Wills, Trusts & Estates Prof Blog

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

Tuesday, December 3, 2019

Article on A History of the Law of Assisted Dying in the United States

DeathwdignityAlan Meisel has written an Article that will soon be published, A History of the Law of Assisted Dying in the United States, Elder Law eJournal (2019). Provided below is the abstract to the Article.

The slow growth in the number of states that have enacted legislation to permit what is often referred to as “death with dignity” legislation—and more frequently referred to popularly as “physician assisted suicide” laws—has begun to accelerate in the past few years since the enactment of the first such statute in Oregon in 1994.

Like much other social reform legislation, there is a long history behind it. In this case, the history in the United States dates back at least to the latter part of the nineteenth century. Not until the 1980s, however, did these efforts gain any traction in courts and legislatures. What is probably more responsible than anything else for reviving interest in and providing momentum for legalization is the recognition by state courts, beginning with the Karen Ann Quinlan case in New Jersey in 1975, that the right to be free from unwanted interference with one’s bodily integrity encompasses a right to refuse even life-sustaining medical treatment. The recognition of this so-called right to die was only a short conceptual step—though a long political one—from recognizing that competent adults also should have the right to actively end their lives under certain conditions.

As of the end of 2019, the efforts of a small number of advocacy groups through lobbying, litigation, and public education have resulted in the enactment of death with dignity legislation in nine states and recognition of the right by one state supreme court. Despite dire warnings from opponents of legalization, it has not resulted in either wholesale abuse of the dying or the legalization of active euthanasia (either voluntary or involuntary).

December 3, 2019 in Articles, Current Affairs, Death Event Planning, Elder Law, Estate Planning - Generally, New Legislation | Permalink | Comments (0)

Monday, December 2, 2019

Article on How Reliant are Older Americans on State and Local Government Pensions?

PensionPhilip Armour, Michael Hurd, &Susann Rohwedder  recently published an Article entitled, How Reliant are Older Americans on State and Local Government Pensions?, Elder Law eJournal (2019). Provided below is an abstract of the Article.

State and local government pension plans cover about 19.5 million participants, and many participants are heavily reliant on these pensions for retirement income. Most of these plans, however, are underfunded. Based on data from the Health and Retirement Study, we examined the lifetime work histories of those observed at ages 67 to 72 in 2004, 2008, or 2014. Seventy-seven percent of single persons and 61 percent of couple households had never worked for state or local (S&L) government. Among those single and couple households who did work for S&L government, we found that they have on average more years of education and more economic resources. Among currently retired and near-retirement households, we compared economic preparation for retirement according to their lifetime employment in the S&L sector, and we examined how economic preparation would be affected if pension benefits were cut. Based on stochastic simulations, which account for uncertainty about length of life and out-of-pocket medical expenditures, we found that economic preparation for retirement among those with S&L government work histories would only be modestly reduced if their pension income were cut. Under a 50 percent cut to all pension income of households with any S&L sector work, only an additional three to four percent of these households would no longer be prepared for retirement. The change is modest because households with S&L employment have better preparation than other households; some of the cuts are paid for by reduced taxes; and the affected households will bequeath less.

December 2, 2019 in Articles, Current Affairs, Disability Planning - Health Care, Disability Planning - Property Management, Elder Law, Estate Planning - Generally | Permalink | Comments (0)

Saturday, November 30, 2019

Article on Supported Decision-Making: A New Approach for Older Clients with Cognitive Impairment

BrainscanMargaret Castles published an Article entitled, Supported Decision-Making: A New Approach for Older Clients with Cognitive Impairment, Elder Law eJournal (2018). Provided below is the abstract to the Article.

There has been a flurry of law reform activity around elder rights in the last few years. In 2017 the Australian Law Reform Commission’s Report “Elder Abuse – a National Legal Response” made far reaching recommendations. Earlier this year the Commonwealth Government published the results of its Inquiry into the Quality of Residential Aged Care in Australia, and has recently announced a Royal Commission into Aged Care Quality and Safety.

 

November 30, 2019 in Articles, Current Affairs, Disability Planning - Health Care, Disability Planning - Property Management, Elder Law, Estate Administration, Estate Planning - Generally, Professional Responsibility | Permalink | Comments (0)

Wednesday, November 27, 2019

Thanksgiving for Caregiving

CaregiverNovember is National Family Caregivers Month, celebrating the more than 40 million people that give unpaid care, three-quarters which is to a family member. Many of these caregivers give so much of their time while also working full-time and providing for their own children. In addition to the $7,000 per year in out-of-pocket expenses, caregivers stand to lose wages and Social Security benefits of approximately $234,000 for male caregivers and $324,000 for women.

So how can these important and precious caregivers balance their lives with the caring?

  • Consider possible financial support, and not necessarily straight from the one they are caring for.
  • Share the burden, either from another family member or other source, whether professional or otherwise.
  • Improve workplace support for caregivers at both the federal and employer levels.
  • Improve support for the care recipient.
  • Technology advances that can help with support and caregiving.

See Naomi Cahn, Thanksgiving for Caregiving, November 21, 2019.

November 27, 2019 in Disability Planning - Health Care, Elder Law, Estate Planning - Generally | 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)

Monday, October 28, 2019

Native Hawaiian Heiress Faces Court Test to Control Millions

Kawananakoa93-year-old Abigail Kawananakoa is considered a princess of Hawaii by the natives because she is descended from the family that ruled the islands before the kingdom was overthrown, but she inherited for $215 million fortune by being the great-granddaughter of James Campbell, an Irish businessman who made his fortune as a sugar plantation owner and one of Hawaii's largest landowners. She suffered a stroke in 2017 and since then has fought over control of her trust.

Kawananakoa married her 63-year-old partner of 20 years, Veronica Gail Worth, shortly after the stroke. She also attempted to fire her longtime attorney, Jim Wright, after he argued that she was incapacitated due to the medical incident became her trustee. He also helped her with the $100 million foundation she created in 2001 for Hawaiians. Attorneys for the foundation filed petitions for a guardianship for Kawananakoa, claiming her wife is manipulating her.

Kawananakoa watched the hearing seated next to her wife, with the couple's little chihuahua on her lap. The judge ruled that the there will be an evidentiary hearing to determine whether there should be a conservator for the heiress, and that she is required to undergo a medical examination before the hearing.

See Andrew Court, Native Hawaiian Heiress Faces Court Test to Control Millions, Daily Mail, October 25, 2019.

Special thanks to Laura Galvan (Attorney, San Antonio, Texas) for bringing this article to my attention.

October 28, 2019 in Current Events, Elder Law, Estate Administration, Estate Planning - Generally, Guardianship, New Cases | 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 16, 2019

In France, Elder Cares Comes With the Mail

MailFrance has given a new responsibility to their mail carriers: to check on the elderly. Through a program called Veiller Sur Mes Parents ("Watch Over My Parents), subscribers pay €37.90 for a month's worth of weekly visits as well as an emergency call button. The subscribers can be family members of the elderly person and the mail carrier can notify them through an app that their loved one is "well" or if they require assistance with outings or house repairs.

The program was initiated in 2017, a total of 21,000 elderly singles have been enrolled in the program across France. The visits usually last between six and fifteen minutes, and at the end the senior signs the mail carrier's tablet as a sign of life - similar to signing to accept a package.

One of the reasons La Poste has been able to fill this void for the country's aging generation is due to economic changes. The number of letters being mailed has dropped dramatically compared to a year ago, and despite the stamp prices going up, delivering mail is not supportive enough. So the definition of "postal work" has expanded to include picking up prescriptions, delivering flowers, and now providing conversations and social visits to seniors. Last year alone, only 28% of La Poste's revenue came from delivering mail.

See Zoey Poll, In France, Elder Cares Comes With the Mail, The New Yorker, October 9, 2019.

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

October 16, 2019 in Current Affairs, Elder Law, Estate Planning - Generally, Travel | Permalink | Comments (0)

Friday, October 11, 2019

Article on The ‘Social Contract’, Care and Inheritance in England and Hong Kong

England flagBrian Sloan recently published an Article entitled, The ‘Social Contract’, Care and Inheritance in England and Hong Kong, Elder Law eJournal (2019). Provided below is an abstract of the Article.

In common with much of the world, the populations of both England and Hong Kong are ageing. One of the most important questions of our age is therefore how to allocate the burdens of providing and funding the care that increasing numbers of people are likely to need. Another vital question affecting the elderly and their families is that of inheritance: how legitimate is the claim of family members (including adult children) to a person’s assets? The aim of this paper is to explore the relationship between these questions, with reference to concepts such as the ‘social contract’ and family solidarity, and the law of family provision in England and Hong Kong.

October 11, 2019 in Articles, Current Affairs, Elder Law, Estate Administration, Estate Planning - Generally, Intestate Succession, Wills | Permalink | Comments (0)

Wednesday, October 9, 2019

Financial Scams Targeting the Elderly Are Rising. Advisors Offer Precautions

ScamsScammers pull in billions of dollars every year by targeting the elderly, as much as $36.5 billion annually, and often the victims are too embarrassed and ashamed to mention it to their families. “One of the reasons parents don’t tell us when they may have fallen victim or come close is that they fear [their children will] pack up their home and they’ll lose their independence,” explains Ron Long, head of Wells Fargo’s Elder Client Initiatives Center of Excellence. 

Adult children should broach the subject of their parents' increased vulnerability and impulsiveness tactfully. Amy Nofziger, director of fraud victim support at AARP, says that children should adopt an attitude of non-judgement and empathy when approaching the conversation. Communication lines should remain open between parents and children so the dialogue can established before they are scammed, and then the adult child can bring up other kinds of security concerns. If the familial water are troubled, bring in a trusted intermediary such as a financial advisor or cleric.

Basic technology can be confusing to those who may have already passed middle age by the time cellphones and email had become commonplace. Offer to make sure their security software is up to date, including firewalls and encryption applications. Remind them not to carry their Social Security card in their wallets.

See Steve Garmhausen, Financial Scams Targeting the Elderly Are Rising. Advisors Offer Precautions, Barron's, October 3, 2019.

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

October 9, 2019 in Current Events, Elder Law, Estate Planning - Generally, Technology | Permalink | Comments (0)