Wills, Trusts & Estates Prof Blog

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

Friday, September 24, 2021

Article: Study Paper on Health Care Consent and Capacity Assessment Tribunals

The British Columbia Law Institute and the Canadian Centre for Elder Law recently published an article entitled, Study Paper on Health Care Consent and Capacity Assessment Tribunals, Wills, Trusts, & Estates Law ejournal (2021). Provided below is the abstract to the Article: Estate planning

A finding of mental incapacity to give informed consent to health care, or to decide whether to accept or refuse admission to a care facility, results in a very significant loss of personal autonomy. A mature legal system must provide a readily accessible means to obtain review of a finding of incapacity by an independent decision-making body. This imperative has been accentuated by Canada’s ratification of the UN Convention on the Rights of Persons with Disabilities.

British Columbia once experimented with an administrative tribunal as a forum for review of decisions about mental capacity to consent to health care, and for resolution of disputes connected with substitute decision-making. The experiment was aborted well before reliable conclusions could be drawn about its merits.

At the present time, British Columbia nominally provides a mechanism for review of incapacity assessments, and of health care or care facility admission decisions of substitute decision makers, by application to the Supreme Court. In the course of the Canadian Centre for Elder Law’s project on Health Care Consent, Aging and Dementia: Mapping Law and Practice in British Columbia, it came to light that the court-based remedy is not utilized to any extent. In all likelihood, this is because it is inaccessible as a practical matter to most persons whose mental capacity is in question and their supporters.

A recommendation by the Advisory Committee on Health Care, Consent, Aging and Dementia called on government to consider the restoration of a non-court review mechanism, and for robust research to shed light on a model that would be appropriate for British Columbia.

This study paper is a response to that call for research. It examines existing tribunals in Canada and Australia that deal with mental capacity and consent to health care, and analyzes issues and considerations that would enter into the design of a tribunal suited to British Columbia. In so doing, the study paper lays groundwork for the public policy exercise that it is hoped will follow to bring a truly accessible non-court review mechanism into being in the health sector.

September 24, 2021 in Articles, Elder Law, Estate Administration, Estate Planning - Generally | Permalink | Comments (0)

Thursday, August 26, 2021

Seeking Early Signals of Dementia in Driving and Credit Scores

AlzheimersLearning your odds of eventually developing dementia requires medical testing and counseling. However, everyday behavior may provide early warning signs of dementia. Examples of this everyday behavior include overlooking a couple of credit card payments, habitually braking while driving, and others. 

According to Sayeh Bayat, the lead author of a driving study funded by the National Institutes of Health and conducted at Washington University in St. Louis, "[e]arly detection is key for intervention, at the stage when that would be most effective." 

These efforts could help "identify potential volunteers for clinical trials, researchers say, and help protect older people against financial abuse and other dangers." 

Many once-promising dementia drugs have failed int rials, which researchers suggest may be due to the drugs being administered too late to be helpful. 

By identifying risks earlier, before the brain has sustained a great amount of damage, researchers could more easily find a pool of participants with "preclinical" Alzheimer's disease. Researchers could then test preventive measures or treatments.

See Paula Span, Seeking Early Signals of Dementia in Driving and Credit Scores, N.Y. Times, August 23, 2021. 

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

August 26, 2021 in Disability Planning - Health Care, Elder Law, Estate Administration, Estate Planning - Generally | Permalink | Comments (0)

Monday, August 23, 2021

‘Grandfamily’ Housing Caters to Older Americans Raising Children

Estate planningWhen Jackie Lynn's niece gave birth to a baby who was addicted to heroin, Ms. Lynn had to take immediate action. 

Although Ms. Lynn's parenting days were apparently over since her two children had been on their own for 14 years. However, Ms. Lynn stepped in to care for her niece's 5 children when her niece pursued treatment. This required Ms. Lynn to move to Oregon from Washington State, which required her to take a pay cut, despite her expenses increasing. 

“The kids were there. They needed me,” Ms. Lynn, now 67, said. “It’s not like you can choose to walk away from something like that.”

For almost a year, Ms. Lynn rented an apartment and commuted almost four hours a day between child care and work. Ms. Lynn adopted three of the children, while two others moved in with other relatives. 

It was just when Ms. Lynn was "at her breaking point" when a child welfare worker told her about Bridge Meadows. Bridge Meadows is a "multigenerational housing community for older adults with low incomes, adoptive families or 'grandfamilies'—with a grandparent, adult family member or friend raising a child." 

Ms. Lynn eventually moved into Bridge Meadows. 

Communities like Bridge Meadows are becoming more and more popular as older Americans are seeking out "grand family housing." "Roughly 2.7 million children are being raised in grand families, and communities like Bridge Meadows "aim to provide stable housing." 

See Carly Stern, ‘Grandfamily’ Housing Caters to Older Americans Raising Children, N.Y. Times, August 19, 2021. 

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

August 23, 2021 in Elder Law, Estate Administration, Estate Planning - Generally | Permalink | Comments (0)

Monday, August 16, 2021

Trailblazing 'Star Trek' Actress Nichelle Nichols At The Center Of Conservatorship Battle

NicholsStar Trek actress Nichelle Nichols has found herself in a situation strikingly similar to Britney Spears. Nichols is currently in a conservatorship struggle that involves her only child, Kyle Johnson, her former manager Gilbert Bell, and a concerned friend, Angelique Fawcette—who Nichols named as her successor). 

Nichelle Nichols is known for breaking the color barrier in television in the 1960s with her role as Lt. Nyota Uhura in Star Trek. 

Similar to Britney Spears, Nichols' conservatorship battle is "raising public consciousness about conservatorships." Nichols' former agent and her concerned friend have taken steps to intervene because they feel that "Nichols is being denied the opportunity to live a life free of unwarranted restrictions." 

A specific catalyst for the conservatorship struggle is Nichols' dementia. Nichols' son, Kyle Johnson, claims that his mother could be "exploited due to her mental instability" and sought a petition for her conservatorship three years ago. 

In August of 2018, Fawcette filed an objection to Johnson's petition in which she argued that Nichols was still of sound mind and body and was capable of managing both her personal and financial affairs with some limited assistance. 

Fawcette also alleged that Johnson is simply using the conservatorship to take advantage of his mother by abusing his role to access Nichols' income and personal possessions. 

In 2019, Johnson was appointed conservator of his mother's estate, which Bell quickly opposed. 

The conservatorship battle continues, while Nichols' condition is unclear—at least to the public. 

See Okla Jones, Trailblazing 'Star Trek' Actress Nichelle Nichols At The Center Of Conservatorship Battle, Essence, August 16, 2021. 

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

August 16, 2021 in Elder Law, Estate Administration, Estate Planning - Generally, Guardianship, Television | Permalink | Comments (0)

Sunday, July 18, 2021

Older Singles Have Found a New Way to Partner Up: Living Apart

WidowLinda Randall, a Chicago psychotherapist, became a widow in 2016 but began to have romantic feelings for someone else about three years later. Linda had dated the man when she was in her 20s and had reconnected with him as a friend in 2015.

Linda was taken aback when she began to feel romantic feelings with this man. According to Linda, "[h]e was not in great shape. . .He'd had two heart attacks and two stents. I thought a lot about what to do." 

After dating for more than a year, the couple expressed their mutual love for one another. However, when the man asked to move in with her, Linda declined. Linda stated that "[h]e was hurt at first. . .but I like my space, and we're different in how we live." 

Less than a year ago, when he underwent surgery and needed recuperative care, Linda hired a live-in caregiver for him. While he was recuperating, his caregiver would walk him over to Linda's place. As the couple's intimacy continues, he can now manage on his own with his walker and he and Linda spend weekends together at Linda's place when his caregiver is off. 

As social relationships and social norms evolve, older people like Linda Randall are "increasingly re-partnering in various forms." Cohabitation following divorce and widowhood is an area where things are becoming what some may call "non-traditional." 

Older adults that are seeking and finding love as an "antidote to loneliness" may fear that "a romantic attachment in later life will shortly lead to full-time caregiving." 

This fear may very well lead older adults to avoid romantic relationships later in life, and may look to their friends and families for that fix. 

See Francine Russo, Older Singles Have Found a New Way to Partner Up: Living Apart, N.Y. Times, July 16, 2021. 

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

July 18, 2021 in Elder Law, Estate Administration, Estate Planning - Generally | Permalink | Comments (0)

Monday, June 21, 2021

Article: Organ Transplantation

David Orentlicher and Joaquin Cayon De Las Cuevas recently published an article entitled, Organ Transplantation, Wills, Trusts, & Estates Law ejournal (2021). Provided below is the abstract to the Article. Estate planning

It is commonplace to say that the success of transplantation therapies has led inexorably to their generalisation. Far from the experimental nature of the first interventions carried out in the middle of the 20th century, new technologies have produced an increase in survival and a substantial improvement in the quality of life. This new scenario has made transplants a therapeutic alternative that is increasingly demanded and used. Indeed organ transplantations may mean the difference between life and death for hundreds of thousands of people worldwide. No doubt that transplants are often the most cost-effective treatment, and sometimes the only way to treat liver, lung, or heart failure.

However, it should not be forgotten that the transplantation process is characterised by a series of factors that make it different from any other therapy. The most important is the persistent gap between the need for transplants and the availability of organs. The shortage of organs affects all countries. Official figures show that there is no country where the availability of organs is sufficient to meet the existing demand. In the United States, more than 100,000 people are on a waiting list for an organ, but only about 40,000 transplants were performed in 2019. In the case of the European Union, approximately 34,000 transplants were carried out in 2019, while ten patients died every day waiting for a transplant and nearly 60,000 patients remained on the waiting list at the end of the year. The existence of the organ shortage is inevitable, absent breakthroughs in synthetic organs or xenotransplantation.

Furthermore, there is enormous variability in the donation and transplant activity among different countries. The access to transplant therapies for patients varies depending on where they are in the world. These disparities in access reflect factors that are highly complex and sensitive, including legal (type of legislation and consent systems in place in the country), organisational (performance of national transplant programmes and teams), and cultural (such as the awareness in the general population, the health literacy or religious beliefs). Thus, for example, organ transplants are mostly carried out in countries that have reached a certain degree of development and have promoted the implementation of the systems that make them possible.

Still, as indicated, the shortage of organs is a global problem that affects all countries, both those that have implemented effective donation and transplant systems and those that still lack them. Accordingly, in the regulation of organ transplantation, considerable attention is paid to strategies for increasing the organ supply and policies for allocating the organs that are available.

June 21, 2021 in Articles, Current Events, Elder Law, Estate Planning - Generally | Permalink | Comments (0)

Thursday, May 6, 2021

How Should We Celebrate Elder Law Month?

With Covid-19 still lingering, elders are still subject to risk, creating a strong sense of urgency for those at risk to engage in elder law planning. "May is National Elder Law Month which allows the opportunity to educate seniors in local communities about their legal options and places an emphasis on the importance of planning early to ensure their wishes are in a legally binding format." 

One way we could help in celebrating elder law month is to communicate with the seniors in our lives by encouraging them and helping them create a plan to "protect their independence and assets." These conversations could be with loved ones, CPAs, financial advisors, attorneys, etc. 

It is important that a plan is carried out that best embodies the client's wishes, and not the State's or anyone else's for that matter. 

Estate planning attorney, Amanda Afton Martin, recently sat down with Julie Holton where they discussed a range of estate planning topics including: 

  • Estate Planning and Long-Term Care Planning
    • Who should be involved?
    • How may we ensure the client’s wishes are implemented?
    • How can early planning avoid court intervention?
  • Medicaid Planning
    • What is it?
    • When should it begin?
  • Impact of COVID-19 on Seniors
    • What is undue influence and what factors increase its likelihood?
    • How can we protect against undue influence?

 

See How Should We Celebrate Elder Law Month?, FosterSwift:mielderlawblog.com, May 3, 2021.

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

May 6, 2021 in Elder Law, Estate Administration, Estate Planning - Generally | Permalink | Comments (0)

Tuesday, March 9, 2021

Netflix's “I Care A Lot” Isn’t The Movie It Thinks It Is

PikeNetflix's new movie, I Care a Lot, has gained a lot of popularity since its release and even made Netflix's top 10 list.  And Rosamund Pike won a Golden Globe for her wonderful performance in the movie. 

In the film, Pike's character, Marla Grayson, "bribes medical professionals to declare older people legally unfit to look after themselves and then fools gullible judges into appointing her as their legal guardian. Once she becomes their guardian, she places them in nursing homes, often against their will, and immediately sets about liquidating their assets to pay herself." 

The court room scenes are very dramatic and compelling as they show that Marla is allowed to do these things she is doing and receives undying support from the courts and the police. She is even being thanked and assisted with her work. 

One of Marla's "victims" ends up being connected to the Russian mafia, which turns out to be a problem for Marla. Marla eventually has to take on the Russian mafia, which turns out to be very dramatic. This conflict is emotional as you find yourself rooting for criminals. 

Apparently, the idea of the film came from news reports of predatory guardians. 

As it turns out, given all of the abrupt changes and different levels in the movie, the movie may not really be about what the movie thinks it's about. 

See Elamin Abdelmahmoud, Netflix's “I Care A Lot” Isn’t The Movie It Thinks It Is, Buzz Feed News, February 26, 2021. 

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

March 9, 2021 in Elder Law, Estate Administration, Estate Planning - Generally, Guardianship, Television | Permalink | Comments (0)

Monday, February 22, 2021

At 93, She Waged War on JPMorgan—and Her Own Grandsons

BeverlyBeverly Schottenstein decided to waged war against JP Morgan, the biggest bank in the US; She was 93. 

Schottenstain said that her two grandsons that managed her money at JP Morgan "forged documents, ran up commissions with inappropriate trading and made her miss tens of millions of dollars in gains."

Schottenstein decided to stay an independent review of her accounts and what she found was devastating, "[h]er two financial advisers at JPMorgan Chase & Co., who oversaw more than $80 million for her, had run up big commissions putting her money in risky investments they weren’t telling her about. It was the latest red flag about the bankers. There had been missing account statements. Document shredding. Unexplained credit-card charges."

Against friends and family's advice, Schottenstein decided she was going to take action. After an arbitration hearing with her grandsons and JP Morgan, Schottenstein was awarded $19 million to be paid by her grandsons and JP Morgan. 

See Tom Schoenberg, At 93, She Waged War on JPMorgan—and Her Own Grandsons, Bloomberg Law, February 17, 2021. 

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

February 22, 2021 in Current Events, Elder Law, Estate Administration, Estate Planning - Generally | Permalink | Comments (0)

Thursday, February 11, 2021

Remote Witnessing of Wills: A Step in the Right Direction

Wills
The COVID-19 pandemic has incited some changes in the realms of estate and post-death planning. With the pandemic taking so many lives, many were forced to thinking about planning for their death, and they had nothing but time to do it. 

Many are required to self-isolate as to not risk their health or the health of loved ones. This has placed a burden on those that want to have wills executed, given the witness requirements and other things unattainable during the pandemic.

S.9 Wills Act 1837 sets out the requirements for executing and witnessing a will. Changes to current legislation may make it a bit easier to make a will during the global crisis. The "Physical presence" has been expanded to include virtual presence by means of videoconference or other visual transmission. 

The temporary change applies to all wills and codicils made between January 31, 2020 and January 31, 2022. After that, the revision will expire and things will go back to the way they once were. "It is important to note that, similar to other COVID-19 measures, the Government has the authority to shorten or extend this two-year period, should it be deemed appropriate to do so." 

In regard to "virtual presence" the most important element of virtual witnessing is that all parties have a "clear line of sight." Also, pre-recorded videos are not allowed. 

The Government also sets out other helpful rules, regulations, and guidelines to help out. 

See Simon Goldring & Elysa Jacobs, Remote Witnessing of Wills: A Step in the Right Direction, McDermott, Will, & Emery, February 10, 2021. 

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

February 11, 2021 in Current Events, Elder Law, Estate Planning - Generally, New Legislation, Wills | Permalink | Comments (0)