New York Estate Planning & Elder Law

What Does the Movie “Knives Out” Teach Us About Estate Planning? / New York, NY & Greenwich, CT

“One of the most dramatic scenes in the movie, is the gathering of the Thrombey Family at their father’s estate to hear the reading of the will.”

One of the recent surprise hit movies has been the murder mystery Knives Out, with a star-studded cast that includes Jamie Lee Curtis, Daniel Craig and Chris Evans.

Forbes’s recent article “What The Movie ‘Knives Out’ Gets Right (And Wrong) About Estate Planning,” says that the crux of the story is a topic most Americans wouldn’t find exciting–the world of estate planning, unless the estate planning involves the wealthy. Spoiler Alert: there are spoilers below!

In the movie, the patriarch of a wealthy family, Harlan Thrombey (Christopher Plummer) is found dead. Just before his death, he changed his estate plan. The movie takes viewers through some twists and turns to see who might be responsible for his death. However, there are also some key scenes that address estate planning concepts, such as contesting a will, undue influence and the slayer statute. These are issues moviegoers might want to know about for their own estate plans.

One of the most dramatic scenes in the movie is the gathering of the family at their father’s home for the reading of the will. In a library, the attorney sits behind the patriarch’s desk and reads the document. The importance of this scene is highlighted when Daniel Craig’s character explains that the will reading is really a performance of “a tax return by a community theater.”

However, the filmmakers have taken some liberties because the “reading of the will” doesn’t actually happen in real life. It’s a dramatic and pivotal scene in the movie, but don’t expect it when someone dies. Although the reading of the will is also more fiction than fact, there are some things are very real in the estate planning world.

When things don’t go well for the Thrombey children in their father’s estate plan, the family immediately thinks about contesting the will. This has become increasingly common because of an increased willingness by people to challenge estate plans. This is due in part to us living longer.  Frequently estate plans aren’t updated to address changes in the family. In cases where the testator has dementia or is otherwise incapacitated, there is also a chance of undue influence. The usual result of a contested will is some type of settlement.

Again, a common claim in a will challenge is for undue influence. In the movie, when Marta the caretaker becomes the sole beneficiary, this concept is bandied about by the Thrombeys when talking about a will contest. Undue influence is a legal concept that can be used to invalidate a will, trust, or legal instrument. It occurs when a vulnerable individual is persuaded to change his or her estate plan, and the persuasion and influence rise to the level where the victim is unable to freely exercise his or her independent will.

In the film when undue influence fails, the Thrombey family turns to the concept of the “slayer statute.” This law stipulates that a person can’t inherit if they intentionally killed the deceased. While this concept makes for good filmmaking, it’s an actual premise in estate law.

In the end, the movie Knives Out gets a lot right about estate planning, such as will contests, undue influence and slayer statutes. So, enjoy the picture!

Reference: Forbes (December 18, 2019) “What The Movie ‘Knives Out’ Gets Right (And Wrong) About Estate Planning”

For more information on asset preservation and estate planning, please visit my estate planning website.

Over-Medication of Nursing Home Residents / White Plains, NY & Greenwich, CT

“In addition to the assault on the resident’s dignity and the administration of drugs without informed consent, the misuse of anti-psychotic drugs can kill a senior, particularly one who suffers from dementia.”

Nursing homes are supposed to administer prescribed medications to residents. Appropriate use of these substances can treat illness and improve the quality of life for the senior. The problem arises when nursing homes use drugs to control the behavior of residents and make them easier to “handle,” instead of providing good care. The over-medication of nursing home residents, also called “chemical restraints,” is an issue across the nation.

An Overview of the Misuse of Antipsychotic Drugs

Some nursing homes keep their residents in a “zombie” state, drugged up on powerful antipsychotic medications, even though the seniors do not suffer from psychotic illnesses. These drugs can make a person drowsy, compliant and less physically active. When in such a state, the resident requires and receives little personal care from the facility.

Long-term care centers started using these chemical restraints when state and federal legislation outlawed the routine use of physical restraints on people who live in nursing homes. Before those laws, many long-term care facilities would tie residents to their beds at night, and into chairs during the day. Drugging nursing home residents for the purpose of staff convenience, as opposed to a legitimate medical reason, is illegal. Both Medicaid and Medicare prohibit this treatment, yet the behavior continues.

The Dangers of Chemical Restraints

In addition to the assault on the resident’s dignity and the administration of drugs without informed consent, the misuse of anti-psychotic drugs can kill a senior, particularly one who suffers from dementia. These medications interfere with the way a person thinks, reacts and feels.

Resources for Dealing with the Misuse of Drugs on Nursing Home Residents

The National Long-Term Care Ombudsman Resource Center (NORC) developed a toolkit for families and residents to use when dealing with the issue of chemical restraints. You can learn about the symptoms of misuse of antipsychotic drugs, what rights the residents have to be free from this improper drugging without consent and how to advocate for your loved one, if you suspect the nursing home is using chemical restraints.

Alternative to the Misuse of Psychotic Drugs

When a resident’s conduct presents issues for the staff or other residents, some nursing homes prescribe antipsychotic medications to chemically restrain the resident whose behavior is at issue. Things like wandering into other residents’ rooms, aggressiveness, anger and anxiety are some examples of the conduct that can lead to the use of chemical restraints.

The long-term care facility should try these alternatives instead of drugging the resident:

• Discover the cause of the behavior. Merely applying the label of “problem” does not address the situation adequately. Find out why the resident engages in the unwanted conduct.
• Develop a care plan tailored to the resident to deal with the behavior.
• Establish a protocol of good care for the patient that incorporates things like increased time outdoors, more physical exercise, monitoring and treating both acute and chronic pain, planning activities for the individual resident, having enough staff, and training the staff on how to provide good patient care without using physical or chemical restraints.

If you suspect your loved one’s nursing home is using chemical restraints, contact your state’s ombudsman about the steps you should take. You also should consult an elder law attorney near you as your state might have different regulations than the general law of this article.

References:

National Consumer Voice. “Antipsychotic Drugs.” (accessed August 15, 2019) https://ltcombuds man.org/issues/misuse-of-antipsychotic-drugs

For more information on elder law and estate planning, please visit my estate planning website.

Disinheriting a Child Can Be Difficult Emotionally and Legally / New York, NY & Greenwich, CT

A real-life problem when long-lost relatives show up.

A trustee and only beneficiary of her mother’s trust explained her difficulties when her long-lost sister suddenly showed up toward the end of her mother’s life, according to the Santa Cruz Sentinel in the article “It’s never too early to disinherit children.”

After disappearing for decades, her sister visited with the mother a few times a year toward the end of the mother’s life. The sister has now retained an attorney to challenge the trust, accusing the woman of elder abuse and stating that the mother was insane.

What can this sister expect?

The goal of the formerly absent sister is to get the trust thrown out so that the estate will pass equally between the two sisters. She can accomplish this, if she is able to invalidate the trust and invalidate any prior wills the mother may have signed disinheriting one sister and leaving everything to the other sister.

She may not have a case with a lot of merit, but it is going to cost a lot to defend the estate plan. She may be hoping for a quick payoff.

Whether the case is successful may depend upon the circumstances surrounding the creation of the trust. In the best case, the mother would have gone to see the attorney by herself and created the trust with zero involvement of the sister who is the trustee. Even better would be if the trustee sister didn’t know a thing about the trust or the estate plan, until after it was completed.

Here’s the concern: if the mother created the trust only after she became dependent on the more involved sister, and if that sister selected the attorney, made the appointment and had a conversation with the attorney about how awful the other sister was, then it will be hard to prove that the trust was set up purely on the mother’s wishes.

It’s an odd lesson, but in truth, it’s never too early to take steps to disinherit children. If someone knows that they are going to create an estate plan that is going to make one or more people very unhappy, the sooner they document these wishes, the better. It should be done while the person is still living independently and does not require a lot of help from any family member.

Keeping the people who will benefit from the disinheritance out of the creation of the estate plan is best, since it further removes them from involvement and is better when they are accused of being manipulative.

An estate planning attorney can advise you on dealing with potential estate problems, including when long-lost relatives suddenly appear at the end of a relative’s life.

Reference: Santa Cruz Sentinel (June 2, 2019) “It’s never too early to disinherit children”

For more information on elder law, retirement planning and estate planning, please visit my estate planning website.

Scammers Change Identity to Social Security / White Plains, NY & New York, NY

Claiming to be from Social Security may give scammers a better chance of getting your assets.

Federal authorities say they have seen a number of scammers move away from claiming to be IRS agents to claiming to be from Social Security, according to The New York Times in “Latest Rash of Calls Come From ‘Social Security’,”

That doesn’t mean to say that the IRS scam isn’t still around. The IRS lists the “imposter calls” as one of its dirty dozen scams. Scam artists are flexible and quick to adapt to changing circumstances and trends.

More than 76,000 reports about fake Social Security calls were made in the twelve months ending in March, with reported losses of $19 million. That’s according to the Federal Trade Commission (FTC), which investigates consumer fraud.

By comparison, consumers reported $17 million in losses to the IRS scam during its peak time, the twelve months that ended in September 2019. This information comes from the FTC’s Consumer Sentinel Network database, a pool of millions of consumer complaints.

The typical loss to an individual consumer is about $1,500. However, those are only the people who have contacted the FTC to report their situation.

In most cases, the criminals are aggressive and try to scare their targets into action. The caller tells the person that their Social Security number has been suspended because it was involved in a crime or due to suspicious activity. The caller often asks the victim to confirm their Social Security number. They tell their victims that they must act fast and that their bank accounts will be frozen if they don’t act quickly.

Some people, especially seniors, are scared into action. However, the calls are not real.

The Social Security Administration does not make phone calls to individuals out of the blue. Don’t reveal or confirm your Social Security number to anyone who calls.

Don’t trust the number that appears on your caller ID. Thieves use technology to make it appear that the calls are coming from a government agency, but they are not.

In April, the inspector general of Social Security warned consumers that fake calls had spoofed the agency’s own fraud hotline number. That number will never appear on a consumer’s phone, as it is never used to make outgoing calls. The best thing to do is hang up.

If you are concerned that the call might be real, call the agency directly yourself, using a phone number that you have found and not the number given to you by the scammer.

Older adults are more vulnerable to these calls, because they have access to their lifetime savings and they often exhibit behavior that puts them at risk. During a study of scam awareness, more than three fourths of seniors did not recognize the number but still took the call.

Reference: The New York Times (May 3, 2019) “Latest Rash of Calls Come From ‘Social Security’”

For more information on elder law and estate planning, please visit my estate planning website.

Predatory Marriages and Preying on the Elderly / New York, NY & White Plains, NY

Predatory marriages are on the increase and one state works toward a solution.

A predatory marriage, which is when one party is lacking capacity and is exploited by another party into a marriage, is a form of elder financial abuse, according to the New York Law Journal in “Predatory Marriages and the Elderly: A Legislative Solution,”

A recent case best illustrates a predatory marriage: a 47-year-old caregiver is riding in a car to the funeral home with the sons of the man she has been taking care of until he died at age 100. She announces that she and the man were married in secret a year ago.

This is not an easy case to deal with because of a defect in the law. In New York, there is a “right of election” statute that permits a surviving spouse to claim a share in the estate of a deceased spouse, even if he or she was left nothing, as long as they were married on the date of the decedent’s death. Originally meant to shield a surviving spouse from being left nothing, this law is now being used by unscrupulous people to take financial advantage of the elderly.

Dishonest individuals marry mentally incapacitated seniors and then claim their right of election share.

These sham marriages can still result in the person receiving a share of the estate because there’s a flaw in this law. The elective share can only be barred if there was a judgment declaring that the marriage was annulled in effect at the time of death of the spouse. If the predatory marriage is detected before death and a court order voids the marriage, only then can the elective share be denied. If the judgment of nullification is made after death, the surviving spouse can make a claim.

Like most scams, the person pursuing the predatory marriage will work hard to ensure that no one learns about the marriage until after the person dies.

In contrast, there is a Mental Hygiene Law in New York State that authorizes the court to revoke any previously executed contract, if the court finds that the contract was made while the person was incapacitated. Marriage is treated as a contract under Mental Hygiene Law and a judgment declaring a marriage void can be issued even after death.

In the case of the 47-year-old woman who hoodwinked the elderly man, the family fought back in court and her claim was denied. Based on the evidence, the court found that she knew the man was mentally incapacitated and entered into the marriage to obtain monetary benefits.

A bill has been introduced in the New York Assembly and Senate that would amend the law to allow the courts to declare a judgment of annulment before or after the death of the spouse, thereby voiding the marriage and disqualifying the surviving spouse from claiming the elective share.

An estate planning attorney can advise you on creating an estate plan that fits your particular circumstances.

Reference: New York Law Journal (May 16, 2019) “Predatory Marriages and the Elderly: A Legislative Solution”

For more information on elder law and estate planning, please visit my estate planning website.

Scammers on the Prowl for Vulnerable Seniors / Greenwich, CT & New York, NY

Scam artist targets woman who is grieving for her husband.

Scammers work on the easiest targets, so senior citizens are often their targets in hopes they will catch them off guard at their weakest moments, according to Newsday in “Nassau, Suffolk police warn of phone scammers posing as officials.”

The article details the experiences of a woman who received a call just days after her husband died and his obituary was published in a local newspaper. She was told that her grandson had been arrested and charged with possession of illegal drugs. To get him out of prison, the caller directed her to buy $8,000 in gift cards from a national electronics store. Frightened, the woman did as she was instructed, and gave the man the personal identification numbers on the cards when the man called her back.

Only afterwards did she realize that the man had gotten her name and her grandson’s name from her husband’s obituary. Embarrassed by her failure to realize it was a scam, she decided to speak out in the hopes it would prevent another vulnerable senior from falling victim.

Seniors are being warned to be wary of these kinds of con artists. Unfortunately, the scams are successful and that’s why they continue. Swindlers typically call victims and tell them they must take action immediately, or something very bad will happen. They sound like they mean business, and often the phone numbers that appear on the screen seem to be from a government agency. The phone numbers have been “spoofed”—altered to appear to come from a legitimate place. However, it’s all a scam.

Authorities say that many victims who are targeted are elderly because they may not be aware of how much detailed information can now be obtained by strangers. When the caller uses their name, or names of other family members, the victim believes the call is from a legitimate agency.

However, here’s a key point: No government agency calls to demand payment in gift cards.

If the caller says they are calling from the local police station, hang up, call the local precinct to verify if the caller really works there. The same goes for utility companies or any other company allegedly threatening to turn off services. You should note that the IRS never makes phone calls about overdue tax bills.

Reference: Newsday (Jan. 4, 2019) “Nassau, Suffolk police warn of phone scammers posing as officials”

For more information on elder law and estate planning, please visit my estate planning website.

Banks have New Weapon in Fight against Elder Financial Abuse / White Plains, NY & New York, NY

Early signs of the loss of a customer’s mental agility may be recognized by banking personnel.

New federal legislation gives banks and financial institutions new tools to join in the efforts to halt the ever-growing problem of elder financial abuse, according to The Wall Street Journal in “Banks Monitor Older Customers for Cognitive Decline”?

Financial elder abuse is on the rise. The Securities and Exchange Commission released a report this spring that says as many as 6.6% of elderly Americans had undergone financial exploitation in the last year.

Banking personnel see some of the early signs of cognitive decline, such as when a customer begins missing payments, sending duplicate checks, bouncing checks because of confusion over balances, or sending money to unrelated people. Does the bank have a legal, ethical and/or moral obligation to alert family members?

Until recently, financial institutions operated on the assumption that there were privacy issues that precluded them from informing anyone about these kinds of suspicions. The only questionable transactions that were reported concerned possible illegal activities. Should they contact the local Adult Protective Services agency, or another social service agency?

A new federal regulation was signed into law this past spring that protects financial institutions from litigation if they report concerns about elder financial abuse to government agencies, although there is no requirement that such reporting take place.

Some experts would like to see financial institutions go further and share their concerns with each other. This is commonly done when commercial fraud is suspected, through a department of the U.S. Treasury.

Reporting on a client’s behavior is a grey area, but some companies are enhancing their ability to identify problems. The use of Artificial Intelligence (AI) allows banks to monitor and analyze massive amounts of data that may reveal cognitive declines. In addition to relying on AI, institutions are training staff members to watch for behavior markers that may indicate decline or fraud. It helps if the banks have contact information for other family members, which can happen if the customers will permit family members to access their accounts.

Reference: The Wall Street Journal (Nov. 20, 2018) “Banks Monitor Older Customers for Cognitive Decline”

For more information on elder law and estate planning, please visit my estate planning website.

Estate Plan Can Protect You from Family Drama / New York, NY & Greenwich, CT

You cannot control the action of an adult child, but you can prepare for it.

No matter how close family members may be, they do not always agree with your viewpoints and that can create some real problems in later years. However, those problems can be avoided, according to “Aging parents can protect against unwanted control by children” in the Glen Rose Reporter.

The article describes a case where an adult child wanted a parent’s ranch to be sold and the proceeds split between family members. What happens if the parent doesn’t agree and there are threats to have the parent declared incompetent and institutionalized?

There are protections available. However, action needs to be taken, including meeting with an estate planning attorney. Start by signing a Health Care Proxy (HCP)naming someone as your Health Care Agent to make any decisions regarding medical treatment in case you can’t make them for yourself.  Discuss with the person you want to designate as your Health Care Agent your wishes about health care and whether you want to have extreme measures taken if they were to become necessary. Make sure they understand that their role is to carry out your wishes and they must be prepared to make some hard decisions.

In some states, a competent person can name the preferred guardian of their person or their estate as well as the person(s) they do NOT want to be appointed. Have your attorney prepare and sign a declaration to that effect, in compliance with the laws of your state.

Your goal is to protect yourself, as well as your family ranch.

If you were to become incompetent, the judge appointing a guardian for you would be required to follow the directions in your declaration, unless that person is found to be disqualified or would not serve your best interests.

This is a heartbreaking scenario and it’s one you hope you’ll never have to face. However, we know our children better than anyone else and we know what they may or may not do as we age.

An estate planning attorney can advise you in creating the proper documents to address a potentially explosive situation.

Reference: Glen Rose Reporter (Sep. 17, 2018) “Aging parents can protect against unwanted control by children”

For more information on elder law,  asset preservation and estate planning, please visit my estate planning website.

SAFE Act May Come to Rescue in Elder Financial Abuse / New York, NY & Greenwich, CT

The new law goes a long way in protecting the elderly from the increasing threat of scams.

Elder financial abuse is very costly totaling billions of dollars annually, as well as taking a heavy emotional toll on the elderly as the scams become more sophisticated, according to Forbes in ““After SAFE Act Passage, The Battle Against Elder Financial Abuse Remains Far From Over.”

The aim of the Senior Safe Act is to encourage all types of financial institutions to play a larger role in fighting against elder financial abuse. The law, which was modeled after the Senior$afe program created in Maine, requires financial institutions to train employees to detect activities that may indicate elder abuse is occurring. If the employees are trained, the Senior Safe Act also provides a reporting process and liability protection for those who report the possible abuse.  It is thought that the liability protection would make those individuals reporting the possible abuse more proactive.  However, there are still some problems with this.

Some advisors report being reluctant to report any client who seems to be suffering from mental deficiencies or elder abuse. The problem, advisors say, is that they are not trained and won’t feel confident in making a judgment about competency. Some court cases have put the onus on the advisor when selling certain products or strategies but advisors lack both the training and the ability to make a medical diagnosis of senior clients. Without the ability to identify competency, it is very likely that any reporting will only occur well after the elder financial abuse has taken place.

Another issue is that family members or friends are typically the ones who commit elder financial abuse. The victim usually does not want to press charges, fearing that the person will become angry with them and withdraw their emotional support. Being dependent upon the same person who may have perpetrated financial abuse puts the elderly person in a no-win situation.

Elder abuse prevention, financial and otherwise, should start years in advance, at the first signs of declining physical and mental health. It should begin with a plan for managing financial assets and having the proper legal documents in place, including a will, power of attorney, health care proxy and other estate planning documents.

An estate planning attorney can advise you in creating an estate plan that fits your circumstances and protects all members of your family.

Reference: Forbes (July 23, 2018) “After SAFE Act Passage, The Battle Against Elder Financial Abuse Remains Far From Over”

For more information on elder law and estate planning, please visit my estate planning website.

Agencies Plan Webcast on Financial Abuse of Elderly / New York, NY & Greenwich, CT

The government continues its campaign to fight the financial abuse of the elderly in U.S. with a joint webcast by federal agencies.

The government has increased its efforts in recent years to combat the financial abuse of the growing elderly population in the U.S. Despite these efforts, many people believe that elder abuse is still on the rise.

As part of this campaign, two federal agencies have announced a joint webcast on the issue, according to   Think Advisor in "Treasury's Crime Unit, Consumer Bureau Team up on Elder Fraud Prevention."

The Bureau of Consumer Financial Protection and the Treasury Department’s Financial Crimes Enforcement Network are urging coordination between various groups involved with preventing the financial abuse of the elderly. Coordinating between different agencies is important, since different agencies need to work together to not only prevent abuse, but also to detect it when it happens and prosecute it.

Reference: Think Advisor (May 29, 2018) "Treasury's Crime Unit, Consumer Bureau Team up on Elder Fraud Prevention."

For more information on elder law and estate planning, please visit my estate planning website.