Jarvis Law Office

Assets Held in Irrevocable Trust Can Be a Problem in Divorce

An appellate court in Florida disagreed with an earlier decision and determined that a trust cannot be modified with the assets divided in divorce, according to Wills, Trusts & Estates Prof Blog in "Equitable Distribution for a Couple's Irrevocable Trust?"

The issue surfaced when a Florida man settled an irrevocable trust with his wife and children named as the beneficiaries. Assets were transferred into the trust, including the couple's home. They later decided to get divorced.

If the couple still owned the home outside of the trust, then it would have been used as part of an equitable property division between them. A Florida trial court determined that was also the case with the irrevocable trust and ordered that the trust's terms be modified and the assets equitably divided.

An appellate court in Florida did not agree that it could be modified.

The lesson is that sometimes estate planning techniques can become problems when circumstances change. One thing to think about when planning your estate are some of the things in your life that could possibly change, so you can make sure your estate plan can be adapted to them easily.

Another lesson to learn from this case is that when getting divorced, you need to get your estate planning attorney involved,  since you will need to redo your estate plan in an appropriate way.

An estate planning attorney can advise you on the laws of your state, when creating an estate plan that meets your unique situation.

Reference: Wills, Trusts & Estates Prof Blog (Dec. 23, 2016) "Equitable Distribution for a Couple's Irrevocable Trust?"

Estate Planning Could Prevent a Funeral Embarrassment

When Chiayi County Council Speaker Tung Hsiang passed away, his son was tasked with planning the funeral. For inspiration, he relied on a dream he’d had that his father wanted the funeral to be hilarious. If that’s what Tung Hsiang was going for, his son certainly delivered. The procession included 50 multi-colored Jeeps, each with a scantily clad woman pole dancing on top.

Apparently, having pole dancers at your funeral is not completely uncommon in Taiwan and rural China, though the kaleidoscope of Jeeps with poles and dancers atop them was certainly a new twist. (By the way, Taiwan does ban outright nudity at funerals.) 

CNN reported on this unusual funeral in "50 pole dancers escort Taiwan politician's funeral procession."

The practice of having pole dancers at funerals in Taiwan apparently began in the 1980s and is part of a larger worldwide trend of families wanting unique and often lavish funerals to remember their loved ones.  While the United States has not yet had pole dancers on Jeeps as part of funeral processions (so far as we know, anyway!), many families have opted for unique and memorable funerals.

If pole dancers and colorful Jeeps are not something you would appreciate at your own funeral, now might be a good time to make your wishes known in your estate plan. This can help to avoid the risk that a family member will have a dream about something you might not approve.

Reference: CNN (January 6, 2017) "50 pole dancers escort Taiwan politician's funeral procession."

Starting Hospice: Sooner May Be Better

People often report that their loved ones are better cared for and more comfortable in a hospice. That can help the family with the grieving and acceptance processes. FOX News reports on a new study from the Harvard Medical School that provides new insights into hospice care in "Hospice care linked to higher family satisfaction."

The research was conducted with 1,970 terminal cancer patients, approximately half of whom received hospice care. The study found that hospice care led to better pain-management, symptom relief and end-of-life care. Families of patients who received hospice care were more satisfied than the families of those who did not.

One important finding was that longer stays in a hospice were associated with greater amounts of satisfaction. Hospice stays longer than 30 days were the most beneficial.

Although many people think that hospice should be saved for the very end of life, the findings of this study suggest that earlier hospice enrollment may be more beneficial. Dr. Alexi Wright of Harvard, who co-authored the study, wrote that “earlier hospice enrollment is associated with better symptom management, less pain, better quality of care, and a higher likelihood that patients will receive the care that they want in their own environment.”

Reference: FOX News (January 5, 2017) "Hospice care linked to higher family satisfaction."

How Trump Policies May Affect Your Wallet

Michael Gilfix, nationally known authority in the field of law, aging and estate planning, recently shared his insights and those of his Trump Policy Analysis Group (TPAG) in the digital publication, Wealth Management.

Here are some of their observations in regard to policies affecting seniors, veterans and the “medically needy.”

• Social Security and Medicare: Trump has stated that he does not want to change Social Security and Medicare. However, he has not stated what, if anything, he will do to ensure that the programs remain solvent. Many of his Republican allies would like to reduce or privatize both programs.
• Medicaid: TPAG has examined some of the proposals that are designed to restrict protective planning – making it much more difficult for older Americans to protect their homes and other assets while qualifying for Medicaid, particularly in a Long Term Care setting. They recommend all seniors, and their families, stay up-to-date as more information becomes available.
• Tax Proposals: As a candidate Trump proposed many changes in the tax code, including to the estate tax and the capital gains tax. These changes could have a dramatic impact on estate planning and require that many current plans be revisited.
• Special Needs: No proposals have yet been made that would directly affect services for special needs children and adults. However, changes in the way that federal Medicaid dollars are dispensed to the states could impact programs on a state-by-state basis.
• Veterans’ Benefits: While candidate Trump advocated supporting and even expanding services to veterans, there are currently proposals in Congress to restrict access to needed programs such as Aid and Attendance.

Reference: Wealth Management (January 6, 2017) "How Trump Policies Could Affect the Elderly and Those With Special Needs"

Wealthiest Colleges May Be Asked to Pony Up for Financial Aid

Congress will soon be considering a plan that would require a quarter of the gifts to the wealthiest colleges be used for middle-class financial aid, or risk their charitable status – and the tax-deductibility of donations.

According to a recent article in Private Wealth, "Rich College Donors' Tax Break Suddenly in Danger," the idea is part of a tax proposal offered by U.S. Representative Tom Reed, a western New York Republican and vice chair of President-elect Donald Trump’s transition team.  

The plan would apply to the roughly 100 colleges with endowments exceeding $1 billion. Reed wants to make sure that those institutions offer steep discounts to families with annual incomes of $24,000 to $145,000.

President-elect Trump has not endorsed this proposal, but if it passes, wealthy donors may want to revisit their estate planning and any planned gifts to these colleges to make sure that they are in compliance and gifts will be fully tax-deductible.

Reference: Private Wealth (January 5, 2017) "Rich College Donors' Tax Break Suddenly in Danger"

Experts Caution Social Security Cuts Could Trigger Suicide Among Seniors

While suicide prompted by financial stress usually occurs among younger people, experts are warning that cuts in entitlement programs could lead to an increased suicide rate among seniors. While suicide usually results from a complex array of issues, cutting entitlement programs is a particularly vexing problem for seniors. Not only would cuts increase financial stress, but seniors are likely to also experience feelings of betrayal and deception by the violation of a perceived social compact.

This issue was recently discussed in the Financial Advisor article, "Senior Suicides Could Rise If Social Security And Medicare Cut, Experts Warn."

Experts have concerns for two reasons.

The first is that there could be a devastating psychological impact for some elderly people who were promised benefits they will no longer receive. The second is that cuts to benefits could lead to more elderly people struggling financially.

What does this mean to you? If you are concerned that your own income may be cut, especially under the new Trump administration, stay and seek advice from qualified counsel. While the media may hype a lot of different opinions about what “might” happen, it’s important to find out the facts. If you have elderly parents or other loved ones who fear they may lose income and/or benefits,  don’t ignore their anxiety. Help them get the facts and stay informed.

An experienced elder law attorney can help you understand how these changes may impact your loved ones and how to best protect them.

Reference: Financial Advisor (January 5, 2017) "Senior Suicides Could Rise If Social Security And Medicare Cut, Experts Warn."

Estate Plan Can Guard against Misuse of Images

A new Hollywood trend of using estate planning to protect the use of images after an actor’s death has developed, according to the Daily Mail in "Actors rush to protect their image from 'digital resurrection' after they have died following eerie Star Wars: Rogue One reanimation of Carrie Fisher."

Because the saga of Star Wars has been going on for decades, some of the characters are being recreated through CGI effects because those in early movies are still present in the newest films. That did not present any problems in the 2015 release The Force Awakens, since it is set many years after the original movie. Consequently, the same actors could reprise their original roles.

However, the 2016 release Rogue One is set just before the original Star Wars movie and has some of the same characters.

Peter Cushing, who played one of those characters in the original film, passed away decades ago. Carrie Fisher played another returning character. Although she has since passed away, she was alive at the time of filming.

The movie producers did not recast the roles, but instead used CGI effects to make it look like the original actors were playing the roles. There is speculation that the next Star Wars film to be released will also use Fisher's digital image, now that she has passed away.

Hollywood stars are changing their estate plans to give instructions about how their likenesses can be used posthumously, if at all. For example, some are leaving instructions that their images cannot be shown using alcohol or drugs.

Under California law, celebrity estates have the right to control the likenesses posthumously, but there are no default protections about how the images can be used. It is up to the estates, unless an estate plan instructs otherwise.

Reference: Daily Mail (Dec. 31, 2016) "Actors rush to protect their image from 'digital resurrection' after they have died following eerie Star Wars: Rogue One reanimation of Carrie Fisher."

Opting Out of Being an Organ Donor

In response to a shortage of organ donations in France, a new law now requires people to opt-out if they do not wish to have their organs donated, according to the Guardian in "France introduces opt-out policy on organ donation." In order to opt-out, people must either register an official refusal with the government or leave a hand-written note with their next-of-kin.

Every year people all over the world pass away while on waiting lists for organs. Governments around the world, including in the U.S., have sought to address the shortage of organ donations by making it easier for people to express their organ donation wishes should they pass away.

Despite these laws, organ donations continue to lag far behind the demand for organs.

The new law in France allows families to make a written declaration at the time of death that the deceased did not wish to have his or her organs donated.

Officials in other countries may take a look at the new law in France to see if it is appropriate for their nation.

Reference: Guardian (Jan. 2, 2017) "France introduces opt-out policy on organ donation."

Can Brain Activity Hold off Dementia?

Possible reasons why “super-agers” are different from their peers may be getting closer to discovery with some new research, according to The New York Times in "How to Become a 'Superager'."

There are people who even into their 80s and 90s, can think just as quickly as much younger people. Researchers refer to these people as "superagers."

The group is defined as elderly people who have the same cognitive abilities as 25 year olds. However, this is a relatively small group.

Most elderly people will suffer from some form of cognitive impairment and, of course, many suffer from outright dementia.

Medical researchers have been searching for possible reasons why the superagers are so different from most of their peers.

In a small study, researchers conducted MRIs of some superagers and peers of the same age. The images revealed that superagers brains are thicker in some regions, which suggests more and stronger brain activity.

Interestingly, the differences are not in regions of the brain that are associated with cognitive functions. Instead, the differences are in brain regions associated with emotional functioning.

This study suggests that the key to becoming a superager is to continue to work hard. The emotional regions of the brain are activated and strengthened, when people strain themselves mentally or physically.

Reference: New York Times (Dec. 13, 2016) "How to Become a 'Superager'."

Loneliness May Increase Health Problems for Elderly

The cure for loneliness and isolation of the elderly is relatively simple, according to The New York Times in "Loneliness Can Be Deadly for Elders; Friends Are the Antidote."

Older people who feel isolated and alone suffer from a wide-range of problems. Loneliness has been shown to lead to an increase in dementia rates, nursing home admissions and even an increase in mortality rates.

Elder law advocates are very aware that loneliness in older people also makes them more susceptible to scams and fraud, including being unduly influenced to change their estate plans.  As a result, advocates often seek ways to decrease the loneliness that some elderly people feel.

To overcome loneliness, elderly people need friendships. However, there is a difference in the way that older people maintain friendships compared to the way that younger people often do.

For younger people, friendship is often about volume. They can stave off loneliness by maintaining connections with a large number of people, even if those connections are mostly superficial.

That does not work for elderly people. Instead, older people tend to have fewer friendships and to shed superficial relationships. To overcome loneliness, the elderly need close friendships. One close friendship with regular contact is often enough to avoid the debilitating effects of loneliness.

Reference: New York Times (Dec. 30, 2016) "Loneliness Can Be Deadly for Elders; Friends Are the Antidote."