Wills, Trusts & Estates Prof Blog

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

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)

Friday, November 16, 2018

Japanese Use Robot Animals to Comfort Elderly

NatgeoPhoto by @dguttenfelder | Mrs. Kotajima, age 100, Mrs. Uehara, 84, and Mrs. Shimizu, 92 share their elder care home with companion puppy and baby seal robots. The popular science fiction of many cultures depicts the rise of robots as an ominous threat. But the Japanese have long portrayed robots as friends and heroes and embrace humanoid robot technology. Increasingly, the Japanese are looking to robotic solutions for society's needs. On assignment for @natgeo in Tokyo.

See National Geographic, Instagram, November 11, 2018.

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

 

November 16, 2018 in Current Affairs, Disability Planning - Health Care, Elder Law, Estate Planning - Generally, Humor, Travel | Permalink | Comments (0)

Monday, November 12, 2018

Discussing the Issue of Aging Parents

DinnerThe recent changes in the tax law may induce several families to bring up the uncomfortable topic of aging parents this holiday season. But these types of conversations can offset the possibility of any unpleasant surprises in the future.

The decision will ultimately be up to the parents, but even if children are to be the ones that bring up the subject, preparation and research should be done beforehand. Durable power of attorney, health care agent and executor are all positions that have certain responsibilities and requirements. Each one should be discussed with family members or close friends, or if those parties are not acceptable (or they decline), other arrangements should be considered.

A frank discussion of parental assets may make it easier for children to understand the overall planning objectives and decision-making process. An understanding of parental assets can also help with long and short term planning, ranging from tax strategies and charitable giving to options in the event of a long-term care illness. The increase in the standard deduction many people will no longer itemize deductions, and the increased federal estate tax exemption of $11,180,000 may make some charitable donations obsolete - for tax benefit purposes. Beneficiaries may also benefit from a step-up basis for highly appreciated assets, thus saving in capital-gains taxes.

See Kristin Shirahama, Discussing the Issue of Aging Parents, Financial Advisor, November 6, 2018.

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

November 12, 2018 in Current Affairs, Disability Planning - Health Care, Disability Planning - Property Management, Elder Law, Estate Planning - Generally, Estate Tax, Gift Tax, New Legislation, Wills | Permalink | Comments (0)

Sunday, November 4, 2018

Article on Wrongful Living

AdvdirFredrick E. Vars & Alberto Lopez recently published an Article entitled, Wrongful Living, Wills, Trusts, & Estates Law eJournal (2018). Provided below is an abstract of the Article.

Executing an advance directive that specifies a patient’s wishes regarding end-of-life medical care is an exercise of self-determination – a conscious choice about the degree and type of medical intervention one wishes to receive under end-of-life circumstances. Empirical studies, however, consistently report that healthcare professionals fail to comply with advance directives; violations of a patient’s interest in self-determination are alarmingly common. From a practical perspective, the conduct of either patients or healthcare professionals may make an advance directive unavailable, which results in noncompliance. Legally, courts have historically rejected claims for “wrongful living” associated with the prolongation of life that results from unwanted medical intervention. As a result, healthcare professionals fear the liability threatened by a wrongful death claim more than the legal exposure risked by keeping an individual alive despite a contrary mandate in an advance directive.

In response to practical concerns regarding availability, this paper proposes the creation of a nationwide registry of advance directives and argues that sanctions for violations of professional responsibility as well as the risk of liability for legal malpractice encourage utilization of the proposed registry. To realign the skewed legal incentives, this paper argues that the compensable harms associated with battery and negligence claims filed in lieu of “wrongful living” claims should include the loss of enjoyment of life. Because damages for loss of enjoyment of life are rarely mentioned by courts or scholars in the context of violating advance directives, this paper describes loss of enjoyment of life damages and argues that such damages should be compensable in the same manner that tort law compensates for similar injuries that lack an objective market value. In combination, the practical and legal proposals incentivize compliance with an advance directive and thereby expand the protection afforded a patient’s interest in self-determination.

November 4, 2018 in Articles, Disability Planning - Health Care, Elder Law, Estate Tax | Permalink | Comments (0)

Saturday, October 20, 2018

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 December 4 - December 5, 2018 at the SpringHill Suites Pittsburgh Southside Works in Pittsburgh, Pennsylvania. 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, looming Social Security Fund depletion and baby boomers' retirement 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.
  • Find new LTC funding sources to help clients maintain the quality of life they're used to.
  • Get solutions to real-life ethical dilemmas often faced in elder law practice.
  • Qualify eligible clients for veterans 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
  • Estate and Financial Planners
  • Trust Officers
  • Paralegals
  • Accountants
  • Tax Professionals
  • Nursing Home Administrators

Course Content

DAY 1

  1. Long-Term Care Planning: Types, Cost, and Funding Options
  2. Tax Considerations
  3. Powers of Attorney
  4. Medical and End-of-Life Decisions
  5. Medicaid Benefits and Eligibility Rules
  6. Preserving Family Assets When Qualifying for Medicaid
  7. Medicaid Application Procedure and Tactics

DAY 2

  1. Obtaining Veterans Benefits
  2. Special Needs Trusts: Creation, Taxation, Administration
  3. Medicaid Post-Eligibility Issues
  4. Coordinating Benefits and Other Income Sources
  5. Liability/Litigation Issues in Elder Law
  6. Ethical Dilemmas

October 20, 2018 in Conferences & CLE, Disability Planning - Health Care, Disability Planning - Property Management, Elder Law, Estate Planning - Generally | Permalink | Comments (0)

Tuesday, October 9, 2018

Nursing Homes are Pushing the Dying into Pricey Rehab

NursinghomeThe University of Rochester published a study finding that nursing home residents who received “ultrahigh intensity” rehabilitation increased by 65% from October 2012 to April 2016, some even in their last week of life. Medicare defines “ultrahigh” therapy as more than 12 hours per week.

The study analyzed data from 647 New York-based nursing home facilities and 55,691 long-stay residents that had died, with a specific focus on those who received very high to ultrahigh rehabilitation services—including physical, occupational and speech therapy—during the last month of their life. Treatments categorized as such receive the highest payout from Medicare and other insurers.

Helena Temkin-Greener, the lead author of the study and a professor at the University of Rochester Medical Center Department of Public Health Sciences says that the findings raise questions on whether there is a financial reason rather than a medicinal one for those types of treatments. For-profit nursing homes were more than two times as likely to use high to ultrahigh intensity therapy than were nonprofit homes.

On the other hand, the study could be indicative that nursing home staff are failing to recognize when a patient is nearing the end of their life. “It is important for [skilled nursing facility] providers and their care teams to consider the risk-benefit of potential therapy interventions and dosage relative to the resident’s current health status,” said Daniel Ciolek, associate vice president of therapy advocacy at the American Health Care Association, which represents most of the country’s for-profit nursing homes.

See Riley Griffin, Nursing Homes are Pushing the Dying into Pricey Rehab, Bloomberg, October 9, 2018.

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

October 9, 2018 in Current Affairs, Disability Planning - Health Care, Elder Law, Estate Planning - Generally | Permalink | Comments (0)

Friday, September 28, 2018

What 'Succession' and Sumner Redstone can Teach us About Planning Ahead for Senior Care

SumnerFormer executive chairman of  Viaciom's Sumner Redstone,’s story was a key influence on the HBO hit series Succession, riveting the country with the litigious financial power struggle that has embroiled his family. Though the majority of clients may not have to worry about billions of dollars in assets, disagreements over money can and often do prevent families from making the appropriate choices about care.

Medicare, the primary insurer for 55 million older adults and people with disabilities, does not typically pay for long-term care services including nursing homes and in-home care. The majority of people don't have the financial resources to pay for the staggering costs senior care, but make "too much" to qualify for Medicaid assistance. If you are among the “in-betweeners,” you’ll need to be resourceful because care is expensive.

Baby boomers are turning 65 at an amazing rate of 10,000 per day, and 70% of Americans over that age will need long-term care at some point in their lives. Planning ahead for this type of care is becoming increasingly vital, especially if you would rather age in-place rather than in a nursing home. Because in-home caregivers average $22 per days, many elderly citizens depend on care from family members, and the majority of them are dipping into their own pockets to do so.

See Jody Gastfriend, What 'Succession' and Sumner Redstone can Teach us About Planning Ahead for Senior Care, Forbes, September 27, 2018.

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

September 28, 2018 in Disability Planning - Health Care, Elder Law, Estate Planning - Generally | Permalink | Comments (0)