International Will Issues

As our world continues to grow and technology allows us to move places once never thought imagined, many individuals have the opportunity to live abroad throughout the course of their lives. After spending time in a specific area, whether it is for the majority of your life or for a shorter time, you may acquire property in that new place. However, when it comes to estate planning, issues may arise for a citizen who has acquired property in another country and has executed multiple wills for their multiple properties.

If you have property in another country, having a will in that jurisdiction disposing of that property generally will make it easier than if the property’s disposition is listed in a will in a different country, since it will increase the efficiency of estate administration for the property in that jurisdiction. However, if the testator has multiple wills in multiple countries, covering multiple pieces of land, he must write the most recent will in a way as to not revoke the previous foreign wills and subject the land to differing dispositions.

Over the course of your life, you go through many stages. For some people that includes moving to and from different states, entering or dissolving a marriage, having children, losing loved ones, and having significant changes in income. As these events shape your life, your outlook and perspective on how you want your assets to be taken care of may change. If you decide your wishes have changed and you execute a new will, you should carefully assess whether any previous wills or documents differ from the terms of your new will, as to make sure your wishes are properly followed.

Two Wills

Traditionally, in estate planning if a person leaves two wills and both are offered into probate, the court will look at the surrounding circumstances to determine which will ends up taking precedence and which will be considered revoked. The best way for the maker of the will to express that the most recent will is the one they want followed, is by explicitly revoking the earlier will in the writing of the new will. Issues can arise in probate court when it is not clear whether the maker of the will, also known as the testator, wanted the first will completely revoked.

In 1999, the United States Supreme Court ruled in Olmstead v. L.C. that, consistent with the Americans with Disabilities Act, individuals with mental disabilities have a right to live within their community as opposed to an institution, if professionals have determined that the patient’s ability to adapt and live in their community is appropriate, the patient can be reasonably accommodated and the move to community living offers a less restrictive setting. Following this ruling, President Clinton then directed all states to evaluate individuals in mental hospitals, as well as nursing homes and state institutions to determine whether they could too be acclimated back into their communities. Due not only to the major expenses facing Medicaid and maintaining nursing homes, this was thought to be a possible solution to overcrowding and retaining civil rights for those affected individuals.

However, in the decade and a half since the Supreme Court ruling and the President’s policy statement, the government has done little comparatively to remedy the problem. This has resulted in too many disabled and handicapped people remaining in institutions against their will and left without a method of recourse. While the federal government can control state spending for nursing homes and how Medicaid is spent, the community based care programs that so many disabled and handicapped people are seeking care from are optional.

Yet, Medicaid only pays for about 40% of all long term care services, thus, major bills are still piling up on patients, and in states such as South Dakota, the state with the highest percentage of individuals in nursing homes that have a low need or no need at all the services provided for the institution, they are forced to remain in the institution to receive any kind of care. With over 1.4 million individuals in nursing homes throughout the United States, some states are taking active steps to address the issue by allocating a portion of Medicaid funds to in-home care.

The Problem

In less than 15 years from now, one fifth of our population will be people 65 and older, and 90% of that population will have one or more chronic conditions to care for.  With older age comes the potential for additional health problems and thus a need for additional care from geriatric physicians. The definition of old age does not mean what it used to, people today are living much longer, with men having an average life expectancy of 84 years, while women now have an average life expectancy of almost 87 years. However, with the rapidly growing aging class, there will not be enough geriatricians to supply the need that is quickly looming. Currently, there are roughly 7,000 geriatricians in the United States, a record shortage in the country’s history, and about half of what will be required to adequately address the needs of aging individuals. While regular physicians can treat some of the conditions that the older population faces, their issues are unique and will require specific attention, such as hypertension, arthritis, heart disease, diabetes, osteoporosis and dementia.

Why the Shortage?

End of life planning can be a very daunting task and is one many individuals do not want to face, however, actively addressing any future healthcare scenarios or issues in the event you are no longer fully capable, can save all parties involved from making painful or difficult decisions during emotional times. When thinking about the possibility of future incapacitation, it is important to know the different estate planning tools available in order to be adequately educated on your power to assign an agent to act on your behalf.

Health Care Proxy & Their Influence

When determining what your wishes would be in the event you are no longer able to make your own medical decisions, whether due to incapacity or illness, electing a healthcare proxy will help ensure that the decisions you made prior to incapacitation are honored. A healthcare proxy is an established health care agent named by you, as recognized under New York law, that can make healthcare decisions for you ONLY upon incapacitation, whether that incapacitation is temporary or permanent. Health care proxies are one of a few types of advance directives; it is also worthwhile to consider making a living will and filling out a Do Not Resuscitate Order. Assigning a healthcare proxy as well as making a living will ensures you not only have someone to carry out your wishes, but also have a way to notify loved ones about the decisions you have made for the end of your life.  

NEVER TOO LATE TO SAVE ASSETS

As this blog discussed in the past, the Third Circuit case of Zahner v. Pennsylvania Department of Human Services, which issued a major victory to Medicaid recipients everywhere. While the case is only binding to the states under the jurisdiction of the Third Circuit (New Jersey, Pennsylvania, Delaware and the Virgin Islands) it is the only Circuit Court of Appeals opinion in the nation on the issue of short term annuities in the context of Medicaid eligibility and it is a well reasoned opinion resting on a solid foundation of the facts as they are applied to the law.

With respect to Zahner, the Court held that under Medicaid’s Safe Harbor Provision, a short term annuity that does not, at the time of purchase, extend beyond the anticipated life span of the purchaser does not violate Medicaid’s policy against transferring assets within a set lookback period of time and thus does not disqualify a person from qualifying for Medicaid by their purchase. Many people do this so as to protect the collective assets of a couple when one spouse is about to enter a nursing home, to ensure that the community spouse (the spouse not in the nursing home) has a stream of income.

FAST GROWING TREND

Multi-generational housing is one of the quickest growing forms of households in the country. Thanks in large part to the advent of the Great Recession, many families consolidated and reduced their finances, including one of the largest chunks out of their monthly bill cycle, namely housing. Then to add to that larger trend is the aging of the baby boomers with the myriad of medical issues that come with that. There are positive benefits associated with grandparents and grandchildren living in the same household.

The wisdom, patience and love that come from a grandparent is irreplaceable to the children and always a joy to the grandparents. There is added money for repairs, upkeep and any number of projects that homeowners have the joy of attending to. While there may sometimes be more elbows than space or too many cooks in the kitchen, there is a reason why it is a growing trend. In the course of a generation, multi-generational not only halted the decline from the 1940s to the 1980s, but between 1980 and 200 increased it one quarter (12% to 15%) and then from 2009 to 2012 it increased an additional 20 percent (15% to 18%). With approximately 10,000 baby boomers turning 65 every day, the likelihood of the multi-generational housing will decrease is unlikely. Multi-generational housing is generally defined as homes with more than one adult generation living under its roof.

FURTHER INVESTIGATION INTO NEW YORK NURSING HOMES

Nurses are often on the frontline of dealing with issues of elder law, with their often compassionate personal sacrifices, mixed with their almost always professional approach to the care and treatment of their patients in any number of nursing homes across the state.  They deal with some of the most intimate, personal and human experiences up front and personal.  The vast majority of nurses across the state that work in nursing homes and with the elderly (as well as in other fields and venues) are quiet professionals who are content to simply do their job and move one in life.  

New York, however, is one of only a handful of states that has lax licensing regulations and enforcement.  New York’s nursing licensure schema requires nurses to self report any criminal convictions and may take years before it actually disciplines a nurse for egregious conduct.  Currently the New York state Department of Education, Office of Professions sets the rules and regulations for nurses and issues nursing licenses in the state.  This blog explored a well reported ProPublica investigation into nursing home abuse almost three months ago.  Following the extensive investigative journalism piece, the federal government opened its own investigation on several different levels.  

GROWING NEED

More ten million elderly Americans rely exclusively on their Social Security pension as their sole means of support. Approximately 90 percent of senior citizens receive some sort of income from Social Security and approximately half of those relied on Social Security for at least half of their monthly income. It keeps approximately 35 percent of elderly Americans from dipping below the federal poverty line. To say that Social Security is vital to this population is an understatement. Included within that population are a subset of individuals who do not directly receive their income from the Social Security Administration but instead rely on a representative payee to manage their money and pay their bills.

The incidence of Alzheimer’s disease and other related cognitive impairments increases with age and with people living longer, there will naturally be an increase in such conditions and thus a greater need for more Social Security representative payees. The Social Security Administration’s own Inspector General estimated in 2010 that at least one million elderly Americans over the age of 85 need a representative payee but did not have one. Within this group there is concern that there are de facto representative payee who were not formally approved or vetted by the Social Security Administration and could be perpetuating financial abuse of the beneficiary. Of the existing pool of representative payees, approximately three out of four are family members.

STAGGERING FIGURES

The Alzheimer’s Association recently released its 2016 Alzheimer’s facts and figures report earlier this month with a long list of many facts and figures, as the reports name implies. While the Alzheimer’s Association produces and publishes its report yearly, the 2016 report highlights the personal financial impact that the disease has on family caregivers. Most specifically, the report helps to show the amazing costs that are shouldered by American families in caring for patients with not just Alzheimer’s but dementia and those with general cognitive delays. In New York alone there are estimated to be 390,000 Alzheimer patients. The Alzheimer’s Association also estimates that there will be approximately 460,000 patients by 2025, an increase of approximately 20%. Overall, 4.7 million Americans are diagnosed with Alzheimer’s. That number is expected to triple by 2050. The emotional impact is already high, yet there is hope. Dr. Samuel Cohen gave a TED talk in late 2015 outlining breakthroughs that could spell a cure for the disease, which would in turn mean that the above numbers would indeed need to be revised.

As for the caregivers, there are approximately 16 million of you in the country who give your time and energy for your loved ones without any financial recompense. You give 18 billion hours of unpaid care for your parents, grandparents and other family members. National Public Radio (NPR) produced a report on the financial impact to individuals and families on March 30, 2016 which showed that the average caretaker used their own financial resources to help their loved ones with Alzheimer’s. The average cost was around $400 per month ($4,800 per year), although some spent up to $10,000 per year to help their relatives with Alzheimer’s. Oftentimes, the caretaker had to make choices between of certain necessities, for example, between food and medical care. As if the financial hit was not enough, it often necessitated that the caretaker reduce their own working hours to care for their loved ones with Alzheimer’s, thereby reducing their income even further. Many caretakers had to sell their own personal belongings to help make ends meet. Some were even reduced to basic poverty levels.

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