Archive for the ‘Commentary’ Category

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.

“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.

This is a topic we have discussed here (with the able help of Prof. Katherine Pearson, one of the Elder Law Professors in charge of the blog linked above). It is a worrisome issue, though we have not seen the tactic employed in Arizona.

Should a Guardian Follow the Wishes of Her Ward?

We read about an interesting Washington case recently.  Raven v. DSHS, a Washington Supreme Court decision handed down on July 18, 2013, indirectly dealt with a guardian’s duty to consider the known wishes of the subject of the guardianship. If the evidence is clear that the ward would not want to be institutionalized, for instance, is it elder abuse for the guardian to keep her ward at home past the time when the state’s Adult Protective Services workers think she should be placed in a nursing home?

It’s an interesting question, and more than just academic. You can read one analysis of the case, and the facts giving rise to the case, at the newsletter/blog of Washington lawyer John S. Palmer. We hope and expect to hear more from Mr. Palmer in the future.

Driving — Is It In Your Power of Attorney?

A terrific story on NPR this morning addressed seniors and driving. One suggestion: consider signing a power of attorney giving someone the authority to tell you when you need to stop driving.

At Fleming & Curti, PLC, we have been doing that for clients routinely for about a decade. If we drafted your health care power of attorney, there is a pretty high likelihood that you have given your agent the authority to tell you it’s time, and to take away the keys (and even the car). Of course, you could revoke that power when the time actually comes; we share Dr. Marian Betz’s hope that you will listen to your agent when your driving ability is impaired, and remember that you trusted them to make the decision when you signed the power of attorney.

Why in your health care power of attorney, rather than your general durable (financial) power of attorney? We think that the need to stop driving is more related to talking with your doctor and making placement and medical decisions than it is to handling your bank account and investments. We can also have you sign a completely separate document dealing only with driving ability if that makes sense in your circumstances.

Updated information re: hoarding

Turns out that hoarding behaviors may be more properly associated with depression than with obsessive/compulsive disorders. Also that hoarding problems tend to worsen with age. Read more in a National Public Radio report on a recent national meeting on aging issues.

Both pieces of news square with our observations. They also lead to the conclusion that simply conducting a massive clean-up may not only be ineffective, but also counterproductive.

How Should Special Needs Trust Funds Be Invested?

Here’s a question that comes up frequently in our practice: how should the funds held in a special needs trust be invested?

The answer should be obvious: a good investment plan for a special needs trust — just like a good investment plan for an individual — should consider the amount available to invest, the beneficiary’s likely needs in the short and long term, the cost of maintaining the investments and other factors affecting the beneficiary’s quality of life. All of that is part of the process of figuring out the trust’s (and the beneficiary’s) tolerance for risk. That, in turn, leads to an appropriate asset allocation — an estimate of what portion of the trust should be held in stocks, what portion in bonds or other fixed income investments, and what portion in other kinds of holdings.

Does all that sound confusing and complicated? It isn’t, really, but one way to get the proper allocation and investment portfolio is to trust the decision to qualified professionals. One would think a bank trust officer would be a good resource for this job. One might be less certain about a judge’s qualifications for the job — at least without looking at the judge’s professional training and background.

What happens when a judge orders a bank trust department to liquidate all its investments and hold an entire special needs trust in federally-insured certificates of deposit because of recent market swings? Well, you can read about a recent Washington State case in the weekly newsletter of our friends at the Hook Law Center, a Virginia law firm.

“The Dead Have Rights, Too”

We really like Tennessee lawyer Tim Takacs. His bi-weekly online (and e-mail) newsletter was one of the original inspirations for our own Elder Law Issues, and he has provided his clients and his readers with interesting, up-to-date and informative reading material for nearly two decades now.

Tim’s last-week Elder Law Fax addressed an interesting topic that we have touched on before here: who is in charge of decisions about and care of the dead? In the Tennessee case Tim reports on, the human remains in question had been buried in a family cemetery decades or centuries before, and there were no descendants to protect or care for their graves. Could the remains be moved to make room for a new owner to develop the property? That’s the issue he tackles in The Dead Have Rights, Too.

Interested in more on the subject? Check out our own articles taking on the burial/human remains issues.

Boomers to Inherit $8 Trillion

Our good friend Tim Takacs (from Tennessee) has an interesting report this week on a recent study by the Center for Retirement Research at Boston College. You can read the report summary, and order the more-detailed paper from which the quoted information was taken, at the Center’s website.

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