Wills, Trusts & Estates Prof Blog

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

Saturday, May 16, 2020

Fearing Covid-19, Older People Alter Their Living Wills

CoronavirusMinna Buck, 91, had been following the craze surrounding COVID-19. Last month, Buck decided to revise a document specifying her wishes if she were to become critically ill. Buck's revision included the words, "No intubation" in big letters in order to make her wishes clear. 

Minna Buck was aware that she would likely not survive a serious infection like COVID-19, so she wanted to be sure that she would not be put on a ventilator under any circumstances. Buck, who lives in a continuing care retirement community in Denver, selflessly stated, "I don't want to put everybody through the anguish." 

For the older community, ventilators symbolize a lack of personal control as well as the power of technology. In other words, the fear of being put on a ventilators is a terrifying thought for these communities. This makes COVID-19 an even more terrifying thought, since respiratory failure is a signature symptom of the illness. The harsh reality is that those in their 80s or 90s, will not have a good chance of defeating the illness, even if put on a ventilator; and the risk is even greater for those who have underlying health conditions. 

Like Buck, Joyce Edwards, who is 61, also revised her advanced directive to state that she did not want to be put on a ventilator if she were to have COVID-19. Edwards said that she had her quality of life in mind when she made the decision and she felt that being placed on a ventilator would keep her from enjoying the things she loves most.

For the seniors, COVID-19 forces them to face these issues. Being placed on a ventilator can work one of two ways: One, the ventilator could help assist you in your uphill battle of recovery; or two, you could spend your last days hooked up to a machine that is essentially robbing you of your last days. The decision is yours!

See Fearing Covid-19, Older People Alter Their Living Wills, SFGate, May 9, 2020.

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

May 16, 2020 in Current Events, Disability Planning - Health Care, Elder Law, Estate Planning - Generally, Wills | Permalink | Comments (0)

Sunday, May 10, 2020

Heirs May Have to Return Stimulus Money Sent to the Deceased, But How and When?

StimuluscheckA number of family members or heirs of deceased loved ones recently received an unexpected stimulus check for the person that died. Some of the payments included a notation that the recipient was deceased, so they questioned if the payment was intentional or not. U.S. Treasury Secretary Steve Mnuchin said heirs should be return money that was sent in the name of someone who died, but did not elaborate.

So far, the government is not reporting exactly how many dead people were sent checks, but has said that it was an unintentional side effect of attempting to send out the checks to people as fact as possible. There is conflicting information if they already spent the money, or whether or not they have rights to the money as the recipient's natural heir. In a transcript of a April 17 White House briefing President Trump was asked about checks to dead people. He said, "we'll get that back."

See Connie Thompson, Heirs May Have to Return Stimulus Money Sent to the Deceased, But How and When?, April 29, 2020.

May 10, 2020 in Current Affairs, Current Events, Elder Law, Estate Planning - Generally | Permalink | Comments (1)

Thursday, April 30, 2020

Remote Notarization Law Now Available in Massachusetts

WilltestamentThe number of states that have recently passed legislation to allow remote notarization for estate planning documents during the ongoing pandemic is quickly growing. Massachusetts is number 45 with Governor Baker signing the bill into law on April 27th.

There are certain guidelines that must be followed.

  • The allowance only lasts until three days after the end of the state of emergency, which has been extended to May 18th.
  • Only attorneys and paralegals under their supervision may notarize estate planning documents: wills, trusts, durable powers of attorney, and HIPAA releases.
  • All remote notarization sessions must be recorded and the recording saved for 10 years.
  • The notary must sign a supplemental affidavit verifying a number of facts, including that the person signing the documents and all the witnesses were in the state of Massachusetts.
  • The notarization is not effective until the notary receives and compiles all original signature pages, notarizes the document, and completes supplemental affidavit.

For the immediate future this is great news, but the question remains: why is this law not permanent? Also, why do all the witnesses need to be in Massachusetts? 

See Laura Goodman & Harry S. Margolis, Remote Notarization Law Now Available in Massachusetts, Margolis.com, April 28, 2020.

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

April 30, 2020 in Current Affairs, Current Events, Death Event Planning, Disability Planning - Health Care, Disability Planning - Property Management, Elder Law, Estate Planning - Generally, New Legislation, Wills | Permalink | Comments (0)

Do You Want to Die in an I.C.U.? Pandemic Makes Question All Too Real

Covid2Many older American's with chronic health issues, even if they have not contracted the novel coronavirus, are asking themselves a difficult question: if given the choice, would like want to die in a hospital's intensive care unit? Edo Banach, president of the National Hospice and Palliative Care Organization, recently had that conversation with his 69-year-old mother, Cheryl Goldman. She told her son that she would rather stay at home and receive hospice care instead of being admitted and being placed on a ventilator.

“It’s the kind of conversation everyone should be having with their loved ones,” Banach said. Depending on the source, one-third to two-thirds of Americans have not executed an advanced directive, which outlines what medical treatments they would accept or refuse and also designates a decision maker to act on their behalf if they become incapacitated. Many seniors and their families focus on do not resuscitate orders which deals with whether patients would want to be resuscitated after cardiac arrest. But advanced directives are the documents that involve the question of ventilation and intubation, which involves a tube inserted down the throat, connected to a ventilator that pushes air into the lungs. After an extended period of time on a ventilator - usually two weeks - doctors commonly perform a tracheostomy, creating a surgical opening in the windpipe that replaces the swallowed tube.

“After elderly people have been on a ventilator, they’ve often already developed physical debilitation, difficulty swallowing, bedsores,” said Dr. Kosha Thakore director of palliative care at Newton-Wellesley Hospital in Massachusetts. Further medical issues can be physical or cognitive or both, and are often permanent. Though the question may be hard to ask of loved ones, during these uncertain times it is becoming critical - "If you got really sick, would you want to take a chance and be placed on a ventilator? Or would you prefer to pass at home?"

See Paula Span, Do You Want to Die in an I.C.U.? Pandemic Makes Question All Too Real, New York Times, April 24, 2020.

Special thanks to Matthew Bogin, (Esq., Bogin Law) for bringing this article to my attention.

April 30, 2020 in Current Affairs, Disability Planning - Health Care, Elder Law, Estate Planning - Generally | Permalink | Comments (0)

Wednesday, March 25, 2020

CLE on Medicaid: Qualifying Clients for Immediate Care and Protecting Assets

CLEThe National Business Institute is holding a webcast entitled, Medicaid: Qualifying Clients for Immediate Care and Protecting Assets, on Friday, April 17, 2020 at Central: 9:00 AM - 4:00 PM. Provided below is the description of the event.

Program Description

Helping Clients Secure Nursing Home Coverage Without Destroying Family Assets

Medicaid planning is most effective when done ahead of time. Sadly, most clients seek help when the need for nursing home is urgent or when the loved one is already in the facility. Do you have all the tools at your disposal for tackling such tough cases? This practical guide zeroes in on the very techniques that work in the crisis situations - when the penalty period is already triggered or care is already being provided. Learn what asset transfer approaches are still available and how to make certain to protect family assets. Help clients make the best of a tough situation. Register today!

    • Clarify what types of asset transfers will NOT trigger penalty periods of ineligibility.
    • Get all the tools you need to provide for the spouse staying in the community.
    • Draft caregiver agreements that are sure to qualify for Medicaid compensation.
    • Learn what can still be done with an adverse Medicaid decision.
    • Protect the family home with techniques tailored to specific family dynamics and circumstances.

Who Should Attend

This Medicaid planning guide is designed for attorneys. It will also benefit nursing home administrators, accountants, geriatric care managers, care coordinators, social workers and paralegals.

Course Content

    • What Happens in an Emergency Medical Situation
    • Asset Purchase and Transfer Strategies
    • How to Transfer a Residence
    • Using Promissory Notes to Help Clients Currently in the Nursing Home
    • Life Care Contracts Between Parents and Children
    • Contesting Denial of Benefits, Penalty Period Dates and Other Adverse Medicaid Decisions
    • Providing for the Community Spouse
    • Legal Ethics in Medicaid Practice
    • Emergency Medicaid for Non-Qualified Non-Citizens and Undocumented Individuals

March 25, 2020 in Conferences & CLE, Disability Planning - Health Care, Disability Planning - Property Management, Elder Law, Estate Planning - Generally, Professional Responsibility | Permalink | Comments (0)

Monday, March 23, 2020

Five Tips to Decrease Social Isolation for Older People During COVID-19

RotaryphoneSocial distancing has become the new normal with the rise of COVID-19, but many older Americans may not be comfortable with digital devices. Approximately one-third of those 65 and older may have never used the internet and may not have internet access at home, and half of those that do have the internet need help to navigate it or set up a new device. As the virus spreads, so can loneliness, especially for the elderly who cannot or do not know how to take advantage of socializing through today's digital age.

Here are five tips to help older adults stay connected through technology:

  •  Most older adults have a smart phone, personal computer, or tablet, they may just not have the hardware - such as a microphone or speakers, or the software - such as an essential update, to get connected to others.
  • Games or programs such as bridge, chess, or mah-jong may help older individuals to ward off isolation, but need help downloading them. They may also need assistance in creating profiles on social media sites.
  • There are vast amounts of applications with the intention of keeping people connected, and more seemingly being created every day, but elders may just need a guiding hand. This is also a great way for kids to bond with grandparents, and to build up children’s confidence.
  • Elder financial abuse is rampant, so staying vigilant and explaining to older individuals the ins and outs of these scams are highly important as they spend more time on their devices.
  • For those that do not have the internet, staying connected through a land-line but seem antiquated, but it is a viable option. Family members can arrange a schedule of who will call, and maybe, during those calls, even talk about connecting through the internet.

See Naomi Cahn, Five Tips to Decrease Social Isolation for Older People During COVID-19, Forbes, March 18, 2020.

March 23, 2020 in Current Affairs, Current Events, Elder Law, Estate Planning - Generally, Technology | Permalink | Comments (0)

Thursday, March 19, 2020

CLE on Financial Exploitation of the Elderly: Estate Plan Strategies to Protect You and Your Client

CLEThe American Law Institute is holding a webcast entitled, Financial Exploitation of the Elderly: Estate Plan Strategies to Protect You and Your Client, on Wednesday, March 25, 2020 at 1:00 – 2:30 pm Eastern. Provided below is a description of the event.

Why You Should Attend

Financial exploitation of vulnerable adults is not a new phenomenon. Exploitation of and by prominent celebrities such as Brooke Astor, Anna Nicole Smith, and Stan Lee has shined a spotlight on financial exploitation, bringing it increased attention among practitioners, lawmakers, and Congress. Sadly, this kind of exploitation is not going away. In fact, its prevalence will likely increase because perpetrators are becoming more sophisticated, leveraging technological advances to exploit their victims. Prepare yourself and protect your client with an estate plan that hopes for the best in people but insulates you both from the worst in people. You will learn how to do this and more with the teachings in this webcast.

What You Will Learn

During this webcast, our expert faculty will talk about the planning instruments that will protect your client from financial exploitation, provide you with ethically permissible mechanisms to stop and reverse financial exploitation, without compromising your relationship with your client. Topics of discussion include:

    • Congressional efforts on elder abuse, including funding of state Adult Protective Services (APS), amendments to the Older Americans Act (OAA), and effects of the 2018 federal budget on available services
    • Understanding and identifying victim profiles
    • Discussion of typical scam scenarios
    • More sophisticated exploitation vehicles: power of attorney abuses, mortgage scams, and home maintenance sources
    • Spotting your clients’ indicators of financial exploitation
    • The engagement letter: Identifying the client and taking direction from the client under Model Rule 1.2
    • Prevention planning: disability planning, benchmarking capacity periodically to comply with Model Rule 1.14, and permissible disclosures under Model Rule 1.6 when incapacity is suspected
    • Handling financial exploitation in the absence of a power of attorney or health directive
    • Using guardianships and conservatorships and important considerations under the Uniform Adult Guardianship Protective Proceedings Jurisdiction Act (UAGPPJA)

Who Should Attend

Estate planners, elder lawyers, and general practitioners who handle the affairs of the elderly will benefit from this ALI CLE webcast.

March 19, 2020 in Conferences & CLE, Current Affairs, Disability Planning - Property Management, Elder Law, Guardianship, Professional Responsibility | Permalink | Comments (0)

Wednesday, March 11, 2020

The Limits of Dementia Treatment in Primary Care

DementiaA survey conducted through Alzheimer’s Association showed that Half of primary care physicians say their field is not prepared to handle the increasing number of people with dementia they expect to be treating in the next five years. Currently 40% of primary care physicians say they are “never” or only “sometimes comfortable” diagnosing dementia, which does not bode well as the population with dementia grows.

Also, 27% of the physicians that participated in the survey said that they are uncomfortable answering questions from patients pertaining to dementia, but in fact, most of the physicians said they received only “very little” training on dementia in their residencies.

See Shraddha Chakradhar, Flattening the Covid-19 Curve, Primary Care Physicians on Dementia, & the Pulsating Brain, STAT Morning Rounds, March 11, 2020.

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

March 11, 2020 in Current Events, Disability Planning - Health Care, Elder Law, Estate Planning - Generally, Science | Permalink | Comments (0)

Thursday, March 5, 2020

Nearly Half of CPA Advisors See Dementia in Some Clients

CpaThe American Institute of Certified Public Accountants (AICPA) has released their Personal Financial Planning (PFP) Trends survey this week and it sheds light on planning for cognitive decline is not following the trend of increased awareness. 28% of CPA planners say their clients plan to deal with diminished mental capacity in retirement on a reactionary basis, and 20% are ignoring the issue altogether, according to the survey. Unfortunately, nearly half - 48% - of all CPA financial planners reported they had a client exhibit signs of dementia or diminished capacity for the first time in the past year alone.

92% of CPA planners that do address client cognition ensure that powers of attorney and health-care proxies are in place, while 66% arranged for themselves to contact their client’s other professionals and relatives. “Managing cognitive decline is difficult for the client, their family and the CPA financial planner,” said Susan Tillery, chair of the AICPA’s PFP Executive Committee. “At times such as this, it is essential to be proactive by having a plan in place to deal with the financial demands of long-term care and other medical expenses associated with diminished capacity." 

Financial abuse and fraud is an apparent plague for older clients, with phone or internet scams, the inability to say no and identity theft as the most common. The emotional toll of being scammed was larger than the financial toll for their clients according to the CPAs. “Everyone is vulnerable to financial abuse and exploitation. However, the elderly are highly susceptible because companionship is an enticing allure for them. This can be due to the disintegration of the traditional nuclear family, death of spouse or friends, and the isolation that accompanies declining health,” Tillery said.

See Tracey Longo, Nearly Half of CPA Advisors See Dementia in Some Clients, Financial Advisor, March 4, 2020.

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

March 5, 2020 in Current Affairs, Disability Planning - Health Care, Disability Planning - Property Management, Elder Law, Estate Planning - Generally | Permalink | Comments (0)

Tuesday, March 3, 2020

Trends in Electronic Health Record Use Among Residential Care Communities: United States, 2012, 2014, and 2016

CdcChristine Caffrey, Ph.D., Christopher Cairns, M.P.H., and Vincent Rome, M.P.H. recently published a newsletter entitled, Trends in Electronic Health Record Use Among Residential Care Communities: United States, 2012, 2014, and 2016, National Health Statistic Reports, No. 140, CDC.gov, March 3, 2020. Provided below is the abstract to the newsletter.

Introduction—This report presents a trend analysis of electronic health record (EHR) use and health information exchange capability among residential care communities. EHR systems and health information exchange have the potential to improve communication and facilitate care coordination, especially during care transitions.

Methods—Data in this report are from the residential care community survey component of the 2012, 2014, and 2016 waves of the biennial National Study of Long-Term Care Providers (NSLTCP), which is conducted by the National Center for Health Statistics. For the EHR use measure, respondents were asked if, for other than accounting or billing purposes, they used EHRs. Among those who indicated they did use EHRs, health information exchange capability was also measured using items that asked residential care communities if their computerized system supported electronic health information exchange with physicians or pharmacies. A weighted least-squares regression was used to test the significance of trends across the 2012, 2014, and 2016 NSLTCP waves by several residential care community characteristics, including bed size, ownership status, chain affiliation, U.S. Census division, and metropolitan statistical area (MSA) status.

Results—The percentage of residential care communities that used EHRs increased between 2012 and 2016 overall (20% to 26%), for all bed size categories, profit and nonprofit ownership, chain and nonchain affiliation, six out of nine census divisions, and MSA and non-MSA status. Among residential care communities reporting EHR use, computerized support for health information exchange with physicians or pharmacies also increased between 2012 and 2016 overall (47.2% to 55.0%) and among communities that had more than 100 beds, were for profit, chain affiliated, located in the East North and East South Central census divisions, and in both MSAs and non-MSAs.

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

March 3, 2020 in Articles, Elder Law, Estate Planning - Generally, Science, Technology | Permalink | Comments (0)