesday, September 11, 2019 at 12:00 PM - 3:15 PM Central. Provided below is a description of the event.

Advise Clients of All Ages with Confidence

Clients at each stage of life pose unique estate planning challenges that even the most skilled advisor may overlook. Are you prepared to address the concerns of individuals of all ages, from young parents considering a will for the first time, to retirees planning for long-term care? This program will provide you with practical guidance on how to apply fundamental planning techniques to your client's specific circumstances. Address the estate planning concerns of individuals at all stages with certainty - register today!

    • Provide your clients with peace of mind by establishing a plan for guardianship and custody of minor children.
    • Understand what estate planning documents need to be updated after a divorce.
    • Work with your clients to create a plan for charitable giving.
    • Help your aging clients understand what their adult children need to know about their parents' estate plan.
    • Review the essential documents needed at each stage of life.

Who Should Attend

This program is designed for attorneys. Accountants and paralegals may also benefit.

Course Content

    • Retirees: Planning for Long-Term Care and Grandchildren
    • Clients of Advanced Age
    • Essential Documents Needed at Each Stage of Life
    • Estate Plan for a Young Married Couple
    • Divorced and Remarried Clients
    • Clients with Charitable intent

August 22, 2019 in Conferences & CLE, Disability Planning - Health Care, Disability Planning - Property Management, Estate Administration, Estate Planning - Generally, Trusts, Wills | Permalink | Comments (1)

Thursday, August 8, 2019

Who’s Responsible for Your Parents’ Nursing Home Cost? It’s Not Who You Think

LtcThe cost of long-term care is an expense that many people are wary of planning for, mostly because they do not want to imagine themselves being incapacitated or needing extra medical care. But not only is long term care becoming more of a reality, but the financial aspect can impact a patient's child as well.

In some case, courts have enforced that children are liable for the nursing home expenses of their parents if a state has enacted a filial law. They are on the books in 28 states and can provide a powerful motivation to encourage clients to plan for their future long term care costs. One case saw a son held liable for $93,000 in nursing home costs for his mother, even though her Medicaid application remained pending and without regard to whether other potential sources of payment (including two other siblings) existed. Another newer case involved one son suing his brother to reimburse costs for their mother's around the clock in-home care.

Long term care itself has become so expensive that several insurance providers have stopped offering standalone long-term care insurance policies entirely. Hybrid products that combine long term care insurance with an annuity can relieve many anxieties because if the insurance is never used, a death benefit can still be paid out. Planning for the unexpected is always more beneficial than leaving it up to chance, and possibly the bills up to your children.

See William H. Byrnes & Robert Bloink, Who’s Responsible for Your Parents’ Nursing Home Cost? It’s Not Who You Think, Think Advisor, May 10, 2019.

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

August 8, 2019 in Current Affairs, Disability Planning - Health Care, Estate Planning - Generally | Permalink | Comments (0)

Tuesday, August 6, 2019

Comment on Losing Your Mind, Losing Your Rights?: A Certification Process to Safeguard Alzheimer's Patients and the Moving Target of the Lucid Interval

AlzKaitlyn C. Meeks recently published a Comment entitled, Losing Your Mind, Losing Your Rights?: A Certification Process to Safeguard Alzheimer's Patients and the Moving Target of the Lucid Interval, 44 U. Dayton L. Rev. 79-109 (2018). Provided below is an introduction to the Comment.

Picture this: you have awakened, on a seemingly normal day, to a drastic lifestyle change -- the care of your mother or father. You, the child, have now become the parent. Why has this happened? One, or perhaps both, of your parents was recently diagnosed with Alzheimer's disease ("AD"), rendering him or her incapable, in the eyes of the law, of maintaining complete and autonomous control over their life. The child is now the sole caretaker for the parent's health, safety, finances, well-being, and legacy. As the new primary caretaker for an ailing parent, your life has become overwhelmed with legalities -- Power of Attorney Forms, Health Care Directives, and Living Wills and Trusts. These stresses are in addition to the emotional effects as well as the financial and physical demands a caregiver is confronted with on a day-to-day basis.

Will you ever be able to see the parent you once knew again, or will the remainder of your parent's life be surrounded in a cloud of the unknown? And then, with no warning, it is as if nothing but time has changed, and there is a return to your loved one's true self. Yet, with the blink of an eye, the disease takes hold once again, and the moment of lucidity has vanished.

"Your brain is your most powerful organ[.]" However, it is exactly the powerhouse organ which is attacked when a person has a degenerative disease like dementia. Dementia is the collective name for a series of brain disorders which affect cognitive capabilities, generally worsening as time progresses. Alzheimer's disease ("AD") is the most common and prevalent form of dementia. Since AD was first discovered in 1901, our ability to treat and cure the disease has yet to encounter any significant medical breakthroughs.

"Every four seconds, someone is diagnosed with Alzheimer's Disease." Within the United States, someone develops the disease every sixty-six seconds. According to the 2017 annual report by the Alzheimer's Association, one in ten people over the age of sixty-five are currently living with the disease, and the data projects that the amount of people who will be affected by AD will double within the next thirty years as the baby boomer generation settles into the elderly population. The elderly and "oldest-old" populations are expected to account for nearly 80 million Americans by 2050.

AD primarily affects the elderly; however, the elderly, in general, are an age group which seems to traditionally be excluded from many research benefits, including financial resources. Perhaps this illuminates the reason why one of the most aggressive diseases in today's society has failed to be cured, halted, or even alleviated. While the fight against AD is not stagnant by any means, an inability to proactively address issues stemming from the disease will have adverse effects on numerous professions.

Examining the growth of the disease's prevalence, there is an inevitable chance of correlation affecting the legal system through capacity challenges pertaining to AD patients, both while alive and after death. While areas of capacity, have been argued, discussed, and critiqued throughout the years, it seems that no clear foundation or consensus on how to address these growing issues has been established. Undeniably, without clear visions, capacity issues with AD patients will only worsen, especially when taking into consideration it is not a "one size fits all" kind of disorder.

In consideration of capacity issues for those suffering from AD, brief, spontaneous moments of lucidity sets apart the legal complications of the disease from many other disorders. Both in the medical and legal sense, a lucid interval is defined as "[a] period of sanity intervening periods of insanity[,]" and is measured by its strength, in that "[i]t must be such a full return of his mind to sanity . . . enabling [a person] to understand and transact his affairs as usual." For a person with AD, especially an advanced state of the disease, a lucid interval may be the only time he or she is able to make decisions for him or herself, or to see that his or her wishes in place are being properly executed. Because of this, the lucid interval is a "moving target." There is simply no way to predict a lucid interval, and there is no way to confirm a lucid interval without awareness in the aftermath.
This Comment will examine the increasing importance of a more standardized approach for an attorney to take when counseling an AD patient. First, to set the scene, an in-depth examination of the disease is needed: what AD is, the history of the disease, the unsuccessful attempts to prevent or cure Alzheimer's, and its current and future impact on society and the economy. Second, this Comment will address the current state of AD within the courts. The focus will be on how AD is currently seen in a legal context and how the lucid interval is treated within the judiciary. In addition, a Puerto Rico statute, which seems to balance the rights of freedom to contract with the protections of the patient's current and future estate interests, creates an unattainable objective approach to balancing the lucid interval and AD.

Third, this Comment will examine the conclusions of prior and recent case law to demonstrate how the topic has been construed in various states, focusing on how the application varies within the judiciary. Lastly, the Comment will propose a certification process for attorneys who regularly assist as counsel to AD patients. The proposed course will certify any participating attorney as a "Certified Alzheimer's Legal Specialist" upon successful completion. A Certified Alzheimer's Legal Specialist would best be defined as an attorney who is substantially familiar with the disease itself, can fully comprehend the legal ramifications of the client's desired acts by taking the time to understand the condition as pertaining to the individual client, and can ultimately serve in the prime position to ensure that an individual possesses the requisite capacity mandated under the law. This standardized approach would serve as clear evidence that his or her client was within a lucid interval -- having adequate capacity -- at the time a document was executed. The attorney is then the party that both understands the legal ramifications and how those ramifications benefit the client. This will help to not only protect the rights of an AD patient's autonomy, but will ultimately help eliminate the inevitable flooding of the courts.

It is paramount to maintain objective standards when examining an AD patient's affairs, as opposed to the subjective standards that are currently employed, both in practice and throughout the judiciary. When particularly observing the influx of the baby boomers into the realm of Elder Law, this Comment's proposed certification process comes at the ideal time. Addressing these considerations, stricter procedures need to be enacted, and ideally, implemented and overseen by a governing legal association. This will ensure that an attorney for an AD client is able to execute a legally enforceable matter at that precise moment as a means to uphold the client's wishes as well as to protect against an almost certain rise in litigation that surrounds the future of this disease.

August 6, 2019 in Articles, Current Affairs, Disability Planning - Health Care, Elder Law, Estate Planning - Generally | Permalink | Comments (0)