Wills, Trusts & Estates Prof Blog

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

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

Corpse Hotels Cater to Japan's Waiting Dead

HotelJapan has seen an exponential increase in its aging population, and the reality of this statistic is that there has also been a significant increase in the number of the dead, with a record of 1.34 million last year. With the small country unable to bury their loved ones that passed on, families must cremate them. But in many urban areas there is a wait for crematories, often up to a full week.

In the interim, people are turning to corpse hotels, where their deceased family member can await cremation in tasteful, competitively priced comfort, and families can say farewell at their leisure.  Those moments can be conducted with the help of an automated coffin-retrieval system, which quietly trundles the correct casket up from the storage area. Gone are the sterile environments of morgues, instead replaced by private viewing rooms and even suites that resemble the first floor of a traditional Japanese home where families can dine together with a perspex coffin containing the body. Management is particularly proud of the miniaturized refrigeration unit that makes this possible.

Corpse hotels are attempting to ease the tide, as it is predicted that between now and 2040 the death toll will continue to rise to a peak of 1.7 millions annually.

See Leo Lewis, Corpse Hotels Cater to Japan's Waiting Dead, Financial Times, November 7, 2018.

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

November 12, 2018 in Current Affairs, Death Event Planning, Elder Law, Estate Planning - Generally, Travel | Permalink | Comments (0)

Article on Age, Time, and Discrimination

AgetimeAlexander A. Boni-Saenz recently published an Article entitled, Age, Time, and Discrimination, Wills, Trusts, & Estates Law eJournal (2018). Provided below is an abstract of the Article.

Discrimination scholars have traditionally justified antidiscrimination laws by appealing to the value of equality. Egalitarian theories locate the moral wrong of discrimination in the unfavorable treatment one individual receives as compared to another. However, discrimination theory has neglected to engage seriously with the socio-legal category of age, which poses a challenge to this egalitarian consensus due to its unique temporal character. Unlike other identity categories, an individual’s age inevitably changes over time. Consequently, any age-based legal rule will ultimately yield equal treatment over the lifecourse. This explains the weak constitutional protection for age and the fact that age-based legal rules are commonplace, determining everything from access to health care to criminal sentences to voting rights. The central claim of this Article is that equality can neither adequately describe the moral wrong of age discrimination nor justify the current landscape of statutory age discrimination law. The wrong of age discrimination lies not in a comparison, but instead in the deprivation of some intrinsic interest that extends throughout the lifecourse. Thus, we must turn to non-comparative values, such as liberty or dignity, to flesh out the theoretical foundation of age discrimination law. Exploring this alternative normative foundation generates valuable insights for current debates in discrimination theory and the legal regulation of age.

November 12, 2018 in Articles, Current Affairs, Elder Law, Estate Planning - Generally | Permalink | Comments (0)

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)

Saturday, November 10, 2018

Article on Testamentary Freedom and Family Protection in Scotland

ScotlandKenneth Reid recently published an Article entitled, Testamentary Freedom and Family Protection in Scotland, Wills, Trusts, & Estate Law eJournal (2018). Provided below is an abstract of the Article.

In a sense, testators in Scotland are free to do as they please, for a will is not challengeable on the ground of having failed to provide for children, or a spouse, or some other relative. Yet, regardless of what a will says or does not say, a child or spouse of the deceased is entitled to a fixed share of the deceased’s estate. Since 1964 this has been confined to the deceased’s movable estate and there is no claim in respect of immovable property. Where a deceased is survived by both spouse and children, the movable estate is divided into three – one-third for the spouse, one-third to be shared among the children, and one-third to be disposed of in accordance with the will. Where only a spouse, or only children, survive, the division is into two equal parts and not three. These ‘legal rights’ of the children and surviving spouse are personal rights against the executor of the deceased and are satisfied by payment in money.

This paper considers the history of legal rights in Scotland, their scope and calculation, the rules on discharge, the requirement to collate lifetime advances, and the requirement to choose between legal rights and an express bequest in the will.

Legal rights are of medieval origin, and have survived various attempts to change them. In recent years, the position of children has been seen as especially controversial. On one view, children should have merely a maintenance claim from the deceased’s estate, in cases of proved need. On another view, a child’s position in the family should continue to be recognised by means of a fixed share in their late parent’s estate. In the absence of consensus on this issue, the Scottish Government has recently rejected a package of reforms proposed by the Scottish Law Commission. Uncertain as to what the future should hold, Scotland has chosen to stick with rules developed, unthinkingly, in the distant past.

November 10, 2018 in Articles, Current Affairs, Disability Planning - Property Management, Elder Law, Estate Administration, Estate Planning - Generally, Wills | Permalink | Comments (0)

Friday, November 9, 2018

A To-Do List for Widows, and How to Protect the Identity of a Dead Loved One

Calla-liliesWidows and widowers are often facing debilitating grief while attempting to get their lives, futures, and finances in order. Having an effective plan and to-do list in place could make this difficult time more emotionally manageable. Also, having a deceased loved one's identity stolen can be a painful reminder of their absence, and a great violation to their memory, so taking steps to prevent it are important.

  • Inform Social Security of the loved one's death and notify all credit bureaus as well to freeze the person's credit.
    • Death Certificate and letters testamentary will be required.
  • Notify tax preparer, and financial institutions.
    • In the event that there is a non-qualified account then there should be a step-up in basis on at least 50% of the account and possibly 100% of the account, depending on the circumstances.
    • And IRA can be treated as a rollover account for a spouse
  • Review life insurance policies and see your options so you can decide what makes the most sense based on cash flow needs.
  • Meet with an estate planning attorney if there was a will or trust to understand the loved one's final wishes.
  • Have a tax projection prepared.
  • Sign proper forms for all brokerage accounts and new account forms in order to reflect the new ownership and title.

See Karin Price Mueller, A To-Do List for Widows, and How to Protect the Identity of a Dead Loved One, NJ.com, November 6, 2018.

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

November 9, 2018 in Current Affairs, Elder Law, Estate Administration, Estate Planning - Generally, Income Tax, Non-Probate Assets, Trusts, Wills | Permalink | Comments (0)

Book Review: On Living

OnlivingKerry Egan is a graduate of Harvard Divinity School and is a hospice chaplain. The book is a collections of lessons that she has derived from her experiences, and observations about live, death, and spirituality.

Egan describes her chaplain’s role as talking and listening to patients about their families and, perhaps, about religion, God, or the meaning of life — but mostly about families. "Family is where we first experience love and where we first give it.”

The author invites us to say important things now without waiting, to live without regret, to cherish our bodies how they are. She reminds us that what we were in life we are in death: “Death does not automatically make you a better person.” 

Egan attempt to inform the read that everyone is broken, but that listening to others' stories can heal a person's soul. "I know this because it healed mine.” The dying are still living, still growing, still learning, and may want to release long-held secrets or simply want to be seen as who there were before they became ill.

As attorneys, we are trained to be logical and analytical and to solve problems for our clients. Reading this book will guide us in contemplating the softer side of ourselves, the work we do, and the clients we represent. It invites us to consider how our experiences with our clients shape us, both individually and professionally.

See Shelley D. Coelho, Book Review: On Living, NAELA,org, Spring, 2018.

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

November 9, 2018 in Books, Death Event Planning, Elder Law, Estate Planning - Generally | Permalink | Comments (0)

Thursday, November 8, 2018

New Act: the Kasem/Baksys Visitation Law [Illinois]

image from https://s3.amazonaws.com/feather-client-files-aviary-prod-us-east-1/2018-11-08/4b58c44f-1771-4700-bd84-946ed0cccafb.pngThis bill would create the “Frail Individual Family Visitation Protection Act”, aka the Kasem/Baksys Visitation Law.  It defines a "frail individual" and permits family members of a frail individual to petition the court for visitation if a caregiver is unreasonably preventing visitation.  NAELA originally opposed the bill as it lacked many important limiting provisions.  Through the legislative process, the bill was amended to exclude guardianships and POAs and to include other procedural protections to ensure that the “frail individual’s” rights and interests were protected.  Moreover, we sought to ensure that a proper legal process was articulated to address any such actions.  HB4039 passed unanimously out of the House and Senate and is now on Governor Rauner’s desk awaiting signature. Thank you to Rep. Sara Wojiecki-Jimenez (D-Springfield) and Sen. Melinda Bush (D-Grayslake) for their hard work on this bill.

See Tony Abboud, NAELA Post-Legislative Session Report #1, NAELA-IL.org, August 10, 2018.

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

November 8, 2018 in Current Affairs, Current Events, Elder Law, Estate Planning - Generally, New Legislation | Permalink | Comments (0)

Tuesday, November 6, 2018

Article on Sign on the [Electronic] Dotted Line: The Rise of the Electronic Will

SignatureGerry W. Beyer & Katherine Peters recently published an Article entitled, Sign on the [Electronic] Dotted Line: The Rise of the Electronic Will, Wills, Trusts, & Estates Law eJournal (2018). Provided below is an abstract of the Article.

The electronic will is here … almost. The last two years have seen rapid development in the area of electronic wills. As of September 2018, several states either have enacted electronic will statutes or are in the process of considering such legislation. This article provides the history of e-wills and reviews e-will statutes, both enacted and proposed, along with the Summer 2018 draft of the Electronic Wills Act.

November 6, 2018 in Articles, Elder Law, Estate Planning - Generally, New Legislation, Technology, Wills | Permalink | Comments (0)