Wills, Trusts & Estates Prof Blog

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

Monday, June 17, 2019

The Elderly are Getting Complex Surgeries. Often it Doesn’t End Well.

HospitalAs the country's population ages and medical advances increase, more and more citizens 65 and older are deciding to undergo surgical procedures that were once deemed too dangers for their age group. But just because these operations are allowed does not mean that the outcome is always ideal; one study reviewing major, nonemergency surgery in 165,600 adults over 65 found that mortality and complications increased with age and hospital stays often lengthened for these patients.

The reasons for the health risks should come as no surprise: aside from whatever ailment the surgery is meant to resolve, older patients usually have other chronic health issues that require medications and medical care. Dr. Ko and Dr. Ronnie Rosenthal of the Yale University School of Medicine, lead the American College of Surgeon's Coalition for Quality in Geriatric Surgery. They have developed a new geriatric surgery verification program, to be unveiled next month at a conference in Washington, D.C., after four years of planning and research, which will consist of 30 standards that hospitals should meet to improve results for older patients.

The college has also devised similar quality programs for trauma, cancer and pediatric surgery. “People understand that children are different from adults,” Dr. Rosenthal said. “It’s taken a surprisingly long time to come around to the realization that older adults are also different.” Some of the standards deal with medications regimes that do not rely heavily on opioids, geriatric friendly rooms, and other infrastructure need, while other requirements for the designation deal with communication with the patients. The goals of an 80-year-old patient may be very different than that of a 50-year old, with fears of nursing homes and a lower quality of life for several years hanging over their heads. 

See Paula Span, The Elderly are Getting Complex Surgeries. Often it Doesn’t End Well, New York Times, June 7, 2019.

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

June 17, 2019 in Current Affairs, Disability Planning - Health Care, Elder Law, Estate Planning - Generally | Permalink | Comments (0)

Thursday, June 13, 2019

Doris Day: The Tragic Last Days of a ‘Manipulated’ Hollywood Icon

DorisdayAmerica's sweetheart of the 1950s and 60s, Doris Day, passed away on May 13 at the age of 97. But those around her paint the picture of a lonely and manipulated woman that did not spend much time outside of her home, isolating herself to her bedroom and kitchen. Her only grandchild, Ryan Melcher, said that he only learned of his grandmother's death from social media. Ryan's father, Terry, had been her only child and had been adopted by her third husband, producer Marty Melcher. Doris found out that Marty had squandered her $20 million fortune after his death, forcing her to begin The Doris Day Show on CBS.

Ryan has claimed on Facebook that veterinarian-turned-manager Bob Bashara blocked him from seeing his aging grandmother and even replaced board members on her animal-rescue foundation with Bashara's direct family members. Day's representative has denied these allegations. The longtime manager has stated that the actress's will specified that she wanted no funeral service or grave marker, and that she wanted her fortune to go to the Doris Day Animal Foundation. No will has yet been probated or filed.

See Sara Nathan and Chris White, Doris Day: The Tragic Last Days of a ‘Manipulated’ Hollywood Icon, Fox News, June 9, 2019.


June 13, 2019 in Current Events, Elder Law, Estate Administration, Estate Planning - Generally, Film, Television, Wills | Permalink | Comments (0)

Wednesday, June 12, 2019

Maine Legalizes Medically Assisted Suicide

MaineOn Wednesday, Maine became the ninth jurisdiction to legalize medically assisted suicide when Governor Janet Mills signed the Maine Death With Dignity Act, joining California, Colorado, Hawaii, Oregon, Vermont, Washington, New Jersey and the District of Columbia. It narrowly passed both houses before it found its way onto the governor's desk.

The bill requires the patient to undergo two waiting periods and one written and two oral requests and obtain opinions from at least two physicians stating that it is appropriate. The person requesting the medication must also be at least 18 and have a "terminal illness," defined in the bill as one that cannot be cured and will likely result in death within six months. The Act criminalizes coercing a patient into requesting life-ending medication and falsifying a request for the procedure.

Supporters of the bill say that terminally ill patients should have the option to end their lives with dignity. But critics claim that the policy is dangerous and entices insurance companies to promote medically assisted suicide in leu of quality care. Matt Valliere, executive director of Patients Rights Action Fund, commented that the legislation "puts the most vulnerable people in society at risk for abuse, coercion and mistakes."

See Tal Axelrod, Maine Legalizes Medically Assisted Suicide, The Hill, June 12, 2019.

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

June 12, 2019 in Current Events, Death Event Planning, Elder Law, Estate Planning - Generally, New Legislation | Permalink | Comments (0)

Tuesday, June 11, 2019

Article on For Love and Affection: Elder Care and the Law's Denial of Intra-Family Contracts

ElderlawNina A. Kohn recently published an Article entitled, For Love and Affection: Elder Care and the Law's Denial of Intra-Family Contracts, Wills, Trusts, & Estates Law eJournal (2019). Provided below is an abstract of the Article.

As the U.S. population ages, demand for care providers for older adults is rapidly growing. Although the law’s treatment of care contracts between older adults and their family caregivers has substantial implications for the country’s ability to meet this demand, there has been no prior empirical examination of the law’s current treatment of such agreements. This Article fills that gap by assessing how courts and other legal actors treat intra-family agreements to pay family members for elder care. A look into a long-ignored area of case law— Medicaid eligibility determinations—reveals that courts, administrative law judges, and state regulators typically attach little or no monetary value to elder care provided by family members. Rather, payments for caregiving are routinely treated as fraudulent transfers. The result is that, in the name of combatting Medicaid fraud, states penalize older adults who pay for their own care.

Treating family-provided elder care as lacking monetary value stands in sharp contrast to the high cost of elder care purchased on the open market and is at odds with states’ increased willingness to directly pay family care providers. This Article shows that this incongruence can be partially explained by public distaste for Medicaid planning and distrust of agents acting on behalf of older adults. Entrenched stereotypes about care work and related expectations about familial care also contribute to the law’s refusal to recognize these agreements and the economic value of care provided under them.

This Article offers lessons for social policy, legal theory, and legal practice. On a policy level, it shows that states are engaged in counterproductive behavior that will discourage the very type of family care they purport to encourage. On a theoretical level, it indicates that attitudes toward care work and courts’ willingness to enforce contracts between family members have not changed to the extent commonly described by family law scholars. Finally, at a practical level, it suggests that attorneys should adapt the advice they give clients to better account for distrust of agents.

June 11, 2019 in Articles, Current Events, Disability Planning - Health Care, Elder Law, Estate Planning - Generally | Permalink | Comments (0)

Tuesday, June 4, 2019

Elder Law Podcast

Elder_LawThe Harvard Business Review has posted on June 3, 2019 a podcast entitled When You’re Responsible for Eldercare. Here is the Review's description of the podcast:

Caring for sick or elderly family members is still mostly women’s work, according to research. The emotional labor and unpredictability of this work takes a heavy toll on caregivers; it impacts our wellbeing, finances, and careers. And while companies have gotten better about acknowledging and accommodating childcare, many could offer more support and flexibility to their employees taking care of adults.

We talk with Anne Bardoel about what the research says about women and eldercare. She’s been through it herself, and she offers strategies to cope with the negative effects like exhaustion, isolation, and depression. She also gives advice to employees and managers on how to start conversations about caregiving commitments. Then, we hear from a woman who was thrust into caring for her parents and in-laws a lot sooner than she expected.

Special thanks to Lewis J. Saret of the Law Office of Lewis J. Saret in Washington, DC for bringing this podcast to my attention.

June 4, 2019 in Elder Law | Permalink | Comments (0)

LGBT Baby Boomers -- "The Stonewall Generation"

LGBTIn For the ‘Stonewall Generation,’ turning to others for care could make them uniquely vulnerable, Wash. Post, June 3, 2019, JoNel Aleccia Melissa Bailey explain the challenges facing LGBT baby boomers as they age. They explain, "In a country where most elder care is left to family, many LGBT people are estranged from relatives and don’t have that option. Turning to others for care — in assisted-living centers, nursing homes or hospice settings — makes them uniquely vulnerable." They also report surveys revealing that LGBT seniors often receive discriminatory treatment.

Special thanks to Naomi Cahn, the Harold H. Greene Professor of Law at George Washington University for bringing this article to my attention.

June 4, 2019 in Elder Law, Estate Planning - Generally | Permalink | Comments (0)

Friday, May 31, 2019

‘Star Trek’ Actress Nichelle Nichols, 86, said to be Heard Screaming for Help in Audio Recording: Report

NicholsA recording that allegedly contains the voice of Nichelle Nichols, the actress that played Lieutenant Nyota Uhura on the original “Star Trek” television series in the 1960s, shrieking and screaming for help. Nichols is currently in a guardianship battle with her son over her suffering from dementia. 

“You get your hands off me! You’re trying to get rid of me!" the voice shouts from the recording. Gilbert Bell, a longtime friend of Nichols, supplied video and audio in which Nichols reportedly discusses her son’s efforts to gain control of her estate. Later the voice claims, “I didn’t give permission to have conservatorship over me. I didn’t know what he was doing.”

Nichols was praised by Dr. Martin Luther King Jr. for helping to break racial stereotypes with her role on the show. One year later Nichols and William Shatner, who played Captain Kirk, made TV history when they shared an interracial kiss.

See Dom Calicchio, ‘Star Trek’ Actress Nichelle Nichols, 86, said to be Heard Screaming for Help in Audio Recording: Report, Fox News, May 29, 2019.

May 31, 2019 in Current Events, Disability Planning - Health Care, Disability Planning - Property Management, Elder Law, Estate Planning - Generally, Television | Permalink | Comments (0)

Wednesday, May 29, 2019

Court Affirms Finding of Undue Influence Regarding Execution of Will

CourtroomIn a recently decided case, a woman in Texas executed a will while going through a divorce which was never finalized because she passed away. During the divorce, a sister of a friend started taking the decedent to doctor appointments and assisting with other tasks. The will that was executed named the new friend as sole beneficiary. The daughter of the decedent challenged the new will, and after a bench trial it was denied to probate due to undue influence.

The friend appealed the decision. To establish undue influence, a contestant must show the following: (1) the existence and exertion of an influence; (2) the effective operation of such influence so as to subvert or overpower the mind of the testator at the time of the execution of the testament; and (3) the execution of a testament which the maker thereof would not have executed but for such influence. The woman was estranged from her children because they had taken their father's side on some of the issues in the divorce, and the daughter claimed the new friend "froze her out" and would not allow her to repair her relationship with her mother. The friend also had a deferred adjudication for a theft and required to pay restitutions of over $38,000, and the decedent's estate was valued at $28,000 at the time of her death. The court held that the evidence was legally and factually sufficient to support the trial court’s findings that an influence existed and was exerted by the friend.

The decedent had health issues that caused her to need assistance in transportation to appointments and the hospital, and the court found that the woman became dependent on the friend for these needs. The decedent was also lonely because of the circumstances and the friend became deeply involved in the divorce proceedings. The court concluded that this evidence was sufficient to establish that the decedent was incapable of resisting her susceptibility to the influence. The decision was affirmed.

See David Fowler Johnson, Court Affirms Finding of Undue Influence Regarding Execution of Will, Texas Fiduciary Litigator, May 25, 2019.

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

May 29, 2019 in Current Events, Elder Law, Estate Planning - Generally, New Cases, Wills | Permalink | Comments (0)

Tuesday, May 28, 2019

Penniless Care Worker, 31, Inherits One of Britain's Finest National Trust Stately Homes

StatelyJordan Adlard Rogers, now 31, said he had been suspicious that a famous aristocrat, Charles Rogers, was his father since the age of 8. When Charles died on his estate at the age of 62 from an apparent drug overdose, his mother passing away within 2 weeks, and his brother dying from cancer, a DNA test was finally performed to determine is Jordan was his heir. There were some "obstructive family members," Jordan said, but the DNA test confirmed that Charles was indeed Jordan's father.

Jordan left his job as a community worker to move into the grand 1,536-acre National Trust Penrose Estate, estimated to be worth £50m, and now lives off of the income derived from the estate. But he says he will not become complacent. "I don't need to work anymore so I want to set up a charity and help the Porthleven and Helston communities. I've been at the point of worrying about the next bill and have had a tough start in life but now I'm here I want to help people."

There are also some regrets about not performing the DNA test earlier. Jordan believes that if Charles had known he had a son, he may have made different choices in the last months of his life and had someone looking out for his well-being. Charles was reportedly malnourished, neglected personal hygiene and rarely changed his clothes in the months leading up to his death. He was also not living in the lavish home but instead sleeping out of his car parked on the estate.

See Emer Scully, Penniless Care Worker, 31, Inherits One of Britain's Finest National Trust Stately Homes, Daily Mail, May 20, 2019.

May 28, 2019 in Current Events, Elder Law, Estate Administration, Estate Planning - Generally, Intestate Succession | Permalink | Comments (0)

Article on Older Victims of Crime: Vulnerability, Resilience and Access to Procedural Justice

CrimeKevin J. Brown & Faith Gordon published an Article entitled, Older Victims of Crime: Vulnerability, Resilience and Access to Procedural Justice, Elder Law eJournal (2018). Provided below is an abstract of the Article.

This article provides the first comprehensive examination of the phenomenon of unequal access to procedural justice for older victims of crime. It analyses quantitative and qualitative data exploring the interactions of older people with the criminal justice system of Northern Ireland. It identifies that older victims of crime are less likely to have a successful crime outcome (known as ‘detection’ or ‘clear-up’ in other jurisdictions) to their case when compared to other adults. The results provide evidence of a system failing to adequately take into account additional vulnerabilities that disproportionately impact on older victims’ ability to engage with the justice process. There is an analysis of the relationships between vulnerability, resilience and access to justice. The current conceptual understanding of vulnerability as applied to older people within the justice system is challenged. The findings are relevant for researchers and policy-makers in the United Kingdom, Ireland and further afield concerned with the treatment of older and vulnerable victims by the justice system.

May 28, 2019 in Articles, Current Affairs, Elder Law, Estate Planning - Generally | Permalink | Comments (0)