Elder Law Issues
Savings and Income at Death Indicate Retirement Shortfall
MAY 11, 2015 VOLUME 22 NUMBER 18 You’ve probably read and/or heard about concerns that Americans do not save enough money to get through their retirement. A recent report from the Employee Benefit Research Institute shows just how stark the situation is — by focusing on the actual savings held by people who died over
The Patient Self Determination Act and Trends in Advance Directives
MAY 4, 2015 VOLUME 22 NUMBER 17 Last month the U.S. Government Accountability Office released a short report on the use of advance directives in hospitals, nursing homes and other health care facilities. The report, requested by members of the Senate Committee on Commerce, Science, and Transportation, addressed the experience with health care powers of
Why You Aren’t Really Limited to $14,000 in Gifts Each Year
APRIL 27, 2015 VOLUME 22 NUMBER 16 There is so much misinformation (and misunderstanding) around gift taxes, that we thought we would take a few moments and try to straighten out the confusion. Let’s start at the end: if you live in Arizona, and are not fabulously wealthy, you probably don’t actually care very much
Health Care Directives — Advice for Snowbirds and Travelers
APRIL 20, 2015 VOLUME 22 NUMBER 15 Arizona weather is beautiful, especially this time of year. We do have our weather challenges — for most of the state, that means the summer months — but there is no doubt that Arizona is attractive to visitors from more northern climes during the fall, winter and spring.
Managing a Special Needs Trust — The Handbook
APRIL 13, 2015 VOLUME 22 NUMBER 14 Are you named as trustee of a special needs trust? Are you a trust beneficiary, wondering about how the trust should be administered? Or are you a parent or grandparent of an individual with a disability, wondering about what a special needs trust might actually look like in
Income Taxation of Trusts — Not Just Special Needs Trusts
APRIL 6, 2015 VOLUME 22 NUMBER 13 We have previously explained the income taxation of self-settled special needs trusts and third-party special needs trusts. We focused on special needs trusts because, well, that’s what we do — and also because there seems to be so much confusion about special needs trusts. But that is not
Income Taxation of the Third-Party Special Needs Trust
MARCH 23, 2015 VOLUME 22 NUMBER 12 Last week we wrote about how to handle income tax returns for self-settled special needs trusts. Our simple message: such trusts will always be “grantor trusts”, an income tax term that means they do not pay a separate tax or even file a separate return. This week we’re
Income Taxation of the Self-Settled Special Needs Trust
MARCH 16, 2015 VOLUME 22 NUMBER 11 This time of year, we are often asked about income tax issues — especially when a trust is involved. It may take us several newsletters, but let’s see if we can’t demystify the income taxation of trusts. We will start with the type of trust we most often
Does Your Existing Trust Split Into Two Shares On a Spouse’s Death?
MARCH 9, 2015 VOLUME 22 NUMBER 10 A letter from a reader asks: “My husband and I set up a revocable trust which will divide our assets in half when one of us dies. This was to avoid estate taxes. Now that estate taxes are no longer a problem, are there still benefits to splitting
Choosing a Personal Representative for Your Estate
Have you decided who you should name as personal representative of your estate (and successor trustee of your trust, and agent under your financial and health care powers of attorney)? Make sure you’ve chosen wisely. Consider what can go wrong, as described this week in the Wills, Trusts and Estates Professor’s Blog.
Financial Exploitation Case Leads to Judgment, Disinheritance
MARCH 2, 2015 VOLUME 22 NUMBER 9 We hear variations on this same story once every week or so. Dad (it might be Mom, or Aunt Bridget, or a long-time family friend) seemed to be adrift after his wife (her husband, her long-time companion) died. Then he met this woman who moved in with him
Nursing Home Resident’s Lawyer Did Nothing Wrong
FEBRUARY 23, 2015 VOLUME 22 NUMBER 8 From time to time we report on cases in which lawyers are disciplined for behavior involving clients who are older or have disabilities. We do that not out of any sense of schadenfreude, but because the behavior described in the disciplinary proceeding is illustrative of an important limitation
Court Rejects Challenge to Living Trust After Settlor’s Death
FEBRUARY 16, 2015 VOLUME 22 NUMBER 7 Jessica Waltham (not her real name) died tragically in 2012, when her home south of Tucson burned down. She left a small estate, three sons and a bubbling dispute over the validity of her living trust. Jessica had first signed a living trust in 2000. She titled her
Medicare Savings Programs: QMB, SLMB, QI, QDWI and Extra Help
FEBRUARY 9, 2015 VOLUME 22 NUMBER 6 Health care programs for the elderly, the poor and the disabled can be complicated and confusing. We frequently find that clients are unclear about the differences — in eligibility and in coverage — between Medicare and Medicaid, for instance. Add in the fact that Arizona calls its Medicaid
Top Ten Reasons to Skip the Living Trust and Sign a Will Instead
FEBRUARY 2, 2015 VOLUME 22 NUMBER 5 Last week we suggested some of the reasons why you might think about having a revocable living trust as part of your estate planning documents. This week we’ll try to turn it around, and give you ten reasons why you might prefer to have a will (“just” a
Top Ten Reasons You Might Want a Trust, Rather Than Just a Will
JANUARY 26, 2015 VOLUME 22 NUMBER 4 Do you need a living trust? Even with an estate tax threshold of over $5 million (and double that, for most married couples)? That is the primary question posed by most of our estate planning clients. For years the answer depended mostly on the size of your estate.
“No-Contest” Clause in Trust Can Be As Effective As Will Provision
JANUARY 19, 2015 VOLUME 22 NUMBER 3 When we prepare wills and/or trusts for our clients, they often ask if they should include a “no-contest” provision. Typically, they want us to add language that would penalize anyone who challenges the validity of their estate planning documents. Are such provisions effective, or even permitted? We explain
New Tax-Related Numbers for 2015
JANUARY 12, 2015 VOLUME 22 NUMBER 2 Welcome to 2015! Who thought we’d ever make it? The Internal Revenue Service did, that’s who. They’ve busily updated numbers for the upcoming year; most of the new numbers have actually been known for a couple months. Once you get used to writing “2015” every time, we have
Forgot to Make New Year’s Resolutions? We Can Help
JANUARY 5, 2015 VOLUME 22 NUMBER 1 First we’d like to apologize for not getting this to you last week. We know how hard you were working to prepare some good New Year’s Resolutions. You wanted some that you could actually count on satisfying, that would really be beneficial, and that would make you sound
“Filial Support” Laws and Nursing Home Collections
We read an interesting article today, posted on the Elder Law Prof Blog. It includes an interview with the child of a nursing home resident — the child (not the resident) was successfully sued for a portion of her mother’s nursing home bill. We thought it would be of interest to our readers, as well.
The ABLE Act — How Will You Be Able to Use It?
DECEMBER 29, 2014 VOLUME 21 NUMBER 47 Last week we told you about the passage of The Achieving a Better Life Experience Act, and tried to spell out some of the important details. But until we can all see actual cases, it might be hard to figure out how to use the new law (and
ABLE Act Passes — We’ll Tell You What It Means
DECEMBER 22, 2014 VOLUME 21 NUMBER 46 The Achieving a Better Life Experience Act passed the U.S. Senate last week, and President Obama signed it over that same weekend. But what does it mean for people with disabilities, and for their families? How will you be able to use the accounts authorized by the ABLE
Assets Not Held As Part of Trust Pass to Different Successors
DECEMBER 15, 2014 VOLUME 21 NUMBER 45 From time to time we see appellate court decisions dealing with a common estate planning problem: after creation of a trust, changing title to assets is an essential element of completing the estate plan. Once in a while, as appears to be the case in this week’s court
New Florida “Trust Protector” Case Shows How the Idea Can Work
DECEMBER 8, 2014 VOLUME 21 NUMBER 44 We’ve written several times about the relatively new concept of “trust protectors.” The idea is that a trust can be much more flexible if someone — necessarily someone who is entirely trustworthy — has the power to make at least some kinds of changes after the trust becomes
New Thanksgiving Tradition to Consider: The Conversation
NOVEMBER 24, 2014 VOLUME 21 NUMBER 43 You’ve signed your health care power of attorney and your living will (maybe they were in the same document). You’ve given a copy to your doctor and of course your lawyer kept a copy. Did you think you were done? Because you’re not. Now it’s time to take
Nursing Home Arbitration Agreement May Not Be Enforceable
NOVEMBER 17, 2014 VOLUME 21 NUMBER 42 If you have recently signed a family member (or a friend, or yourself) into a nursing home or other care facility, you probably have been presented with an agreement to submit all disputes to arbitration. Such provisions are very popular among the facilities themselves, though most individuals who
Medicare Eligibility at 65: What You Need to Know
NOVEMBER 10, 2014 VOLUME 21 NUMBER 41 Almost ten thousand Americans turned 65 today. Almost all of them will be eligible for Medicare coverage. Those who are new to Medicare will need to make some decisions about whether to sign up for Part B, what to do about Part D, whether to choose Medicare Advantage
The Developing Law of Trust Decanting
NOVEMBER 3, 2014 VOLUME 21 NUMBER 40 We first wrote about trust “decanting” in this space three years ago. Since then we’ve had occasion to revisit the topic a handful of times — most recently about six weeks ago when we wrote about modifying trusts that no longer seemed to make as much sense, since
Lawyer Has Responsibility to Monitor Conservatorship Administration
OCTOBER 27, 2014 VOLUME 21 NUMBER 39 Guardianship (of the person) and conservatorship (of the estate) cases pose special problems for lawyers. Usually, a lawyer involved in such a case will have responsibilities to several different persons. To name three obvious choices, the lawyer will have duties to: the guardian or conservator the lawyer represents;
Even Lawyers Can Have Trouble Recognizing Undue Influence
OCTOBER 20, 2014 VOLUME 21 NUMBER 38 We often say that experienced lawyers can be pretty good at judging the competence of a client to make a will, sign a power of attorney or execute other documents. We (collectively) probably make better witnesses on those questions than even the doctors and medical staff attending to