Wills, Trusts & Estates Prof Blog

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

Thursday, August 22, 2019

10 Most Expensive US States to Die in

BeachNew research compiled by the personal-finance website GOBankingRates, the National Funeral Directors Association and the National Bureau of Economic Research configured a list of the 10 most expensive states to die in after figuring the median out-of-pocket funeral costs and median end-of-life medical care in each of them and Washington, D.C. It is not surprising that the two of the most expensive states to live in - California and New York - also made this list.

The top 10 states that will cost more to die in are, from least to most:

  • Rhode Island
    • Average funeral expenses: $9,269
    • Average end-of-life medical costs: $16,398
  • New Jersey
    • Average funeral expenses: $9,712
    • Average end-of-life medical costs: $17,181
  • Connecticut
    • Average funeral expenses: $9,914
    • Average end-of-life medical costs: $17,538
  • Maryland
    • Average funeral expenses: $10,069
    • Average end-of-life medical costs: $17,812
  • Alaska
    • Average funeral expenses: $10,084
    • Average end-of-life medical costs: $17,840
  • Massachusetts
    • Average funeral expenses: $10,216
    • Average end-of-life medical costs: $18,073
  • Oregon
    • Average funeral expenses: $10,418
    • Average end-of-life medical costs: $18,430
  • New York
    • Average funeral expenses: $10,799
    • Average end-of-life medical costs: $19,103
  • California
    • Average funeral expenses: $11,777
    • Average end-of-life medical costs: $20,834
  • Hawaii
    • Average funeral expenses: $14,975
    • Average end-of-life medical costs: $26,492

See Shawn M. Carter, 10 Most Expensive US States to Die in, Fox News, August 20, 2019.

August 22, 2019 in Current Affairs, Death Event Planning, Elder Law, Estate Planning - Generally | Permalink | Comments (0)

Thursday, August 15, 2019

New Jersey’s Medically Assisted Suicide Law Put on Hold

PillsDemocratic New Jersey Governor Phil Murphy signed an act that allow physician assisted suicide back in April, but a judge has put the law on hold in response to a lawsuit filed by a doctor practicing in the state. Dr. Yosef Glassman’s lawsuit argues “that immediate and irreparable damage will probably result in view of the fact that if its enforcement," and says that the law is an affront to religious doctors. Dr. Glassman is an Orthodox Jew.

The law went into effect earlier this month, but Judge Paul Innes of Superior Court in Mercer County signed the temporary order Wednesday with a hearing set for October. The law requires two doctors to sign off on the request and for the terminally ill patient to be deemed an adult resident of New Jersey who has the mental capacity to make such a decision and voluntarily expresses a wish to die. They must request the medication twice, with one at least in writing and signed by two witnesses, and have a chance to rescind the request. One of the witnesses cannot be a relative nor a beneficiary of the patient's estate.

With the governor's signature, New Jersey joined Maine, Oregon, California, Colorado, Hawaii, Vermont, Washington and the District of Columbia that all have similar legislation.

See Mike Catalini, New Jersey’s Medically Assisted Suicide Law Put on Hold, Lubbock Online, August 15, 2019.

August 15, 2019 in Current Affairs, Current Events, Death Event Planning, Elder Law, Estate Planning - Generally, New Cases | Permalink | Comments (0)

Friday, August 9, 2019

ACTEC 2019 Annual Meeting Musings

BessemerSteve R. Akers published a summary of the ACTEC 2019 Annual Meeting. A synopsis of his musings is provided below.

Various seminars at the ACTEC 2019 Annual Meeting are summarized. Topics include: elder financial abuse, artificial intelligence, cryptocurrency, basis adjustment planning, family conflict, modification of trusts, settlor intent, directed trusts, Uniform Trust Act, Uniform Fiduciary Income and Principal Act, ethics of negotiations, and hot topics.

 

August 9, 2019 in Articles, Conferences & CLE, Current Affairs, Elder Law, Estate Administration, Estate Planning - Generally, Science, Technology, Trusts, Wills | Permalink | Comments (0)

Thursday, August 8, 2019

Article on Elderly Gun Ownership and the Wave of State Red Flag Laws: An Unintended Consequence That Could Help Many

GunTara Sklar recently published an Article entitled Elderly Gun Ownership and the Wave of State Red Flag Laws: An Unintended Consequence That Could Help Many, 27 Elder L.J. 35-49 (2019). Provided below is an abstract of the Article.

There is rising concern among health professionals and in legal circles to address gun ownership for older adults who display signs of cognitive decline, including dementia. However, elderly gun ownership remains underexamined, partly because incidents of gun violence among the elderly tend to occur in domestic settings and are much less visible than shootings in public areas. In contrast, there is widespread attention to curb mass gun violence through state legislation. Specifically, red flag laws, also known as Extreme Risk Protection Orders, have doubled in 2018 with thirteen states enacting red flag laws and over thirty states having introduced or planning to introduce this legislation. Although red flag laws were not intended to address elderly gun ownership, they uniquely apply where other gun control laws fall short, as red flag laws provide the legal process to temporarily remove access to guns for persons believed to be at an elevated risk of harming themselves or others.

This Article surveys the thirteen states that have enacted red flag laws and analyzes key legislative elements across these states. The state laws have notable variations, including authorized persons who can petition a court for a protection order, standard of proof requirements, and the length of time an order is in effect. These variations have implications for elderly gun owners and their families, particularly in how they relate to the climbing rates of cognitive decline, suicide in late life, and elder abuse. The current wave of red flag laws across the country offer an opportunity to provide greater awareness around elderly gun ownership and prevent crises from becoming tragedies.

August 8, 2019 in Articles, Current Affairs, Elder Law, Estate Planning - Generally | Permalink | Comments (0)

Wednesday, August 7, 2019

Article on Estate Planning Highlights of the 2019 Texas Legislature

TexasGerry W. Beyer recently published an Article entitled, Estate Planning Highlights of the 2019 Texas Legislature, Wills, Trusts, & Estates Law eJournal (2019). Provided below is an abstract of the Article.

This article reviews the highlights of the legislation enacted by the 2019 Texas Legislature relating to the Texas law of intestacy, wills, estate administration, trusts, and other estate planning matters.

August 7, 2019 in Articles, Current Affairs, Current Events, Elder Law, Estate Administration, Estate Planning - Generally, Guardianship, Intestate Succession, Trusts, Wills | Permalink | Comments (0)

Tuesday, August 6, 2019

Comment on Losing Your Mind, Losing Your Rights?: A Certification Process to Safeguard Alzheimer's Patients and the Moving Target of the Lucid Interval

AlzKaitlyn C. Meeks recently published a Comment entitled, Losing Your Mind, Losing Your Rights?: A Certification Process to Safeguard Alzheimer's Patients and the Moving Target of the Lucid Interval, 44 U. Dayton L. Rev. 79-109 (2018). Provided below is an introduction to the Comment.

Picture this: you have awakened, on a seemingly normal day, to a drastic lifestyle change -- the care of your mother or father. You, the child, have now become the parent. Why has this happened? One, or perhaps both, of your parents was recently diagnosed with Alzheimer's disease ("AD"), rendering him or her incapable, in the eyes of the law, of maintaining complete and autonomous control over their life. The child is now the sole caretaker for the parent's health, safety, finances, well-being, and legacy. As the new primary caretaker for an ailing parent, your life has become overwhelmed with legalities -- Power of Attorney Forms, Health Care Directives, and Living Wills and Trusts. These stresses are in addition to the emotional effects as well as the financial and physical demands a caregiver is confronted with on a day-to-day basis.

Will you ever be able to see the parent you once knew again, or will the remainder of your parent's life be surrounded in a cloud of the unknown? And then, with no warning, it is as if nothing but time has changed, and there is a return to your loved one's true self. Yet, with the blink of an eye, the disease takes hold once again, and the moment of lucidity has vanished.

"Your brain is your most powerful organ[.]" However, it is exactly the powerhouse organ which is attacked when a person has a degenerative disease like dementia. Dementia is the collective name for a series of brain disorders which affect cognitive capabilities, generally worsening as time progresses. Alzheimer's disease ("AD") is the most common and prevalent form of dementia. Since AD was first discovered in 1901, our ability to treat and cure the disease has yet to encounter any significant medical breakthroughs.

"Every four seconds, someone is diagnosed with Alzheimer's Disease." Within the United States, someone develops the disease every sixty-six seconds. According to the 2017 annual report by the Alzheimer's Association, one in ten people over the age of sixty-five are currently living with the disease, and the data projects that the amount of people who will be affected by AD will double within the next thirty years as the baby boomer generation settles into the elderly population. The elderly and "oldest-old" populations are expected to account for nearly 80 million Americans by 2050.

AD primarily affects the elderly; however, the elderly, in general, are an age group which seems to traditionally be excluded from many research benefits, including financial resources. Perhaps this illuminates the reason why one of the most aggressive diseases in today's society has failed to be cured, halted, or even alleviated. While the fight against AD is not stagnant by any means, an inability to proactively address issues stemming from the disease will have adverse effects on numerous professions.

Examining the growth of the disease's prevalence, there is an inevitable chance of correlation affecting the legal system through capacity challenges pertaining to AD patients, both while alive and after death. While areas of capacity, have been argued, discussed, and critiqued throughout the years, it seems that no clear foundation or consensus on how to address these growing issues has been established. Undeniably, without clear visions, capacity issues with AD patients will only worsen, especially when taking into consideration it is not a "one size fits all" kind of disorder.

In consideration of capacity issues for those suffering from AD, brief, spontaneous moments of lucidity sets apart the legal complications of the disease from many other disorders. Both in the medical and legal sense, a lucid interval is defined as "[a] period of sanity intervening periods of insanity[,]" and is measured by its strength, in that "[i]t must be such a full return of his mind to sanity . . . enabling [a person] to understand and transact his affairs as usual." For a person with AD, especially an advanced state of the disease, a lucid interval may be the only time he or she is able to make decisions for him or herself, or to see that his or her wishes in place are being properly executed. Because of this, the lucid interval is a "moving target." There is simply no way to predict a lucid interval, and there is no way to confirm a lucid interval without awareness in the aftermath.
This Comment will examine the increasing importance of a more standardized approach for an attorney to take when counseling an AD patient. First, to set the scene, an in-depth examination of the disease is needed: what AD is, the history of the disease, the unsuccessful attempts to prevent or cure Alzheimer's, and its current and future impact on society and the economy. Second, this Comment will address the current state of AD within the courts. The focus will be on how AD is currently seen in a legal context and how the lucid interval is treated within the judiciary. In addition, a Puerto Rico statute, which seems to balance the rights of freedom to contract with the protections of the patient's current and future estate interests, creates an unattainable objective approach to balancing the lucid interval and AD.

Third, this Comment will examine the conclusions of prior and recent case law to demonstrate how the topic has been construed in various states, focusing on how the application varies within the judiciary. Lastly, the Comment will propose a certification process for attorneys who regularly assist as counsel to AD patients. The proposed course will certify any participating attorney as a "Certified Alzheimer's Legal Specialist" upon successful completion. A Certified Alzheimer's Legal Specialist would best be defined as an attorney who is substantially familiar with the disease itself, can fully comprehend the legal ramifications of the client's desired acts by taking the time to understand the condition as pertaining to the individual client, and can ultimately serve in the prime position to ensure that an individual possesses the requisite capacity mandated under the law. This standardized approach would serve as clear evidence that his or her client was within a lucid interval -- having adequate capacity -- at the time a document was executed. The attorney is then the party that both understands the legal ramifications and how those ramifications benefit the client. This will help to not only protect the rights of an AD patient's autonomy, but will ultimately help eliminate the inevitable flooding of the courts.

It is paramount to maintain objective standards when examining an AD patient's affairs, as opposed to the subjective standards that are currently employed, both in practice and throughout the judiciary. When particularly observing the influx of the baby boomers into the realm of Elder Law, this Comment's proposed certification process comes at the ideal time. Addressing these considerations, stricter procedures need to be enacted, and ideally, implemented and overseen by a governing legal association. This will ensure that an attorney for an AD client is able to execute a legally enforceable matter at that precise moment as a means to uphold the client's wishes as well as to protect against an almost certain rise in litigation that surrounds the future of this disease.

August 6, 2019 in Articles, Current Affairs, Disability Planning - Health Care, Elder Law, Estate Planning - Generally | Permalink | Comments (0)

Thursday, August 1, 2019

CLE on 54th Annual Heckerling Institute on Estate Planning

CLEThe Heckerling Institute is holding a conference entitled, 54th Annual Heckerling Institute on Estate Planning, on January 13th - January 20th, 2020 at the Orlando World Center Marriott in Orlando, Florida. Provided below is a description of the event.

The nation's largest gathering of estate planning professionals offers practical guidance on today's most important tax and non-tax planning issues, as well as key insights on emerging developments and innovative planning strategies for the future. In addition to comprehensive coverage of recent developments, the 2020 Institute will include the following specialized program tracks:
Focus Series: Insights on emerging tax and non-tax issues including planning for migratory clients and the impact of the Supreme Court’s decision in Kaestner, representing global families, international and domestic asset protection, Qualified Opportunity Zones, and planning for digital assets.

Planning with Trusts: Advanced planning techniques for grantor and non-grantor trusts, building flexibility into long-term trusts, the trustee’s duty to disclose, planning for the payment of the GST tax, and an inside view from a panel of corporate fiduciaries.
International Planning: Planning for foreign and domestic clients, including the continuing impact of the 2017 Tax Act, representing global families, and a comparative analysis of foreign and domestic asset protection trust laws.

NEW! Business and Financial Assets: Explores Qualified Opportunity Zones, planning for family entities after Powell, planning for retirement benefits, Code Section 199A, and planning with Subchapter S corporations.

Elder Law: Practical guidance on special needs trusts including planning, drafting, and counseling the beneficiary or trustee, balancing vulnerability and autonomy for seniors, and the implications of divorce and the elderly.

NEW! Litigation and Conflict Resolution: Covers recent fiduciary cases, family governance issues, the disposition of tangible assets, and navigating trustee liability.

Charitable Giving: Insights on alternatives for obsolete private foundations, charitable giving with retirement benefits, and planning for charitable lead and remainder trusts.

Ethics: Covers new issues in planning for today’s families, hot topics in protecting privilege and avoiding unforeseen ethics issues, and ethical considerations with special needs trusts.

Fundamentals: An in-depth review of the grantor trust rules, planning with life insurance, and securities law issues for estate planners.

August 1, 2019 in Conferences & CLE, Current Affairs, Current Events, Elder Law, Estate Administration, Estate Planning - Generally, New Cases, New Legislation, Trusts, Wills | Permalink | Comments (0)

Monday, July 15, 2019

Note on Informed Consent and Decision-Making After Loss of Competency in Dementia Patients: A New Model

AlzLauren Padama recently published a Note entitled, Informed Consent and Decision-Making After Loss of Competency in Dementia Patients: A New Model, 28 S. Cal. Interdisc. L.J, 173-201 (2018). Provided below is an introduction of the Note.

After receiving a diagnosis of Alzheimer's, journalist Greg O'Brien analogized his experience with the disease to a plug in a loose socket. The light from the lamp starts to flicker, so he pushes the plug back in to the socket. It flickers more; Greg now becomes frustrated as he continues to push the plug back in. Eventually, the plug falls out of the socket entirely, and the light is extinguished permanently. This metaphor tracks the progression of Alzheimer's as a typical patient loses his memory and other core cognitive functions. It does not, however, consider that the cognitive decline is typically accompanied by a revocation of medical autonomy.

Most adults are familiar with the myriad forms they are required to sign before receiving medical treatment. These consent forms are designed to reiterate a physician's warning of the risks and benefits of the procedures to ensure that the patient is fully informed before agreeing to the procedure. This basic idea was famously articulated by then Judge Cardozo when he noted, "Every human being of adult years and sound mind has a right to determine what shall be done with his own body … ." Since then, every jurisdiction has developed a doctrine of informed consent, which requires the doctor to make a "reasonable disclosure of the available choices with respect to proposed therapy and of the dangers inherently and potentially involved in each." The physician's efforts to apprise the patient of the risks and benefits of the treatment or procedure would, however, be futile if the patient were unable to evaluate the risks and benefits of the procedure and come to an informed decision on whether to accept or reject treatment. Thus, informed consent also requires that the patient have the capacity to consent  to treatment. For patients with Alzheimer's or dementia, the cognitive decline associated with the disease eventually precludes the patient from meeting the medically determined competency standards. This means that the patient can no longer give consent to receive or refuse treatment. The patient is therefore forced to rely on the judgment of the physician or another statutorily approved decision-maker for all medical decisions after loss of capacity.

Informed consent was created to preserve patient autonomy, but dementia effectively revokes a patient's right to consent or decline treatment. A dementia diagnosis is followed by a determination of incompetency at a time when critical treatment decisions are made, such as the decision to administer psychotropic medications. Most decision-makers follow a physician's treatment recommendation, which means psychotropic medications are frequently prescribed to manage symptoms of dementia. When patients refuse, caregivers in both professional and private settings covertly administer medication without the patient's knowledge or consent. 

This article explains the challenges facing both the medical and legal community as the aging population in the United States leads to an inevitable increase in the number of dementia patients. In particular, the variety of accepted instruments used to assess competency has created variability in who is considered incompetent, which forces the patient to rely on statutorily approved methods of decision-making, such as conservators, family members, and advance directives. Since requirements for each vary by jurisdiction, this paper primarily focuses on California law. After discussing the deficiencies with each form of decision-making in the context of concealment of psychotropic medication, this paper explores a new approach to decision-making that focuses on the patient as opposed to the physician's recommendations. The proposed model combines elements of enhanced consent and supported decision-making to create a new method of decision-making. This method of decision-making gives a patient in the early and moderate stages of Alzheimer's more control over her healthcare decisions by forcing decision-makers to communicate directly with the patient instead of assuming the patient's preference. This aims to preserve autonomy in early stages of Alzheimer's by shifting the focus from substituted decision-making to decision-makers actually assisting the patient in deciding whether to accept or reject psychotropic medication and then articulate that choice effectively to the physician.

This paper begins with an overview of dementia and one of the most commonly prescribed treatments for Alzheimer's patients: psychotropic medications. I then discuss informed consent, the right to refuse medication, and assessing capacity both generally and in Alzheimer's patients. After explaining the problems with current competency assessments, I then review the most common methods of decision-making after loss of capacity for Alzheimer's patients as well as alternative methods of decision-making used in other populations. I demonstrate the deficiencies in the statutorily approved methods of decision-making by applying each method to a common real-world problem of medication concealment. Lastly, I illustrate the benefits of utilizing my proposed model, a hybrid of enhanced consent and supported decision-making. This model aims to preserve patient autonomy in the early stages of Alzheimer's while also providing a tool to plan for the later stages of the disease.

July 15, 2019 in Articles, Current Affairs, Disability Planning - Health Care, Disability Planning - Property Management, Elder Law, Estate Planning - Generally | Permalink | Comments (0)

Wednesday, June 26, 2019

Can an Eye Exam Reveal Alzheimer’s Risk?

EyeA visit to the eye doctor could reveal clues to not only your vision health, but may also someday assist in analyzing the health of your brain. A recent study performed by the Harvard T.H. Chan School of Public Health shows links between many forms of eye conditions, such as glaucoma and diabetic retinopathy, to an increased risk of Alzheimer's and other forms of dementia. One eye condition that does not appear to be linked to Alzheimer's is cataracts, though it is also age-related.

“My view, and one of the possible explanations that the authors present, is that these three eye diseases and Alzheimer’s and dementia have a joined etiology (a common causative factor). All are linked to cardiovascular disease,” says Dr. Albert Hofman, chair of epidemiology. The study began in 1994 and involved 5,400 dementia-free adults, following them until they left the study, died, or developed a form of dementia. The study found that people with age-related macular degeneration were 20% more likely to develop dementia compared with people who did not have the eye condition. People with diabetic retinopathy were 44% more likely to develop dementia than those without, and those with a recent glaucoma diagnosis (not an established diagnosis) had a 44% higher rate of dementia.

Though eye exams today may not be able to tell a patient if they have Alzheimer's or dementia, the knowledge that this study brings could enable doctors to focus on preventive measures. “Doing all the things that you would do to prevent heart attack and stroke are likely beneficial to prevent Alzheimer’s disease,” says Dr. Hofman. This means treating high blood pressure and cholesterol, eating a healthy diet, getting enough sleep, and maintaining a regular exercise program.

See Kelly Bilodeau, Can an Eye Exam Reveal Alzheimer’s Risk?, Harvard.edu, June 7, 2019.

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

June 26, 2019 in Current Affairs, Disability Planning - Health Care, Elder Law, Estate Planning - Generally, Science | Permalink | Comments (2)

Tuesday, June 25, 2019

The Future Looks Terrible for U.S. Nursing Home Costs

Nursinghome2Georgetown University Medical Center conducted a six year survey that revealed that the prices of nursing homes have been increasing quickly allover the country. The trend shows no signs of slowing down.

From 2005 to 2011, the period of time reviewed by the survey, California, Florida, New York and Texas all saw increases that surpassed the inflation rate. The study found nursing home price rises over the period measured generally outpaced increases in overall medical care (20.2%) and general consumer prices (11.7%). Because of the costs of long-term care and the laws governing it, many nursing home residents must spend down the bulk of their life savings before qualifying for federal assistance.

It could be an issue of supply and demand, with more people needing long-term care than facilities that provide those services. More elderly Americans mean more demand for nursing home care, and more demand for nursing home employees. Wages go up, and the cost is passed along to consumers who, under the current system by which America looks after its elderly, coverage is limited. Dr. Sean Huang, the study’s lead author, explained that the growing population of those in nursing homes are those that are they for long stays, including those with Parkinson's and dementia. “Medicare does not cover that. They will pay out-of-pocket until they use all of their wealth.” 

And it does not look like the trend will be changing any time soon, especially with Wall Street seeing money signs. Four out of the 10 largest for-profit nursing home chains were purchased by private equity firms from 2003-2008, and studies on the effect of these purchases show mixed results for consumer effects.

See Luke McGrath, The Future Looks Terrible for U.S. Nursing Home Costs, Financial Advisor, June 25, 2019.

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

June 25, 2019 in Current Affairs, Disability Planning - Health Care, Elder Law, Estate Planning - Generally | Permalink | Comments (0)