Wills, Trusts & Estates Prof Blog

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

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)

Wednesday, October 14, 2020

Healthy Life Insurance Policyowners Can Qualify for Life Settlements

ElderLife settlements are the sale of an unwanted or unaffordable life insurance policy for substantially more than the policy's cash surrender value. These settlements typically benefit seniors by "providing them with resources to help pay for health care costs, medical bills and other needs in retirement." 

Traditionally, for a policy to have value in a life settlement, the insured person would need to be in their mid-to-late 70s and have declined in health since the policy was first issued. Diabetes, heart disease, cancer, and other serious medical conditions were typically needed for the policy to be sold. 

However, now healthy seniors have an option to sell their policies in order to generate income. This income can then be used to invest in retirement plans or pay for healthcare and other future expenses. 

There are three criteria that a healthy senior need to meet in order to qualify for a life settlement:

  1. The policy must be a guaranteed universal life (GUL) policy.
  2. The insured typically must be age 75 or older.
  3. The policy’s death benefit must be at least $250,000.

If a policy owner meets these criteria and they can receive an offer without presented a medical record review or underwriting. 

This provides many benefits. For one, if policy premiums have become too expensive, seniors can receive a life settlement in order to stop paying these premiums. Also, the recent changes in estate tax laws have provided more investment opportunities that seniors can use a life settlement to take advantage of. This would give seniors more control and freedom with their assets. 

See Ted Kilkuskie, Healthy Life Insurance Policyowners Can Qualify for Life Settlements, Think Advisor, October 2, 2020. 

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

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

Wednesday, September 30, 2020

In Isolating Times, Can Robo-Pets Provide Comfort?

GrannyDue to the pandemic, many seniors have been cut off from their friends and family, and have been forced into isolation—alone. 

Charlene Spangler, who lives in a dementia care facility in California, told her daughter that she wanted a dog for her 92nd birthday. At one time she had a family dog named "Wolfgang" but because of her dementia, had a hard time recalling his death.

Charlene's daughter, Linda, used to visit her every other day in which she would push her around in a wheelchair to watch the ducks and pet dogs. 

Unfortunately, due to the pandemic, most of the activities that Charlene used to enjoy have been stripped away. Charlene and Linda are forced to communicate through video calls. 

Linda knew that she could not get her mother a dog, but she thought of an alternative. Linda had heard about robotic pets and decided to look them up. 

Linda decided to get her mom a fluffy robotic puppy, who Charlene named Dumbo. 

Apparently, COVID-19 has created a pique in interest of these robotic animals. Public money is even being used to purchase them. These robotic pets are not cheap, but due to the FDA referring to these robots as "biofeedback devices", Medicare will cover the expenses of the robot. 

Studies have shown that these fluffy robotic pets have decreased stress, anxiety, feelings of loneliness, depression, and more.

See Paula Span, In Isolating Times, Can Robo-Pets Provide Comfort?, N.Y. Times, September 27, 2020. 

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

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

Tuesday, September 29, 2020

Celebrity Estate Planning: Misfires of the Rich and Famous III

CelebrityWe tend to look at celebrities like they are supernatural, even immortal, which is probably why we are often shocked and confused when one of our favorite celebrities pass on. The truth is, like us, celebrities are normal people and like us, they often neglect estate planning. This is the truth despite the amount of attorneys and other representatives they have on their team. 

Discussed below are a couple of celebrity stories that will hopefully teach you a useful lesson on the importance of estate planning and the risks of avoiding the issue. 

Johnny Hallyday

You may know Hallyday as the "French Elvis." Hallyday died of lung cancer in December of 2017 at the age of 74. At the time of his death, Hallyday was married to his fourth wife when he passed and had adopted children as well as natural born children. 

Hallyday died with estate planning documents that had been executed in California that left his estate to Laeticia, his fourth wife and their two children upon her death. Hallyday's natural born children opposed this estate plan in French court arguing that French law should apply to Hallyday's estate. In 2019, a French court agreed with Hallyday's natural born children, finding that forced heirship applied. 

The lesson from this story is to make sure that your client knows exactly what they want and the emotional and financial battles that can result from certain estate planning decisions. 

In a like Hallyday's where the client may be able to choose their domicile, you will want to make sure you are clear as to which law will govern the estate. 

Stan Lee

Stan Lee is one of the creative minds behind Marvel. Lee died at the age of 95 in November of 2018. Despite his fame and contribution to the world, Lee was also subject to "predators who seek to take advantage of the elderly." Lee's estate was estimated at $80 million when he died. He was only survived by a daughter. 

After Lee's wife passed on, Lee was left without stable care and security. This lead to a battle between Lee's daughter and other people that had snaked their way into Lee's life. Lee realized that he had multiple people trying to manipulate him and steal his money and was forced to send out a "cry for help" in an affidavit. Luckily, one of these aforementioned snakes was arrested following an investigation by the Los Angeles Police. 

Lee had to spend his last months on this Earth protecting himself from elder abuse. If someone would do that to Stan Lee, you can bet your bottom dollar that they would do it to you too.

 

There are many, many more celebrity stories that shed light on the importance of estate planning and the risks associated with failing to do so. For more, 

See Jessica Galligan Goldsmith et al., Celebrity Estate Planning: Misfires of the Rich and Famous III, American Bar Association: Probate and Property, September/October 2020. 

September 29, 2020 in Current Events, Disability Planning - Health Care, Disability Planning - Property Management, Elder Law, Estate Administration, Trusts, Wills | Permalink | Comments (0)