Wills, Trusts & Estates Prof Blog

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

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)

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)

Thursday, February 4, 2021

Family of legendary singer Tony Bennett opens up about his Alzheimer's diagnosis

TonyLegendary singer Tony Bennett, 94, was diagnosed with Alzheimer's disease in 2016. Bennett continued to tour and record music even after his diagnosis, as was recommended by his neurologist. Further, "because of music's 'peculiar power' to rouse deep memories in dementia patients, 'audiences and critics never suspected his condition. 

Bennett had been recording and touring until the coronavirus pandemic. Since Bennett stopped touring and doing live performances, his condition has worsened. 

"Just how therapeutically beneficial performing had been for Tony soon became obvious when his world shrank to the confines of his apartment," Dr. Gayatri Devi, Bennett's neurologist, told the magazine.

"Describing him as free today from some of the condition's worst symptoms — anger, disorientation — the magazine noted that there is still "little doubt that the disease had progressed."

Bennett's caregivers have alleged that it is clear that the disease has progressed. Apparently, a fork and set of housekeeps were "utterly mysterious to him."

See Tim Fitzsimons,  Family of legendary singer Tony Bennett opens up about his Alzheimer's diagnosis, NBC News, February 1, 2021. 

Special thanks to David S. Luber (Florida Probate Attorney) for bringing this article to my attention.

February 4, 2021 in Elder Law, Estate Administration, Estate Planning - Generally, Music | Permalink | Comments (0)

Thursday, January 7, 2021

Millennials, It’s Time to Talk Estate Planning With Your Parents

Estate planningMillennials continue to get older and can no longer be looked at as children anymore. Some millennials are even moving into their forties. This means that Boomers are also continuing to get older, which means, Millennials may need to begin speaking to their parents, whom are Boomers, about estate planning. 

Boomers are at the age when it becomes necessary to have the difficult conversations with them, and the estate planning conversation is one of the most important. This discussion goes further than just conversations about wills and inheritance. It is important to discuss power of attorney, living wills, and even death event planning.

You should discuss wills, trusts, inheritance and any documents needed in regard to those matters. Documents for power of attorney or health care proxy will likely need to be discussed. Also, a living will is very important in the case of your parents being unable to do tasks like pay the bills and other things. 

These conversations are not easy and are often uncomfortable and difficult to bring up. One way to help this is to approach estate planning as a way to alleviate anxiety and stress and present the idea to your parents as such. 

See Erin Lowry, Millennials, It’s Time to Talk Estate Planning With Your Parents, Bloomberg, December 30, 2020. 

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

January 7, 2021 in Current Events, Death Event Planning, Elder Law, Estate Administration, Estate Planning - Generally, Trusts, Wills | Permalink | Comments (0)

Thursday, December 31, 2020

Covid Spurs Families to Shun Nursing Homes, a Shift That Appears Long Lasting

Estate planningIn the wake of the pandemic, Americans are having to take extra, and often new steps to take care of their elderly. These new family decisions include avoiding nursing homes and other rehabilitation homes for the elderly, leaving Americans to care for their loved ones in their own homes. 

America has a long history of using institutions to care for the at-risk elderly. "The U.S. has the largest number of nursing-home residents in the world. But families and some doctors have been reluctant to send patients to such facilities, fearing infection and isolation in places ravaged by Covid-19, which has caused more than 115,000 deaths linked to U.S. long-term-care institutions."

Since the spring, there has been a drop of in the number of patients in nursing homes and similar facilities. "Occupancy in U.S. nursing homes is down by 15%, or more than 195,000 residents, since the end of 2019, driven both by deaths and by the fall in admissions." 

This has created financial problems for nursing-homes, with even the biggest U.S. nursing-home company stating that it may not have the money to fulfill its financial obligations. 

See Anna Wilde Mathews & Tom McGinty, Covid Spurs Families to Shun Nursing Homes, a Shift That Appears Long Lasting, Wall Street Journal, December 21, 2020. 

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

 

December 31, 2020 in Current Affairs, Current Events, Elder Law, Estate Planning - Generally | Permalink | Comments (0)

Monday, December 14, 2020

In Life, She Defied Alzheimer’s. In Death, Her Brain May Show How

Alzheimers"A woman in Colombia with a rare genetic mutation recently made the ultimate dontation to science." 

Aliria Rosa Piedrahita de Villegas had a rare genetic mutation that made it almost certain that she would develop Alzheimer's disease in her 40s. However, she did not begin experiencing symptoms until the age of 72. On November 10, she died from cancer, but the good news is that her dementia was not significantly advanced at the time, 

Neuorology investigators from the University of Antioquia in Medellin. have been closely studying Villega's and her family members in attempts to learn more about early-onset Alzheimer's disease. They found that there were several people whose disease did not develop until their 50s or 60s, which is a later development than expected. 

Although there were several outliers, they say none were as "medically remarkable" as Villegas, whom they knew as doña Aliria. 

Aliria had traveled to Boston where investigators conducted nuclear imaging studies of her brain "as part of an ongoing study of this Colombian family, the largest in the world with genetic early-onset Alzheimer's." 

The investigation revealed that Aliria had exceptionally large quantities of amyloid beta, which is a protein normally found in Alzheimer's patients. The researchers found that "something had interrupted the usual degenerative process, leaving her day-to-day functioning relatively preserved." 

Researchers at Harvard Medical School stated that although Aliria "carried a well-known mutation, unique to Colombia, that causes early Alzheimer's, she also carried two copies of another rare mutation that appear to have thwarted the activity of the first one." 

If researchers can unlock the secret to why Aliria's brain was able to fight off Alzheimer's for so long, it would be a very important discovery and a huge step forward against Alzheimer's. 

See Jennie Erin Smith, In Life, She Defied Alzheimer’s. In Death, Her Brain May Show How, N.Y. Times, December 11, 2020. 

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

December 14, 2020 in Current Events, Disability Planning - Health Care, Elder Law, Estate Planning - Generally, Science, Technology | Permalink | Comments (0)

Wednesday, November 25, 2020

How Covid-19 Will Change Aging and Retirement

Estate planningThe most recent Fall wave of COVID-19 continues to destroy lives and communities throughout the United States. The pandemic has also affected retirement and old age and how Americans deal with and plan for these things. 

Physician and entrepreneur Bill Thomas stated, "isolation of older people has long been a problem, but Covid is focusing attention on the issue and adding urgency" to address it. With rising government deficits and falling bond yields, there is a lot of uncertainty surrounding retirement and how to fund it. Thus, many people are continuing to work for as long as possible. 

However, innovations are on the rise. Laura Carstensen, director of Stanford University's Center on Longevity stated that people will begin to "rethink retirement altogether." In the wake of Covid, there has been more emphasis on mortality, causing us to consider how we want to live in die. 

It is likely that more people will age at home. Covid has cast the spotlight on long-term care facilities, revealing "how shockingly inadequate our care infrastructure and systems are." Innovation will hopefully provide better nursing homes and more resources for people to age at home. 

Also, innovation is aimed at older people due to the pandemic and the aging population. However, Covid-related lockdowns are likely to "reduce the life expectancies of those who avoid or survive the virus." 

New innovations will hopefully cause people to work longer, value life more, save more for retirement, embrace healthier lifestyles, and plan for death. 

See Anne Tergesen, How Covid-19 Will Change Aging and Retirement, Wall Street Journal, November 15, 2020. 

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

November 25, 2020 in Current Events, Death Event Planning, Disability Planning - Health Care, Disability Planning - Property Management, Elder Law, Estate Planning - Generally | Permalink | Comments (0)

Monday, November 16, 2020

When Medicare Choices Get ‘Pretty Crazy,’ Many Seniors Avert Their Eyes

RetireWith the new year approaching, many seniors will be bombarded with messages about their Medicare coverage. These messages range from emails to physical mail to television ads. 

The fall enrollment season which began October 15 and will run until December 7. During this season, "enrollees can shop Medicare’s marketplace for the prescription drug and Advantage plans offered by commercial insurance companies. They can also switch between fee-for-service original Medicare and Advantage."

The choices continue to grow as time passes. This year, enrollees will have 57 different coverage plans to choose from. At its inception in 1965, Medicare was much more basic and was seen as a social insurance program. Eligible workers would pay taxes and premiums but would all receive the same coverage. 

Between the 1990s and 2006 and continuing on, Medicare has expanded greatly. The growth allows people to make decisions and choose plans that are best tailored to their needs and lifestyle. 

This type of shopping is very important because seniors' needs may change, requiring them to shop for new plans and coverages that fit their lifestyle changes.

See Mark Miller, When Medicare Choices Get ‘Pretty Crazy,’ Many Seniors Avert Their Eyes, N.Y. Times, November 13, 2020. 

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

November 16, 2020 in Current Events, Elder Law, Estate Administration, Estate Planning - Generally | Permalink | Comments (0)