Chapter Outlines 44544 - Brands Delmar - Cengage · PDF filec. Mental health experts have...

© 2009 Delmar Cengage Learning. All Rights Reserved. 1

CHAPTER 11. Objectives

2. Introduction

a. America’s ever-increasing elderly popula-tion has developed legal needs particular totheir age group. This changing demographichas spawned the creation of the Elder Lawspecialty as a legal practice.

b. Legal issues of importance to the elderlyclient often focus on personal independenceand decision making.

c. Elder law practice typically emphasizes lifeplanning before death, unlike traditionalestate planning that generally emphasizeswhat happens to an individual’s propertyafter his death.

d. Pertinent and related elder law topics thatmay play a role in client representationinclude but are not limited to 1. governmentbenefits; 2. housing options; 3. age discrim-ination; 4. economics of retirement; 5. dis-ability law; 6. bankruptcy; 7. estate planning;8. institutionalization; 9. fraud issues; 10.Social Security, Medicare, and Medicaid; 11.marriage; 12. grandparenting; 13. healthcare issues; 14. abuse; 15. guardianships andconservatorships; 16. senior living facilities;and 17. funeral planning. Elder law practi-tioners should be prepared for ethical issuesrelating to any of the listed topics.

e. The most holistic elder law practices use anetwork of allied professionals to providethe most cost-effective and productive serv-ice to their clients.

3. Population Growth

a. Population aging is a worldwidephenomenon.

b. California is home to the largest population ofresidents 65 years old and older, followed byFlorida, New York, Texas, and Pennsylvania.Half of older Americans live in nine states:California (3.6 million); Florida (2.8 million);New York (2.4 million); Texas (2.1 million);Pennsylvania (1.9 million); and Ohio, Illinois,Michigan, and New Jersey (each with morethan 1 million).

c. There were approximately 35 million peopleage 65 or older in the United States by 2000.This number increased from 1900 by 10 times.It has been predicted that one in five peoplein the United States will be 65 years or olderby 2025.

d. By 2025, the 78 million adults comprisingthe group called the baby boomers willbegin to hit age 85 and it has been estimatedthat nearly nine million Americans will beover age 85.

e. Older Americans are mostly women becausewomen have a longer life expectancy—livingan average of six years longer than men.

4. Exhibit 1–1: Projected Population of the UnitedStates 2025

5. When Is Someone Considered Elderly?

a. There is no one particular age when aperson should automatically be defined ordescribed as elderly.

b. Both the federal and state governments pro-vide age-related protections and benefits,for example, the federal government’s AgeDiscrimination in Employment Act of1967 and the Age Discrimination Act of 1975.

c. Social Security retirement benefits andMedicare eligibility.

d. The federally created Older AmericansAct (OAA).

CHAPTER OUTLINES

6. Creating the Right Office Environment

a. A law firm paralegal or office manager may beasked to assist in the design or renovation ofthe office space of an elder law practice. It isimportant to look to the demographics of afirm’s clientele.

b. Striving for compliance with the Americanswith Disability Act usually ensures that theoffice will be accessible to a firm’s elderlyand possibly impaired clients.

c. Many elder law clients travel to an elder lawfirm with a family member. However, it maynot be wise for the family member to remainwith the elderly client during an office visit.The question of which person is the clientand issues of undue influence could becomea concern during the visit.

7. Tea and Sympathy: Practicing Therapeutically

a. Legal talents must coexist with compassion.Attorneys, paralegals, and support staffworking in an elder law practice need tounderstand the special needs of the olderclient.

b. Therapeutic Jurisprudence is defined asthe melding together of a client’s legal andpsychological issues by his attorney and thefirm’s legal support staff to better serve the client’s needs.

c. A personalized legal plan.

8. Exhibit 1–2: Evaluating Elderly Clients

9. Elder Law Practice: A Paralegal’s Role

10. Elder Law Practice: Luke Enters the Picture

a. Working in an elder law practice meanshaving to understand the special needs ofthe older client.

11. Senior Benefits

a. Every state and territorial government hasenacted legislation creating agencies that areempowered to administer, design, and advo-cate programs and services for their elderlycitizens. The Area Agencies on Aging (AAA)are public agencies serving the needs ofsenior citizens within a defined geographicarea. These agencies may generically becalled state units on aging.

b. The Older Americans Act (OAA).

c. The federal government’s Department ofHealth and Human Services along with the national Administration on Aging and

the Centers for Disease Control andPrevention are the umbrella agencies for the state- and community-based programs.

12. Exhibit 1–3: Network of Agencies Serving theNeeds of the Nation’s Elderly

13. Protective Services for Seniors

a. Each of the 50 states provides for the protec-tive services of an ombudsman for its institu-tionalized elderly. Each state also has a legalprocess for initiating a public guardianshipor public conservatorship for elderly adultswith no willing or responsible family mem-bers or friends who can serve in that capacity.

14. Seniors Becoming Empowered

a. The larger the elder population pool, thegreater their political power.

15. Duty to Care for Nation’s Elderly?

a. A majority of states have found it necessary toimpose a statutory duty on adult children to provide financial assistance to their indi-gent parents.

16. Exhibit 1–4: Sample Duty of Care Statute

17. Seeking Personal Independence

a. How long a client will be able to take careof his personal and financial needs withoutsome level of assistance is an issue of hugeimportance for clients.

18. Elder Law Practice

a. Mr. MacGee, an octogenarian and longtimecaregiver, facing the needs of his wife.

19. Medical Problems and the Elderly

a. Legal practitioners embarking on a career inelder law practice will need to learn the lan-guage of aging particular to their clients.

b. Nearly all elderly Americans will experiencesome type of chronic health condition intheir last years of life.

c. The good news is that Americans are stayinghealthier and living longer. The average lifeexpectancy for American women is 77; forAmerican men it is 75.

20. Mental Illness and the Elderly

a. Living longer means the onset of age-relatedmental illness may increase.

b. Statistics show that elderly people kill them-selves at a higher rate than any other seg-ment of the population.

2 ONLINE COMPANION TO ACCOMPANY ELDER LAW

© 2009 Delmar Cengage Learning. All Rights Reserved.

c. Mental health experts have warned that anational crisis in geriatric mental health careis on the horizon.

d. Medical services, community services, sup-port systems, and training programs concen-trating specifically on geriatric mental healthnationally have been called nonexistent anda potential disaster.

21. Dealing with Cognitive Disorders

a. Dementia is a general term used to describea mental illness associated with the impair-ment of an individual’s brain function.

b. Alzheimer’s disease (AD) (a type of demen-tia) reportedly is responsible for 50 to 75 per-cent of all dementias, but there are at least 50 others.

c. Alzheimer’s is typically described as a dis-ease of the elderly. This is only partially true.Younger people can be stricken by the disease.

22. Exhibit 1–5: Diagnostic Characteristics Based onDSM-IV

23. Caring for the Elderly

a. Unfortunately, the boom in longevity isoften accompanied by illness and the imme-diate need for personal caregiving.

b. The families of the elderly do approximately80 percent of the unpaid care of our nation’soldest citizens.

c. The assistance of a geriatric care managermay be helpful in determining the appropri-ate care plan for an elder.

d. The Family and Medical Leave Act(FMLA) provides a federal safety net forworking Americans who need to take timeoff from work to care for a family membersuffering from an illness or who have theirown medical condition to deal with.

24. The Shadow of Long-Term Care

a. The majority of older Americans will needsome type of assistance with their dailylives. Long-term care of some kind will beneeded by two out of every three Americans65 years old and older.

25. Elder Abuse

a. Within the last decade it has been esti-mated that on an annual basis, the numberof victims of physical and mental elderabuse has reached 820,000. Self-inflicted

abuse raises the number to an estimatedtwo million victims.

26. Parenting Issues That Never Really End

a. An elderly client may be the parent of aminor child or the client may have an adultchild who is mentally or physically chal-lenged. In either case, the elderly client willlikely need assistance in the eventual trans-fer of his parental responsibilities to anotherdesignated guardian.

27. Recognizing the Firm’s Client

a. Who is the law firm’s client in an elder lawpractice? It may seem like a simple question,but it can lead an attorney and paralegalthrough an ethical minefield.

28. Summary

29. Key Terms

30. Review Questions

31. Ethics Alert

a. The question of who the firm’s client is oftenarises in an elder law practice. For example,a son may bring his elderly father to a lawfirm for legal representation and insist onbeing involved in every step of the represen-tation. If the son pays the attorney’s fees,does that make the son the firm’s client? Is thefirm representing only the father? Is the firmrepresenting both the father and the son?Should the attorney and paralegals share thefather’s information with the son? What if the father is impaired in some way? Does thatmatter?

32. Helpful Web Sites

33. Endnotes


2. Introduction

a. A last will and testament is defined as adocument in which a person directs how herproperty is to be distributed after her death.

b. Approximately 40 percent of Americans over45 years of age have never drafted a will.

c. In general, a client’s estate includes all of herassets, less all debt, plus death benefits fromall life insurance policies not held in anirrevocable trust.

d. The legal requirements for properly execut-ing a will vary from state to state. Some

CHAPTER OUTLINES 3


states follow the Uniform Probate Code(U.P.C.) and other states have enacted morestate-specific legislation and follow theirstate’s common law decisions.

3. Drafting a Will

a. The person who writes her own will iscalled the testator.

b. Generally three elements must be presentwhen a person writes a will. First, the testatormust fully understand the legal consequencesof writing a will. Second, the testator mustknow the full extent of her property (the old-fashioned term bounty is often used in theexplanation of this second element). Third,the testator must know the names of theproper recipients of her property.

c. There are basically three types of bequestsmade by a testator in a will. They include: 1.a general bequest; 2. a specific bequest;and 3. a residuary bequest.

4. Property Ownership and Wills

a. Both real property and personal propertycan be owned.

b. Real property can be owned in one of fourways: 1. tenancy in severalty (also knownas sole ownership); 2. joint tenancy; 3. tenancy in common; and 4. tenancy bythe entirety (also known as communityproperty).

c. Another way to describe a type of real prop-erty ownership is to state the type of estatethe real property is. Generally, an estate isdescribed as a fee simple absolute or a lifeestate or a tenancy for years.

5. Marriage and Wills

a. Two types of statutes pertain to wills thathusbands and wives should know about.These include the elective share statutesand the pretermitted spouse statutes.Collectively, these statutes may be describedas taking against the will.

b. Basically, the elective share statute states thefollowing to the surviving spouse: Take whatyou received from the will, or you have achoice of taking a statutorily predeterminedshare after your deceased spouse’s debts are paid.

c. The pretermitted spouse statute states thefollowing to the surviving spouse: If you arenot mentioned in your spouse’s will, the

law will treat you as if your spouse had nowill and died intestate. The pretermittedspouse will then be eligible to take an intes-tate share of the testator’s estate (which inmost states is defined as at least half of theestate).

6. Exhibit 2–1: Client Interview Questionnaire

7. Without a Will: The Law of Intestate Succession

a. All 50 states consider a person who dieswithout a will to have died intestate. Theproper term to call a person who will inheritproperty from a deceased person with orwithout a will is heir. The term distributeeis also used to describe a person statutorilyentitled to a decedent’s property through theintestate statutes. The term next of kin orkindred relationship is also used to define allpersons entitled to inherit from a personwho has not left a will. Determining who anintestate’s next of kin is can be done bylooking to the consanguinity factors.

8. Exhibit 2–2: Sample Arizona Intestacy Statute

9. Without a Will, What Happens to Property?

a. Without a written will, a judge must getinvolved and will look to the degree ofrelationship between the decedent andany statutorily designated heirs.

b. Per stirpes distribution describes amethod of dividing a deceased person’sestate by giving out shares equally by repre-sentation or by family groups. Alternatively,per capita distribution may occur.

10. Ensuring Proper Will Execution

a. The formal requirements for properly exe-cuting a will vary from state to state depend-ing upon whether a state has adopted all orportions of the U.P.C. or has more state-specific requirements.

b. Attestation clauses facilitate probate by pro-viding prima facie evidence that a testatorvoluntarily signed her will in the presence ofwitnesses.

c. Self-proving affidavits are sworn statementsby eyewitnesses that the will has been dulyexecuted.

d. All states require a will to be witnessed by atleast two witnesses, except Vermont whichrequires three witnesses.

11. Exhibit 2–3: Basics of Will Execution: LiterallyPutting It All Together



12. Safekeeping a Will

a. A testator’s will and important papers shouldbe located as soon as possible after her death.

b. A will is best kept with the testator in a safe,accessible location.

13. Less Than Perfect: Questionable Will Creation

a. A handwritten will is called a holographic will.

b. A questionable will format is the oral will.The oral will is technically known as anuncupative will. The nuncupative will isaccepted by a minority of states but onlyduring wartime conditions or from a testa-tor’s deathbed.

c. The U.P.C. does not permit the nuncupativewill format. Another ill-advised format is theuse of joint or mutual wills. The sharing ofone will by two individuals is likely to invitelitigation.

14. Using Form Wills

a. A minority of states have statutorily author-ized simple fill-in-the-blank will forms.

15. How to Change or Revoke a Will

a. A codicil is an addition to a will thatchanges the will.

b. Three legal terms describe the revocation ofa will: 1. revocation by a physical act, 2. revocation by operation of law, and 3. revocation by a subsequent (or later)writing.

16. To Err is Human, But Still Unacceptable

a. Lawyers and their support staff can get intoall sorts of difficulties if they fail to followtheir particular state’s technical require-ments for drafting and executing a will.

17. Dealing with a Conflict of State Laws

a. If a question arises of what state laws shouldbe applied to a client’s case, the mostcommon conflict of law rule usually directsthe questioner to apply the law of the statewhere the decedent’s domicile was at herdeath.


a. Sixty-five-year-old Henry Buss is in goodhealth and certainly has the mental capacityto prepare a will. He is married to Lila andthey have a minor daughter, Dana. BothHenry and Lila, older parents, are most con-cerned about providing for their daughter.

19. Exhibit 2–4: Sample of a Will: Last Will andTestament of Henry Buss

20. Choosing the Right Person

a. Usually one person is named in a will as the person who will ensure that all of thebequests are distributed, that all of the pro-bate property of the testator is transferred,and that all of the estate’s creditors and taxesare paid. The U.P.C. uses the term personalrepresentative to describe a man orwoman who manages, administers, and dis-tributes a decedent’s estate according to theterms of a will or the appropriate statestatute if the decedent has died testate. Somestates call this person an executor.

b. If there is no will, a court will name a personcalled a personal representative in U.P.C.states and an administrator in non-U.P.C.states to ensure that the estate is properlydistributed.

c. The duties of an executor/personal represen-tative or administrator encompass the detailsof settling an estate. These details can include:1. locating all of the testator’s real and per-sonal property; 2. paying creditors and taxes;3. ensuring the smooth transfer of the assetsto the heirs as per the will or applicablestatute; 4. locating witnesses to a will; 5. obtaining death certificates; 6. hiring profes-sional assistance (e.g., attorneys, accountants,household assistance, appraisers, and/orestate sales personnel); 7. dealing with finan-cial investments; 8. contacting beneficiaries;and 9. the practical maintenance of assets thatmay include buildings, businesses, and otherinvestments.

d. A personal representative/executor may haveto deal with a will contest. A will contest hap-pens when someone disagrees with the valid-ity of the will and legally claims that the willshould be judged invalid by the appropriatecourt.

20. Estate Administration

a. Paralegals will need to learn the estateadministration process because the processentails plenty of client content, paperwork,and procedural steps that they can handleunder an attorney’s supervision.

b. Learning the location of a decedent’s lastdomicile is necessary to determine whichcounty court has jurisdiction over a person’sprobate estate.

CHAPTER OUTLINES 5


21. Initiating Probate

a. The probating of a will can usually be initi-ated in at least two ways, but different pro-cedures may be followed depending onindividual states. For example, the personalrepresentative/executor may go to aSurrogate’s Court alone, (i.e., ex parte) with-out notice being given to anyone andrequest that the will be admitted to probate.Another way that a will can be probated is togive all beneficiaries listed in the will noticeand apply to have a hearing before a judge.

b. If a will is considered self-proved, it usuallywill be admitted to probate without furtherproof of proper execution.

c. If a person dies intestate, her next of kin willneed to apply to the appropriate court forletters of administration. (Some states usea different term to describe the same thing.)

d. An alternative to letters of administration canoccur in most states when the survivingspouse or next closest kin can provide whatis generally called an affidavit in lieu ofadministration.

22. The Work of the Estate

a. Once a will has been admitted to probate orletters of administration have been issued,there can be a long list of duties to which thepersonal representative/executor must attend.

b. All states direct personal representatives/executors and administrators to pay debtsaccording to their state’s abatement statute.

c. The living joint tenants of bank accountsowned with the deceased can draw on anybank accounts up to half the amount in theaccounts.

d. Claiming any insurance proceeds.

e. The personal representative, executor, oradministrator will have to transfer to theproper beneficiary any vehicles owned bythe testator.

f. Stocks and bonds usually can be trans-ferred by sending the designated transferagent the stock certificates together withstock powers including affidavits of domi-cile and Surrogates’ certificates.

g. A personal representative, executor, oradministrator will usually have to file a publicnotice in an official legal newspaper so thatany outstanding creditors are notified to comeforward within a designated period of time.

h. The personal representative/executor oradministrator also is responsible for filing thefinal tax return for the decedent and the fidu-ciary income tax return providing the incomeof the estate after the death of the decedent.

23. Transferring Property Outside the ProbateProcess

a. Reasons for avoiding probate may includethe fact that a will becomes a public docu-ment filed with the decedent’s county ofdomicile for anyone to read.

b. In addition, tax savings may be possiblewhen property is not transferred solelythrough the probate process. The legalmechanisms created to conduct these trans-fers without going through the probateprocess are often called will substitutes.

24. Retirement Accounts

a. Every individual retirement account (IRA) orcompany retirement plan asks its owner toname a beneficiary on the account’s form.

b. Failure to name a beneficiary of investmentaccounts results in the proceeds of theaccount going to owner’s estate and if thereis a will, being distributed through the resid-uary clause of the owner’s will.

25. Bank Accounts

a. Some bank accounts transfer outside theprobate process. These bank accountsinclude: 1. Joint and survivor accounts; 2. Payable-on-death accounts; 3. Agencyaccounts; and 4. the Savings account trust,also known as a Totten trust.

26. Life Insurance

a. Life insurance is another example of an assetthat passes outside a will.

27. Contesting a Will

a. Any questions regarding a will’s authentic-ity, proper jurisdiction, the mental capacityof the testator, or any applicable disputeusually stops the admission of a will to pro-bate. The person filing the lawsuit has theburden of proving her case by clear andconvincing evidence, in addition, the filermust be in a position to gain from the willbeing found invalid.

b. A testator who wants to avoid a will contestand all the distress it will cause after herdeath may include an in Terrorem clause,



also called a no contest clause, in his will.The majority of states do not enforce a no-contest clause unless there is probable causefor the contest.

28. Defining Mental Capacity

a. The grounds used to contest a will usuallybring forth two types of issues. The firstissue involves questions regarding the testa-tor’s mental capacity at the time she signedthe will. The second issue involves ques-tions of undue influence upon the testatorby the persons inheriting from the testator.

b. Today three elements involving mentalcapacity must be present when writing awill. If any one of these three elements ismissing, the testator’s will may be suspect.First, the testator must fully understand thelegal consequences of writing a will.Second, the testator must know the fullextent of her property (the term bounty isoften used). Third, the testator must knowthe names of the individuals who are theproper recipients of the testator’s property(e.g., the testator’s family members).

29. Defining Undue Influence

a. The only way to fight such a claim ofundue influence is to rebut with clear andconvincing evidence. Clear and convinc-ing evidence is defined as stronger evi-dence than a preponderance of theevidence (evidence that something is morelikely to be true than false) but not asstrong as beyond a reasonable doubt.

30. Defining Fraud

a. Discussing fraud in the context of creating awill usually involves one or both kinds offraud known as fraud in the inducement orfraud in the execution. Fraud in the induce-ment occurs when a person misrepresents thefacts with the intent to deceive the testator toinfluence the testamentary disposition of thetestator’s property. Fraud in the executionoccurs when a person misrepresents the char-acter or contents of the document to besigned by the testator, which does not, in fact,carry out the testator’s intent.


a. Mary Loomis and her husband, Harry Loomis,need help to stop what they described to theirattorney, Tara Jensen, as a great injusticebeing done by family members.

32. Contracts to Make a Will

a. The Uniform Probate Code attempted toreduce litigation involving contracts to makea will by creating stricter requirements formaking contracts relating to wills.

33. Case 2–1: Peter K. Dementas v. Estate of JackTallas, 764 P.2d 628; 95 Utah Adv. Rep. 28 (1988).

34. Partial Invalidation of a Will

35. Case 2–2:Williams v. Crickman, 405 N.E.2d 799 (1980).

36. To Contest the Will Is the Question

37. Case 2–3: Burch v. George, 27 Cal. Rptr. 2d 165 (1994).

38. Attorney Impropriety?

39. Case 2–4: In the Matter of the Estate of JuliusWeinstock, et al.v.Usdan, 386 N.Y.S.2d 1 (1976).

40. Can You Bequeath Personal Values?

a. There is a growing trend to document some-thing symbolically larger than a list of mate-rial possessions by offering the details of aperson’s belief system to loved ones.Generally known as an ethical will orfamily legacy, it provides personal reflec-tions on a person’s life, hopes, and dreams,but it does not carry the same legal status asa properly executed last will and testament.

41. The Last Word on Having the Last Word

a. A letter of instruction can be written by adecedent regarding any funeral and burialrequests or the people to whom they wantspecific personal property to be given. Theletter of instruction is not legally binding,and the last will and testament should be thedeciding document if there is a conflict.

42. Summary

43. Key Terms


45. Ethics Alert



2. Introduction

a. Elder law attorneys and their staff shouldfoster in their clients a commitment to plan-ning before a medical emergency or inca-pacity strikes.

CHAPTER OUTLINES 7


3. Introduction Planning before a HealthEmergency

a. All 50 states allow for documents collec-tively known as advance directives forhealth care. Approximately 40 states haveforms for drafting advance directives forhealth care. About 20 states require thatthese forms be substantially adhered to, butthose 20 states still allow additional lan-guage to be inserted. Known by a variety ofsynonymous names, such as advance med-ical care directive, advance health caredirective, health care power of attorney(HCPOA), and durable power of attorneyfor health care.

b. Whatever name an advance directive forhealth care goes by, the primary objectiveshould be the same—to specify an individ-ual’s health care decisions and to identifywho will make decisions for that individualin the event he is unable to communicatehis wishes to doctors. Generally, one or twotypes of advance directives for health caredocuments are used. The first type is aliving will. A living will is self-directed andshould describe an individual’s wishesregarding medical treatments the personwould want if he was unable to share hiswishes with health care providers.

c. The second type of advance directive forhealth care document is a medical powerof attorney. The medical power of attorneydocument allows an individual to appoint atrusted person to make health care choiceswhen the individual is not able to share hishealth care choices with health careproviders. The living will and the medicalpower of attorney frequently are mergedinto one document, which is a good idea ifstate statutes permit it.

d. Do Not Resuscitate order—Nearly all stateshave enacted legislation that allows their cit-izens to choose to refuse artificial means ofsupport.

e. A medical power of attorney is very specificin its purpose (i.e., the making of medicaltreatment decisions by one person [usuallycalled an agent, a health care proxy, or ahealth care representative] for anotherperson).

f. Another type of power of attorney is calledthe special power of attorney. The

authority behind a special power of attorneyusually ends with the completion of theresponsibility.

g. A durable power of attorney remainsin effect even if the creator becomesincompetent. When a durable power ofattorney is written so that the authority of the attorney-in-fact begins at a latertime upon the occurrence of a certainevent (usually incapacity), the documentis called a springing durable power ofattorney.

4. Should Everyone Have an Advance Directive forHealth Care?

a. Everyone should have an advance directivefor health care because it protects an inca-pacitated person’s choices when he isunable to protect his own interests andchoices.

5. Medical Terminology Used in Advance Directives

a. 1. Artificially provided fluids and nutrition;2. Cardiopulmonary Resuscitation (CPR); 3.Life-sustaining measures; 4. Decision-making capacity; 5. Terminal condition; 6.Permanent unconsciousness; 7. Persistentvegetative state; 8. Incurable and irreversiblechronic diseases; and 9. Whole brain death.

6. Exhibit 3–1: E-2-20 Withholding or WithdrawingLife-Sustaining Medical Treatment

7. Choosing a Health Care Proxy

a. The choice of a health care proxy (alsoknown as a health care agent or health carerepresentative) who has similar end-of-lifebeliefs is one more preventive action thathelps ensure that a creator’s health caredecisions are respected.

8. Asking Others to Make a Health Care Decision

a. Decisions that a health care proxy makes foran incompetent patient should be acceptedby the patient’s physician. However, four sit-uations may require either institutional (e.g.,a hospital) or judicial review and interven-tion in the decision-making process. Thesefour situations include: 1. No available familymember is willing to be the patient’s surro-gate decision maker; 2. There is a disputeamong family members, and no decisionmaker has been designated in an advancedirective for health care; 3. A health careprovider believes that the family’s decision is



not what the patient would have decided ifhe were competent; and 4. A health careprovider believes that the decision is not onethat reasonably could be judged to be in thepatient’s best interests.

9. Exhibit 3–2: The Responsibilities of a HealthCare Proxy

10. When Does an Advance Directive for HealthCare Become Operable?

a. Incapacity is the key operable point.

11. When Does a Durable Power of Attorney End?

a. The creator of an advance directive forhealth care can change or revoke his direc-tive if he still has capacity. It is better if theold written advance directive is destroyedand a new advance directive is written andsigned. Copies of the creator’s advancedirective for health care should be given tothe designated proxy, to close family mem-bers, and to the creator’s doctors to includewith the medical records.

12. Practical Advice

a. A law firm can provide clients with a cardstating that the bearer has an advance direc-tive for health care.

13. Where Should an Advance Health Care DirectiveBe Kept?

a. It has been estimated that 35 percent ofadvance directives for health care cannot befound when needed. The U.S. Living WillRegistry has been electronically storingadvance directives for health care since 1996.

14. Practitioners Should Be Aware of StatutoryChanges

a. One change is that all hospitals and nursinghomes are now required by federal law tooffer living wills as a no-cost service.Changes in state laws pertaining to healthcare directives frequently occur.

b. Elder law professionals also should be awareof the changes wrought by the 1996 passageof the Health Insurance Portability andAccountability Act (HIPPA), the first fed-eral privacy standards designed to limit theinformation that health care professionalscan share, use, and release to others con-cerning their patients.


16. Exhibit 3–3: Health Care Power of Attorney

17. Living Wills Traced to Quinlan Case

a. Karen Ann Quinlan is a well-known name inthe personal right-to-die national debate.

b. In large part, the living will concept can betraced back to the 1975 Quinlan case.

18. Private Questions Answered Publicly in Court

a. The Cruzan case was the first case wherethe Supreme Court was presented with theissue of whether the U.S. Constitution pro-vided a right-to-die.

19. Case 3–1: Cruzan v. Director, MissouriDepartment of Health, et al., 497 U.S. 261, 110S. Ct. 2841, 111 L.Ed. 2d 224 (1990).

a. A state may apply a clear and convincingevidence standard in proceedings where aguardian seeks to discontinue nutrition andhydration of a person diagnosed to be in apersistent vegetative state.

20. The Legacy of Public Tragedies

a. Public tragedies have led to public awareness.

21. Is Physician-Assisted Suicide a Viable End-of-Life Option?

a. Physician-assisted suicide occurs when aphysician knowingly assists in fulfilling apatient’s desire to die. The term assisted-suicidecan be used when a non-physician assists in ful-filling an individual’s desire to die.

22. Wrestling with Right-to-Die Issues

a. The subject of physician-assisted suicide hasbeen debated for years in Europe andAustralia. Australia became the first countryin the world to legalize euthanasia, but itoverturned that ruling less than a year laterin 1997. Euthanasia is the act of painlesslyputting to death of a person suffering froman incurable or painful disease without thefinal decision being made by the sufferingperson (often because the person is not con-scious, capable, and communicative), butrather by the person’s physician. Euthanasiasometimes is described as a mercy killing.

b. Oregon’s Death with Dignity Act providesthe right to die only to competent adultswho have been diagnosed with a terminalillness; in addition, two doctors confirm thatthe person is competent and has only sixmonths to live.

23. Case 3–2:Washington, v. Glucksberg, 117 S. Ct.2258, 138 L.Ed.2d 772 (1997)

CHAPTER OUTLINES 9


24. Court Says No to Euthanasia

25. Case 3–3: People of the State of Michigan v.JackKevorkian, 639 N.2d 291 (Mich.App.2001)

26. Status of Physician-Assisted Suicide

a. There are criminal prohibitions against physi-cian-assisted suicide and heavy state criminalpenalties levied upon those who participatein it. The U.S. Supreme Court has failed tofind such penalties a violation of theFourteenth Amendment’s Due Process clausein any of the state laws against physician-assisted suicide.

27. Palliative Care

a. Palliative care is the comprehensive man-agement of the physical, psychological,social, spiritual, and existential needs ofpatients.

28. Exhibit 3–4: World Health Organization’sDefinition of Palliative Care

29. Summary

30. Key Terms


32. Ethics Alert


34. Endnotes


2. Introduction

a. A guardianship is a legal management toolput in place by state law to protect and aidindividuals who have different abilities tocare for themselves. All 50 states and the dis-trict of Columbia have enacted guardianshipstatutes. Some states have adopted the uni-form Probate Code (UPC) in their guardian-ship legislation; others have guardianshipstatutes of their own design or have modi-fied the UPC.

b. Approximately 1.5 million adults are underpublic or private guardianship in the UnitedStates.

c. The person found to be incompetent maythen have another person, called aguardian, appointed by a court to makepersonal and financial decisions for theperson adjudged incompetent.

d. The major difference between a guardian-ship and a conservatorship is that a conservatorship is a voluntary undertak-ing requested by a conservatee thatrequires the conservator to handle somepersonal and financial decisions for theconservatee. On the other hand, aguardianship is a completely involuntaryproceeding with a legal declaration that aperson is legally incompetent and becomesthe guardian’s ward. Some states use theterm decisional incapacity rather thanincompetence. Louisiana uses the terminterdiction instead of guardianship.

3. The Origins of Guardianships and Conser-vatorships

a. The original legal concept of society and itscourts protecting the incapacitated individ-ual and her property stems from the ancientroman concept of Parens Patriae.

4. Guardianship Exposé Led to Change

a. The greatest changes in guardianship lawmay stem from two newspaper exposés thatinvestigated the damaging effect ofguardianships on elderly wards.

b. The exposé led to the American Bar associa-tion’s Commission on Legal Problems of theElderly formulating a recommendation for anational improvement in guardianship law.

c. A strong element in the revised UGPPA isthe insistence that limited guardianship orlimited conservatorship should be tried firstwhenever the facts dictate and that allguardians and conservators should consultwith their wards whenever possible beforemaking a decision regarding their wards.

d. The revised UGPPA included the new conceptof parental or spousal appointments gen-erally called standby guardianships in statelegislation.

5. Applying the Least Restrictive Alternative

a. Alternatives to traditional cookie-cutterguardianships are in keeping with what isknown as the least restrictive alternative(LRA) principle.

6. When to Seek a Guardianship

a. Whether a person has a durable power ofattorney in effect can impact the decision of when a guardianship should be sought.



b. All care facilities should ask to see letters ofguardianship, which are issued by theappropriate court and name a guardian.

7. How Should Competency be Judged?

a. What does make a person legally competentor incompetent? It should be noted thatsome states use the term capacity.

b. Typically, most states have a two-part criteriafor determining competence. First, the personwhose competence is questioned usually mustfall within a specific category. This categorymay include an individual with mental healthissues or advanced age. Second, the individualmust be found to be unable to care for herphysical well-being or property. This secondrequirement should help ensure that advancedage or developmental disabilities alone do notinitiate a guardianship proceeding.

8. Types of Guardianships

a. Concepts such as limited, partial, or temporary guardianships have becomemore acceptable.

9. Private Guardianship

a. When a private individual is named aguardian, a private guardianship is created.

10. Public Guardianship

a. Since the early 1900s, the U.S. government hasbeen called on to act as a surrogate decisionmaker through the public guardianship concept.

b. The main purpose behind the Office of thePublic Guardian is to provide guardianshipor conservatorship services of last resortwhen there are no willing and appropriatefamily members or friends who can serve.

11. Special Medical Guardianship

a. Sometimes a guardianship appointment ismade so that a medical procedure can beperformed. This typically occurs when life-threatening treatment is needed.

12. Temporary Guardianships

a. There is also a need for temporary guardian-ships on occasion.

b. A temporary guardianship order may thenmushroom into a full-fledged capacityhearing.

13. Undertaking the Guardianship Process

a. All 50 states have state-specific and compre-hensive guardianship statutes.

b. The attorney begins by drafting a guardian-ship complaint (also called a guardianshippetition in some states) and order to showcause.

c. Generally, a guardianship petition musthave documentation listing the type andvalue of the estate in question. The com-plete listing of all assets assists the court indetermining exactly how large a bond theguardian should have to post.

d. Courts typically prefer an allegedly incapac-itated respondent to appear in court unlessthe respondent is so mentally and/or physi-cally infirmed that she cannot.

e. Whether the alleged incapacitated personhas a last will and testament, any powers ofattorney, and/or an advanced directive forhealth care should be determined.

f. Typically, any interested third party canbring an action for appointment as aguardian.

g. Necessary questions that a proposedguardian’s attorney should ask are whetherthe proposed guardian has ever been con-victed of a felony or filed for bankruptcy.

h. Of great importance is the documentationestablishing probable cause and detailedspecificity in the pleadings as to why thecourt should declare a guardianship.

14. The Guardianship Proceeding

a. A guardianship petition filed with the countycourt system will be heard in court and mustfollow court rules.

b. The individual subject of the petition has theright to be notified and a right to be presentat the court hearing.

c. Depending on a state’s statutory require-ments, an attorney, a guardian ad litem, ora court evaluator may appear in court for thenamed party.

d. Generally, the person hearing a guardian-ship case is called a judge, but in a smallnumber of states another judicial officerserves in the role of the judge. This judi-cial officer at a guardianship hearing maybe called a hearing officer, referee,commissioner, or magistrate.

e. Appeals from guardianship orders are col-lected in books called the Mental HealthReporter.

CHAPTER OUTLINES 11


15. Physician Input Needed

a. Important are medical affidavits from at leastone physician, and most states usuallyrequire two physicians who have examinedthe alleged incapacitated person within ashort time prior to the guardianship petitionbeing filed.

16. Making Guardians Accountable

a. All guardianships should be monitored afterthey are granted. The vast majority of statesrequire periodic financial reports and personal well-being reporting to the courtthat granted the guardianship. States differ inhow thorough the reports must be.

b. Accountability standards vary greatly fromstate to state.

c. An important job for all guardians is to moni-tor any services the ward should be receiving.

d. Any guardian’s report should include themental and physical state of the ward.The report should summarize the visits the guardian has made to the wardand the activities in which the ward hasparticipated since the last report.

e. National guardianship standards also havebeen drafted by the National GuardianshipAssociation.

17. Terminating a Guardianship

a. Reasons for terminating a guardianship fromthe ward’s perspective include: 1. the inca-pacitated person dies; 2. the incapacitatedperson is adjudicated capable; 3. theguardianship is adjudicated unnecessary;and 4. a timed guardianship of a certainperiod has expired.

b. A guardianship may also be terminatedbecause the guardian has died, has resigned,or will be replaced. A petition to dischargethe guardian from further responsibility forher ward should be filed.

18. Exhibit 4–1: List of State Guardianship Statutes

19. Exhibit 4–2: Sample New York GuardianshipStatute


21. Exhibit 4–3: Guardianship Petition

22. Exhibit 4–4: Sample of Affidavit Requirements

23. Exhibit 4–5: Sample Medical Affidavit

24. Exhibit 4–6: Sample Annual Report of a Guardian

25. Exhibit 4–7: Petition for Termination ofGuardianship and Discharge of Guardian andorder of Termination and Discharge

26. Challenging a Guardianship Appointment

a. Generally, the standard of review for suchmatters is to determine whether the trial courtabused its discretion in reaching its judgment.

27. Case 4–1: In the Matter of:The Guardianship ofJessie K. Simmons

28. Caregiving Issues

a. Today, families are providing care for longerperiods of time for loved ones who are moreill, aged, or disabled than in the past.Caregiving for another usually occurs tovarying degrees before a guardianship orconservatorship is considered necessary.

b. The Administration on Aging defines afamily caregiver as anyone who providescare without pay and who has personal tiesto the care recipient.

29. Defining Caregiving

a. Caregivers may assist in varying degreeswith the activities of daily living includingbathing, toileting, eating, and providingtransportation.

30. Caregiver Stress

a. Mental health issues

b. Physical health issues

c. Financial burdens

31. Can Caregivers Be Paid?

a. Caregiving can be an expensive, uncompen-sated undertaking.

b. The Choices for Care program was viewedas a cost-cutting measure because such in-home care is much less expensive than thealternative of a person being placed in aMedicaid-funded institution. More states areexpected to join Vermont in making aneffort to curb the $38 billion spent byMedicaid on institutional care nationwide.

c. The Cash & Counseling program allows eld-erly Medicaid recipients to receive specialgrants to pay for and manage their own care.

d. Another concept in compensating caregiversis the caregiver contract, also called personal-service or personal-care agreements.


33. Summary



34. Key Terms


36. Ethics Alert


38. Endnotes


2. Introduction

a. Previous chapters have suggested that aperson’s estate plan should provide for anorderly transfer of the individual’s assets tohis chosen beneficiaries. Creating a legalmechanism called a trust can help with thattransfer.

b. A trustor transferring personal property canbe more specifically called a settlor. If thecreator is transferring real property, he iscalled a grantor.

c. A trustee is the person to whom the prop-erty has been transferred for the benefit ofanother and who is responsible for thetrust’s administration.

d. A beneficiary is entitled to the benefit ofthe trust.

3. Trust Essentials

a. The key ingredient needed to make a validtrust is the splitting of the legal and equi-table interests in the property in question.

b. A trust included in a will and designed totake effect after a testator’s death is called atestamentary trust.

c. A trust written and enacted by a creator while heis still alive is called an intervivos trust.

d. Strict requirements must be followed whenany type of trust is created. A trust must havea legal purpose. A trust must not break therule against perpetuities.

e. One of the most important requirements ofcreating a trust that is sometimes forgotten isthe funding of the trust.

f. Types of trusts include express trust,implied trust, constructive trust, andcharitable trust.

4. The Role of the Trust’s Creator

a. A trust’s creator must have legal capacity tomeet the criteria for conveying property viaa trust.

b. A trust’s creator must also have a transferableinterest in the property in question and showa clear intention to create a trust that splitsequitable and legal title in the property. Mosttrusts must be in a written format in orderto comply with each state’s version of theStatute of Frauds.

c. The majority of states require some kind ofwritten document generally known as atrust instrument to provide proof of thetrust’s creation.

5. The Role of the Beneficiaries

a. Any person or legal entity can be a trust ben-eficiary. A key point when discussing bene-ficiaries is that the trust must name thebeneficiaries clearly. The best-case scenariois to include the specifically named personsor entities.

b. A second-tier or subsequent interest iscalled a remainder. The beneficiary whoreceives the remainder interest is called a remainderman.

6. The Role of the Trustee

a. The trustee must understand his role as afiduciary. A fiduciary is a person who holdsa position of trust, responsibility, and duty toanother.

b. If a trustee dies, wants to resign, or becomesincapacitated, a successor trustee alreadyshould be chosen and named in the trust.This person will be available to fill the exactrole of the original trustee.

c. Usually it is best to have one trustee namedat one time.

d. Failure to develop and increase assets couldlead to claims of breach of trust.

e. A trustee can also be sued for specific per-formance by a beneficiary who alleges thetrustee is not fulfilling his obligations. Theprudent person standard is often used toobjectively view the behavior of a trustee.

f. The trust’s creator can include an exculpatory clause to lessen the burdenon a trustee.

g. Another drain on a trust corpus can be abond that is often required by statute unlesswaived by the creator.

7. Who Can Be a Trustee?

a. An individual or legal entity such as a bankor another type of corporation may fill the

CHAPTER OUTLINES 13


role of trustee. Most states have statutesdetailing who or what may serve as atrustee.

8. The Trust Administration Process

a. Once the trustee accepts his role, the list ofduties and responsibilities that are part of thetrust process starts growing. Some statesrequire a trustee to register the trust with thecourt that has jurisdiction over the trust. Anattorney representing a trustee should makesure any documents such as deeds or securi-ties are drafted and recorded, necessaryinsurance is purchased, and upkeep on anytrust property continues.

9. What Type of Property Can Be Put into a Trust?

a. Any kind of property can be put into a trustas long as it can be legally transferred. Theproperty can be tangible or intangible.The property held in the trust may be calledtrust property, a trust fund, the trustcorpus, the trust res, the trust principal, orthe trust estate. Cash placed in a trust is usu-ally called the principal. Although the termcorpus estate may be used for any propertyplaced in trust, real property placed in atrust is usually just called the corpus. per-sonal property (other than cash) that isplaced in a trust is usually called the res.

b. A client may consider transferring his business into what may be called a grantor-retained annuity trust.

10. Tax Savings With Trust Creation?

a. Both the federal and state governments mayrequire an estate to pay taxes based upon itsvalue. State estate taxes are calculated as apercentage of the entire taxable estate if thedeceased person lived in a state with estatetaxes. Not all states have state estate taxesand those without that tax burden are espe-cially popular with older citizens.

b. Another way to reduce the amount of taxableestate is for the owner to begin gifting hismoney away before he dies. This gifting istechnically known as the annual gift taxexclusion.

c. Federal tax savings may not be an issue forall law firm clients.

d. The assets of a properly created trust will notbe included in the creator’s taxable estate.Unless a trust is included in a will, probate isalso avoided when a trust is involved.

11. Trusts, Marriage, and Tax Savings

a. An individual may inherit an unlimited amountof assets from his spouse tax free. Each indi-vidual also has a personal exemption.

12. Tax Avoidance Strategy

13. Types of Trusts

a. 1. a spendthrift trust; 2. a discretionarytrust; 3. a support trust, also called aspecial needs trust; 4. an irrevocablelife insurance trust; and a charitabletrust.

b. A marital trust may be created to continue toprovide for a surviving spouse and any des-ignated remaining beneficiaries following asurviving spouse’s death. A pet owner canalso ensure the continued care of a belovedpet by utilizing a pet trust document.

14. Spendthrift Trust

a. A spendthrift trust allows one person to givemoney or property to another without thefear that it will be squandered by the recip-ient or totally accessible to creditors.

15. Discretionary Trust

a. A discretionary trust provides some leewayin carrying out its terms. A discretionary trustis also called a sprinkling or spray trust.

16. Support Trust

a. Because minor children lack the legal capac-ity to handle their own finances, a supporttrust or special needs trust fits the needs inthe case of minor children very well. Thistrust is also used for challenged adult chil-dren who are unable to meet their ownneeds.

17. Irrevocable Life Insurance Trust

a. Proceeds of a life insurance policy payableupon the death of a decedent become part ofthe decedent’s estate unless a life insurancetrust has been created prior to the decedent’sdeath or the policy was owned by anotherperson. Insurance trusts may be irrevocable.

18. Charitable Remainder Trusts

a. A charitable remainder trust (CRT) per-mits the creator to transfer his assets into alifetime income without incurring capitalgains or estate taxes.

19. Marital Trusts

a. Such a trust may be called a qualified terminable interest property (QTIP)



trust. In some states, it is called a maritaltrust, credit shelter trust, an A and B trust,a husband and wife trust, or a bypass trustin some states.

b. The beneficiary spouse will receive incomegenerated by a marital trust’s corpus tax-freebecause the beneficiary spouse had no own-ership interest. The trust is designed with onespouse named as both the grantor and trusteeand his spouse as the secondary trustee whowill benefit from the trust once the grantordies. When such a purpose is created whileboth spouses are living, then the spouses canutilize tax-saving strategies and ultimatelypreserve estate assets for their designatedbeneficiaries. The typical marital trust desig-nates the creator’s children as beneficiaries,but allows the widowed spouse to withdrawadequate income or possibly even dip intothe trust’s principal for support during his lifetime.

20. The Life Estate Option

a. A life estate is a property interest that lastsuntil a named person or persons die. Theperson, or persons, or entity to inherit the estate after the life estate is called theresiduary beneficiaries.

21. Pet Trusts

a. A pet trust is now a viable possibility inmost states.

22. Exhibit 5–3: Sample Pet Trust Statute


24. Exhibit 5–4: Sample Will with Special NeedsTrust

25. Chapter Summary

26. Key Terms

27. Chapter Review Questions

28. Ethics Alert


30. Endnotes


2. Introduction

a. More than three in seven adults are not cur-rently married, but share their home with apartner. Also, a significant number ofunmarried partners sharing a household aregay and are not legally permitted to marry in

the majority of states even if they wished. Asmall minority of states are now allowingunmarried heterosexual partners and homo-sexual partners to register their partnershipor proceed with limited civil unions in orderto activate some marriage-like rights.

b. Marriage brings with it a wealth of over1,000 rights and obligations to spouses.

3. Cohabitation and the Elder Law Perspective

a. Unmarried cohabitating opposite-sex cou-ples aged 65 and older rose 73 percent from1990 to 1999.

4. Legal Protections for Cohabiting Partners

a. While the focus of domestic partner legisla-tion has been primarily on same sex cou-ples, some cities and states in the UnitedStates allow heterosexual residents to regis-ter as domestic partners or reciprocalbeneficiaries.

b. Certain states permit heterosexual couplesto enter into domestic partnerships only ifthey are above a certain age.

c. Termination of such rights and obligationsusually can occur by filing for terminationwith the applicable court (usually a familycourt in the county where the couple isdomiciled).

5. Exhibit 6–1: Sample of States and Cities OfferingDomestic Partner Registration

6. Landmark Cohabitation Case: Palimony Addedto Dictionary

a. The California case of Marvin v.Marvin, 122Cal. App.3d 871, 176 Cal. Rptr. 555 (1981),added the word palimony to the Englishlanguage. Palimony is defined as financialsupport paid between persons who are not,and never were, married.

7. Marvin Case Has Long-Term Effect

a. The famous and the unknown have beeninspired by the contractual issues and pal-imony concepts of the Marvin case.

b. Contractual issues may involve such termsas implied contract, express contract, andequitable remedy.

8. Palimony after Death?

a. The palimony concept continues to beexpanded, as evidenced by a recent NewJersey Supreme Court case that allowed pal-imony claims to be made against a deceasedcohabitant’s estate.

CHAPTER OUTLINES 15


9. Cohabiting Couples Must Create Their OwnLegal Protections

a. The first point an unmarried but cohabitingcouple should realize is that married couplestake vows that give them access to an exten-sive legal arsenal. Each of the 50 states hasstatutes and well-established case law pertain-ing to just about every marriage scenarioimaginable. Unmarried and cohabiting cou-ples are largely on their own in crafting legalprotections that fit their particular partnership.

b. The unclear legal ramifications of livingtogether without marriage continue to makethe creation of a written and notarizedcohabitation agreement a good idea.

10. Creating the Optimum Cohabitation Agreement

a. When unmarried couples decide to create acohabitation agreement, both parties shouldbe aware of the agreement’s ramifications.

11. Marriage and the Elder Law Perspective

a. Women are far more likely than men to bewidowed, but elderly men are twice as likelyto remarry following a divorce or death of aspouse. Marriage among the elderly isrising.

b. A civil marriage is defined as a governmentsanctioned union that is created when agovernment employee officiates at a mar-riage ceremony, after which the participantsare declared husband and wife.

c. Another type of marriage is called commonlaw marriage.

d. A deterrent against marriage is the fear offinancial obligations for a new spouse’s debtbecoming the responsibility of both spouses.

e. Inheritance issues play a role in remarriage.

f. A key issue for elder law attorneys and theirengaged-to-be-married client is usually thepreservation of the client’s premarital assets.

12. Exhibit 6–2: Marriage in the United States

13. Marriage and Gay Couples

a. A civil union is defined as a legal designa-tion given to homosexual partners whichconfers certain marriage-like rights.

14. Prenuptial Agreements

a. The majority of Americans marry in theirlifetimes. Another fact of American life isthat those marriages are not lasting.

b. This is where the prenuptial agreementconcept comes in handy. A prenuptialagreement, also known as an antenuptialagreement, is a contract made between twoindividuals before their marriage to eachother.

c. Today, each state’s requirements for creatinga valid prenuptial agreement can be differ-ent based upon whether the state has enacted the Uniform PremaritalAgreement Act (UPAA). At least 25 statesand the District of columbia have enactedthe UPAA. The remaining 25 states have leg-islation and case law applicable to their indi-vidual states. However, the generalrequirements for all states include the fol-lowing: (1) a written agreement; (2) contrac-tual capacity of the parties; (3) voluntaryagreement free of fraud, duress, and undueinfluence; (4) the agreement must not beunconscionable; and (5) full disclosure ofassets.

15. Exhibit 6–3: Guide to Uniform PremaritalAgreement Act

16. What Should Be Included in a PrenuptialAgreement?

a. Whatever the factual scenario, all prenuptialagreements should clearly state what eachindividual understands she is to receive orgive to the other spouse if the marriage fails.A knowledge of contract law is necessary todraft prenuptial agreements. Contract termsinclude offer, acceptance, consideration,parole evidence, and rescission.

17. No Two Prenuptial Agreements Are Alike

a. Each prenuptial agreement is different fromthe next because each agreement is negoti-ated by the parties involved. The futurespouses may be described as the payor andpayee spouses.


19. Summary of Bridget and Robert’s Interview

20. Exhibit 6–4: Questions for the PrenuptialAgreement Interview

21. Exhibit 6–5: Sample Prenuptial Agreement

22. Prenuptial Agreement Leads to ConstructiveTrust Created for Widower

23. Case 6–2: Martin v. Farber, 68 Md. App. 137,510 A.2d 608 (1986).

24. Deceased Spouse’s Honesty Questioned



25. Case 6–3: In re Estate of LeRoy A.Hillegass, 431pa. 144, 244 A.2d 672 (1968).

26. The Rights of Surviving Spouses

a. All of the separate property states (exceptGeorgia) provide for surviving spouses viawhat is known as an elective share. Theelective share (sometimes called a forcedshare) provides that a spouse may take theoption of accepting a devise from herdeceased spouse’s will or may renounceherdevise and take a legislatively designatedshare of the estate.

27. Homestead Exemption Designed to ProtectFamilies

a. Homestead laws were originally designed toensure that a decedent’s spouse and chil-dren would be able to stay in the familyhome after the decedent’s death.

28. Divorce and the Elder Law Perspective

a. The legal costs of divorce in the Unitedstates amount to more than $30 billion peryear. In fact, each year more than 1.8 millionpeople divorce.

b. Elder law clients marrying later in life usu-ally have two pragmatic concerns beforewalking down the aisle. First, what type ofasset protection can be instituted prior totheir nuptials? For example, how can I makesure the kids from my first marriage do notlose out because I remarried? Secondly, ifone of the spouses dies, the issue of whatfinancial protections exist for the survivingspouse becomes important. For example, awidow may question if her husband’s deathwill result in her not being able to afford oreven inherit the house she may have beenliving in for years.

c. A well-drafted prenuptial agreement and anestate plan (e.g., at least a will and perhapsa trust of some kind) could take care ofthese concerns.

29. Deciding to End a Marriage

a. A husband and wife who wish to end theirmarriage typically have two choices. Thespouses may be able to meet the criteria tobe granted an annulment, or they may seekan absolute and full divorce from eachother.

b. The legal term used to describe a separa-tion from one’s spouse is usually judicialseparation, although some states use

other names, including legal separation,limited divorce, divorce mensa et thoro,separation from bed and board, anddivorce from bed and board. Separatemaintenance is another term similar tojudicial separation.

c. The inclusion in the divorce complaint(also called the divorce petition or dissolution petition in some states) of thereason the plaintiff is seeking a divorce isimportant legally.

d. The creation of no-fault causes of actionopened a new world in divorce litigation. Thediscord was lessened and the negative conno-tation of fault was eclipsed by no-faultdivorce statutes that included the new legalterms irreconcilable differences, irremediablebreakdown and incompatibility.

30. Temporary Support

a. Temporary support, also known as pendentelite support, is the legal solution to the finan-cial difficulties that can occur during divorceproceedings. Literally translated, pendentelite means “during the pending litigation.”

31. How Property Is Owned

a. The two types of property ownership con-cepts applicable to marriage are generallycalled the community property and separate property concepts. Eight states thatare known as community property states:Arizona, California, Idaho, Louisiana, Nevada,New Mexico, Texas, and Washington. Alaskaallows a married couple to choose which typeof concept they wish to apply. Wisconsin hasa differently named system, but it is similar tocommunity property.

b. Community property states are those statesthat call most property acquired during themarriage the property of both partners nomatter whose name the property is in. Theseparate property concept essentially per-mits individual ownership of property by amarried couple except for property clearlydesignated as jointly owned.

32. How Property is Divided Between DivorcingSpouses

a. The majority of states apply property divi-sion laws that utilize the legal conceptknown as equitable distribution. Theminority of states apply the communityproperty concept.

CHAPTER OUTLINES 17


33. Issues Involving Death, Divorce, andBeneficiaries

a. The majority of states provide that if aperson dies without drafting a will and with-out children, her spouse will inherit all ofthe deceased spouse’s assets.

34. The Divorce Discovery Process

a. Interrogatories

b. Depositions

c. Pre-trial hearings

35. The Alimony Issue

a. Alimony is defined as an allowance fromone spouse to another that usually continuesuntil the recipient spouses remarries, dies,or perhaps, begins cohabitating withanother partner. Alimony is called spousalmaintenance or spouse support in somestates.

36. Case 6–4: In re Marriage of Donna J.Robinsonv. Robinson, 184 Ill.App.3D 235, 539 N.E.2D1365, 132 Ill. Dec. 559 (1989).

37. Modification of the Alimony Obligation

a. In discussions about alimony, the bottomline is that a judge’s order to pay alimony isalways subject to review and modification ata later time.

38. Termination of the Alimony Obligation

a. The four main reasons that most court willterminate alimony include remarriage of thepayee spouse, death of the payee or the payor spouse, cohabitation by the payeespouse, and disability of the payor spouse.

39. Chapter Summary

40. Key Terms


42. Ethics Alert


44. Endnotes

CHAPTER 7 1. Objectives

2. Introduction

a. As of 2005, just 60 percent of 60-year-olds,32 percent of 65-year-olds, and 19 percent of70-year-olds were still employed. So whilemany workers may plan to keep working,life events may interrupt those plans.

b. Median net worth of households headed bypeople over 65 years old was close to$200,000 in 2004.

c. One in seven households headed by indi-viduals 65 to 74 years old are worth $10,000dollars or less. Current retirees report that 58 percent look to the Social SecurityAdministration’s (SSA’s) benefits as a majorsource of income.

d. Traditional pension plans have been cited asa major source of income for 43 percent ofcurrent retirees. Thirty-two percent of cur-rent retirees have cited personal investmentsas a major source of income as well.

e. The median income for America’s retiredwomen was $12,080 in 2004 compared to$21,102 for retired men.

3. Social Security Benefits

a. Twenty percent of Americans depend solelyon Social Security benefits. The majority ofAmericans over 65 years old depend onSocial Security benefits for at least 58 per-cent of their annual income.

b. Benefits are not so generous that the typicalelder law client should or can depend ontheir Social Security benefits payment as their sole source of retirement income.

4. Social Security: Where It Began

a. The original concept of providing benefits toAmerica’s retired workforce is attributed toPresident Franklin D. Roosevelt’s New Deallegislation of the 1930s Depression era.

5. The Differences between OASDI andSupplemental Security Income (SSI)

a. OASDI benefits are funded by contributionsmade to a general revenues fund; SSI bene-fits are not. The individuals who are eligibleto receive SSI benefits are those citizens whoare physically or mentally disabled in waysthat are statutorily described and whoseincomes are within extremely low limits.

6. How to Become Eligible for OASDI Benefits

a. The Social Security Act usually covers anyperson working in the United States fulltime. A covered full-time worker and hisemployer each contribute a certain percent-age of the worker’s salary. (In 2007 it was 6.2 percent each.)

b. If a worker is lucky enough to haveunearned income or income in excess of



$97,500 (the 2007 amount), he does nothave to remit any FICA tax on incomeearned over $97,500.

7. Will Benefits Be Available in the Future?

a. The trust funds held by the Social SecurityAdministration had assets of $1.378 trillionin 2002.

b. Trustees of the Social Security and Medicareprograms, the nation’s two largest benefitprograms, have announced that the benefitsfor 78 million baby boomers expected toretire will not be available by 2019 and 2041,respectively, unless the federal governmentcan fund the programs differently.

8. Who Is Entitled to Receive Benefits?

a. The original legislation was designed with aretirement age of 65 years. The retirementage has now been increased to 67 years oldfor anyone born after 1960.

9. The Individual Worker

a. First, to qualify for benefits for himself, aworker must be fully insured. The fullyinsured status is determined by counting thenumber of years a worker has worked. If aworker has at least 10 years of total employ-ment and FICA contributions, he is consid-ered fully insured.

b. A Social Security penalty is applied to anyincome earned by a worker between 62 yearsold and the SSA’s designation of the worker’seligible retirement age.

10. Exhibit 7–1: Social Security Eligibility

11. Derivative Beneficiaries

a. Survivors of eligible workers are known asderivative beneficiaries. Any benefits paid toa derivative beneficiary are based on thedeceased worker’s earnings history.Survivors include the deceased worker’sspouse, minor children, adult children dis-abled before age 22, and perhaps otherdependent family members.

b. Lump sum death benefits and survivorincome benefits must be determined.

12. Exhibit 7–2: Social Security Thresholds forSurvivor Eligibility

13. How to Apply for Benefits

a. Each person in the workforce will receivenotification from the SSA when he hasworked long enough to fulfill the require-ments to receive Social Security payments.

b. A husband and a wife may receive their indi-vidually earned Social Security benefitsbased upon the number of years in theworkforce. If a spouse dies, the local SSAagency office should be notified. A survivingspouse is entitled to continue to receive hisown individual Social Security benefits pay-ment or may opt to receive his deceasedspouse’s Social Security benefits paymentinstead if the amount is higher than his own.

14. Challenging SSA Decisions

a. If a worker disagrees with the official SSA’sannual statement regarding the worker’searnings, he may request a correction bemade to the official record.

15. Medicare

a. Medicare is health insurance provided bythe federal government to seven out of eightof U.S. residents 65 years and older whetherthey are rich or poor.

b. Medicare eligibility is tied to Social Securityeligibility.

c. Medicare-eligible individuals need to sign upfor benefits at their local Social Securityoffice within seven months after their 65th

birthday unless they are already receivingSocial Security benefits or a railroad pension.

16. The Parts of Medicare

a. Generally, Medicare Part A pays hospitalbills and Medicare Part B pays an insured’sphysician bills.

b. Medicare Part A is usually provided cost-free, but a premium is required to receivePart B coverage.

c. Generally known as the Medicare AdvantagePlan, the purpose of Medicare Part C is tooffer options not provided in the other parts.

d. Many people covered by Medicare also havemedicap insurance.

17. Exhibit 7–3: Medicare Premiums for the Fourparts of Medicare (2008)

18. Prescription Coverage

a. Part D became available to current MedicarePart A or Part B enrollees in 2006.

19. What Medicare Covers

a. Medicare covers specific acute medical treat-ment. Medicare does not pay for any generalcustodial type care of a patient. Such coveragereflects the position that Medicare benefits

CHAPTER OUTLINES 19


will pay for medical services described as reasonable and necessary in the treatment ofillness, injury, or to improve the function of amalformed body member.

b. Once a deductible is met Medicare doeshave extensive coverage for practicallyevery hospital cost.

20. Exhibit 7–4: Non-Hospital Medicare Coverage

21. Appealing Medicare Decisions

a. Every individual entitled to Medicare also isentitled to certain guaranteed rights.

b. The requirements of the Original MedicarePlan appeals process include the following:1. the subscriber must circle the item inquestion on the Medicare Summary Noticeand explain the coverage disagreement, 2.the subscriber must sign his signature andinclude his telephone number, and 3. thesubscriber must send the Medicare Summarynotice to the address on the AppealsInformation section.

c. The appeal must be made within 120 daysof receiving the Medicare Summary Notice.Recent changes include the requirement thatall second-level appeals, also known asMedicare reconsiderations, be conducted byQualified Independent Contractors (QICs).

22. Attorneys Advocating for Medicare Beneficiaries

a. It is unlikely that an elder law attorney willbe asked to handle Medicare appealsbecause many clients in such a positioncannot afford an attorney’s fees.

23. Exhibit 7–5: Medicare Rights

24. Exhibit 7–6: Notice of Privacy Practices for theOriginal Medicare Plan

25. The Role of the Medicare Ombudsman

a. A Medicare Ombudsman should ensure thatbeneficiaries get assistance with Medicarequestions or complaints and assistance withappeals.

26. Medicaid

a. Medicaid is a federally funded and stateadministered health insurance program thatprovides all types of medical care to individ-uals who cannot afford to pay for some orall of their medical bills.

27. Medicaid Eligibility Requirements

a. The Medicaid program has strict eligibilityrequirements. These requirements may

include the following: a person’s age;whether a person is pregnant, disabled,blind, or aged; a person’s income andresources (such as bank accounts, real prop-erty, and other items that can be sold forcash); and the fact that a person is a U.S. cit-izen or a lawfully admitted immigrant.

28. Using Medicaid to Finance Long Term Care

a. Elderly patients who need long term care,typically nursing home care, may pay for itin several different ways: 1. Out-of-pocketwith no reimbursement, 2. Long-term careinsurance, 3. Medicare, 4. Federal or stateveterans benefits, and 5. Medicaid.

29. Preventing Self-Imposed Impoverishment

a. The most recent tightening of eligibilityrequirements came from the passage ofthe federal Deficit Reduction Act of2005 (DRA).

b. The purpose of the DRA is to prevent indi-viduals in need of nursing home or otherlong term care from transferring their assetsto others and then applying for Medicaid-funded long-term care due to their self-imposed impoverishment.

c. Most states require long-term care patientsto spend down to $2,000 in assets beforethey can qualify for Medicaid.

d. The DRA now requires all states to reviewany transfers of assets by a Medicaid appli-cant within the 60 months before applica-tion was made. This time period forinvestigating asset transfer is called the lookback period.


31. Exceptions to Medicaid Transfer Penalties

a. There are certain kinds of transfers to whichpenalties would not be applied.

32. Avoiding Spousal Impoverishment

a. Self-paying for nursing home care for a med-ically needy spouse may leave the spousestill living in the community with littleincome or resources. This led Congress in1988 to enact Medicaid’s spousal protectionprovisions to prevent what had begun to bedescribed as spousal impoverishment.

b. Generally, a community spouse may keepone-half of the couple’s total countable assetsup to a maximum of $101,640 (2007). This



designated amount is called the communityspouse resource allowance (CSRA).

c. The community spouse is entitled then tosome or all of the monthly income of the insti-tutionalized spouse. The amount of the enti-tlement is determined by the minimummonthly income level provided by the stateMedicaid agency. This dollar amount is calledthe minimum monthly maintenanceneeds allowance or MMMNA.


34. The Medicaid Appeals Process

a. Each state must have an administrativeappeals process in place for their Medicaidprogram or face the loss of federal funding.An applicant who believes that he has beenunfairly denied Medicaid funding andbelieves he is facing too long a period ofMedicare ineligibility due to an allegedlyimproper transfer of assets can proceed withthe submission of a hardship waiver.

35. Taxes

36. Income Taxes

a. All income earned in the United States hasbeen subject to federal income taxes sincethe Twentieth Amendment was passedin1913.

b. Section 83 of the Internal Revenue Code con-cerns the taxing of Social Security benefits.

37. Capital Gains Taxes

a. Capital gains are any profits made on thesale of assets, including real and personalproperty.

38. Estate Taxes

a. When a person dies, all of his assets areadded together to determine the total valueamount of the gross estate.

b. The states that do have a state estate tax (notevery state has one) require a state estate taxto be paid if the estate is a taxable estatebecause it is valued over a certain state-designated monetary amount.

c. Some states have a state inheritance tax.

39. Exhibit 7–7: Federal Estate Tax Chart

40. How Tax Deductions Are Created

a. The Internal Revenue Service Code providesthat certain expenses will create income taxdeductions or credits.

b. Deductions are called either itemized orstandard.

41. Procedure for Paying Estate and Inherit-ance Taxes

a. The executor/personal representative oradministrator of every estate must ensure thata federal estate tax return is filed with the IRSwithin nine months of a decedent’s death.

b. The tax return is filed not in the name of anindividual, but in the name of the decedent’sestate; and the estate gets its own tax I.D.number.

c. An estate pays a state estate tax. The recip-ient pays any inheritance taxes that areowed. Any life insurance purchased andpaid out to named beneficiaries will notresult in an inheritance tax being owed bythe beneficiaries.

42. Financial and Retirement Planning

a. A plan set up by an employer to providefinancially for employees after they stop full-time employment is generally called aretirement plan.

b. A qualified plan is a plan that meets IRSrequirements for employers to deduct pay-ments from an employee’s paycheck andplace them in an employee’s retirementaccount. These qualified plans are generallyknown as 401k plans (if the employer is afor profit business) or 403b plans (if theemployer is a non-profit entity).

c. A defined-benefit plan is the name oftenused to describe a pension.

d. With a money-purchase plan (or defined-contribution plan), an employer, anemployee, or both has specified that a cer-tain amount of money can be contributed toa retirement fund.

e. An Individual Retirement Account (IRA)is designed for the individual to self-manageand fund his own retirement account.

f. Another similar investment opportunity isthe Roth IRA. Contributions made to a RothIRA are not tax-deductible, but their earn-ings are tax-free.

g. A required minimum distribution(RMD) is the minimum amount of moneythat individuals with IRAs, 401Ks, or 403Bsmust withdraw by a certain age.

43. Update Beneficiary Designations

CHAPTER OUTLINES 21


44. Financing Long-Term Care

a. Long-term care can be defined as assistanceto a person who is unable to help himselfwith the daily requirements of living.

45. Exhibit 7–8: Estimating the Future Cost ofNursing Home Care

46. Should a Client’s Plans Include Purchasing Long-Term Care Insurance?

a. The statistical probability of a purchaser oflong-term care insurance needing long-termcare is a contrastingly large 50 percent.

b. Elder law clients may be unaware thatMedicare does not pay for any long-term care.

c. The answer lies in what type of policy ispurchased and what that policy provides forthe costs incurred.

d. Long-term care insurance should never bepurchased if the premiums will significantlycompromise the purchaser’s lifestyle.

e. Some insurance companies offer to pay apercentage of a policyholder’s long-termcare costs. Most companies offer a very spe-cific per-day coverage amount. Either wayinflation coverage is essential.

f. An important question is who will decide ifan insured is entitled to benefits.

g. The bottom line is that long-term insuranceis too expensive for many people; and if aperson is already ill, he may not be consid-ered insurable.

h. Legal action may be appropriate when aclient is unhappy about his long-term careinsurance contract. When reading the con-tract all courts usually use an objective stan-dard and look to the plain meaning of thewords that the company used.

47. Medicaid Changes Affect the Purchasing ofPolicies

a. The federal government has issued a policythat allows state Medicaid programs to dis-regard any assets that a Medicaid recipientreceived from a private long-term care insur-ance policy when the state moves to recoverassets from a Medicaid beneficiary’s estate.

48. Exhibit 7–9: Tax Deductions on Long-Term CareInsurance

49. Viatical Settlements

a. Viatical settlements involve the purchaseof another person’s life insurance policy by

an investor in return for a cash payment thatis a percentage of the policy payout.

b. Viatical investments have become a muchmore complicated investment strategy andbig business for investors who are spendingbillions yearly to buy life insurance policiesfrom the elderly. On a negative note, viaticalfraud remains one of the country’s top invest-ment scams according to the North AmericanSecurities Administrators Association.

50. Reverse Mortgages

a. A reverse mortgage allows the olderhomeowner to benefit from such apprecia-tion and to use the accrued equity in hishome to mortgage the house.

b. A reverse mortgage is designed for the olderhomeowner who is having difficulty makingends meet, owns his own home, and wantsto be able to continue to live in that homeuntil his death. The homeowner must be atleast 62 years old to apply for a reversemortgage.

51. Balancing the Benefits and Drawbacks ofReverse Mortgages

a. When an elderly homeowner dies, the mort-gaged house will pass to the lending institu-tion unless the estate of the deceasedhomeowner can pay back the money lentthrough the reverse mortgage.

b. Closing costs on reverse mortgages are someof the highest in the mortgage industry.

c. A positive note is that any other assets of theborrower are untouchable by the lendinginstitution making the reverse mortgage.

52. Financial Planning After Losing a Spouse

a. Clients may need to be advised on how toprepare for the continued financial supportof loved ones after their death. Before acrisis, clients should be advised to organizefinancial documentation. These documentsmay include trusts; business contracts; taxreturns; employee, life, medical, and lifeinsurance benefits; and investments andbank accounts.

b. Before hiring a financial planning expert,clients should scrutinize how the advisorgets paid. A form called an ADV will disclosethat information.



53. Claiming Forgotten Money

a. Corporate accounting practices have led tolarge mounts of unclaimed money beinghanded over to state governments. For exam-ple, clients who have forgotten bankaccounts will have those accounts transferredto their state’s unclaimed property officeswithin three to five years of client contactwith the bank ending. Other reasons for thehuge increase in unclaimed property havebeen attributed to the popularity of Internetstock accounts being opened and forgotten.

b. Attorneys and their staff should include as aroutine inquiry whether their clients have a right to any unclaimed funds in the statetreasury.

54. Exhibit 7–10: Where to Find Unclaimed Moneyin State Coffers

55. Railroad Retirement Benefits

a. A railroad employee can earn a serviceannuity based upon his age and dependingupon the employee’s years of creditable rail-road service.

56. Veteran’s Benefits

a. The sheer number of elderly veterans ensuresveterans benefits being a topic of importancefor most elder law practices. Armed servicesveterans may be eligible for federal and state veterans benefits. Dependency and indemnity compensation (DIC) should beavailable.



59. Chapter Summary


61. Key Terms

62. Ethics Alert

a. The American Bar Association’s Model Rulesof Professional Conduct serves as the basisfor the majority of state codes of profes-sional conduct for lawyers.


64. Endnotes


2. Introduction

a. Where and how people choose to live asthey age is a critical factor in determining aperson’s level of happiness and independ-ence. People need to be in living environ-ments that mesh with their physical andemotional needs. This has been called theperson-environment fit.

3. The Attorney’s Role in Client Housing Issues

a. The health services needs of a client alongwith the best housing option are usuallymeasured with the assistance of the activitiesof daily living (ADL) barometer. ADLinclude basic tasks essential for day-to-dayfunctioning, such as bathing, dressing, groom-ing, eating, mobility, and using the toiletalone.

b. An individual’s personal needs should alsobe weighed to determine if instrumentalactivities of daily living (IADL) have beencompromised. IADL include those activitiesthat are less basic than the traditional ADL.IADL include activities such as shopping,paying bills, cleaning, doing the laundry,and preparing meals.

c. An attorney alone should not determine thehousing choice for a client. The client andher family, if available, along with theclient’s physician and perhaps a geriatriccare manager, should be the primary deci-sion makers.

4. Senior Housing Options

a. America’s elderly are choosing all types ofliving arrangements. The country’s elderlyare living by themselves, with their spouses,with family members, and with other unre-lated adults.

b. Living options range from independenthousing to subsidized and unsubsidizedsenior citizen communities to assisted livingfacilities with partial care to nursing homeswith complete medical care. The neweroptions of lower-level care, such as adultday care and assisted living, are growing inprominence as nursing homes are becominga narrowly specialized service catering tothose in the greatest need.

5. Exhibit 8–1: How Americans Live

CHAPTER OUTLINES 23


6. Staying at Home

a. Most senior citizens want to stay in the com-forts of their own home. This is oftenreferred to as aging in place.

b. Today the term home care has evolved todescribe non-medical care such as house-keeping and companionship.

c. One newer option assisting seniors inmaking their stay-at-home choice easier isthe virtual retirement community.

d. House sharing is another option for thosewho want to remain at home.

7. Subsidized Housing

a. Subsidies for public housing usually arefunded by the federal government’sDepartment of Housing and UrbanDevelopment (HUD) and administered byeach state through local county and cityagencies.

b. There are basically two types of subsidizedhousing. The first type is generally describedas public housing, which usually refers tothe government-subsidized project-basedconstruction of public housing. Thesecond type of subsidized housing is usuallycalled public voucher-based.

8. Assisted Living Facilities

a. Across the country assisted living is thegeneric term used to describe housing thatprovides some assistance to residents withdaily needs.

b. Common terms for assisted living facilitiesinclude residential care, personal care,adult congregate living care, board andcare, domiciliary care, adult living facilities, supported care, enhanced care,community-based retirement facilities,adult foster care, adult homes, shelteredhousing, and retirement residences.

9. Senior Communities

a. Senior communities (also called congregatehousing) are designed for more active seniorswho can live independently within their ownresidence.

10. Moving from a House to an Apartment

a. A viable alternative for some seniors is tosell their home and move to an apartment.

b. Rental types include the following: 1. Rentalhousing offering all types of market rateunits to all age ranges; 2. Rental housing

designed for anyone 55 years and older(there are usually exceptions to the agerestrictions for spouses or caregivers whoare younger); 3. Affordable rental housingdesigned for senior citizens below a certainincome level; 4. Public housing; and 5. Ruralrental help

11. Elder Cottage Housing Opportunity

a. The better-known term for Elder CottageHousing Opportunity (ECHO) grannyflat (or mother/daughter unit).

b. Granny flats are small apartments built ontoan adult child’s home or built independentlyon the adult child’s property. They may evenbe mobile homes. The granny flat worksonly if local zoning regulations allow it.

12. Group Homes

a. Group homes are another option and areusually designed for the relatively self-suffi-cient senior to provide some household main-tenance and companionship needs. Grouphomes are definitely not nursing homes.

13. Adult Foster Care

a. Adult foster care is typically used for adultswhen they do not need continual caregiving.

14. Board and Care Homes

a. Board and Care homes are a type of grouphome that offers 24-hour supervision andsome personal care services. They are simi-lar to adult foster care.

15. Continuing Care Communities

a. Another housing option that combinesevery type of eventuality is a continuingcare retirement community (CCRC).These communities are sometimes calledstep care or progressive communities.The communities also may be called lifecare communities.

b. These communities are designed to care fora resident until the end of the resident’s life.The resident of a life care community can(for a fee) move to a life care facility as anindependent elder and be assured that anyfuture reductions in her physical or mentalabilities will still allow her to be part of thischosen life care community.

c. All CCRCs offer essentially three levels of care.

d. Typically, a large one-time out-of-pocketentry fee will be charged; monthly fees for



utilities and maintenance of the communityare additional.

e. Some states highly regulate CCRCs, otherstates do not.

16. Contractual Ramifications of a CCRC

a. Contracts will differ according to the types ofservices, housing, and amenities included.Residents may be able to opt for plans thatrange from traditional or modified to a moreà la carte selection.

17. Exhibit 8–2: An Example of CCRC StatutoryLanguage

18. Nursing Homes

a. Nursing homes are no longer as prominentamong long-term care options as they usedto be as recently as the early 1990s.

b. The descriptive term nursing home is anumbrella term used to define a residentialcare facility whose purpose is to care forindividuals that are no longer in need ofhospitalization but are still too dependenton personal assistance to reside in their ownhome without that personal assistance.

c. A nursing home stay is still a cost-effectivealternative to hospital care.

d. Federal law requires that the nursing hometerm only be used when a facility providesskilled nursing care or rehabilitation servicesfor injured, disabled, or sick persons.

e. A skilled care facility offers nursing care24 hours a day. The nursing care provided isusually considered rehabilitation or special care nursing.

20. Choosing a Nursing Home

a. Research is necessary to make sure the facil-ity will meet the needs of the person movingthere, will be an acceptable place to live,and will be affordable and within the meansof those who will pay the bill.

21. Choosing a Nursing Facility for Alzheimer’sPatients

a. The same questions asked at a nursinghome should also be asked for theAlzheimer’s patient, but with the additionalfocus on whether the special needs ofAlzheimer’s patients are considered. Qualityprograms for Alzheimer’s residents featureboth group and individual activities that aredesigned to be failure-free and buildpatients’ confidence.

22. How to Pay for a Nursing Home Stay

a. One way to pay for a nursing home stay isby self-paying if a resident has availableincome, has savings accumulated, has familyor adult children who can pay, or uses acombination of all three. Self-pay may bethe way most residents begin their nursinghome residency, but once their self-payoptions are depleted, more than half of allnursing home residents have Medicaid payfor their care. In fact, the federal governmentpaid nearly $39 billion for nursing homecare in 1999.

23. Preparing Legal Documents Prior to Moving toa Nursing Home

24. Nursing Home Regulation

a. Nursing homes are issued a governmentallicense permitting them to provide suchnursing care.

b. Along with a license, many homes want tobe certified to accept Medicare/Medicaid-paying patients. The seeking of Medicare/Medicaid certification involves another longlist of requirements that the nursing homemust meet. Another term often used toimpress new residents is accreditation.Such accreditation does not provide a guar-antee that the home is meeting accreditationstandards every day—indeed, neither doeslicensing or certification.

25. The Patient’s Bill of Rights

a. In 1987, Congress enacted the Nursing homeReform Law, which has since been incorpo-rated into the Medicare and Medicaid regulations.

26. Exhibit 8–3: Patient’s Bill of Rights

27. Problem-Solving Residents’ Complaints

a. If a resident or the resident’s representativehas a complaint regarding the long-termcare facility, an ombudsman can interveneon behalf of the resident. Ombudsmen arelocated throughout the country, will investi-gate complaints, and often will mediatebetween a facility and a complainant. Theombudsmen are paid by the federallyfunded state offices on aging and are free tothe public.

28. Suing to Get Out

a. Jesse Fitchett was a 70-year-old partially par-alyzed resident of the Laguna Honda nurs-ing Home in San Francisco, California, for

CHAPTER OUTLINES 25


over six years before a class action lawsuitled to his being released and being movedto a one-bedroom apartment in an outsidecommunity. The class action lawsuit wasone of the first of its kind in the country.

b. The lawsuit was based, in large part, on a1999 U.S. Supreme Court decision that foundthat if a disabled person preferred to live inthe outside community and the cost wouldbe the same or less than living in a nursinghome, then the failure to offer a choicewould be considered discriminatory.


30. Hospice Facility

a. A hospice facility is not really a residentialoption for seniors; it is end-of-life care thatshould be seriously considered at the appro-priate time.

b. Hospice facilities provide supportive care tomeet the special needs arising out of thephysical, psychological, spiritual, social, andeconomic stresses that are part of the finalstage of an illness and that occur during thedying process and bereavement period.Medicare provides payment for a list of hos-pice services that are provided under thecare of a treating physician. Hospice serv-ices will be provided if all other curativetreatment has ended.

31. Chapter Summary

32. Key Terms


34. Ethics Alert


36. Endnotes


2. Introduction

a. By the mid-1960s, laws barring age discrim-ination in employment had already beenpassed in 14 states. Unfortunately, such statelegislation had little impact on lessening agebias. During the same time period Congresspassed the landmark 1964 Civil Rights Actbarring race, color, religion, national origin,and sex discrimination. The 1964 Act didnothing to bar age discrimination.

3. Federal Protection Against Age Discrimination

a. The Age Discrimination in Employmentact of 1967 (ADEA) prohibits discriminationon the basis of age in programs and activitiesreceiving federal financial assistance.

b. The age limit was brought down to 40 yearsof age before Congress passed the act.Congress later revised the upper limit in1986 by eliminating forced retirement atany age with certain exceptions. The ADEAapplies to private employers with 20 ormore employees, the federal government,and any local government. The U.S.Supreme Court has held that the ADEAcannot be applied to state governments.However, most states have enacted stateversions of the ADEA.

c. If employment involves a bona fideoccupational qualification (BFOQ), anexception may be made to the ADEA. ABFOQ is defined as a good faith jobrequirement that must be fulfilled by theapplicant.

4. Exhibit 9–1: Excerpt from ADEA Statute

5. The ADEA Today

a. All of the baby boomers are now oldenough to be covered under the ADEA.

b. Of all workers filing age bias charge in 2002,64 percent were from 40 to 59 years old.

c. The Equal Employment OpportunityCommission (EEOC) has been empoweredby Congress through the ADEA statute andthe earlier Civil Rights Act of 1964 to fightdiscrimination in employment.

6. Filing an Age Discrimination in Employment Case

a. Any worker who thinks his employmentrights have been violated should first exhaustall available options to resolve the situationbefore filing a charge with the EEOC. Afterexhausting any available remedies, a workermay file an age discrimination in employ-ment charge with the EEOC.

b. The EEOC charge should include the follow-ing: 1. The complaining party’s name,address, and telephone number(s); 2. Thename, address, and telephone number(s) ofthe respondent employer, employmentagency, or union that the filer is alleging dis-criminated against the complaining party; 3. The number of respondent’s employees;4. A short description of the alleged



violation; and 5. The date of the alleged vio-lation. All laws enforced by the EEOC(except the Equal Pay Act) require filing acharge with the EEOC before a private law-suit may be initiated in court.

7. Proving an Age Discrimination In Employ-ment Case

a. To understand how to describe an age dis-crimination in employment scenario, it isnecessary to understand the employmentat-will concept. Employment at will isemployment that may continue only as longas the employer or employee wishes to con-tinue the employment relationship.

b. Age discrimination cases are often heavywith motions to dismiss and summaryjudgment requests.

c. It is through interrogatories, depositions,and requests for production of documentsthat the evidence grows (or does not grow)to support a case. This evidence is gatheredduring what is called the discoveryprocess. Age discrimination cases may betaken on a contingency fee basis.

d. A plaintiff’s case (including age discriminationin employment cases) is judged by the legalstandard described as a preponderance ofthe evidence. The U.S. Supreme Court hasallowed a presumption of discrimination,even without direct evidence, if the plaintiff’slegal team has eliminated all other legitimatereasons for the firing. Failure of an employerto prove legitimate reasons for a firing canlead to a finding that the reasons given by theemployer were mere pretext and subterfuge.

e. A typical scenario occurs when an employeeis fired because of a company downsizing.If there is a reduction in force scenario, theemployer must treat the age of all employ-ees neutrally. Another scenario occurs whenan employer claims that even though agediscrimination may have played a part in aworker’s dismissal there still was anotherlegitimate business reason for letting anemployee go. This is sometimes known as amixed motive case.

f. Courts dealing with age discriminationclaims use the terms disparate treatmentand disparate impact. There are subtle dif-ferences. Disparate treatment occurs whenone or more employees are treated differ-ently by an employer because of their age.

Disparate impact occurs when a seeminglyinnocent nondiscriminatory action results inthe reality that older workers suffer andyoung workers do not.

8. Remedies Available to Successful Plaintiffs

a. The term making the plaintiff whole isoften used in a discussion of how a plain-tiff’s financial damages should be calculated.

b. Remedies may include claims for backpay, front pay, liquidated damages,injunctive relief (a non-financial remedy),and attorney fees.

9. Employers and Age Discrimination

a. A prospective employer should be careful toavoid the appearance of bias of any kind. Anemployer should periodically review hishiring practices.

b. Most age discrimination claims are foralleged wrongful discharge. Interestingly,the ADEA (even with its good intentions)may have helped put a damper on the hiringof workers over 40.

10. Defending Against Age Discrimination Claims

a. The EEOC must notify all possible defen-dants in the case as soon as possible andinvestigate the claims. There is a point fol-lowing the investigation that the EEOC maydismiss the claim because it has not foundthe claimed discrimination. This technicallyis called a no cause finding. If the EEOCinvestigators believe that age discriminationdid take place, a for cause finding is theresult. Approximately 60 percent of allEEOC age discrimination investigations endin a no cause finding.

b. A for cause finding leads to more EEOCinvolvement. The EEOC will attempt tobring the parties together to settle the case.Approximately 10 percent settlements areorchestrated by EEOC personnel. If settle-ment does not work, the EEOC may file alawsuit in federal court against the defen-dant on the plaintiff’s behalf.

c. The complaining employee also has theoption of seeking private counsel to file alawsuit against his former employer. Prior toseeking private counsel the EEOC must issuea right-to-sue notice to the plaintiff. Thisnotice ends the EEOC’s active involvementin the case. The complaining employee mayalso proceed to hire private counsel even if

CHAPTER OUTLINES 27


a no cause finding was the result of theEEOC investigation or if the EEOC investiga-tion is not yet completed.

d. The ADEA does not permit class action law-suits (unlike Title VII). There is a very strictstatute of limitations on age discriminationclaims. The 180-day filing deadline isextended to 300 days if a charge also is cov-ered by a state or local age discriminationlaw. Failure to meet the ADEA filing dead-lines extinguishes complainants’ rights.

e. Many states have anti-discrimination lawsand agencies responsible for enforcingthose laws. The EEOC refers to these agen-cies as Fair Employment PracticesAgencies (FEPAs).

11. Waiving an Employee’s Rights Under the ADEA

a. An employer is allowed to ask an employeeto waive (ADEA Waiver) any of theemployee’s rights under the ADEA as part ofan ADEA settlement or incentive to termi-nate employment.

12. Recent Case Aids Plaintiffs

a. The United States Supreme Court expandedthe potential for age discrimination lawsuitsin the more recent Smith v. City of Jackson,Miss., 544 U.S. 228, 125 S.Ct. 1536 (2005) case.


14. Chapter Summary

15. Key Terms


17. Ethics Alert


19. Endnotes


2. Introduction

a. Abuse is found within all ethnic, financial,and social groups.

b. Issues pertaining to the abuse of the elderlyusually involve family members. Abuse ofelderly family members is considereddomestic violence.

3. Exhibit 10–1: Results of Elder Abuse Survey

4.The Role of the Administration on Aging

a. The Administration on Aging is the fed-eral agency under the Department of Healthand Human Services given the job of shep-herding elder initiatives and programsthrough the system. The agency deals withthe elder abuse problems in the UnitedStates through its funding of the NationalCenter on Elder Abuse (NCEA).

5. Defining Elder Abuse

6. Exhibit 10–2: Elder Abuse Defined

7. Self-Neglect

a. Reports of alleged self-neglect represent50 percent of all cases brought to theattention of state Adult ProtectiveServices (APS).

b. The elderly suffering from the early undiag-nosed stages of dementia are particularlysusceptible to self-neglect.

c. Depression may also play role in the inci-dence of self-neglect among the elderly. Thecenters for Disease Control and Preventionhave reported that the suicide rate forpeople 65 years and older is higher than inany other age group.

8. Federal and State Laws Offer Vulnerable EldersProtection

a. There are some major differences among thestates. Some states require mandatoryversus voluntary reporting of suspectedabuse. Some states emphasize the protec-tion of incapacitated or vulnerable elderlyresidents. Some states provide broad powersto their investigators of elderly abuse reportswhile other states limit such power.

b. The Older American Act had been in effect forover 40 years when Congress reauthorizedthe Act and added the funding for Title VII,Chapter 3. The main purpose of Chapter 3 isto work toward prevention of elder abuse,neglect, and exploitation.

9. Reporting Abuse

a. Reports of alleged abuse can be made to theagencies that are designed to protect theelderly. The Administration on Aging pro-vides a national toll-free help line called theEldercare Locator if a local help line is notavailable in a particular area.



10. Moral or Legal Responsibility to Report Abuse?

a. Legal responsibility is generally left to man-dated reporters. Mandated reporters usu-ally are doctors, nurses, home health careworkers, guardians, trustees, law enforce-ment personnel, attorneys, and any otherindividuals in a fiduciary role to the victim.A minority of states have gone further andmade it mandatory for any person whoknows of abuse to report it.

11. How Are Elder Abuse Perpetrators Punished?

a. Across the country, specific state statutesdetail the criminal penalties abusers will face.Some states have increased the jail time whenphysical violence is against an elderly victim.

12. Exhibit 10–3: Sample State Adult ProtectiveServices Act

13. Financial Crimes and the Elderly

a. State agencies responsible for investigatingelder abuse claims have reported the largestabuse explosion has occurred in financialexploitation.

b. The enactment of the federal government’s DoNot Call Registry is one more way to protectcitizens from possible fraudulent activities.

14. Court Says Protect Your Own

15. Identity Theft

a. Identity theft is the illegal obtaining of per-sonal information for the purpose of usingthe stolen information to commit theft andfraud. Identity theft, the largest source ofconsumer fraud in the United States, is onthe rise.

b. Two federal agencies heavily involved inidentity theft investigations include theSocial Security Administration and theUnited States Postal Service.

c. The Federal Trade Commission is the federalagency empowered to coordinate all federaland state agencies investigating identity theft.

16. Property Theft

a. Churning.

b. Visit by a stranger to a senior citizen’s homeon a false pretense.

c. Using romance in defrauding their victims.

d. Free lunch seminars masquerading as education-only sessions. The elderly arebeing targeted at free lunches with

high-pressure sales pitches aimed at gettingthem to purchase new investments andopen new accounts.


18. Chapter Summary

19. Key Terms


21. Ethics Alert


23. Endnotes


2. Introduction

a. The wholesome virtues of family life can betragically interrupted by death, divorce, orother personal traumas.

3. Grandparents’ Role in Custody and Visitation

a. The changing reality of family life at the endof the twentieth century saw America’s chil-dren living with only one parent in 28 per-cent of the country’s households. By 1998,approximately 4 million children lived witha parent in a grandparent’s home. And 1.4 million children were being raised solelyby a grandparent without the presence of aparent.

b. Widespread enactment of third-party visita-tion statutes recognizing that, in addition totheir parents, children may also benefit fromrelationships with statutorily specified per-sons who are not their parents.

4. What Is Best, Grandma’s Babysitting or Day Care?

a. One widely publicized case weighed thebenefits of grandparent babysitting versusday care.

5. Exhibit 11–1: Factors Previously Considered inGrandparent Visitation

6. Child Custody and Visitation Fundamentals

a. The U.S. courts have a long history of sup-porting a parents’ paramount right to decidewhat is best for their children.

b. Following the jurisdictional hurdle, the pri-mary legal question that a judge who is hear-ing custody or visitation matters asks is thethreshold question known across the countyas the best interests of the child test.

CHAPTER OUTLINES 29


7. Determining What Is Best for the Children

a. The best interests of the child test is used byall 50 states as a guideline for the courts tofollow. However, different state courts aredetermined by analyzing a number of factors.

8. Reaching for Uniformity: The UCCJA Is Born

a. The Uniform Child Custody JurisdictionAct (UCCJA) was promoted as a model childcustody statute that should be put into effectin all 50 states. This standardization wasintended to eliminate the possibility of par-ents removing or kidnapping their childrento another state and requesting a new cus-tody hearing once they established theirnew state’s jurisdiction over the children onthe single test that the children were presentin the state. Various sections of the UCCJAhave been interpreted inconsistently acrossthe country.

9. Exhibit 11–2: State of Illinois Child Custody factors

10. Offspring of the UCCJA

a. The UCCJA was ultimately revised by theNCCUSL to reduce confusion. The result wasthe Uniform Child Custody Jurisdictionand Enforcement Act (UCCJEA), whichprovides newer, more uniform methods forexpedited interstate enforcement of custodyand visitation orders.

b. The UCCJEA amended the UCCJA to bring it into conformity with two newer federal statutes, the Parental Kidnapping Prevention Act (PKPA) and the ViolenceAgainst Women Act (VAWA).

c. The first and most important requirement isto determine the child’s home state. A statebecomes a child’s home state when the childhas lived there for six months. Under theUCCJWA, once the home state is designated,that state has continuing jurisdiction.

11. The Many Options of Child Custody

a. Alternate physical custody.

b. The children may stay in the family homewhile the parents alternately move betweenthe family home and another home.

c. Joint parental custody.

d. Sole custody.

12. Advocating for the Children: The Guardian AdLitem’s Role

a. A guardian ad litem (GAL) in the context ofa child custody or visitation lawsuit is aperson who may be appointed by a judge tolook after the interests of a child or childrenduring the litigation. A GAL may also beappointed in any matter involving childrenor adults with special needs.

b. The GAL may also be called an advocate ora children’s advocate.

13. The Psychological Expert’s Role

a. Battling spouses or grandparents often hirepsychologists when custody and visitationrights are at issue.

b. A confidentiality waiver allows the psy-chologists to discuss matters that normallywould be privileged information.

14. The Child’s Role in Custody and VisitationDetermination

a. The age of the children is usually taken intoconsideration, and there is no guarantee thata judge will agree with the children’s wishesor that a child will be asked his opinion.

15. The Final Judgment

a. A person found guilty of contempt of courtmay face a monetary fine, jail time, or both.

16. History of Grandparent Visitation Legislation

a. The first documented grandparent visitationlawsuit came from the Supreme Court ofLouisiana.

b. The first official grandparent visitationstatute was enacted in New York in 1966.This statute was a result of a growing grand-parents rights movement.

c. Eventually, the states had a variety ofgrandparent visitation legislation, also known as grandparenting time legislation, enacted to ensure grandpar-ents would be able to continue their rela-tionships with their grandchildren.

17. States Split on Grandparents’ Rights

a. No state has ever given a grandparent anabsolute right to definite visitation. Rather,the states have generally given grandparentsthe right to petition a court for visitationunder certain circumstances. For the mostpart, a state’s grandparent legislation is one



of two types. First, some states view grand-parent visitation as only a small interferenceor burden on a parent’s right to parent.These states broadly provide for grandpar-ents to petition the court and ask that thebest interests of the children in question bethe most important factor and not the par-ents’ fundamental right to parent their ownchildren.

b. Other states more narrowly provide for non-parents to seek visitation. Usually these nar-rowly defining states do not give standing tononfamily members even to bring a visitationpetition. In addition, grandparents in thesestates have a higher threshold to meet.


19. Asking the Right Questions

a. Grandparents seeking visitation should beprepared to produce documentary evi-dence, including witness’ names, to supporttheir claim that visitation is in the best inter-ests of their grandchildren.

20. Exhibit 11–3: Sample Interview Questions to askin a Grandparents Visitation Dispute

21. Courts Vary in Interpreting Grandparent Rights

22. Case 11–1: Bower v. Matula, 943 S.W. 2d536 (1997).

23. Biological Connection Touted

24. Case 11–2: Dolman v. Dolman, 586 S.W. 2d 606 (1979).

25. Case Brought Legal Confusion

26. Case 11–3: Troxel v. Granville, 530 U.S. 57,120 S.Ct. 2054, 147 L.Ed. 2d 46 (2000).

27. Grandparent Visitation Post-Troxel

a. In general, one of three things has hap-pened in state courts since Troxel. Stategrandparent visitation statutes have beenfound constitutional, unconstitutional, orunconstitutional as applied. This makes theissue of grandparent visitation very state-specific in the post-Troxel world.

28. Chapter Summary

29. Key Terms


31. Ethics Alert


33. Endnotes


2. Introduction

a. Americans use the term funeral for an eventduring which a person who has recentlydied is honored. The word funeral is derivedfrom the ancient Sanskrit term meaning“smoke,” which refers to the custom of cremation.

3. Client Choices

a. Preplanning funeral arrangements freesfamily and friends from the responsibility ofmaking decisions about burial or cremationimmediately following the sorrow-filled expe-rience of losing a loved one. Preplanning isalso described as pre-need planning.

b. An individual who dies without plans forburial, cremation, or funeral arrangementsleaves the entire matter to family or friendswho may or may not know or comply withthe deceased’s wishes.

c. Clients may choose to use the services of afuneral home only for a direct cremation.The cremation option was chosen in 26 per-cent of all deaths in 2000. Cremations totaled600,000 in 2000.

4. Exhibit 12–1: Funeral Planning Decisions

5. Anatomical Gifting

a. Individuals seeking an altruistic option toburial or cremation may opt for anatomicalgifting.

6. Cryonics

a. Cryonic suspension is the process of takinga body that has been frozen with care andstoring it in tanks filled with liquid nitrogen.

7. Laws Affecting Funeral Planning

a. The earliest funeral regulations developed atthe turn of the twentieth century when statesbegan to license funeral homes andfuneral directors. Funeral homes are busi-ness establishments where corpses are pre-pared for burial or cremation and where afuneral service may also be held and thebody viewed by mourners.

b. All 50 states except Colorado now licensefuneral directors, and most states regulatetheir state’s funeral industry to some degree.For example, the most prevalent require-ment in 33 states is that funeral homes musthave embalming preparation rooms.

CHAPTER OUTLINES 31


8. Funeral Homes and Worse Case Scenarios

9. Case 12–1: Ingaglio v. Kraeer FuneralHome, 515 So.2d 428, (1987).

10. Personal Preference Laws

a. An individual may want to ensure that herburial wishes are carried out by detailingburial or cremation decisions in a will or ina letter of instruction. Unfortunately, there isno guarantee that such decisions, even thoseincluded in a will or letter of instruction,will be carried out.

b. State personal preference laws maypermit an individual’s next of kin to disre-gard such instructions and to decidewhether their deceased family member willbe buried or cremated.

11. Case 12–2: Perkins, et al. v. Johnson, et al.,866 So.2d 1146 (2003).

12. Case 12–3: Birch v. Birch, 204 N.Y.S. 735 (1924).

13. Law Designed to Protect Consumers

a. The Funeral Industry Practices Rule,commonly known as the Funeral Rule,was promulgated in 1982 and made effec-tive in 1984. The Federal Trade Commission(FTC) administers the Funeral Rule, whichrequires funeral providers to provide con-sumers with information regarding funeralproducts and services and ensures con-sumers pay for only the products and serv-ices they want and need.

b. No one is legally required to use the servicesof a funeral home.

14. Exhibit 12–2: Personal Preference Law

15. Exhibit 12–3: Funeral Rule Excerpt

16. Funeral Costs

a. Funerals are among the highest-priced pur-chases that consumer’s make. In 2007, thetypical U.S. funeral cost $6,000 dollars.

17. Payment Strategies

a. A person can arrange for her funeral to bepaid for in one of three ways: 1. Prepayingprior to a person’s death; 2. Paying after aperson’s death out of the person’s estate;and 3. Ignoring the issue. Paying for one’sfuneral ahead of time is considered to bepaying pre-need, or pre-funding one’schoices.

b. These options include (but are not limited)to the following: 1. Pre-need insurance, alsocalled burial or funeral insurance; 2. lifeinsurance; 3. annuities; 4. a bank or a funeraltrust; 5. a pay on death bank account; and 6.a state pre-paid funeral trust fund.

c. A minority of states have passed legislationdesigned to protect pre-need purchasers.

18. Guiding Clients Who Prepay Funeral Costs

a. Clients may ask attorneys to review con-tracts and make sure funds are secured.

b. Clients may want to consider an irrevocableprepayment plan when eligibility forMedicaid benefits is a concern. Such prepay-ment is permitted and does not influencethe Medicaid’s determination of eligibility.

19. Veterans Burial Benefits

a. The U.S. Department of Veterans Affairs(VA) provides a small stipend to assist withthe financial costs of a veteran’s funeral.

20. Funeral Planning Societies

a. The goal of the Funeral Consumers Allianceis to protect a consumer’s right to choose ameaningful, dignified, affordable funeral.

21. Fraud Prevention

a. Over $20 billion was invested in pre-needfuneral and cemetery plans as the twenty-first century arrived, but no federal regula-tion had been designed to monitor howsafely those dollars were invested.

b. Only 10 states have consumer protectionlaws dealing with consumers recoveringfunds from pre-need burial contractors.

22. Case 12–4: Wilson v. Houston Funeral home,42 Cal. App.4th 1124, 50 Cal. Rptr. 2d 169 (1996).

23. Disinterment

a. Disinterment is defined as the removal ofa body from a grave or tomb.

24. Case 12–5: In the Matter of Jon A. Briggs, asExecutor of Harvey D. Briggs v. Briggs, 681N.Y.S.2d 853 (1998).

25. Chapter Summary

26. Key Terms



29. Endnotes



Chapter Outlines 44544 - Brands Delmar - Cengage · PDF filec. Mental health experts have...

Documents

Transcript of Chapter Outlines 44544 - Brands Delmar - Cengage · PDF filec. Mental health experts have...