You may have signed a Living Will, but scary mistakes can happen at the ER

August 5 Washington Post/Health & Science

“Don’t resuscitate this patient; he has a living will,” the nurse told the doctor, Monica Williams-Murphy, handing her a document.

Williams-Murphy looked at the sheet bearing the signature of the unconscious 78-year-old man, who had been rushed from a nursing home to the emergency room. “Do everything possible,” it read, with a check approving cardiopulmonary resuscitation.

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The nurse’s mistake was based on a misguided belief that living wills automatically include “do not resuscitate” (DNR) orders. Working quickly, Williams-Murphy revived the patient, who had a urinary tract infection and recovered after a few days in the hospital.

Unfortunately, misunderstandings involving documents meant to guide end-of-life decision-making are “surprisingly common,” said Williams-Murphy, medical director of advance-care planning and end-of-life education for Huntsville Hospital Health System in Alabama.

But health systems and state regulators don’t systematically track mix-ups of this kind, and they receive little attention amid the push to encourage older adults to document their end-of-life preferences, experts acknowledge. As a result, information about the potential for patient harm is scarce.

A new report out of Pennsylvania, which has the nation’s most robust system for monitoring patient-safety events, treats mix-ups involving end-of-life documents as medical errors — a novel approach. It found that in 2016, Pennsylvania health-care facilities reported nearly 100 events relating to patients’ “code status” — their wish to be resuscitated or not, should their hearts stop beating and they stop breathing. In 29 cases, patients were resuscitated against their wishes. In two cases, patients weren’t resuscitated despite making it clear they wanted this to happen.

The rest of the cases were “near misses” — problems caught before they had a chance to cause permanent harm.

Most likely, this is an undercount, said Regina Hoffman, executive director of the Pennsylvania Patient Safety Authority, adding that she was unaware of similar data from any other state.

Asked to describe a near miss, Hoffman, co-author of the report, said: “Perhaps I’m a patient who’s come to the hospital for elective surgery and I have a DNR order in my [medical] chart. After surgery, I develop a serious infection and a resident [physician] finds my DNR order. He assumes this means I’ve declined all kinds of treatment, until a colleague explains that this isn’t the case.”

The problem, Hoffman explained, is that doctors and nurses receive little if any training in understanding and interpreting living wills, DNR orders and Physician Orders for Life-Sustaining Treatment (POLST) forms.

Communication breakdowns and a pressure-cooker environment in emergency departments, where life-or-death decisions often have to be made within minutes, also contribute to misunderstandings, other experts said.

Research by Ferdinando Mirarchi, medical director of the Department of Emergency Medicine at the University of Pittsburgh Medical Center Hamot in Erie, Pa., suggests that the potential for confusion surrounding end-of-life documents is considerable. In various studies, he has asked medical providers how they would respond to hypothetical situations involving patients with critical and terminal illnesses.

In one study, for instance, he described a 46-year-old woman who is brought to the ER with a heart attack and suddenly goes into cardiac arrest. Although she is otherwise healthy, she has a living will refusing all potentially lifesaving medical interventions. What would you do, he asked more than 700 physicians in an Internet survey.

Only 43 percent of those doctors said they would intervene to save her life — a troubling figure, Mirarchi said. Because this patient didn’t have a terminal condition, her living will didn’t apply to the situation at hand and every physician should have been willing to offer aggressive treatment, he explained.

In another study, Mirarchi described a 70-year-old man with diabetes and cardiac disease who had a POLST form indicating he didn’t want cardiopulmonary resuscitation but agreeing to a limited set of other medical interventions, including defibrillation (shocking his heart with an electrical current). Yet 75 percent of 223 emergency physicians surveyed said they would not have pursued defibrillation if the patient had a cardiac arrest.

One issue here: Physicians assumed that defibrillation is part of cardiopulmonary resuscitation. That’s a mistake: They’re separate interventions. Another issue: Physicians are often unsure what patients really want when one part of a POLST form says “do nothing” (declining CPR) and another part says “do something” (permitting other interventions).

Mirarchi’s work involves hypotheticals, not real-life situations. But it highlights significant practical confusion about end-of-life documents, said Scott Halpern, director of the Palliative and Advanced Illness Research Center at the University of Pennsylvania’s Perelman School of Medicine.

Attention to these problems is important but shouldn’t be overblown, cautioned Arthur Derse, director of the Center for Bioethics and Medical Humanities at the Medical College of Wisconsin. “Are there errors of misunderstanding or miscommunication? Yes. But you’re more likely to have your wishes followed with one of these documents than without one,” he said.

Make sure you have ongoing discussions about your end-of-life preferences with your physician, your surrogate decision-maker, if you have one, and your family, especially when your health status changes, Derse advised. Without these conversations, documents can be difficult to interpret.

Here are some basics about end-of-life documents:

Living wills. A living will expresses your preferences for end-of-life care but is not a binding medical order. Instead, medical staff will interpret it based on the situation at hand, with input from your family and your surrogate decision-maker.

Living wills become activated only when a person is terminally ill and unconscious or in a permanent vegetative state. A terminal illness is one from which a person is not expected to recover, even with treatment — for instance, advanced metastatic cancer.

Bouts of illness that can be treated — such as an exacerbation of heart failure — are “critical,” not “terminal,” illness and should not activate a living will. To be activated, one or two physicians have to certify that your living will should go into effect, depending on the state where you live.

DNRs. Do-not-resuscitate orders are binding medical orders, signed by a physician. A DNR order applies specifically to cardiopulmonary resuscitation (CPR) and directs medical personnel not to administer chest compressions, usually accompanied by mouth-to-mouth resuscitation, if someone stops breathing or their heart stops beating.

The section of a living will specifying that you don’t want CPR is a statement of a preference, not a DNR order.

A DNR order applies only to a person who has gone into cardiac arrest. It does not mean that this person has refused other types of medical assistance, such as mechanical ventilation, defibrillation following CPR, intubation (the insertion of a breathing tube down a patient’s throat), medical tests or intravenous antibiotics, among other measures.

Even so, DNR orders are often wrongly equated with “do not treat” at all, according to a 2011 review in the Journal of General Internal Medicine.

POLST forms. A POLST form is a set of medical orders for a seriously ill or frail patient who may die within a year, signed by a physician, physician assistant or nurse practitioner.

These forms, which vary by state, are meant to be prepared after a detailed conversation about a patient’s prognosis, goals and values, and the potential benefits and harms of various treatment options.

Problems have emerged with the increased use of POLSTs. Some nursing homes are asking all patients to sign POLST forms, even those admitted for short-term rehabilitation or whose life expectancy exceeds a year, according to a recent article by Charlie Sabatino, director of the American Bar Association Commission on Law and Aging. Also, medical providers’ conversations with patients can be cursory, not comprehensive, and forms often aren’t updated, as recommended, when a patient’s medical condition changes.

“The POLST form is still relatively new, and there’s education that needs to be done,” said Amy Vandenbroucke, executive director of the National POLST Paradigm, an organization that promotes use of the forms. In a policy statement issued last year and updated in April, it stated that completion of POLST forms should always be voluntary, made with a patient’s or surrogate decision-maker’s knowledge and consent, and offered only to people whose physician would not be surprised if they die within a year.

This column is produced by Kaiser Health News, an editorially independent news service and a program of the Kaiser Family Foundation.

Article: Nursing Homes Routinely Mask Low Staff Levels

Via New York Times By Jordan Rau

ITHACA, N.Y. — Most nursing homes had fewer nurses and caretaking staff than they had reported to the government for years, according to new federal data, bolstering the long-held suspicions of many families that staffing levels were often inadequate.

The records for the first time reveal frequent and significant fluctuations in day-to-day staffing, with particularly large shortfalls on weekends. On the worst staffed days at an average facility, the new data show, on-duty personnel cared for nearly twice as many residents as they did when the staffing roster was fullest.

The data, analyzed by Kaiser Health News, come from daily payroll records Medicare only recently began gathering and publishing from more than 14,000 nursing homes, as required by the Affordable Care Act of 2010. Medicare previously had been rating each facility’s staffing levels based on the homes’ own unverified reports, making it possible to game the system.

The payroll records provide the strongest evidence that over the last decade, the government’s five-star rating system for nursing homes often exaggerated staffing levels and rarely identified the periods of thin staffing that were common. Medicare is now relying on the new data to evaluate staffing, but the revamped star ratings still mask the erratic levels of people working from day to day.

Stan Hugo with his wife, Donna, who is a resident at the Beechtree 
Center for Rehabilitation and Nursing in Ithaca, N.Y. Mr. Hugo 
tracks staffing levels at the skilled nursing facility.

At the Beechtree Center for Rehabilitation & Nursing here, Jay Vandemark, 47, who had a stroke last year, said he often roams the halls looking for an aide not already swamped with work when he needs help putting on his shirt.

Especially on weekends, he said, “It’s almost like a ghost town.”

Nearly 1.4 million people are cared for in skilled nursing facilities in the United States. When nursing homes are short of staff, nurses and aides scramble to deliver meals, ferry bedbound residents to the bathroom and answer calls for pain medication. Essential medical tasks such as repositioning a patient to avert bedsores can be overlooked when workers are overburdened, sometimes leading to avoidable hospitalizations.

Nursing Home Abuse Lawsuits >

“Volatility means there are gaps in care,” said David Stevenson, an associate professor of health policy at Vanderbilt University School of Medicine in Nashville, Tenn. “It’s not like the day-to-day life of nursing home residents and their needs vary substantially on a weekend and a weekday. They need to get dressed, to bathe and to eat every single day.”

David Gifford, a senior vice president at the American Health Care Association, a nursing home trade group, disagreed, saying there are legitimate reasons staffing varies. On weekends, for instance, there are fewer activities for residents and more family members around, he said.

“While staffing is important, what really matters is what the overall outcomes are,” he said.

While Medicare does not set a minimum resident-to-staff ratio, it does require the presence of a registered nurse for eight hours a day and a licensed nurse at all times.

The payroll records show that even facilities that Medicare rated positively for staffing levels on its Nursing Home Compare website, including Beechtree, were short nurses and aides on some days. On its best staffed days, Beechtree had one aide for every eight residents, while on its lowest staffed days, there was only one aide for 18 residents. Nursing levels also varied.

The Centers for Medicare & Medicaid Services, the federal agency that oversees nursing home inspections, said in a statement that it “is concerned and taking steps to address fluctuations in staffing levels” that have emerged from the new data. This month, it said it would lower ratings for nursing homes that had gone seven or more days without a registered nurse.

Beechtree’s payroll records showed similar staffing levels to those it had reported before. David Camerota, chief operating officer of Upstate Services Group, the for-profit chain that owns Beechtree, said in a statement that the facility has enough nurses and aides to properly care for its 120 residents. But, he said, like other nursing homes, Beechtree is in “a constant battle” to recruit and retain employees even as it has increased pay to be more competitive.

Mr. Camerota wrote that weekend staffing is a special challenge as employees are guaranteed every other weekend off. “This impacts our ability to have as many staff as we would really like to have,” he wrote.

New rating method is still flawed

In April, the government started using daily payroll reports to calculate average staffing ratings, replacing the old method, which relied on homes to report staffing for the two weeks before an inspection. The homes sometimes anticipated when an inspection would happen and could staff up before it.

Payroll records at Beechtree show that on its highest staffed days, it had one aide for every eight residents, but there was only one aide for 18 residents at the lowest staffing level.CreditHeather Ainsworth for The New York Times

“They get burned out and they quit,” said Adam Chandler, whose mother lived at Beachtree until her death earlier this year. “It’s been constant turmoil, and it never ends.”

Medicare’s payroll records for the nursing homes showed that there were, on average, 11 percent fewer nurses providing direct care on weekends and 8 percent fewer aides. Staffing levels fluctuated substantially during the week as well, when an aide at a typical home might have to care for as few as nine residents or as many as 14.

 

A family council forms

Beechtree actually gets its best Medicare rating in the category of staffing, with four stars. (Its inspection citations and the frequency of declines in residents’ health dragged its overall star rating down to two of five.)

To Stan Hugo, a retired math teacher whose wife, Donna, 80, lives at Beechtree, staffing levels have long seemed inadequate. In 2017, he and a handful of other residents and family members became so dissatisfied that they formed a council to scrutinize the home’s operation. Medicare requires nursing home administrators to listen to such councils’ grievances and recommendations.

Sandy Ferreira, who makes health care decisions for Effie Hamilton, a blind resident, said Ms. Hamilton broke her arm falling out of bed and has been hospitalized for dehydration and septic shock.

“Almost every problem we’ve had on the floor is one that could have been alleviated with enough and well-trained staff,” Mrs. Ferreira said.

Beechtree declined to discuss individual residents, but said it had investigated these complaints and did not find inadequate staffing on those days. Mr. Camerota also said that Medicare does not count assistants it hires to handle the simplest duties like making beds.

In recent months, Mr. Camerota said, Beechtree “has made major strides in listening to and addressing concerns related to staffing at the facility.”

Mr. Hugo agreed that Beechtree has increased daytime staffing during the week under the prodding of his council. On nights and weekends, he said, it still remained too low.

His wife has Alzheimer’s, uses a wheelchair and no longer talks. She enjoys music, and Mr. Hugo placed earphones on her head so she could listen to her favorite singers as he spoon-fed her lunch in the dining room on a recent Sunday.

As he does each day he visits, he counted each nursing assistant he saw tending residents, took a photograph of the official staffing log in the lobby and compared it to what he had observed. While he fed his wife, he noted two aides for the 40 residents on the floor — half what Medicare says is average at Beechtree.

“Weekends are terrible,” he said. While he’s regularly there overseeing his wife’s care, he wondered: “What about all these other residents? They don’t have people who come in.”

This article was produced in collaboration with Kaiser Health News, an editorially independent program of the Kaiser Family Foundation. The author is a reporter for Kaiser Health News.
A version of this article appears in print on , on Page A1 of the New York edition with the headline: Nursing Homes Routinely Mask Low Staff Levels. Order Reprints | Today’s Paper | Subscribe

Elder Law News Blog:   More Nursing Home Articles >

How To Spot Nursing Home Neglect Or Abuse?

justice engraved on courthouse

Nursing home neglect and abuse is often difficult to detect, and families should be on the lookout for common warning signs for physical, emotional and financial abuse.

Common warning signs of physical abuse are:

  • Untreated bedsores, pressure sores, wounds, cuts, bruises, or welts
  • Abnormally pale complexion
  • Bruises in a pattern that would suggest restraints
  • Excessive and sudden weight loss
  • Fleas, lice, or dirt on or in the room
  • Poor personal hygiene, unpleasant odors or other unattended health problems
  • Torn clothing or broken personal items
  • Bleeding around private parts
  • Bloody undergarments
  • Bruises around the breast/genital region
  • An unexpected look of fear from the elder when aide may be present

Common warning signs of emotional abuse are:

  • Intimidation through yelling and threats
  • Humiliation
  • Ignoring the patient
  • Isolating the patient from other residents and/or activities
  • Terrorizing the patient
  • Mocking the patient

Financial exploitation is another form of abuse. An unscrupulous caregiver may:

  • Misuse checks, accounts, or credit cards
  • Steal money, steal checks, or steal belongings
  • Forge signatures
  • Authorize withdrawals or transfer of monies
  • Steal the patient’s identity

No family is exempt from any of these possibilities. Abuse affects the rich and poor. Suffering sustained by the elderly ranges from financial, to emotional and physical. Abuse escalating to physical can result in severe infections, amputations, dehydration and, unfortunately, death. A lawsuit should be filed on behalf of your loved one to get the justice your family deserves. Compensation may cover the costs of treatment and recovery, as well as compensation for non-financial hardships such as pain and suffering.

If you suspect elder abuse of any kind speak up and demand answers of those in charge.

Feel free to contact me for more information or inquire about a lawsuit.

Sincerely,

Brian

Anthony Bourdain Left Loved Ones In Limbo But The Heirs Will End Up Better Than Michael Jackson’s

Via The Wealth Advisor Scott Martin Contributor

He lived on the edge and died without warning. The family needed a disaster plan to minimize strain in the worst moments and smooth the financial transition afterward. These are teachable moments.

Anthony Bourdain chased gusto all over the planet, occasionally tracking into war and disaster zones along the way. There were moments when he could’ve gotten in over his head and never come home.

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A personal disaster plan would have been the responsible way to approach that kind of life. From the way news of his death spread last week, it’s fairly clear that level of forethought just wasn’t his style.

That’s a burden on those he left behind. At a moment when they’re already stunned and vulnerable, it’s up to them to make the hard decisions about managing the press, the authorities and the fans.

Let’s hope that his financial situation was in better shape. While the money will never bring him back, it can at least make life without him easier — provided of course it’s managed properly now.

The personal disaster plan

Enterprises, individual professionals and even well-run restaurants have succession plans. But while Bourdain’s life revolved around his personal participation in every venture, there’s no sign that the work can continue without him.

The TV show is unlikely to ever film again. There won’t be any new expeditions and no new episodes beyond what’s already ready to roll.

There won’t be any new books. There’s no archive of unreleased material waiting for a successor organization to release to bereaved fans.

And the window for him to ever open another restaurant has slammed shut. If he gave much thought to a creative executor to groom the intellectual property he built up in life, again, it would be a surprise.

Otherwise, that person or some other spokesperson he delegated would have stepped up to handle the announcements last week. Instead, everyone looked to Asia Argento, who was understandably shocked and stunned.

The family was quiet. His ex-wife isn’t active on public social media networks and their daughter is only 11. It was up to a colleague to find his body and his network to break the news to the world.

A lawyer, a financial advisor, an agent, a manager: someone could have been authorized to route messaging to the public and make absolutely sure nobody bothered the family.

That didn’t really happen here. There’s no crime in that beyond a missed opportunity to make a tidier transition, whether death comes by surprise or design.

And in the absence of any clear plan on that front, it remains to be seen whether there was a plan to keep his businesses afloat without his personal participation.

Bourdain never really created much of an institution around himself. The copyright on his books was never assigned to any trust, holding company or other entity. While he got production credit on his shows, the actual production company belonged to other people.

There’s no restaurant for his heirs to operate or sell off. He could’ve built a foodie empire to survive him, but evidently wasn’t interested.

His big dream, the Blade Runner themed global food court in New York, stalled last year. Whether that failure to create something lasting preyed on him, we just don’t know.

Again, that level of planning really wasn’t his style. Even if it could’ve made his heirs more comfortable down the road, we would’ve seen the hints years ago.

Healthier, maybe even wealthier

That said, there can be a morbid tinge to building a captive empire of intellectual property and operating businesses. Look at Michael Jackson, who was practically insolvent in life because he’d hoarded other people’s creative output as well as his own.

Jackson’s kids are reportedly billionaires now. He’s the best-selling musical artist in the world. But the cold equations of the estate forced the executors to sell off his songs and back catalog to pay the debts.

Bourdain’s books are seeing a similar posthumous bestseller effect now. Odds are good that ratings of unaired episodes will be the best ever. His daughter will get her piece of that income.

If he left a will — a big hypothetical, all in all — the rights and royalties may well go into a trust for her upkeep now and use when she’s an adult. Otherwise, the money flows into Unified Gifts To Minors Act (UGMA) accounts while the assets themselves sit in Unified Transfers To Minors Act (UGTA) accounts until she turns 18.

Unlike Michael Jackson’s kids, she has an immediate parental guardian to look out for her in the meantime. While mom and dad split up a few years ago, mom is definitely alive and well. As you’ll recall, she’s a professional kickboxer.

Reading between the lines, mom also got the $3 million New York condo as part of the split. She might already have all of the Bourdain cash as it is. Otherwise, sad to say, child support evaporates now.

Whatever Bourdain left behind for his daughter is that support. She can’t touch it for awhile. I hope he made arrangements for someone to monetize his legacy in the here and now.

With the right management, the Bourdain name and likeness stay vibrant and keep generating income. Maybe there actually are book drafts to polish, TV concepts to pitch. There might even be restaurant concepts looking for partners.

The potential here is vast. A creative and savvy executor can turn Bourdain’s name into the empire he never chased in life — maybe even a Michael Jackson scale franchise built on new approaches to food, new grocery models, who knows?

And without the $400 million debt hole Jackson’s heirs started with, right now Bourdain’s survivors are financially ahead of the game. I know it still hurts, but against the inevitability of pain sometimes the only thing we can do is stack the dollar signs.

When his daughter comes of age, she may pick up the family legacy. It belongs to her. That’s the best bequest of all.

 

Here’s 6 good reasons you should consider a trust…

Trusts can help you control your assets and build a legacy.

Via FIDELITY VIEWPOINTS 06/06/2018

Key takeaways

  • Trusts can help pass and preserve wealth efficiently and privately.
  • Trusts can help reduce estate taxes for married couples.
  • Gain control over distribution of your assets by using trusts.
  • With a trust, you can ensure that your retirement assets are distributed as you’ve planned.

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If you haven’t stopped to consider how a trust may help you pass your wishes and wealth on, you could be making a critical estate planning mistake. Especially for individuals with substantial assets, protecting wealth for future generations should be top of mind.

“People often fail to appreciate the power a trust can have as part of a well-crafted estate plan, but that can be a costly mistake,” says Rodney Weaver, estate planning specialist at Fidelity. “Trusts are flexible and powerful tools that can be used to gain greater control over how they pass their wealth to future generations.”

A trust is a legal structure that contains a set of instructions on exactly how and when to pass assets to trust beneficiaries. There are many types of trusts to consider, each designed to help achieve a specific goal. An estate planning professional can help you determine which type (or types) of trust is most appropriate for you. However, an understanding of the estate planning goals that a trust may help you achieve is a good starting point. Also, please note that this information is based on current tax law.

Benefits of a trust

An effective trust begins with documentation carefully drafted by a qualified attorney with knowledge of your specific situation as well as current laws. Without the appropriate documentation, you and your beneficiaries may not reap the benefits of a trust, some of which are described below.

1. Pass wealth efficiently and privately to your heirs

Perhaps the most powerful and straightforward way to use a trust is to ensure that your heirs have timely access to your wealth. When you transfer your assets to your beneficiaries through a will, your estate is settled through a procedure known as “probate,” which is conducted in state courts. However, probate is a public, legal process that can carry with it some unforeseen negative consequences for the administration of your estate, including:

  • Delays: Probate proceedings will take time, some may take longer than a year. Additionally, if you own property located in states other than your home state, probate may be required in each such state.
  • Costs: Probate fees can be quite substantial, even for the most basic case with no conflict between beneficiaries. A rule of thumb is that probate attorney’s fees and court fees could take over 4% of an estate’s value.1
  • Publicity: The probate process is public. When your will is admitted to probate, it becomes a public record, to be viewed by anyone who wishes to review it. Such transparency can create unwanted scrutiny.

With proper planning, the delays, costs, and loss of privacy can often be avoided.

You may be able to avoid probate and gain greater control over how your estate is settled by establishing and funding a revocable trust. Because the trust is revocable, it can be altered or amended during the grantor’s2 lifetime. After a grantor’s death, the trust acts as a will substitute and enables the trustee to privately and quickly settle the grantor’s estate without going through the probate process with respect to assets held in the trust.

A grantor can also give the trustee the power to take immediate control of the assets held in trust in the event that the grantor becomes incapacitated (and the grantor generally has the ability to define what constitutes “incapacity” within the trust document). This provision can save heirs the time, financial cost, and emotional distress of going to court to request a conservatorship or guardianship over a loved one. Finally, revocable trusts are dissolvable, meaning the grantor can generally pull assets out of the trust at any point during the grantor’s lifetime.

2. Preserve assets for heirs and favorite charities

If you have substantial assets, you may want to consider creating and funding an irrevocable trust during your lifetime. Because the trust is irrevocable, in almost all circumstances, the grantor cannot amend the trust once it has been established, nor can the grantor regain control of the money or assets used to fund the trust. The grantor gifts assets into the trust, and the trustee administers the trust for the trust beneficiaries based on the terms specified in the trust document.

Significantly, while the gift could use up some or all of a grantor’s lifetime gift tax exclusion, any future growth on these assets generally will not be includable in the grantor’s estate and therefore will escape estate taxes at the grantor’s death. The individual lifetime federal gift tax exclusion is set at $11.18 million for 2018.

Irrevocable trusts can also serve several specialized functions, including:

  • Holding life insurance proceeds outside your estate. Generally, without trust planning, the death benefit payout from a life insurance policy would be considered part of an estate for the purposes of determining whether there are estate taxes owed. However, this is not the case if the policy is purchased by an independent trustee and held in an irrevocable life insurance trust (ILIT) that is created and funded during the grantor’s lifetime, with certain limitations (please consult your attorney).

    Despite not being subject to estate taxes at death, the life insurance proceeds received by the ILIT can be made available to pay any estate taxes due by having the insurance trust make loans to, or purchase assets from, the estate. Such loans or purchases can provide needed liquidity to the estate without either increasing the estate tax liability or changing the ultimate disposition of the assets, as long as the life insurance trust benefits the same beneficiaries as the estate does. In particular, this means that illiquid assets like real estate, or tax-inefficient assets like taxable retirement accounts, may not have to be sold or distributed quickly to meet the tax obligation.

  • Ensuring protection from creditors, including a divorcing spouse. An irrevocable trust, whether created during your lifetime or at your death, can include language that protects the trust’s assets from the creditors of, or a legal judgment against, a trust beneficiary. In particular, assets that remain in a properly established irrevocable trust are generally not considered marital property. Therefore, they generally won’t be subject to division in a divorce settlement if one of the trust’s beneficiaries gets divorced. However, a divorce court judge may consider the beneficiary’s interest in the trust when making decisions as to what constitutes an equitable division of the marital property that is subject to the court’s jurisdiction.

Keep in mind, though, that irrevocable trusts are permanent. “The trust dictates how the funds are distributed, so you want to fund this type of trust only with assets that you are certain you want to pass to the trust beneficiaries, as specified by the terms of the trust,” cautions Weaver.

3. Reduce estate taxes for married couples

For a married couple, a revocable trust may be used as part of the larger plan to take full advantage of both spouses’ federal and/or state estate tax exclusions. Upon the death of a spouse, the assets in a revocable trust can be used to fund a family trust—also known as a “credit shelter,” “bypass,” or “A/B” trust—up to the amount of that spouse’s federal or state estate tax exclusion. The assets held in the family trust can then grow free from further estate taxation at the death of the surviving spouse. Meanwhile, the balance of the assets in the revocable trust can be transferred to the surviving spouse free of estate tax pursuant to the spousal exemption. At the death of the surviving spouse, of course, these assets may be included in the surviving spouse’s estate for estate tax purposes.

The estate tax-free growth potential for funds in a family trust can be significant. Say, hypothetically, that you and your spouse live in Florida, which does not have a separate state-level estate tax, and have a net worth of $12 million. If one of you dies in 2018, that spouse’s revocable trust can fund the family trust with $11.18 million without paying any federal estate tax. Over the next 20 years, this $11.18 million could grow in value, all of which would remain outside the surviving spouse’s taxable estate.

4. Gain control over the distribution of your assets

By setting up a trust, the grantor is able to establish ways that the assets are to be passed on to the beneficiaries. For example:

  • Distributions for specific purposes. A grantor can stipulate that the trustees of a trust shall make money available to children or grandchildren only for college tuition or perhaps for future health care expenses.
  • Age-based terminations. This provision can stipulate that the trust’s assets shall be distributed to heirs at periodic intervals—for example, 30% when they reach age 40, 30% when they reach age 50, and so on.

If you are charitably inclined, you may also want to consider establishing a charitable remainder trust, which allows the grantor, and possibly the grantor’s spouse and children, to receive an annual payment from the trust during his or her lifetime, with the balance transferring to the specified charity when the trust terminates. The grantor may also receive an income tax charitable deduction based on the charity’s remainder interest when property is contributed to the charitable remainder trust.

For more on charitable trusts, read Viewpoints on Fidelity.com: Charitable giving that gives back.

5. Ensure that your retirement assets are distributed as you’ve planned

You may be concerned that a beneficiary of a retirement account will liquidate that account and incur a large income tax obligation in that year as a result. To help alleviate that concern, by naming a properly created trust as the beneficiary of a retirement account at the grantor’s death, the trustee can limit withdrawals to the retirement account’s required minimum distributions (RMDs), required of each beneficiary.

6. Keep assets in your family

You may be concerned that if your surviving spouse remarries, your assets could end up benefiting their new family rather than your own loved ones. In this case, a qualified terminable interest property (QTIP) trust provision can be used to provide for a surviving spouse while also ensuring that at their subsequent death, the remainder of the trust’s assets are ultimately transferred to the beneficiaries identified by the grantor in the trust document.

Building your legacy

The purpose of establishing a trust is to ultimately help you better realize a vision for your estate and, in turn, your legacy. Therefore, it’s important to let your goals for your estate guide your discussion with your attorney and financial adviser as they help determine what kind of trust and provisions make sense for you. It is vitally important that the trust be properly drafted and funded, so that you and your beneficiaries can fully realize all the benefits available.

Download our Free Guide To Estate Planning here>

Let me know if you have any questions or need help setting up the best type of trust for you and your family.

Regards, Brian

Worst States If You’re Caring For An Aging Parent

Via FA-Magazine  

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Some states make it harder for those caring for an aging parent, according to a new survey. 

Caring.com conducted a national survey to determine which states offer the best overall cost of living, and accessibility to senior support programs and resources for caregivers. 

While some states were praised for providing an affordable and helpful environment for caregivers, other states inevitable ended up at the bottom of the list.

“It hasn’t always been so expensive, but the cost of caring for our parents is so out of control now that it has the capacity to actually bankrupt families,” Jim Miller, a senior advocate and author of SavvySenior.org, said in the report. “I think that’s why it’s so important to consider these costs far in advance of needing to provide care so you’re prepared instead of panicked.”

These 10 states, in descending order, were deemed the most expensive for caregivers by Caring.com:

10. Maine

While the state is expensive for seniors, the availability of senior care support and services ranked 13th overall. The median cost for a home health aide was $4,500 more than the national average. Nursing home expenses were $24,00 more than the national average, according to caring.com.

 

9. New Hampshire

The state ranked 44th for cost of living. Costs for a nursing home stay for a year were over $100,000, well above the national average. The state did rank well for offering accessible senior programs and caregiver resources.

8. Delaware

For your aging parent to live in a nursing home in Delaware, expect to pay the median price of $127,750. The state ranked 28th in the survey for senior and caregiver programs and support.

 

7. New York

Earning a good rank for senior support and services, the state offers numerous resources for caregivers and seniors. While the costs for a home health aide and assisted living are competitive, the median for a nursing home is well above the national average by over $40,000.

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Medicaid Applicants & Home Care: Centers for Medicare and Medicaid Services Clarifies Penalty Period Start Date

The Centers for Medicare and Medicaid Services (CMS) has clarified when a transfer penalty begins for Medicaid applicants who are seeking home and community-based services. The penalty period begins when the applicant would begin receiving services were it not for the penalty period.

Brian Raphan, P.C.

After Congress passed the Deficit Reduction Act of 2005 (DRA), CMS issued a guidance letter that a penalty period would not start to run until the date the “individual is eligible for Medicaid and is receiving institutional level of care services” [emphasis added]. But home and community-based services only become “services” once applicants are enrolled in the state’s waiver program and Medicaid is providing coverage. This caused a “Catch-22” for Medicaid applicants who were applying for home and community-based waivers: The penalty period would not begin to run until the applicants began receiving waiver services, but the applicants could not begin to receive waiver services until the penalty had run.

On April 17, 2018, CMS finally issued a new guidance letter, changing the start date of the penalty period to the date the “individual is eligible for medical assistance under the State plan and would otherwisebe receiving institutional level [of] care services” (emphasis added). This means that an applicant for home and community-based services will be eligible once the applicant meets the financial and non-financial requirements for Medicaid eligibility and the level-of-care requirements.

8 Common Mistakes in Medicaid Planning>

 

New Federal Law Helps To Prevent Elder Abuse

A new federal law is designed to address the growing problem of elder abuse. The law supports efforts to better understand, prevent, and combat both financial and physical elder abuse.

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The prevalence of elder abuse is hard to calculate because it is underreported, but according to the National Council on Aging, approximately 1 in 10 Americans age 60 or older have experienced some form of elder abuse. In 2011, a MetLife study estimated that older Americans are losing $2.9 billion annually to elder financial abuse.

The bipartisan Elder Abuse Prevention and Prosecution Act of 2017 authorizes the Department of Justice (DOJ) to take steps to combat elder abuse. Under the new law, the federal government must do the following:

  • Create an elder justice coordinator position in federal judicial districts, at the DOJ, and at the Federal Trade Commission
  • Implement comprehensive training on elder abuse for Federal Bureau of Investigation agents
  • Operate a resource group to assist prosecutors in pursuing elder abuse cases

The law requires the DOJ to collect data on elder abuse and investigations as well as provide training and support to states to fight elder abuse. The law specifically targets email fraud by expanding the definition of telemarketing fraud to include email fraud. Prohibited actions include email solicitations for investment for financial profit, participation in a business opportunity, or commitment to a loan.

The law also addresses flaws in the guardianship system that have led to elder abuse. The law enables the government to provide demonstration grants to states’ highest courts to assess adult guardianship and conservatorship proceedings and implement changes.

“Exploiting and defrauding seniors is cowardly, and these crimes should be addressed as the reprehensible acts they are,” said Senator Chuck Grassley (R-Iowa), a co-sponsor of the legislation, adding that the legislation “sends a clear signal from Congress that combating elder abuse and exploitation should be top priority for law enforcement.”

For more information about the law, click here and here.

Proving That a Transfer Was Not Made in Order to Qualify for Medicaid

Medicaid law imposes a penalty period if you transferred assets within five years of applying, but what if the transfers had nothing to do with Medicaid? It is difficult to do, but if you can prove you made the transfers for a purpose other than to qualify for Medicaid, you can avoid a penalty.

You are not supposed to move into a nursing home on Monday, give all your money away on Tuesday, and qualify for Medicaid on Wednesday. So the government looks back five years for any asset transfers, and levies a penalty on people who transferred assets without receiving fair value in return. This penalty is a period of time during which the person transferring the assets will be ineligible for Medicaid. The penalty period is determined by dividing the amount transferred by what Medicaid determines to be the average private pay cost of a nursing home in your state.

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The penalty period can seem very unfair to someone who made gifts without thinking about the potential for needing Medicaid. For example, what if you made a gift to your daughter to help her through a hard time? If you unexpectedly fall ill and need Medicaid to pay for long-term care, the state will likely impose a penalty period based on the transfer to your daughter.

To avoid a penalty period, you will need to prove that you made the transfer for a reason other than qualifying for Medicaid. The burden of proof is on the Medicaid applicant and it can be difficult to prove. The following evidence can be used to prove the transfer was not for Medicaid planning purposes:

  • The Medicaid applicant was in good health at the time of the transfer. It is important to show that the applicant did not anticipate needing long-term care at the time of the gift.
  • The applicant has a pattern of giving. For example, the applicant has a history of helping his or her children when they are in need or giving annual gifts to family or charity.
  • The applicant had plenty of other assets at the time of the gift. An applicant giving away all of his or her money would be evidence that the applicant was anticipating the need for Medicaid.
  • The transfer was made for estate planning purposes or on the advice of an accountant.

Proving that a transfer was made for a purpose other than to qualify for Medicaid is difficult. If you innocently made transfers in the past and are now applying for Medicaid, consult with your elder law attorney. Medicaid Planning without a qualified attorney can lead to costly mistakes. To read more about common Medicaid Planning mistakes people make visit my website by clicking here.

Regards, Brian

 

Did You Know Choosing Retirement Account Beneficiaries Can Have Tax Implications?

While the execution of Wills requires formalities like witnesses and a notary, the reality is that most property passes to heirs through other, less formal means.

Many bank and investments accounts, as well as real estate, have joint owners who take ownership automatically at the death of the primary owner. Other banks and investment companies offer payable on death accounts that permit owners to name the person or people who will receive them when the owners die. Life insurance, of course, permits the owner to name beneficiaries.

All of these types of ownership and beneficiary designations permit these accounts and types of property to avoid probate, meaning that they will not be governed by the terms of a Will. When taking advantage of these simplified procedures, owners need to be sure that the decisions they make are consistent with their overall estate planning. It’s not unusual for a Will to direct that an estate be equally divided among the decedent’s children, but to find that because of joint accounts or beneficiary designations the estate is distributed totally unequally, or even to non-family members, such as new boyfriends and girlfriends.

It’s also important to review beneficiary designations every few years to make sure that they are still correct. An out-of-date designation may leave property to an ex-spouse, to ex-girlfriends or -boyfriends, and to people who died before the owner. All of these can thoroughly undermine an estate plan and leave a legacy of resentment that most people would prefer to avoid.

These concerns are heightened when dealing with retirement plans, whether IRAs, SEPs or 401(k) plans, because the choice of beneficiary can have significant tax implications. These types of retirement plans benefit from deferred taxation in that the income deposited into them as well as the earnings on the investments are not taxed until the funds are withdrawn. In addition, owners may withdraw funds based more or less on their life expectancy, so the younger the owner the smaller the annual required distribution.  Further, in most cases, withdrawals do not have to begin until after the owner reaches age 70 1/2. However, this is not always the case for inherited IRAs.

Following are some of the rules and concerns when designating retirement account beneficiaries:

  • Name your spouse, usually. Surviving husbands and wives may roll over retirement plans inherited from their spouses into their own plans. This means that they can defer withdrawals until after they reach age 70 1/2 and take minimum distributions based on their age. Non-spouses of retirement plans must begin taking distributions immediately, but they can base them on their own presumably younger ages.
  • But not always. There are a few reasons you might not want to name your spouse, including the following:
    • He or she is incapacitated and can’t manage the account
    • Doing so would add to his or her taxable estate
    • You are in a second marriage and want the investments to benefit your first family
    • Your children need the money more than your spouse
  • Consider a trust. In a number of the above circumstances, a trust can solve the problem, providing for management in the case of an incapacitated spouse, permitting assets to benefit a surviving spouse while being preserved for the next generation, and providing estate tax planning opportunities. Those in first marriages may want to name their spouse as the primary beneficiary and a trust as the secondary, or contingent, beneficiary. This permits the surviving spouse, or spouse’s agent if the spouse is incapacitated, to refuse some or all of the inheritance through a “disclaimer” so it will pass to the trust. Known as “post mortem” estate planning, this approach permits flexibility to respond to “facts on the ground” after the death of the first spouse.
  • But check the trust. Most trusts are not designed to accept retirement fund assets. If they are missing key provisions, they might not be treated as “designated beneficiaries” for retirement plan purposes. In such cases, rather than being able to stretch out distributions during the beneficiary’s lifetime, the IRA or 401(k) will have to be liquidated within five years of the decedent’s death, resulting in accelerated taxation.
  • Be careful with charities. While there are some tax benefits to naming charities as beneficiaries of retirement plans, if a charity is a partial beneficiary of an account or of a trust, the other beneficiaries may not be able to stretch the distributions during their life expectancies and will have to withdraw the funds and pay the taxes within five years of the owner’s death. One solution is to dedicate some retirement plans exclusively to charities and others to family members.
  • Consider special needs planning. It can be unfortunate if retirement plans pass to individuals with special needs who cannot manage the accounts or who may lose vital public benefits as a result of receiving the funds. This can be resolved by naming a special needs trust as the beneficiary of the funds, although this gets a bit more complicated than most trusts designed to receive retirement funds. Another alternative is not to name the individual with special needs or his trust as beneficiary, but to make up the difference with other assets of the estate or through life insurance.
  • Keep copies of your beneficiary designation forms. Don’t count on your retirement plan administrator to maintain records of your beneficiary designations, especially if the plan is connected with a company you worked for in the past, which may or may not still exist upon your death. Keep copies of all of your forms and provide your estate planning attorney with a copy to keep with your estate plan.
  • But name beneficiaries! The biggest mistake many people make is not to name beneficiaries at all, or they end up in this position by not updating their plan after the originally-named beneficiary passes away. This means that the plan will have to go through probate at some expense and delay and that the funds will have to be withdrawn and taxes paid within five years of the owner’s death.

In short, while Wills are important, in large part because they name a personal representative to take charge of your estate and they name guardians for minor children, they are only a small part of the picture. A comprehensive plan needs to include consideration of beneficiary designations, especially those for retirement plans.

If you have any question or planning needs, feel free to contact me.

Regards,

Brian

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