Wills, Trusts & Estates Prof Blog

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

Thursday, April 18, 2019

Article on The Golden Years, Gray Divorce, Pink Caretaking, and Green Money

SilverNaomi Cahn recently published an Article entitled, The Golden Years, Gray Divorce, Pink Caretaking, and Green Money, Elder Law eJournal (2018). Provided below is an abstract of the Article.

This Article considers the impact of changing family structures on aging in contemporary America. It looks at two critical and interrelated aspects of aging—economic security and caretaking—and offers policy suggestions on how to improve the financial stability of and caretaking possibilities for elders. The core thesis is that our current social, legal, and economic structure for growing old is organized around the nuclear family with respect to both caretaking and financial security. As family structures change in terms of partnering (and re-partnering and non-partnering) and number of children, and with the increase in economic inequality, support for old age needs to change as well. Nonetheless, notwithstanding changing family forms and roles and economic disparities, we have not made the requisite changes to prepare for the forthcoming silver tsunami.

April 18, 2019 in Articles, Current Affairs, Current Events, Elder Law, Estate Administration, Estate Planning - Generally | Permalink | Comments (0)

Friday, April 12, 2019

Article on Dementia, Autonomy, and Supported Healthcare Decision Making

AlzMegan S. Wright recently published an Article entitled, Dementia, Autonomy, and Supported Healthcare Decision Making, Elder Law eJournal. Provided below is an abstract of the Article.

Healthcare providers often rely on surrogates to decide on behalf of their patients with dementia who are deemed incapable of exercising autonomy. There is a longstanding debate about the appropriate standard of surrogate healthcare decision making for these patients. Many influential scholars argue that the precedent autonomy of the person with dementia should be respected, and healthcare decision-making laws generally reflect this principle. These laws direct surrogate decision makers to follow instructions in living wills or to decide on the basis of the wishes and values of the person before the onset of dementia. But other prominent scholars have questioned whether surrogates should instead use the best interests standard, which accounts for the current interests of the person with dementia.

This debate about decision-making standards ignores an arguably more important issue: who should be deciding? Empirical research demonstrates that persons with mild dementia retain the ability to make or participate in decisions despite their acquired cognitive impairments, and that they prefer to be actively involved in healthcare decision making. However, persons with dementia are routinely marginalized in the decision-making process, which leads to a decline in their psychological wellbeing.

Based on studies of their decision-making abilities, preferences, and experiences, this Article argues that persons with dementia should not be prevented from making their own healthcare decisions. Stated differently, persons with dementia should have the legal right to make their own healthcare decisions at the time when the decisions need to be made. Ensuring this right will require looking beyond surrogate-based healthcare decision-making law, which facilitates the exclusion of persons with dementia from decision making.

Disability law in four states provides an alternative decision-making model, known as supported decision making, which empowers persons with cognitive impairments to make their own decisions and could be usefully applied to dementia. In supported decision-making, an adult with a disability (the “principal”) voluntarily chooses people to assist them in decision making (a “supporter”), and formalizes this arrangement in a written agreement. The supporter’s role is to help the principal gather relevant information, think through the decision, and convey the decision to other people. Supported decision making preserves the legal decision-making authority of a person with a disability rather than transferring such authority to a surrogate. Because supported decision making accords with the preferences and interests of persons with dementia, supported decision-making laws should be widely adopted.

This novel application of supported decision making to dementia also provides insight into the nature of autonomy in the larger context of late-life healthcare decision making. My past research has demonstrated that autonomous decision making in this context is relational, which is consistent with supported decision making. This Article further builds upon this conceptualization and advances a new understanding of autonomy in healthcare decision making as more closely approximating relational agency. With this revised understanding of autonomy and the adoption of supported decision making, persons with dementia can remain autonomous for longer in the progression of their disease.

April 12, 2019 in Articles, Current Affairs, Disability Planning - Health Care, Elder Law, Estate Planning - Generally, New Legislation, Science | Permalink | Comments (0)

Top 5 Reasons that Seniors Should Avoid Sharing a Joint Bank Account with an Adult Child

BankaccountOlder citizens often believe that adding one of their adult children to their bank account will make paying recurring bills and managing finances easier, but the reality is that it often has dire consequences. Once the account becomes a jointly owned bank account, the funds belong to both account holders equally. This means bank employees do not need to get the permission of both owners to transfer or withdraw all the funds.

Here are 5 reasons adding an adult child to your bank account if not a good idea:

  • Unintentional Disinheritance
    • When one account holder dies, the money in a jointly owned account automatically belongs to the other account holder without passing through probate. If the parent had wanted to disburse those funds between all their children, this could have the opposite effect.
  • Risk of Intentional Loss
    • For even the best child, the temptations of a windfall of money is too great. Once they are added to their parent's account, they may feel that there is no true harm by taking some "early."
  • Risk of Unintentional Loss
    • Adding a child to a bank account may also expose the parent's hard earned money to that child's creditors.
  • Risk of Meddling "Outlaws"
    • If a parent does not like or trust their adult child's spouse, being on a join bank account with that child could have unfortunate results. If the child's spouse has Power of Attorney of that child, they would have access to those funds if they had to act in the child's place.
  • Unexpected Risk
    • If the child needs to apply for public benefits after being added to the bank account, the funds may need to be spent before the child can qualify. The child would not be able to remove his or her name from the bank account because most programs for public benefits would consider this transaction an uncompensated gift or transfer to the parent that would otherwise create a period of ineligibility for the child to receive any benefits.

See Kara Gansmann, Top 5 Reasons that Seniors Should Avoid Sharing a Joint Bank Account with an Adult Child, CSHlaw.com, April 20, 2019.

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

April 12, 2019 in Current Affairs, Disability Planning - Property Management, Elder Law, Estate Administration, Estate Planning - Generally, Intestate Succession, Non-Probate Assets, Wills | Permalink | Comments (0)

Thursday, April 11, 2019

Article on Quelling the Silver Tsunami: Compassionate Release of Elderly Offenders

PrisonJalila Jefferson-Bullock recently published an Article entitled, Quelling the Silver Tsunami: Compassionate Release of Elderly Offenders, Elder Law eJournal (2018). Provided below is an abstract of the Article.

Sentencing reform appears resurrected. Following a brief hiatus and an expectedly unwelcoming recent federal response, sentencing reform is again reemerging as a major initiative. Congress and the several states are poised to immediately accomplish major reform of the United States criminal sentencing structure. Proposals that would, among other initiatives, drastically reduce criminal sentences, restore rehabilitative programs to inmates, generate sentencing parity, normalize probation for low-level offenses, and shrink the overall prison footprint are ambling through various legislative processes throughout the country. Though groundbreaking and certainly welcome, these reforms largely ignore the special needs of the imprisoned elderly. One of the most foreseeable, yet ironically ignored, consequences of 1980's and 1990's harsh sentencing laws, is the dramatic upsurge in prison population through the predictable process of human aging. Coined the prison “silver tsunami” phenomenon, surging numbers of elderly inmates raises significant moral, health, and fiscal implications deserving keen scrutiny. It is imperative, then, that any overhaul of criminal sentencing focuses on how to meaningfully address the graying of America's prisons.

April 11, 2019 in Articles, Current Affairs, Elder Law, Estate Planning - Generally | Permalink | Comments (0)

Wednesday, April 10, 2019

Moving in With Mom and Dad

People Alzare living much longer than they once were, and that means more and more Americans that are in their 60's have one or both parents still alive. This is creating a growing number of issues for the senior population, for the advisors who are trying to help them, and for society.

By 2016, nearly 28% of the 60- to 69-year-old population, or just shy of 10 million people in this age range, had a living parent. This is up from 20% in the same age range in 1998. “Compared to just 10 years ago, I am seeing three times as many clients who are dealing with helping older parents,” says James Sullivan, vice president and financial advisor at Essex Financial in Essex, Connecticut. People that are older are worrying about their parents that are nearing the 100 year mark.

Assisting an elderly parent can cause significant lifestyle changes to an adult child, especially if the parent is suffering from cognitive disabilities. People dealing with these situations should consult an elder law attorney, because there can be unintended consequences to many actions. Inheritance alterations, mental capacity to sign certain documents, inventorying all of the parents' assets, and determinations of guardianships are just a few of the legal hurdles that can come up.

See Karen DeMasters, Moving in With Mom and Dad, Financial Advisor, April 1, 2019.

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

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

April 10, 2019 in Current Affairs, Elder Law, Estate Planning - Generally | Permalink | Comments (0)

Wednesday, April 3, 2019

Britain's Oldest Men say the Secrets to Living to 111 are Eating Oats and 'Avoiding Dying'

UnionjackTwo men now share the title of "Britain's Oldest Man" as they both turned 111 on the same day, March 29. Alfred Smith and Bob Weighton are not related, and neither man truly knows what is the secret to their longevity.

Weighton's advice is to "avoid dying," while Smith gives possibly more functional advice by saying that eating oatmeal and porridge are beneficial. Also, the former farmer recommended "having a job you enjoy." Smith, from Invergowrie, Scotland, and Weighton, from Hampshire, England, have never met, but think of each other as twin brothers. They send each other birthday cards on their shared birthday each year.

United Kingdom tradition dictates that any person that reaches the age of 100 receive a birthday card from the monarch. Former teacher and engineer Weighton asked not to be sent any more cards from the Queen, but not for a personal reason. "I do not see why the state should pay for the Queen to send out all these things," he said.

See Rachel Hosie, Britain's Oldest Men say the Secrets to Living to 111 are Eating Oats and 'Avoiding Dying', MSN, March 31, 2019.

April 3, 2019 in Elder Law, Estate Planning - Generally, Travel | Permalink | Comments (0)

Sunday, March 31, 2019

New Study Shows an Eye Scan Can Detect Signs of Alzheimer's Disease

EyeThe Duke Eye Center have discovered that the small blood vessels in the retina at the back of the eye of patients with Alzheimer's are altered through the help of a new, non-invasive device. The researchers also revealed that they can distinguish between people with Alzheimer’s and those with only mild cognitive impairment. The study, published online in Ophthalmology Retina, a journal of the American Academy of Ophthalmology, brings forth a quick and inexpensive way to detect the disease in its early stages.

The imaging used in the research is called optical coherence tomography angiography (OCTA). It enables physicians to see blood vessels in the back of the eye that are smaller than a strand of hair. Researchers have focused several studies on the retina because it is an extension of the brain and shares many similarities with it, and thus the changes within the retina may mirror the changes within the brain in Alzheimer's sufferers.

The study consisted of using OCTA to study the retinas in 70 eyes of 39 Alzheimer’s patients with 72 eyes of 37 people with mild cognitive impairment, as well as 254 eyes of 133 cognitively healthy people. The researchers found that those with Alzheimer's had loss of small retinal blood vessels at the back of the eye and that a specific layer of the retina was thinner when compared to people with mild cognitive impairment and healthy people.

See New Study Shows an Eye Scan Can Detect Signs of Alzheimer's Disease, Science Blog, March 11, 2019.

March 31, 2019 in Current Events, Elder Law, Estate Planning - Generally, Science, Technology | Permalink | Comments (0)

Article on Decision and Persuasion: Re-Conceiving the Role of the Planner Where Undue Influence is Suspected

ActecJames C. Milton and Katheleen R. Guzman recently Article entitled, Decision and Persuasion: Re-Conceiving the Role of the Planner Where Undue Influence is Suspected, ACTEC Law Journal, Vol. 44, No. 1, 137 - 143 (Winter 2019). Provided below is an introduction of the Article.

Our population is aging. Blended familiar are becoming more common, complex, and multi-generational. Conservatorships have increased, along with the incidence of elder and financial abuse claims. While financial abuse is nothing new, modern sociocultural and familiar dynamics have compelled renewed legislative attention where profound decisional control is granted to proxies over the property of those they are supposed to protect. Often, that trust is misplaced. As these data converge and interact, the growth curve in undue influence claims will continue to accelerate, along with attendant and alter estate planning strategies. The world is rapidly changing, and it appears that there is "no turning back."

Into this context comes a timely piece exploring leading edge research over the effect that recent psychological and neuroscientific discoveries might hold for planning and litigation. In Undue Influence: The Gap Between Current Law and Scientific Approaches to Decision-Making and Persuasion, Dominic Campisi, Evan Winet, and Jake Calvert reveal the under-appreciate role that the sub- or unconscious mind plays with complex decision making, and the presumably equally underdeveloped "psychology of percussion" that influencers might wield in search of a desired outcome. As Campisi el al. make clear, an integrated understanding of both should feature prominently or those wishing to avoid, press, or defend an undue influence claim, particularly give the exacerbating effects of age and cognitive decline upon tendencies toward triggered decision making. It takes but a quick look at such undue influence factor as "susceptibility to influence" to see why. How might the law respond?

March 31, 2019 in Articles, Disability Planning - Health Care, Disability Planning - Property Management, Elder Law, Estate Planning - Generally, Guardianship, Science | Permalink | Comments (0)

Friday, March 29, 2019

Article on Re-Considering Undue Influence in the Digital Age

ActecJodie Distler recently published an Article entitled, Re-Considering Undue Influence in the Digital Age, ACTEC Law Journal, Vol. 44, No. 1, 131-137, (Winter 2019). Provided below is an introduction of the Article.

In a thought-provoking article (the "Article") sitting in the intersection of legal scholarship and psychological study, Dominic J. Campisi, Evan D. Winet, and Jake Calvert explored the understating of a person's susceptibility to undue influence and methods by which an influencer and intentionally or unintentionally exploit common human behavior to the influencer's own benefit. Campisi, Winet, and Calvert apply the six basic categories of persuasion tactics from Robert Cialdini's, Influence: The Psychology of Persuasion to the decision-making processes involved in lifetime and testamentary assets transfers. They caution that "in evaluating the susceptibility of people to undue influence and elder abuse tactics, it is important to focus on the actual cognitive processes by which most people make decisions. The author agrees with this advice and further argues that the emerging laws authorizing electronic estate planning documents, remote notarizations, and e-signature processes could increase the opportunity for undue influence by allowing influencers, in the absence of attorney involvement in the estate planning process, to leverage those principles of persuasion.

March 29, 2019 in Articles, Current Affairs, Elder Law, Estate Planning - Generally, Professional Responsibility | Permalink | Comments (0)

Allegations Of Abuse Marred Stan Lee’s Last Years — A Guardianship Might Have Protected Him

GuardianshipStan Lee was the beloved grandfather icon of many in the comic book and pop culture realms, and his death last November at the age of 95 saddened millions. But his legacy, unfortunately, was marred in the last years of his life by accusations of elder abuse and financial mismanagement by those closest to him. The idea that the people that should have been protecting the creator of so many heroes was actually taking advantage of him shocked the world.

But this is not an isolated incident, as there are many more people that are aging into their 90's and suffering for mental and health issues, and thus more vulnerable to others. Those a carefully constructed estate plan can protect assets after death, it does not always help them while they are still living. This is where a guardianship can aid the elderly. Though it is the most restrictive means of providing for the care of an individual with mental incapacities, it provides more protection than a power of attorney or other alternatives.

Guardians are appointed by and monitored by the court and are subject to court oversight and various court reporting requirements. Powers of attorney only report to a principal, and thus financial abuse can continue for years without anyone else being aware. According to the Senate Aging Committee, an estimated 1.3 million adults are under the care of guardians, either family members or professional guardians. Late last year, the Senate Aging Committee issued a report recommending ways to improve the guardianship program, including enhanced monitoring, criminal background checks of guardians, and improved training of newly appointed guardians.

See Cozen O'Connor, Allegations Of Abuse Marred Stan Lee’s Last Years — A Guardianship Might Have Protected Him, Lexology, March 13, 2019.

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

March 29, 2019 in Current Affairs, Disability Planning - Health Care, Disability Planning - Property Management, Elder Law, Estate Planning - Generally, Guardianship | Permalink | Comments (0)