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Tuesday, December 17, 2013

Digital Estates and Other Interesting Topics in 2013

The December issue of Estate Planning featured a bibliography of "Articles of Interest" in 2013 legal journals.  Here are a few articles from the list that caught my eye.
  • Jamie P. Hopkins, Afterlife In the Cloud: Managing a Digital Estate, 5 Hastings Sci. & Tech L.J. 209 (2013).  From the abstract on SSRN:

    The rapid development of electronic devices and widespread access the internet has ushered in a new age: the digital age. The digital age has changed the manner in which assets are created and transferred. This digitalization of wealth challenges the effectiveness and efficiencies of traditional estate planning mechanisms. Additionally, modified estate planning techniques and the development of digital estate planning services have created serious privacy, security, and efficiency concerns for the transfer and management of digital estates. As such, creative and innovative digital estate planning solutions are required to ensure the privacy, security, and proper disposition of digital estates. However, because the problems facing digital estate planning are complex, a combination of legislative action and improved online service agreements are essential to solving the digital estate dilemma. Until digital asset ownership and transferability questions are resolved, digital estate planning will remain in flux as traditional estate planning appears ill suited for the management and disbursement of digital assets.

  • Jeffrey W. Sheehan, Late Fathers' Later Children: Reconceiving the Limits of Survivor's Benefits In Response to Death-Defying Reproductive Technology, 15 V. J. Ent. & Tech. L. 983 (2013). From the abstract in the Vanderbilt Journal of Entertainment and Technology Law:

    When Congress instructed the Social Security Administration to begin paying a social insurance benefit to “widows and orphans” in the 1930s, it simplified the process of determining an applicant’s relationship to an insured decedent in two significant ways: First, Congress ordered the agency to honor the intestate laws of each state when determining whether an applicant was actually the child of a decedent, and second, it ordered the agency to treat any child who could qualify as an intestate heir as if that child actually depended on the parent financially at the time of the parent’s death. Three-quarters of a century later, advances in reproductive technology make it possible for a child to be born decades after the death of one or both of her genetic parents. As the law begins to explore the rights and responsibilities of the parents who choose postmortem reproduction and the children whose lives come into being through those procedures, the heuristics that facilitated efficiency in the 1930s may yield unintended consequences. This Note explores some of those consequences and suggests minor alterations to the rules governing survivor’s-benefits eligibility intended to preserve the program’s social insurance function as reproductive technology transforms life after death from a hope or a fear into a choice.

  • Hannah Alsgaard, Rural Inheritance: Gender Disparities In Farm Transmission, 88 N.D. L. Rev. 347 (2013). From the abstract on SSRN:

    Farmers are farmers’ sons. Notable in our modern day, heralded by many as a gender-neutral society, it is farmers’ sons, not farmers’ daughters, who become farmers and take over ownership and management of the family farm. It has long been true that agricultural knowledge and land have passed through generations of men. In contrast, daughters, even today, are neither considered to be farmers nor likely to inherit family farmland. This Article begins by chronicling how farmland is inherited (by sons) then discusses why the pattern of excluding women continues. There have been substantial legal changes in the United States impacting land inheritance and ownership, culminating with the Equal Protection Clause’s extension to gender discrimination and the gender-neutral Uniform Probate Code. Social changes have also been tremendous, but even legal and social developments have been unable to correct gender disparity in farm inheritance. After exploring many legal and social factors, I conclude it is grooming – at the familial, governmental, and social levels – that plays the most vital role in training future farmers and mainly accounts for the gender difference in farm inheritance and the farming profession. This Article ultimately proposes girls must be groomed to farm in order to rectify the vast gender disparity in the ownership and management of family farms. A three pronged approach will be needed to remedy the situation, specifically: changing the role of lawyers, educating girls and women, and educating testators. What remains most important is that daughters are given the same opportunity as sons to farm based on merit, rather than being excluded from farm inheritance merely because of their gender.

  • Lynne M. Kohm, Why Marriage is Still the Best Default In Estate Planning Conflicts, 117 Penn St. L. Rev. 1219 (2013). From the abstract on SSRN:

    By analyzing a Tennessee bigamy case, a New York same-sex marriage case, and the growing cultural trend toward cohabitation over marriage, this article discusses how and why marriage is the best estate plan to protect vulnerable parties as they age. The article examines how marriage assists vulnerable parties in avoiding potential conflicts in estate planning and distribution, particularly when those parties have entered into alternative relationships. By focusing on the cases of Witherspoon, in which John Witherspoon entered into a bigamous second marriage, and Windsor, in which Edie Windsor is suing the U.S. government over the lack of federal tax recognition afforded her Canadian same-sex marriage, this article reveals how marriage expansion does not necessarily incentivize marriage, nor does it provide the benefits and protections often sought by those who enter into those marriage-like relationships. By contrasting the protection marriage affords to a vulnerable party in estate distribution and the dilemmas presented by marriage expansion (as illustrated in Witherspoon and Windsor) with the cultural disquiet over the importance of the nature and meaning of marriage, this article illuminates estate distribution conflicts in the context of the paradox of contemporary American socio-legal marriage culture. Despite the pop culture confusion over marriage, this article demonstrates why it is still the best default for estate planning conflicts.

  • Mary H. McNeal, Slow Lawyering: Representing Seniors In Light of Cognitive Changes Accompanying Aging, 117 Penn St. L. Rev. 1081 (2013). From the abstract on SSRN:

    As an increasing number of lawyers represent clients who are elderly, it is imperative that lawyers become more knowledgeable about the aging process and how it impacts our clients. Although it is difficult to generalize, many seniors experience numerous and diverse cognitive changes that accompany the aging process. Existing literature offers various frameworks for addressing capacity issues and techniques for assessing diminished capacity. However, current legal scholarship provides little guidance for lawyers on how to accommodate these changes when they do not rise to the level of diminished capacity or dementia, and when the changes may, in fact, result in increased wisdom and “developmental intelligence.” This article seeks to fill that void. It summarizes selected cognitive developments that impact memory, outlining various types of memory and how they evolve during the aging process. This article also discusses current literature on decision-making capacity and different decision-making models and strategies that seniors may rely upon. The article concludes with recommendations on methods for enhancing communications with aging clients, while simultaneously acknowledging and accommodating cognitive changes and enabling seniors to play a prominent role in the representational process.

Tuesday, December 3, 2013

Medicare and Medicaid in 2014

Medicare and Medicaid are rapidly changing as state and federal agencies scramble to implement the Affordable Care Act. The Kaiser Family Foundation is a great source of information on the changes and how they will affect consumers.

The Kaiser Family Foundation releases many useful reports and issue briefs. I am going to highlight two reports released in the last few weeks.

The first report is Getting into Gear for 2014: Shifting New Medicaid Eligibility and Enrollment Policies into Drive. This report outlines the key policy changes coming to Medicaid programs in January, 2013, in states that are expanding Medicaid coverage under the Affordable Care Act. It focuses on the eligibility and enrollment changes resulting from the Medicaid expansion. Twenty-five states and the District of Columbia are expanding Medicaid; everyone in those jurisdictions should be aware of the changes and their possible effects.

The second report, Medicare Advantage 2014 Spotlight: Plan Availability and Premiums, analyzes planned changes to the Medicare Advantage program for 2014. The report tracks the number of plans available through the Advantage program in 2014, the expected cost of the plans, and the changes to the plan benefits. According to the report, 15 million Medicare beneficiaries enrolled in insurance plans through the Medicare Advantage program in 2013, so the 2014 changes will have far reaching effects.

Tuesday, November 19, 2013

Estate Planning for Florida Snowbirds

The latest issue of the Rhode Island Bar Journal features an article of interest to anyone involved in estate planning in the Northeast. The article, Estate Planning for Florida Snowbirds, discusses some of the financial and legal implications for New England seniors who spend their winters in Florida or retire there.

From the article: 

If a Rhode Island attorney is advising a client with interests in both Rhode Island and Florida, it is important for him or her to understand the difference and interplay between the laws of the two states, as well as neighboring states such as Massachusetts. Because most Florida retirees maintain some connection to Rhode Island (and one day may return to the Ocean State due to the death of a spouse or declining health), problems can arise if both states' laws are not considered when preparing an estate plan.

We provide a summary of the important distinctions between Rhode Island, and its neighbor Massachusetts, and Florida in the areas of tax, creditor protection, Medicaid, and incapacity, as well as the planning techniques available to structure one's estate plan to optimize those differences. A brief ethical discussion of Florida's strong stance against the unlicensed practice of law concludes the piece.

Though the article is aimed primarily at attorneys in Rhode Island, its discussion of Florida law makes it a worthwhile read for anyone with Florida snowbird clients.

Tuesday, November 5, 2013

Can Guardians Pull the Plug on Life Support? In Minnesota, the Supreme Court Will Decide.

The Estate of Denial blog reports that the Minnesota Supreme Court has taken on an end-of-life case with the key question, "Should guardians be required to receive a judge’s sign-off before pulling the plug, or is it already part of the powers granted when they sign on for the job?"

The case, In re the Guardianship of Tschumy, involves a mentally disabled man who suffered severe brain damage after choking on some food. Tschumy could not survive without life support, and he had no family or health directive to indicate whether to proceed with care. According to Estate of Denial,

Allina Health System requested that a judge allow [Tschumy] to be removed from life support, either by clarifying that his guardian, Joseph Vogel, had the right to make the decision or by issuing an order from the bench.

District Judge Jay Quam authorized the termination of Tschumy’s life support, but denied the guardian’s request for the sole power to make that decision. Tschumy died.

In a follow-up order, Quam reasoned that although guardians have a strong case to make end-of-life decisions under a state law that grants them the power to allow or withhold medical care, it does not specifically allow them to terminate life ­support. Until the Legislature decides to revisit the issue, only a judge or legally authorized representatives can order life support removed.

“No one­­ — not even a judge — can look into the future and into the hearts and minds of a guardian to know with confidence that he or she will decide appropriately when, and if, an end-of-life decision needs to be made,” he wrote.

Attorneys for Vogel appealed. Last summer, the Minnesota Court of Appeals reversed Quam’s ruling, reasoning that the final authority lies with guardians and that end-of-life decisions shouldn’t be dictated by the court, relying on a 1984 Supreme Court ruling that said judges were permitted to allow removal of life support without a secondary hearing.

While Quam called the same law too vague, the Appeals Court countered that imposing a requirement for additional court sign-off “would be inconsistent with the Supreme Court’s recognition of a private, medically based model of decisionmaking.”

The Minnesota Supreme Court is expected to clarify just how far a guardian's authority extends and whether end-of-life decisions are an inherent part of that authority.

Wednesday, October 23, 2013

Do Nursing Homes Need More Government Oversight?

Last week, USA Today reported on thefts from nursing trust funds.  An investigation uncovered more than 1500 instances where nursing home staffers helped themselves to residents' money from trust accounts.  Senator Bill Nelson, chair of the U.S. Senate Special Committee on Aging, took notice of the article. He is asking the inspector general at the Department of Health and Human Services to investigate the federal oversight of nursing homes.

In a letter this week to the inspector general, Senator Nelson, pointing to the USA Today article, asserted

Data from the Centers for Medicare and Medicaid (CMS), the federal agency charged with overseeing nursing homes, revealed major "deficiencies," including inadequate accounting, or failing to provide residents with access to their trust fund money. . . . Apparently, health and administrative aides charged with auditing these trust funds understandably focus their nursing home reviews on health and safety issues; but at the same time many of them lack adequate backgrounds in forensic accounting, bookkeeping, or appropriate financial oversight methodologies.  These shortcomings create "crimes of opportunity," as one state official phrased it. It's difficult not to conclude that there are insufficient safeguards in this nursing home trust fund system, and that is the opinion of a number of experts cited.

Based on his conclusions, Senator Nelson called for "an examination of CMS's management and oversight of these nursing home trust funds."

The American Health Care Association told USA Today that it welcomes the possibility of more government oversight. "It is important for all nursing centers to ensure appropriate checks and balances are in place to guarantee proper management of resident trust funds," the association said. "We support continued efforts to strengthen the regulations and oversight that can prevent bad actors from exploiting the frail and elderly."