Who has the right to decide on funeral and burial?

The fundamental purpose behind estate planning is to ensure that a person’s wishes are carried out and to avoid expensive legal disputes. Planning for funeral arrangements and burial or cremation is often ignored by estate planners. This is perhaps due to the fact that there have been changes in most states in recent years in the law regarding such planning. Most states have enacted a specific statute that allows for a legal document setting forth the persons wishes for funeral and burial. https://funerals.org/?consumers=legal-right-make-decisions-funeral Prior to these statutes, the law in most states was that the next of kin of the deceased person had the right to decide these arrangements. For more information on Ohio law, see http://www.michaelmillonig.com/practice-areas/funerals-burial/

A recent news story concerning the infamous Charles Manson’s estate reported that there was a legal dispute concerning the disposition of his body. https://www.npr.org/sections/thetwo-way/2018/03/13/593121657/charles-manson-grandson-wins-legal-battle-over-cult-leaders-body It was ultimately decided by the court that of the three people vying for this right that his grandson was the surviving adult next of kin entitled to this right. The grandson’s attorney indicated that the plan was to have the body cremated and then scattered over a body of water.

Long-Term Care Insurance Policyholder Wins Suit Against Company for Hiking Premiums

A long-term care policyholder has successfully sued her insurance company for breach of contract after the company raised her premiums.

At age 56, Margery Newman bought a long-term care insurance policy from Metropolitan Life Insurance Company. She chose an option called “Reduced-Pay at 65” in which she paid higher premiums until she reached age 65, when the premium would drop to half the original amount. The long-term care insurance contract set out the terms of the reduced-pay option. It also stated that the company could increase premiums on policyholders in the same “class.” When Ms. Newman was 67 years old, the company notified her that it was doubling her premium.

Ms. Newman sued MetLife for breach of contract and fraudulent and deceptive business practices, among other things. In its defense, the company argued that the increase was imposed on a class-wide basis and applied to all long-term care policyholders over the age of 65, including reduced-pay policyholders. A federal district court dismissed Ms. Newman’s suit, ruling that the contract permitted MetLife to raise her premium. Ms. Newman appealed.

The U.S. Court of Appeals for the Seventh Circuit reversed the lower court's decision and held that MetLife breached its contract when it raised Ms. Newman's premium (Newman v. Metropolitan Life Insurance Company, U.S. Ct. App., 7th Cir., No. 17-1844, Feb. 6, 2018). According to the court, reasonable people would believe that signing up for the reduced-pay option meant that they were not at risk of having their premiums increased. The court also allowed Ms. Newman's fraudulent and deceptive business practices claim to proceed, ruling that she showed evidence that the company's marketing of the policy was deceptive and unfair.

To read the court's decision, click here.

Estate Planning for a Cryonics Patient

I have read some information recently from other attorneys on the Internet discussing trust and estate planning for persons intending to undergo cryopreservation. They tend to use terms such as personal revival trust, patient care trust and cryonic suspension trust etc. I prefer Cryonics Dynasty Trust. There are different names for certain types of trusts used in estate planning. However it is important to understand that all trusts do not neatly fit into a pigeonhole under a certain nomenclature. The trust should always be drafted for the individual circumstances and intentions of each client. The name given to the trust is not as important as its content.

Lawyers like to focus on trusts because they are usually the centerpiece of most advanced estate planning. However, the most important thing for the cryopreserved patient is to have legally enforceable documents to ensure that their intentions for cryopreservation are carried into effect after their legal death. For more information on this please refer to my website. http://www.michaelmillonig.com/practice-areas/cryonics/

The issue of trust beneficiaries is often discussed by other attorneys. That is an important trust drafting issue given the atypical situation that the cryonics patient is legally dead and cannot be a beneficiary while in cryopreservation . However the first concern should be with other beneficiaries who might not be happy that they’re not receiving a full inheritance. These persons could file a court action to have the trust set aside and all the money distributed to them. For this reason, it is important to make some provision for a person’s next of kin giving them some amount of an inheritance. They would be required to accept this amount only if they signed a full release and waiver preventing any lawsuit to set aside the trust. There are other legal methods to prevent a will contest and trust litigation but that is all I can cover in a short blog.

Medicaid Work Requirement – Ohio Medicaid

A new development for state Medicaid programs is that the states are now allowed to require Medicaid recipients to work, take job training or do community service in order to maintain their eligibility. Some states have already implemented this change. Ohio has made no indication yet that it intends to enact a work requirement. If this work requirement is enacted, will this mean that older adults in a nursing home or younger persons with disabilities will be required to work? It appears that there is an exception for older Medicaid recipients, children under age 19 and pregnant women from this work requirement. However the details of how this will be determined in the Medicaid process are uncertain. This is something we will need to keep an eye on if the state of Ohio attempts to enact this work requirement.

A Guidebook to Planning for Old Age

Joy Loverde. Who Will Take Care of Me When I’m Old? Plan Now to Safeguard Your Health and Happiness in Old Age. New York, NY: Da Capo Press, 2017. 313 pages. Click here to order book via IndieBound.org

Millions of Americans are facing old age essentially alone.  One in three baby boomers is single or no longer part of a couple due to divorce or death.  Others may be in a relationship where chronic illness has struck both partners simultaneously. Children may live too far away or lack the resources to offer a parent meaningful help.

But there is no reason why circumstances like these should bar anyone from a quality old age.  It just takes planning, which is where this empowering book comes in. Full of helpful checklists and worksheets, Who Will Take Care of Me When I’m Old? is an essential guide to preparing for and navigating the inevitable losses that aging entails – the loss of functioning, the loss of loved ones and friends, and the loss of income.

Joy Loverde, a consultant and speaker on aging issues and the author of The Complete Eldercare Planner, has written a self-help book that offers both emotional and practical advice.  The first chapters address overcoming the psychological barriers to planning.  After all, the prospect of growing old and needing care is something most people would prefer not to think about, much less plan for.  One early section suggests ways to avoid self-sabotaging thoughts.  Other section headings include “Lessen the Grip of Guilt” and “Motivate Yourself.”

The book then turns to the planning work at hand.  An early chapter deals with how to stay afloat financially.  Near the top of the list are getting one’s legal affairs in order, including consulting with an elder law attorney.  Loverde suggests ways to create an income stream in retirement and lists scores of job possibilities.  She even has recommendations for lowering grocery bills.

Succeeding chapters present ideas and resources for successfully aging in place alone, exploring housing options both in the U.S. and abroad, coping with widowhood, “foraging for a family,” staying connected with those you know and making new friends, and evaluating medical providers.  One chapter is devoted to considerations in adopting a pet.

The final chapters deal with strategies for coping when old age becomes seriously challenging.  Loverde covers “the game changer” of chronic illness, including how to effectively advocate for yourself or find a professional to advocate for you.   A chapter titled “‘Just Shoot Me’ Is Not a Plan” maps strategies for ensuring quality care at the end of life.  There is even a list of resources for those considering “suicide tourism.”

Throughout the book, Loverde provides names of helpful organizations, and one fun feature is that each chapter ends with one recommended book, YouTube video, movie, song and TED Talk on that chapter’s topic.  Near the end Loverde includes a multi-page goldmine of useful websites (ElderLawAnswers among them).

This is not the kind of book anyone looks forward to reading, but it is a book that is essential reading for anyone who wants to start laying the groundwork now for the best possible old age.

To read more about Who Will Take Care of Me When I’m Old?, click here.





Estate Planning and Retirement Considerations for Late-in-Life Parents

Older parents are becoming more common, driven in part by changing cultural mores and surrogate motherhood. Comedian and author Steve Martin had his first child at age 67. Singer Billy Joel just welcomed his third daughter. Janet Jackson had a child at age 50. But later-in-life parents have some special estate planning and retirement considerations.

The first consideration is to make sure you have an estate plan and that the estate plan is up to date. One of the most important functions of an estate plan is to name a guardian for your children in your will, and this goes double for a parent having children late in life. If you don't name someone to act as guardian, the court will choose the guardian. Because the court doesn't know your kids like you do, the person they choose may not be ideal.

In addition to naming a guardian, you may also want to set up a trust for your children so that your assets are set aside for them when they get older. If the child is the product of a second marriage, a trust may be particularly important. A trust can give your spouse rights, but allow someone else — the trustee — the power to manage the property and protect it for the next generation. If you have older children, a trust could, for example, provide for a younger child's college education and then divide the remaining amount among all the children.

Another consideration is retirement savings. Financial advisors generally recommend prioritizing saving for your own retirement over saving for college because students have the ability to borrow money for college while it is tougher to borrow for retirement. One advantage of being an older parent is that you may be more financially stable, making it easier to save for both. Also, if you are retired when your children go to college, they may qualify for more financial aid. Older parents should make sure they have a high level of life insurance and extend term policies to last through the college years.

When to take Social Security is another consideration. Children can receive benefits on a parent’s work record if the parent is receiving benefits too. To be eligible, the child must be under age 18, under age 19 but still in elementary school or high school, or over age 18 but have become mentally or physically disabled prior to age 22. Children generally receive an amount equal to one-half of the parent's primary insurance amount (PIA), up to a “family maximum” benefit. You will need to calculate whether the child's benefit makes it worth it to collect benefits early rather than wait to collect at your full retirement age or at age 70.

Costs of Some New Long-Term Care Insurance Policies Going Down in 2018

While long-term care insurance costs are up in general, some policies are going down in 2018, according to the 2018 Long Term Care Insurance Price Index, an annual report from the American Association for Long-Term Care Insurance (AALTCI), an industry group.

A married couple who are both 60 years old would pay an average of $3,490 a year combined for a total of $333,000 of long-term care insurance coverage when they reach age 85. This is down from 2017, when the association reported that a couple could expect to pay $3,790 for the same level of coverage. Jesse Slome, the AALTCI’s director, cites two reasons for the change: “There are fewer insurers offering traditional long-term care insurance policies currently and some of the higher priced insurers sell so few policies that we excluded them from this year’s study as they really were not representative of the market conditions.”

Rates for single men and women have gone up in 2018, however. A single 55-year-old man can expect to pay an average of $1,870 a year for $164,000 worth of coverage, up from $1,665 in 2017. The same policy for a single woman averages $2,965 a year, up from $2,600 in 2017. Overall, women still pay more than men.

One thing that remains the same year to year is the importance of shopping around. The survey shows that costs for virtually identical policy coverage vary significantly from one insurer to the next.

This year’s index compares policies sold in Illinois and was conducted in January 2018.

For the association's 2018 index showing average prices for common scenarios, go here: http://www.aaltci.org/news/wp-content/uploads/2018/01/2018-Price-Index-LTC.pdf


Estate Tax and The Tax Cuts and Jobs Act

Estate Tax: Prior to the Tax Cuts and Jobs Act passed by Congress and signed by the President just prior to Christmas, the Federal Estate Tax exemption amount was scheduled to be $5,600,000 for persons dying in 2018. For married couples, the exemption would be $11,200,000. These numbers are derived from the amount of five million dollars stated in the law plus an adjustment for inflation each year. The new tax law doubles this five million exemption plus the same inflation adjustment. This results in an increase to $11.18 million (estimate) and $22.36 million (estimate), respectively, indexed for inflation. The tax rate for those few estates subject to taxation remains at approximately 40 percent. Residents of Ohio do not need to worry about a State estate tax since Ohio repealed its estate tax effective in 2013.

Perpetual Dynasty Trust

“I saw behind me those who had gone, and before me those who are to come. I looked back and saw my father, and his father, and all our fathers, and in front to see my son, and his son, and the sons upon sons beyond.
And their eyes were my eyes.”
Richard Llewellyn

During the holidays we spend time with our family and extended family. We see our family’s past in the faces of the older members and our family’s future in the faces of the young children. Estate planning is about families. We all have different family relationships and perhaps some chosen beneficiaries may not even be family members. However, your estate plan necessarily involves looking to the future after you have passed away. The most common estate plan is of course to make a full distribution of the estate to the children or other chosen beneficiaries. However, there is no reason you can’t also make some provision for grandchildren or other younger generations in your estate plan. The Perpetual Dynasty Trust can be a valuable part of your estate plan to provide for the future of your grandchildren. This trust can assure that there are funds available for the benefit of future generations. It can provide incentives to encourage education or the achievement of other goals. It can also provide a safety net in case of emergencies where funds are needed simply for basic support and health. For more information please go to  http://www.michaelmillonig.com/practice-areas/trusts/#Dynasty

Ohio Medicaid Figures 2018

The Ohio Department of Medicaid just published the new inflation adjusted figures for 2018 that are important for Medicaid determinations. These new figures are shown below. For a more detailed explanation see http://www.michaelmillonig.com/ohio-medicaid/

Community spouse resource allowance maximum: $123,600
Community spouse resource allowance minimum: 24,720
Community Spouse monthly income allowance max : 3090
Special income level (for income eligibility and
Miller trusts): 2250
Home Equity Limit: 572,000