Wills, Trusts & Estates Prof Blog

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

Wednesday, December 15, 2021

Article: Ministerial Acts

Estate planningRachel Leo recently published an article entitled, Ministerial Acts, Wills, Trusts, & Estates Law ejournal (2021). Provided below is the abstract to the Article. 

Cases sometimes describe some intermediaries as only acting ‘ministerially’. Mention of ministerial agents occurs in a wide range of different contexts. It has been used to refer to secretaries who merely physically deliver documents, an amanuensis who aids physically impaired individuals in signing documents, and stockbrokers who take specific instructions from clients in purchasing shares. Ministerial agency is also raised for different purposes. Sometimes, the question is whether the ministerial agent’s acts can be treated as the principal’s. It is also relevant to whether the purported delegation of ministerial acts contravenes the principle that delegated powers cannot be further delegated. Other questions concern whether the ministerial agent can be liable in conversion, for knowing receipt, or in unjust enrichment claims, or whether the ministerial agent owes fiduciary duties in respect of ministerial acts.

The aim of this paper is to investigate the concept of ministerial agency and its usefulness It focuses on three questions: (i) when does an intermediary act only ministerially?; (ii) is there a uniform conception of ministerial agency across different contexts and for different purposes?; and (ii) if not, should we be more precise in our usage of the term?

December 15, 2021 in Disability Planning - Health Care, Estate Administration, Estate Planning - Generally | Permalink | Comments (0)

Sunday, December 5, 2021

New California Law Eases Aid-in-Dying Process

DoctorsMany cancer patients have to undergo toxic treatment just so they can spend more time with their loved ones. For some, the toxic treatments kill the cancer and it never comes back. However, for Leslie—and many others—the cancer will make an aggressive return. 

After Leslie was diagnosed with breast cancer, she underwent toxic treatment so that she could spend more time with her husband and two young children. Although Leslie was cancer-free for 18 months, "the disease returned with a vengeance" and "fractured her bones and invaded her spinal canal, bathing her brain in malignancy." 

In her final months, Leslie was in constant pain and essentially withered away. According to Leslie's husband, Bernard J. Wolfson, the thought of ending her suffering by ending her life didnt even enter their conversations. 

Wolfson stated that he has been thinking about his wife's last days as he looks into California's End of Life Option Act, "which allows terminally ill patients with a life expectancy of less than six months to end their lives by taking medications prescribed by a physician." 

Amanda Villegas of Ontario, California, and an advocate for updating the original law which "contains numerous safeguards to ensure that patients are not being coerced by family members. . ." Under the original law, which remains in effect until January 1, patients who want to die must make two oral requests for the medications at least 15 days apart. 

According to Villegas, "[the new law] will open doors for people who might. . .experience the same roadblocks. . .[w]hen you are dying, the last thing you need is to go through bureaucratic barriers to access peace." 

See Bernard K. Wolfson, New California Law Eases Aid-in-Dying Process, KHN, December 3, 2021. 

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

December 5, 2021 in Death Event Planning, Disability Planning - Health Care, Estate Administration, Estate Planning - Generally | Permalink | Comments (0)

Thursday, August 26, 2021

Seeking Early Signals of Dementia in Driving and Credit Scores

AlzheimersLearning your odds of eventually developing dementia requires medical testing and counseling. However, everyday behavior may provide early warning signs of dementia. Examples of this everyday behavior include overlooking a couple of credit card payments, habitually braking while driving, and others. 

According to Sayeh Bayat, the lead author of a driving study funded by the National Institutes of Health and conducted at Washington University in St. Louis, "[e]arly detection is key for intervention, at the stage when that would be most effective." 

These efforts could help "identify potential volunteers for clinical trials, researchers say, and help protect older people against financial abuse and other dangers." 

Many once-promising dementia drugs have failed int rials, which researchers suggest may be due to the drugs being administered too late to be helpful. 

By identifying risks earlier, before the brain has sustained a great amount of damage, researchers could more easily find a pool of participants with "preclinical" Alzheimer's disease. Researchers could then test preventive measures or treatments.

See Paula Span, Seeking Early Signals of Dementia in Driving and Credit Scores, N.Y. Times, August 23, 2021. 

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

August 26, 2021 in Disability Planning - Health Care, Elder Law, Estate Administration, Estate Planning - Generally | Permalink | Comments (0)

Saturday, March 6, 2021

Article: Legislating Supported Decision-Making

Nina A. Kohn recently published an article entitled, Legislating Supported Decision-Making, Wills, Trusts, & Estates Law ejournal (2021). Provided below is the abstract to the Article. Estate planning

Supported decision-making is a process by which individuals who might otherwise be unable to make their own decisions do so with help from others. It has the potential to transform the lives of individuals with cognitive and intellectual disabilities by enabling them to function as legal actors, and not merely legal subjects. Fueled by this promise, by mounting concerns about guardianship, and by rhetoric surrounding the Convention on the Rights of Persons with Disabilities, states are rapidly adopting statutes that purport to enable and promote supported decision-making and advance the rights of persons with disabilities. This article shows how these statutes typically do neither. Rather, the statutes limit the rights of individuals with disabilities and place them at increased risk of exploitation. The article further shows that the wide gap between the concept of supported decision-making and its actual implementation in state legislation is the result of a confluence of political agendas, but that an alternative, person-centered approach is essential if supported decision-making is actually to empower individuals with disabilities. Finally, it outlines five concrete legislative approaches states could adopt—separately or in combination—to encourage supported decision-making that will actually advance the rights of persons with disabilities and reduce restrictive guardianships.

March 6, 2021 in Articles, Disability Planning - Health Care, Disability Planning - Property Management, Estate Planning - Generally, Guardianship, New Legislation | Permalink | Comments (0)

Thursday, March 4, 2021

Disabled Recipients of Stimulus Aid Are Urged to Save Some in Special Accounts

DisabledPeople with disabilities are being encouraged to put away some of their stimulus aid in special accounts in order to keep their funds safe. 

These special accounts are called Achieving a Better Life Experience (ABLE) accounts. These types of special savings accounts were introduced in 2016 as a vehicle for people with disabilities to achieve "greater financial security and more independence." 

By using ABLE accounts, disabled people "can save money in the tax-favored accounts without risking the loss of need-based government benefits, like health insurance or supplemental income." 

As of now, 43 states and Washington D.C. offer ABLE. Although these special accounts have been around for a few years, interest in the accounts as grown exponentially due to federal pandemic relief putting more cash in people's hands. ABLE advocates have begun to "spread the word" about the usefulness of saving some or all of stimulus check funds in these special accounts. 

Here are a few incentives, or benefits, of taking advantage of ABLE accounts by placing stimulus aid funds in them. 

  • People with disabilities often struggle financially and rely on federal aid, and cannot qualify for Medicaid or Supplemental Security Income if they have more than $2,000 in savings or other assets. These accounts help low-income disable people avoid this detriment. 

 

  • Stimulus payments are not considered income, meaning you can spend the money how you please. However, if the money isn't spent within 12 months, it will be counted against asset limits and could disqualify disabled people from benefits. If this money is deposited in an ABLE account, it will not be considered when counting toward the $2,000 cap. 

 

  • Disabled people can also used the ABLE accounts to save towards an apartment or a wheelchair-accessible car, not to mention many other necessities. 

In general, despite the low popularity of ABLE accounts in the last few years, they are becoming more and more useful, especially during the pandemic. 

See Ann Carns, Disabled Recipients of Stimulus Aid Are Urged to Save Some in Special Accounts, N.Y. Times, February 26, 2021. 

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

March 4, 2021 in Current Affairs, Disability Planning - Health Care, Disability Planning - Property Management, Estate Planning - Generally | Permalink | Comments (0)

Monday, December 14, 2020

In Life, She Defied Alzheimer’s. In Death, Her Brain May Show How

Alzheimers"A woman in Colombia with a rare genetic mutation recently made the ultimate dontation to science." 

Aliria Rosa Piedrahita de Villegas had a rare genetic mutation that made it almost certain that she would develop Alzheimer's disease in her 40s. However, she did not begin experiencing symptoms until the age of 72. On November 10, she died from cancer, but the good news is that her dementia was not significantly advanced at the time, 

Neuorology investigators from the University of Antioquia in Medellin. have been closely studying Villega's and her family members in attempts to learn more about early-onset Alzheimer's disease. They found that there were several people whose disease did not develop until their 50s or 60s, which is a later development than expected. 

Although there were several outliers, they say none were as "medically remarkable" as Villegas, whom they knew as doña Aliria. 

Aliria had traveled to Boston where investigators conducted nuclear imaging studies of her brain "as part of an ongoing study of this Colombian family, the largest in the world with genetic early-onset Alzheimer's." 

The investigation revealed that Aliria had exceptionally large quantities of amyloid beta, which is a protein normally found in Alzheimer's patients. The researchers found that "something had interrupted the usual degenerative process, leaving her day-to-day functioning relatively preserved." 

Researchers at Harvard Medical School stated that although Aliria "carried a well-known mutation, unique to Colombia, that causes early Alzheimer's, she also carried two copies of another rare mutation that appear to have thwarted the activity of the first one." 

If researchers can unlock the secret to why Aliria's brain was able to fight off Alzheimer's for so long, it would be a very important discovery and a huge step forward against Alzheimer's. 

See Jennie Erin Smith, In Life, She Defied Alzheimer’s. In Death, Her Brain May Show How, N.Y. Times, December 11, 2020. 

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

December 14, 2020 in Current Events, Disability Planning - Health Care, Elder Law, Estate Planning - Generally, Science, Technology | Permalink | Comments (0)

Tuesday, December 8, 2020

Article: What If Your Parrot Outlives You? Preparing for Your Bird’s Future

Gerry W. Beyer recently published an article entitled, What If Your Parrot Outlives You? Preparing for Your Bird’s Future, Wills, Trusts, & Estates Law journal (2020). Provided below is the abstract to the Article. Parrot

Dogs, cats, parrots, and other pet animals play significant roles in the lives of many individuals. The bond between a pet owner and his or her companion is strong. It is of vital importance to include pets when a pet owner makes plans for disability and death. This article provides an overview of the techniques a pet owner should consider when planning his or her estate with emphasis on parrots.

December 8, 2020 in Articles, Disability Planning - Health Care, Disability Planning - Property Management, Estate Administration, Estate Planning - Generally | Permalink | Comments (0)

Wednesday, November 25, 2020

How Covid-19 Will Change Aging and Retirement

Estate planningThe most recent Fall wave of COVID-19 continues to destroy lives and communities throughout the United States. The pandemic has also affected retirement and old age and how Americans deal with and plan for these things. 

Physician and entrepreneur Bill Thomas stated, "isolation of older people has long been a problem, but Covid is focusing attention on the issue and adding urgency" to address it. With rising government deficits and falling bond yields, there is a lot of uncertainty surrounding retirement and how to fund it. Thus, many people are continuing to work for as long as possible. 

However, innovations are on the rise. Laura Carstensen, director of Stanford University's Center on Longevity stated that people will begin to "rethink retirement altogether." In the wake of Covid, there has been more emphasis on mortality, causing us to consider how we want to live in die. 

It is likely that more people will age at home. Covid has cast the spotlight on long-term care facilities, revealing "how shockingly inadequate our care infrastructure and systems are." Innovation will hopefully provide better nursing homes and more resources for people to age at home. 

Also, innovation is aimed at older people due to the pandemic and the aging population. However, Covid-related lockdowns are likely to "reduce the life expectancies of those who avoid or survive the virus." 

New innovations will hopefully cause people to work longer, value life more, save more for retirement, embrace healthier lifestyles, and plan for death. 

See Anne Tergesen, How Covid-19 Will Change Aging and Retirement, Wall Street Journal, November 15, 2020. 

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

November 25, 2020 in Current Events, Death Event Planning, Disability Planning - Health Care, Disability Planning - Property Management, Elder Law, Estate Planning - Generally | Permalink | Comments (0)

Friday, October 30, 2020

Legal Considerations of Living Together in a Multi-Generational Home

HouseDue to COVID-19, many people have had to balance working remotely with caring for their children. That being said, many are using their homes as an office and a school, while also maintaining it as a home. 

The difficulty balancing, remote learning and homework, virtual meetings and work calls, and shopping, cooking and cleaning has created more housework. It is no surprise that wear and tear and stress levels have increased. 

Many are considering moving in with their parents or children are needing to consider the legal implications of doing so. When living with multiple generations, new considerations come into play. These considerations include,  "the burdens and the benefits of raising and teaching the children together, dividing the chores, maintaining the home, and pooling their finances together during this time of uncertainty."

Below are a  few initial questions that you should discuss with your family when considering living in a multigenerational home: 

  • Who is contributing to the purchase price?
  • Is it a gift, advance on inheritance, loan, or will they hold an ownership interest equal to their capital contribution? 
  • How do you equalize your estate to the remainder of your family?
  • What happens if a couple gets divorced?
  • Who has the right to reside in the home and how will the ownership be divided?
  • What happens if a parent must later reside in a nursing home for care?
  • Do they have sufficient assets in their name to pay for nursing care or will Medicaid look to his or her ownership interest in the home for payment?
  • If one of the owners dies, who receives his or her interest in the home?

With all of the uncertainty surrounding us, these questions are very important, and the answers even moreso. 

See Rebecca MacGregor, Legal Considerations of Living Together in a Multi-Generational Home, Bowditch & Dewey, Estate, Financial & Tax Planning Group, October 13, 2020. 

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

October 30, 2020 in Current Events, Death Event Planning, Disability Planning - Health Care, Disability Planning - Property Management, Elder Law, Estate Administration, Estate Planning - Generally, Estate Tax, Gift Tax, Guardianship, Trusts, Wills | Permalink | Comments (0)

Wednesday, October 21, 2020

Dementia deaths rise during the summer of COVID, leading to concern

"Deaths from dementia during the summer of 2020 are nearly 20% higher than the number of dementia-related deaths during that time in previous years, and experts don't yet know why."

Close to $61,000 people have died from dementia, a big jump from the usual $50,000 within that period. 

It is not clear why the dementia death tolls have risen, but Robert Anderson, chief of mortality statistics at the U.S. Centers for Disease Control and Prevention, stated that isolation caused by the pandemic has changed the lives of those battling dementia. 

There is a difference between social distancing and social isolation. Social isolation "leads to a sense of disconnection from the community." Unfortunately, caregivers have been forced to limit visits due to COVID-19. "Social isolation is a risk for poor health outcomes, particularly as people age. And in the U.S., 28% of those over 65 (13.8 million) live alone."

Socially isolated people also have higher rates of dementia, heart disease, high blood pressure, depression, cognitive decline and death. 

Further, the job of a caregiver for a family member with dementia is very difficult and the burnout rate is high. The job is difficult under normal circumstances, which makes it even more difficult in the unnerving times we are in now. Caregivers are also having to socially isolate themselves too, which just adds to the burden. 

Also, the access of medical care has been limited for those with dementia. 

One way to fight this awful plague is to understand your patients health goals and do the best you can to adhere to those goals.

See Laurie Archbald-Pannone, Dementia deaths rise during the summer of COVID, leading to concern, The Conversation, October 14, 2020.

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 21, 2020 in Current Events, Disability Planning - Health Care, Elder Law, Estate Planning - Generally | Permalink | Comments (0)