Bielski Law Office, Ltd.

Court Declines to Enforce Nursing Home's Arbitration Clause

Many nursing homes insert mandatory arbitration clauses in their contracts with elderly patients. They do not do so for the benefit of the elderly.

If you read the fine print on almost any standard contract a large company makes a consumer sign, you will most likely find a clause that any dispute between the consumer and the company concerning the contract must be submitted to arbitration.

Increasingly, nursing homes and other elder care facilities are also inserting these clauses in their contracts.

Companies are quick to note that arbitration is normally faster and cheaper than going to court.

However, consumer advocates and elder law attorneys point out that these clauses do not necessarily benefit consumers. In reality, arbitration can make it more difficult for consumers to prevail and remedies that might be available in court are sometimes not available in arbitration.

The Wills, Trusts & Estates Prof Blog reports that a court in Arizona recently refused to enforce the arbitration clause in one nursing home's contract in "Arizona Court Overturns Home Arbitration Agreement."

In this case, the man who signed the contract on behalf of his mother did not have any legal authority to bind her to arbitration. He was not her power of attorney.

Going further, the court also signaled that such a ruling could apply more broadly. According to the court, the arbitration clause could be seen as an unenforceable contract of adhesion.

As the article notes, in many states consumers have a legal right to strike out the arbitration clauses before signing the contracts.

If you have any questions about nursing homes and arbitration in your state, consult with an elder law attorney before you sign.

Reference: Wills, Trusts & Estates Prof Blog (Feb. 2, 2016) "Arizona Court Overturns Home Arbitration Agreement."

Avoid Common Executor Mistakes

If you are named as the executor of an estate, you might feel honored by the appointment. That honor can turn to horror if you make a mistake that subjects you to personal liability.

Being the executor of an estate sounds a lot easier than it really is.

The executor has to figure out what the estate assets are, pay any outstanding debts and distribute the remaining assets according to the wishes of the deceased as dictated in the estate plan. While that sounds simple enough, the path to success is full of potential pitfalls.

This was the message of a recent Wall Street Journal article entitled "The Biggest Mistakes Executors Make."

The article lists the following common mistakes made by executors:

• Paying Bills Too Soon – Many executors pay bills as soon as they come in. This can be a mistake as some debts, such as to the government, should be paid before other debts to ensure that there is enough money to cover higher priority debts.
• Investing Estate Assets – Some executors think they can invest assets to increase the value of the estate. While that is good in theory if the investments increase in value, the executor can be held personally liable if they do not.
• Mishandling Real Estate – Real Estate must be handled carefully. Houses should not be sold too soon or too late and it makes a big difference whether or not there is someone still living on the property.
• Losing Personal Property – Executors should conduct an inventory of valuable tangible assets to make sure they are properly stored and not taken away by someone else.

One way executors can avoid these mistakes is to hire an experienced estate attorney to help settle the estate. It is not a good idea for non-professionals to try to do it on their own.

Reference: Wall Street Journal (Jan. 31, 2016) "The Biggest Mistakes Executors Make"

A Home Funeral

Traditional funerals overseen by a funeral director in a funeral home can be very expensive. Many are choosing the even older option of having home funerals.

Having a mortician embalm the remains of the deceased and having a funeral director oversee a public mourning now seem like the traditional ways of burying the dead in the U.S. However, that hasn't always been the case.

Before the Civil War most people were buried at home by their families.

The New York Times reports that many Americans are now looking to go the older route and have funeral services conducted in their own homes by family members in "Start-Ups Take Rites From the Funeral Home to the Family Home." One of the big benefits for many people is that home funerals are much less expensive than using a funeral home. Other people prefer the intimacy of services conducted in the home.

It is a good idea to think about how you would like your funeral to be conducted at the same time you are creating an estate plan.

Whether you would prefer a home funeral or a funeral home, you can make your preferences known in your will or in another document. As long as your preferences are reasonable and legal, then they can be followed.

Ultimately, if you do not make your preferences known, then it will be up to your family to make the decisions and they might not choose the method which you would have been most comfortable.

Reference: New York Times (Jan. 30, 2016) "Start-Ups Take Rites From the Funeral Home to the Family Home."

Taking Mom and Dad to Work

Millions of working Americans act as caregivers for their elderly parents. Will companies start to offer onsite elder care centers where employees can drop off their parents while the employees are working?

For large companies seeking to entice younger people to work for them, offering onsite childcare facilities has become a popular employee benefit. It is a great way for companies to signal to potential employees that they are family friendly and understand the needs of parents with young children.

Children, however, are not the only family members for whom working people must provide care.

More and more Americans are taking care of their elderly parents. Many are taking care of children and elderly parents.

Recently, Next Avenue reported on speculation that this might lead to companies offering onsite elder care facilities in "Will We Soon See Workplaces With On-Site Elder Care?"

The speculation comes from a speech at the annual Davos summit given by Welltower CEO Thomas DeRosa. He stated that taking care of a parent with Alzheimer's is a fulltime job for someone who cannot afford to hire a professional caregiver. Such a person would have to quit work, so it would be a good idea for companies who want to retain employees to have the facilities.

It is estimated that productivity losses due to taking care of family members cost $33.6 billion a year.

Of course, this is just speculation. No company has offered onsite elder care facilities yet.

It is not even clear that employees or their elderly parents would welcome it. The elderly themselves might very well prefer to remain at home rather than being transported to work with their children on a daily basis.

Reference: Next Avenue (Jan. 29, 2016) "Will We Soon See Workplaces With On-Site Elder Care?"

David Bowie's Will

Late musician David Bowie's will was recently submitted to probate. Other than how his remains should be handled the will contains little that is unusual.

As a musician and performer David Bowie was always unique. Depending on a person's point of view, Bowie could even at times have been considered weird or bizarre.

This made for some speculation that his estate plan might also be unique or strange.

However, his will has been submitted to probate and the disposition of his estate is normal. The estate is estimated to be worth $100 million, but the will does not contain a breakdown of Bowie's assets.

He directed that his wife should receive half of the estate, including his New York apartment. Twenty-five percent of the estate was left to his minor daughter through a trust. The remaining 25 percent is to go to his son from a previous marriage. Bowie also included small bequests to a couple of friends.

The New York Times reported on the will in "David Bowie's Will Splits Estate Said to Be Worth $100 Million."

The only unusual aspect of Bowie's will is how he would like his remains treated. In the 1980s, he vacationed with Iggy Pop in Bali. He fell in love with it and asked that, if possible, his remains be transported there to be cremated and disposed of according to Bali's Buddhist rites. If it is not possible to have his body cremated there, he at least wanted his ashes spread there.

At this point no one has challenged Bowie's will and it does not appear that any challenges are expected. In the end, it appears this is a case of a rather ordinary will of a truly unique individual.

Reference: New York Times (Jan. 29, 2016) "David Bowie's Will Splits Estate Said to Be Worth $100 Million."

How Not to Protect Your Assets in a Second Marriage

When people get remarried they are often concerned that after they pass away their assets will go to their new spouses and leave their children from previous marriages with very little. While there are several ways to ensure that does not happen, getting a secret divorce in a foreign country is not one of them.

The New York Post recently reported on a bizarre lawsuit in "Husband secretly divorced wife after wedding 'to protect assets'." It seems some 20 years ago Cristina Carta Villa, now 59 years old, married Gabriel Villa, now 90 years old. According to Cristina, as far as she knew the two of them were still married and they have lived together ever since.

However, when a tax bill for their Manhattan home arrived she grew suspicious when her name was not listed as an owner of the property. Gabriel is alleged to have taken her name off the deed. He did this by claiming that the couple was not married.

Apparently, a few months after the wedding ceremony, Gabriel Villa hired attorneys in the Dominican Republic to divorce the couple in that country even though the two of them were not living there and never appeared in court.

Cristina Villa claims that Gabriel is now trying to sell the Manhattan home to his adult daughter and cut her out. She is suing him to have the divorce she did not know about invalidated.

Perhaps one of the strangest aspects of this case is that Gabriel Villa is a lawyer. Consequently, he should have known that there were far better ways to shield some assets from his wife if he wanted to make sure they went to his daughter from a previous relationship.

For starters, before getting married Gabriel could have arranged for a prenuptial agreement. After marriage he still could have asked for a postnuptial agreement. Despite those two options, Gabriel should have remembered that a spouse does not necessarily need to inherit all of the assets of the deceased spouse. In fact, the surviving spouse is entitled to an elective share, but any assets beyond that can be distributed however the deceased wants as part of an estate plan.

Reference: New York Post (Jan. 24, 2016) "Husband secretly divorced wife after wedding 'to protect assets'."

Who Is Eligible for Social Security Survivor's Benefits?

When someone passes away the money that he or she has invested in Social Security is not necessarily wasted. Dependents might be able to claim it through survivor's benefits.

Social Security is essentially a forced retirement plan. We put money into the program and receive it back when we retire in the form of monthly payments. Obviously, it is more complex than that, but that is the basic idea.

On the other hand, unlike other retirement plans, we do not name a beneficiary for our Social Security. It does not automatically go to anyone else we choose when we pass away. That does not mean that all the saving was wasteful.

Some people can claim survivor's benefits and get the benefit of that saving.

The Lowell Sun recently listed who might be eligible for those benefits in "Social Security has survivor's benefits."

The list includes:

• Widows/Widowers – A widow or widower can get full survivor's benefits when he or she reaches retirement age or sooner if taking care of a child under the age of 16.
• Divorced Widow/Widower – Someone who was married to the deceased for at least 10 years may be able to get survivor's benefits.
• Minor Children – Children of the deceased under the age of 18 are eligible for the benefits. If still a full-time student, then benefits are available until the age of 19. Benefits can be claimed at any time if the child of the deceased became disabled before the age of 22.
• Parents – If a parent depended on the deceased for at least half of his or her support and the parent is over the age of 62, then the parent is eligible for survivor benefits.

The Social Security Administration is unlikely to chase you down if you are eligible for survivor's benefits and are not claiming them, so if you have any questions about your eligibility, consult with an elder law attorney.

Reference: Lowell Sun (Jan. 24, 2016) "Social Security has survivor's benefits."

The Changing Face of Grief

The Internet is changing how people mourn. Is it possible that in the future we will be able to plan our own digital funerals?

If you are a frequent user of Facebook or Twitter, then you have undoubtedly noticed that whenever a well-liked celebrity passes away the social media sites are flooded with an outpouring of grief. Even if you were not a fan of the deceased, it is impossible to avoid the outpouring.

Someone you know will post something that will make its way to your feed and many other people will comment on it.

According to MIT Technology Review, in an article entitled "The Internet Has Changed How We Deal with Death," this phenomenon is not going to go away. It is part of the new way we grieve for the deceased.

This raises an interesting question. If people now going to have what amounts to a public funeral via social media, could they possibly plan for those funerals in the same way they now plan for their more traditional funerals?

In some ways they already can. For example, people can now designate a legacy contact for their Facebook accounts. Who knows, in the future people may designate a Twitter hashtag they would like used for expressions of grief.

The Internet has not just changed how we grieve over death. It has also changed how we should plan for our estates.

Detailing how our digital accounts should be handled after we pass away is an increasingly vital part of estate planning.

There are even services that allow for the digital storage of our estate plans and for turning over passwords to our digital accounts to a designated person after we pass away.

Reference: MIT Technology Review (Jan. 21, 2016) "The Internet Has Changed How We Deal with Death"

How Millennials Can Save For Retirement

It is no secret that many millennials are beginning their careers with large amounts of debt. Many of them are making the mistake of waiting to save for retirement until their debts are paid off.

Before they even start their professional lives many in the millennial generation are saddled with student loan and credit card debt. While they understand that they should pay this debt off as quickly as possible, many of them also believe they should not start saving for retirement until the debt is gone.

That approach, unfortunately, puts them at risk of not having enough savings for their retirement years.

Recently, U.S. News & World Report offered some debt reduction and savings advice for millennials in "How to Balance Debt Reduction and Retirement Savings."

The tips include:

• Avoid High Interest Debt – Getting out from high interest debts, such as credit cards, as quickly as possible allows people to save more for retirement.
• 401(K) Matching – If your employer offers a 401(K) matching program, no matter how small, take advantage of it.
• Buy Cars With Cash – Saving money to buy a car for cash instead of financing the car purchase is a good way to have extra money for retirement.
• Be Realistic – It is important to set realistic goals about how much money you will need for retirement.
• Be Aggressive – The younger you are, the more aggressive you should be with investments.

Once millennials do start saving for retirement appropriately, they will also need to get estate plans that detail how those savings should be distributed should something happen to the savers.

It is never too early to save for retirement and it is never too early to get an estate plan.

Reference: U.S. News & World Report (Jan. 22, 2016) "How to Balance Debt Reduction and Retirement Savings ."

Affording 100 Years of Life

The number of Americans living to see their 100^th birthday is on the rise. It is not easy to pay for that many years of retirement.

According to the Center for Disease Control and Prevention, the number of Americans who lived to be 100 years old increased by 44% between 2000 and 2014. Nevertheless, the total number of living centenarians was still a relatively low 72,197.

If people retire in their 60s and live to be 100, that is a lot of retirement years for planning.

Recently, U.S. News & World Report offered some tips for planning for such a long retirement in "How to Finance Living Until 100."

The advice includes:

• Delay Social Security Benefits – Every year you delay taking Social Security past full retirement age increases your monthly benefits by 8 percent.
• Be Wary of Inflation – Invest in assets that are either guaranteed to keep up with inflation or have historically done so.
• Get A Pension – If you have a job that offers a pension, then you will have more money to spend during retirement.
• Get an Immediate Annuity – While they are not right for everyone, getting an immediate annuity will allow you to receive regular payments no matter how long you live.
• Draw Down Slowly – When you do retire, be as conservative as possible in drawing down your retirement savings.

It is still unlikely that any particular person will live to be 100. However, it is always good to plan for the contingency that you might be one of the lucky few.

If it turns out that you do not live that long, the assets will not be wasted as long as you get an estate plan that appropriately passes the assets on to younger family members.

Reference: U.S. News & World Report (Jan. 22, 2016) "How to Finance Living Until 100."