Is Favoring a Caregiver Child in a Will Unequal?

Category:Estate Planning

Joshua C. Tate, Esq., a professor at Southern Methodist University - Dedman School of Law; University of Pennsylvania Law School, writes a compelling new article about the need for revised thinking is testamentary planning to incorporate unequal distributions to reflect the contributions of a caregiver child.

Abstract: Almost all U.S. states allow individuals to disinherit their descendants for any reason or no reason, but most of the world's legal systems currently do not. This Article contends that broad freedom of testation is defensible because it allows elderly people to reward family members who are caregivers. The Article explores the common-law origins of freedom of testation, which developed in the shadow of the medieval rule of primogeniture, a doctrine of no contemporary relevance. The growing problem of eldercare, however, offers a justification for the twenty-first century. Increases in life expectancy have led to a sharp rise in the number of older individuals who require long-term care, and some children and grandchildren are bearing more of the caregiving burden than others. Recent econometric studies, not yet taken into account in legal scholarship, suggest a tendency among the American elderly to bequeath more property to caregiving children. A competent testator, rather than a court or legislature, is in the best position to decide how much care each person has provided and to reward caregivers accordingly. Law reform, therefore, should focus on strengthening testamentary freedom while ensuring that caregivers are adequately compensated in cases of intestacy.

Slow Medicine - A Different Approach to End of Life Care

Category: Elder Law

A recent New York Times article "For the Elderly, Being Heard About Life’s End" describes the benefits of of "“slow medicine,” an approach that encourages less aggressive — and less costly — care at the end of life."

There is an institutionalized bias to give any and all medical care. However, when a person is in their late 80's or 90's this aggressive care may hinder their quality of life and control over the quality of that life.

Aggressive medical care is sometime an exercise is substituted decision making - I can, so therefore I will. What "slow medicine" seems to promote is the question of - you can, but should you?

The article advised that "slow medicine" is "Grounded in research at the Dartmouth Medical School, slow medicine encourages physicians to put on the brakes when considering care that may have high risks and limited rewards for the elderly, and it educates patients and families how to push back against emergency room trips and hospitalizations designed for those with treatable illnesses, not the inevitable erosion of advanced age."

And the irony to this. As a class of population, the treatments are the most expensive, although the results may be limited. "The costliest patients — the elderly with chronic illnesses — are the only group with universal health coverage under Medicare, leading to huge federal expenditures that experts agree are unsustainable as boomers age. "

Survey Says! Majority of Americans don't have Wills

Category: Estate Planning

In looking for some statistical evidence of the extent to which Americans don't have an estate plan, I came across this Lexis-Nexis Press Release: Majority of American Adults Remain Without Wills, New lawyers.comSM Survey Finds. Of note:

• "[O]ver half (55 percent) of all adult Americans do not have a will, a new survey shows, a percent that has remained virtually unchanged over the past three years."
  
• "Among non-white adults, the lack of wills is even more pronounced. Only one in three African American adults (32 percent) and one in four Hispanic American adults (26 percent) have wills, compared to more than half (52 percent) of white American adults."
  
• "Living wills (also known as medical directives) have jumped in popularity since 2004. Two in five adults (41 percent) now have living wills in place, a full ten percent more than those who had one just three years ago. "
  
• "[T]wo in five (38 percent) American adults report assigning a power of attorney for healthcare purposes, compared to 27 percent in 2004."

Any for answers to the key question "Why don't you have a Will?" Survey Says! the top three are:

"• Ignorance is bliss: One in ten (10 percent) American adults who do not have any elements of an estate plan say it’s because they don’t want to think about dying or becoming incapacitated.

• Where to begin?: Similarly, nearly one in ten (9 percent) adults say they don’t have an estate plan in place because they don’t know who to talk to about creating such documents. This percentage nearly doubled from 2004 (5percent).

• But I don’t need a will: Nearly one in four (24 percent) of adults say their biggest reason for not having an estate plan is a lack of sufficient assets. This was also the top reason cited in the 2004 survey (21 percent)."

Ah, but since a Will is the only place to name guardians for your children, shouldn't that be "sufficient"?

Paid Family Leave now Law in NJ

Category: Elder Law, Business Law and Planning

Hot from njbiz.com, Corzine Signs Paid Leave Bill in 'Legacy Moment' New Jersey's Governor Corzine today signed paid family leave into law. "Calling it a "legacy moment" and a "moral necessity," Gov. Jon S. Corzine today signed into law a bill that will give government and private-sector workers six weeks of paid leave to care for newborns or seriously ill immediate family members."

New Jersey becomes only the second state in the nation to have 6-weeks mandatory paid family leave. The new law is not without its detractors. "Supporters of the bill say the new law will help workers balance their work and family life. Business lobbyists and other critics argue that employers—especially small ones like doctors' offices and car repair shops—cannot afford to lose key workers for up to six weeks at a time. The critics say that becoming the first state in the region to mandate paid leave would further damage the state’s image as a place to do business."

Business owners are obviously concerned that they can't afford key employees to be gone for 6 weeks at a time, regardless of who is paying for the time off. On the flip side, caregivers should take heed of a law that may allow them to devote their full time and efforts to a family emergency without fear of losing their job and all of their salary.

The article outlines the details of the new law are as follows:

"Under the law, workers will get two-thirds of their regular pay, up to $524 per week. Employees could collect the money for up to six weeks and employers would have the option of requiring the workers to first take two weeks of fully paid vacation or sick leave.

The program would be funded by workers, who would pay about 75 cents a week more into the existing state Temporary Disability Insurance fund through payroll deductions. That translates into about $35 per year.

State and federal law now entitles workers to 12 weeks of family leave, but it is unpaid and employers with fewer than 50 employees are exempt. While the new paid family leave bill covers all employers, those with fewer than 50 employees are not required to hold open jobs for workers on paid leave.

Payroll deductions would start on Jan. 1, 2009, with workers able to take paid leave starting July 1, 2009, according to the bill. The Department of Labor estimates that approximately 38,000 individuals, or about 1 percent of New Jersey's work force, will collect benefits annually, but business lobbyists have argued it will be much higher."

Tax Evasion - If it sounds too good to be true, it probably is

Category: Tax Law and Planning


Actor Wesley Snipes has been given the maximum jail sentence of 3 years in federal prison for his failure to pay over $15 million in taxes. Snipes legal team essentially relied on the age old excuse of "but he said it was OK" in trying to sway the judge that he shouldn't be held responsible for following some one's advise to just stop filing tax returns. The "he" in this were a group of "tax protesters" who sold a system to thousands under the auspices of "taxes are illegal and you don't have to pay". There are more details in the Orlando Sentinel. Well, life is tough ladies and gentlemen, and just because you don't want to do something doesn't mean that you don't have to do it anyway (think of kids who have to eat their vegetables).

It is hard to say what is most offensive about the Snipes case. It could be that we all pay our taxes, and who are other people to simply choose not to participate? If you want the tax laws change, that is what the elective process and democracy (and hiring lobbyists) is all about. Or, it could be that some people (look at any recent story from Entertainment Tonight for a list) believe that because they have wealth, they don't have to play by the same rules. Well, let me clue you in on one of Benjamin Franklin's most lasting adages "Certainty? In this world nothing is certain but death and taxes" (and there wasn't even an income tax back then). Or maybe it is that the role of a tax professional is and should be to make sure a person pays their fair share under the law - not more, and not less. Here, "tax protesters" bilked thousands of people that they had the secret of getting rich quick - no more taxes. And I am sure they made millions by selling this idea to people with a lot less resources then Mr. Snipes, whose suffering for their bad decisions will never make the front page (not that there should really be any sympathy for those who bought into the system - but what about their spouses and families?).

Well, we will just have to see how Mr. Snipes looks in his orange jumpsuit what it is not coming from a Hollywood costume trailer.