Wills, Trusts & Estates Prof Blog

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

Sunday, February 16, 2020

Incomplete and Inadequate: Information Lacking for Seniors Looking for Assisted Living

NursinghomeAs the iconic baby boomer generation reaches upwards of 74 years of age, more and more individual will require long-term care. This can range from residing in a nursing home, staying at their house and being visited regularly by provider or families, or moving into an assisted living facility. With the increase in assisted living residences across the country, it is important to understand how much information about these facilities are provided to consumers.

Unlike nursing homes which are federally regulated, each state is responsible for setting licensing requirements and quality standards for assisted living residences within their jurisdiction. Each state is required to provide free data of licensed facilities to the public. Private search databases may not be objective, but instead utilized for marketing purposes. The websites of these assisted living facilities may not easily provide critical information to the public, such as reports of state-required quality inspections, listing of accepted insurance plans, the availability of staff personnel, and even the overall cost of the care.

More than two-thirds of states did not say whether their residences offered memory care, and the increase in elderly patients requiring care due to Alzheimer's and dementia is dramatically increasing. But not all websites had only negative reviews: California listed inspection updates, Florida itemized activities offered in each residence, and Arizona posted plain-language summaries of inspection results. Overall, more is needed so that consumers can make the appropriate decisions for their individual situations, but improving the information on the websites might require new or revised state regulations.

See Lindsay J. Peterson & Kathryn Hyer, Incomplete and Inadequate: Information Lacking for Seniors Looking for Assisted Living, The Conversation, February 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.

February 16, 2020 in Current Events, Elder Law, Estate Planning - Generally, New Legislation | Permalink | Comments (0)

Saturday, February 15, 2020

No Prison Time for Heartbroken 74-Year-Old Bank Robber

HeartbreakOn November 18th of last year, 74-year-old Sandy Hawkins walked into a Wells Fargo in Florida and demanded that the teller give him $1,100. When the teller counted out $2,000, Hawkins scolded him and said it was too much. He left with the $1,100, but while walking the bag became ensnared in a thorny bush and ripped open. Hawkins kept walking and left the loot behind. When police approached him the next day, he went willingly, even giving them the note he had forgotten to hand over to the teller, reading, "Give me $1,100. Now. No Alarms. Hope to get caught."

What caused this man that closely resembled Santa Claus with no prior criminal record to suddenly rob a bank? Simple - he was heartbroken, so bad that he no longer knew how to cry out for help. He married the love of his life, Linda, at the late age of 52, but said it was the best day of his life. But just a few months after their 22nd wedding anniversary in September of 2018, Linda had a pain in her side. Erring on the side of caution, she went to the emergency room on a Tuesday and was admitted for testing. The next day, Hawkins was told she had blood cancer and due to it attacking her major organs, she had maybe 72 hours to live. On Friday she died.

Bank robbers face up to 15 years, which to 74-year-old Hawkins, who has prostate cancer that he refuses to treat, would be a life sentence. Instead, Assistant State Attorney Samuel Meshulam told the judge, Jeffrey Gillen, that he took all relevant factors into consideration when working out a deal with the public defender's office. Hawkins agreed to reside and abide by all the rules in a transitional housing facility, the Lord's Place, for 12 months. Gillen said it was with happiness that he was signing off on the deal.

See Eileen Kelley, Bank Robber’s Cry for Help was Heard. The 74-Year-Old Widower Won’t go to Prison, Sun-Sentinel, February 14, 2020; see also Eileen Kelley, Heartbroken 74-Year-Old Widower Wanted Help. So he Robbed a Bank, Sun-Sentinel, December 20, 2019.

February 15, 2020 in Current Events, Elder Law, Estate Planning - Generally, New Cases | Permalink | Comments (0)

Saturday, December 7, 2019

Article on Age, Equality, and Vulnerability

ElderlawAlexander A. Boni-Saenz recently published an Article entitled, Age, Equality, and Vulnerability, Elder Law eJournal (2019). Provided below is the abstract of the Article.

This Article uses age as an entry point for examining how temporal and methodological issues in egalitarianism make substantive equality an unattractive goal for vulnerability theory. Instead, vulnerability theory should adopt a continuous doctrine of sufficiency, which is a better fit with vulnerability theory’s underlying aims and rhetoric. Instead of evaluating what individuals have in relation to others, sufficiency refocuses the inquiry on whether we have enough throughout the lifecourse. In the context of vulnerability theory, enough should be defined as the capability to be resilient as guaranteed by the responsive state.

December 7, 2019 in Articles, Elder Law, Estate Planning - Generally | Permalink | Comments (0)

Friday, December 6, 2019

Biogen’s Experimental Drug to Treat Alzheimer’s Disease is Greeted with Cautious Optimism Following Scientific Presentation on Thursday

PillsPharmaceutical maker Biogen provided the scientific community a detailed presentation at the Clinical Trials on Alzheimer’s Disease conference in San Diego about an experimental drug that appears to slow the brain’s deterioration in the early stages of Alzheimer’s disease. The drug, aducanumab, may be the first significant advancement in the treatment of the disease since the introduction of memantine, which is commonly marketed as Namenda in 2003 and relieves some of the symptoms of dementia.

R. Scott Turner, director of Georgetown University’s Memory Disorders Program, a partner in the study, said “This study proves that we are on the right track to developing more effective, disease-modifying treatments designed to stop or slow memory decline in the earliest disease stage — when patients are still relatively independent in their daily functions.” The company says they hope to seek FDA approval next year, and if Biogen succeeds, it will be the first drug to treat the underlying pathology of the dementia-causing disease.

The medication assists patients in the early stages of Alzheimer’s disease to continue independently going about their daily business longer than people who did not take it, even slowing down the condition's progression by as much as 40%. Not all of the professionals that witnessed the presentation were sold on the medication, but many saw this as a positive for the Alzheimer's treatment community.

See Fredrick Kunkle, Biogen’s Experimental Drug to Treat Alzheimer’s Disease is Greeted with Cautious Optimism Following Scientific Presentation on Thursday, Washington Post, December 5, 2019.

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

December 6, 2019 in Current Affairs, Current Events, Elder Law, Estate Planning - Generally, Science | Permalink | Comments (0)

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)