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qualified disability trust

What is a Qualified Disability Trust?

What is a Qualified Disability Trust?

The legal authority to create a Qualified Disability Trust (QDisT) falls under §642(b)(2)(C) of the Internal Revenue Code. To qualify as a QDisT, the trust must meet the following criteria:

  1. A QDisT must be irrevocable.
  2. All beneficiaries must be disabled and receiving Supplemental Security Income (SSI) or Social Security Disability Income (SSDI) benefits. There can be more than one beneficiary, but all beneficiaries must be disabled.
  3. A QDisT cannot be a grantor trust; the trust must be the taxpaying entity. A self-settled special needs trust can never qualify as a QDisT.
  4. The trust must be established for the benefit of disabled individuals 65 years of age or younger. The QDisT does not cease to be a QDisT after the beneficiary turns 65, but it must be established beforehand.
  5. According to IRC 642(b)(2)(C)(ii), a trust can still qualify as a QDisT if the corpus of the trust transfers to someone who is not disabled after all disabled beneficiaries are deceased.

Benefits of a QDisT

The main benefit of a QDisT is taxation. Under IRC §642(b)(2)(C), a QDisT is allowed the same exemption as an individual when filing their tax return. The Tax Cuts and Jobs Act (TCJA), which became effective January 1, 2018, eliminated personal exemptions. However, it also stated that in any year in which there isn’t a personal exemption, the amount of $4,150 in 2018 (indexed for inflation in following years) shall be considered as the exemption to be taken by the QDisT. Compare this $4,150 exemption to the usual $100 exemption (or $300 exemption if a trust is required to distribute all of its income each year) afforded to other trusts, and you can see how the savings add up.

Another tax benefit of the QDisT is that the income of this particular type of trust is not subject to the Kiddie Tax, in accordance with IRS §642(b)(2)(C)(ii). The Kiddie Tax is a tax on unearned income of a child. (Under certain circumstances, an individual can be considered a child until 24 years of age.) It came to fruition when the Internal Revenue Service (IRS) realized some wealthier taxpayers were diverting income to their children because the children oftentimes were afforded a much lower tax bracket. In response, the IRS came up with the Kiddie Tax and stated that any unearned income for folks under a certain age and meeting certain criteria would be taxed at their parents’ bracket. The TCJA made the Kiddie Tax even harsher and ruled that the Kiddie Tax rate would not be at the parents’ tax rate, but at the higher tax rate of Trusts and Estates.

Besides taxation, QDisTs are useful tools to accomplish other goals. The main goal of a QDisT is to have assets somewhat available to the beneficiary without the beneficiary losing state or federal public benefits. If the disabled person owned these assets outright, their eligibility for government benefits would most likely be in jeopardy. If the QDisT owns the assets and the Trustee has discretion to make purchases for the beneficiary, then the assets are not countable assets when trying to qualify for public benefits. The Trustee would not give money in the QDisT directly to the beneficiary. Rather, the Trustee would make purchases that benefit the beneficiary, like a vacation or the services of a tutor, in accordance with the Social Security Program Operations Manual System and other laws and guidelines.

What are the tax filing requirements of a QDisT?

As with all non-grantor trusts, the trust will be responsible for filing a tax return, Form 1041, under its own Employer Identification Number (EIN). Any distributions to the beneficiary will be taxed on the beneficiary’s own Form 1040 tax return.

For example, let’s say Bob is an independent Trustee of Lucy’s QDisT. The QDisT has a stock portfolio worth $500,000, which generates $50,000 in taxable income. During the tax year, Bob paid for Lucy’s vacation that cost $5,000. Bob also paid for educational expenses of $5,000 for books, tutoring, and extracurricular activities. Bob took a reasonable compensation of $2,500 for the year.

Bob causes a Form 1041 to be filed for the trust, reporting the $50,000 income. As discussed above, there will be a $4,150 exemption used. Bob’s $2,500 in fees will be deducted for administrative expenses, and Lucy’s $10,000 in distributions will be deducted. The trust will have a taxable income of $33,350. The QDisT will send a K-1 to Lucy showing her distribution, and she will be responsible for reporting that $10,000 distribution on her personal Form 1040 tax return.

Conclusion

A QDisT can be a powerful tool when planning for a disabled individual. Each attorney must do a case-by-case analysis to determine if a QDisT is the best planning device for your client. To know if a QDisT is right for a client, it’s important to analyze the facts of the case, including whether the client qualifies for a QDisT under statutory rules, the costs to maintain the QDisT, tax considerations, and more. Thankfully, the QDisT is one formidable tool when planning for a disabled person and can offer some great benefits.

Provide Advocacy for Your Clients

Developing expertise in special needs planning enables you to expand your practice to serve clients with disabilities and their families. ElderCounsel covers all aspects of becoming successful in the practice areas of elder law and special needs planning. We cover your legal document drafting needs with our software, a wide variety of premium attorney education, and practical strategies to elevate your practice. Our goal is to help facilitate collegiality among members and allow you to easily connect with fellow elder law practitioners.

Read more related articles at;

Is a Qualified Disability Trust Appropriate?

What is a “qualified disability trust” for Federal income tax purposes?

Also, read one of our previous Blogs at:

Financial Planning for Loved Ones with Disabilities

medicaid trust

How Medicaid Planning Trusts Protect Assets and Homes from Estate Recovery

How Medicaid Planning Trusts Protect Assets and Homes from Estate Recovery

Last updated: January 04, 2021

What are Medicaid Asset Protection Trusts (MAPT)?

Medicaid Asset Protection Trusts (MAPT) can be a valuable planning strategy to meet Medicaid’s asset limit when an applicant has excess assets. Simply stated, these trusts protect a Medicaid applicant’s assets from being counted for eligibility purposes. This type of trust enables someone who would otherwise be ineligible for Medicaid to become Medicaid eligible and receive the care they require be at home or in a nursing home. Assets in this type of trust are no longer considered owned by the Medicaid applicant. MAPTs also protect assets for one’s children and other relatives, which is a win-win for Medicaid applicants and their families. Medicaid Asset Protection Trusts are also referred to as Medicaid Planning Trusts, Medicaid Trusts, or less formally, Home Protection Trusts.

It is important to understand that there are many different types of trusts and not all of them are Medicaid compliant. For instance, family trusts, commonly called revocable living trusts, are different from MAPTs. Generally, family trusts are not adequate in protecting money and assets from Medicaid because the language of the trust makes it revocable (meaning the trust can be cancelled or altered) or allows for money in the trust to be used for the Medicaid applicant’s long-term care costs. Therefore, assets in this type of trust would have to be “spent down” to meet Medicaid’s asset limit in order for one to qualify for Medicaid.

This page is about Medicaid Asset Protection Trusts. There are several other types of trusts that are relevant to Medicaid eligibility, but will not be covered in this article. Irrevocable funeral trusts, also known as burial trusts, are used to protect small amounts of assets specifically for funeral and burial costs. There are also qualifying income trusts (or qualified income trusts, abbreviated as QITs). This is important to mention because one might find it easy to confuse MAPTs and QITs. While MAPTs protect one’s assets and allow one to meet the asset limit, QITs (also called Miller Trusts) allow one who is over the income limit to become income eligible for Medicaid purposes. Unfortunately, not all states allow QITs.

Did You Know? If you transfer your home to a Medicaid asset protection trust, you can reserve the right to live there for as long as you live.

Why Are Medicaid Asset Protection Trusts Important?

While each state runs its Medicaid program within federally set guidelines, there is “wiggle” room for each state to set its own rules within those larger guidelines. Generally speaking, the asset limit for eligibility purposes for an elderly individual applying for long-term care Medicaid is $2,000. However, this asset limit can be lower or higher depending on the state in which one resides. (For state specific asset limits, click here). While some higher value assets are usually considered exempt (uncountable), such as one’s primary residence, a vehicle, and wedding rings, too often applicants are still over the asset limit but still cannot afford their cost of care. Therefore, any assets that exceed the asset limit need to be “spent down” or a planning strategy, such as a Medicaid Asset Protection Trust, needs to be put into place to help the applicant qualify for the care they require. One can determine how much of their assets must be spent down to become Medicaid eligible using our Calculator.

How Do Medicaid Asset Protection Trusts Work?

To get a better grasp of Medicaid asset protection trusts, it’s important to understand the terminology associated with them. First, there is the individual who creates the MAPT. This person may be referred to by a number of names, including grantor, trustmaker, and settlor. The trustee is the manager of the trust and controls the assets in the trust. While neither trustmakers nor their spouses can be trustees, adult children and other relatives can be named as trustees. They must adhere to the rules set forth by the trust, which are very specific as to how the money can be used. For instance, there should be a strict prohibition of using trust funds on the trustee. There is also a beneficiary or beneficiaries, who is / are the person(s) who benefits from the trust after the trustmaker passes away. In order for the trust to be Medicaid exempt, the principal beneficiary must be someone other than the trustmaker. This is because if the trustmaker were also the beneficiary, he or she would have access to the assets, and Medicaid would consider them available to pay for his or her care and supports.

In addition, the trust must be irrevocable in order to be exempt from Medicaid’s asset limit. This means that the trust cannot be cancelled or changed. Once the assets are transferred into the trust, they no longer belong to the trustmaker, nor can the trustmaker regain ownership of them. If the assets are in a revocable (can be changed or terminated) trust, Medicaid considers the assets to still be owned by the Medicaid applicant. This is because the person who created the trust still has control over the assets held in the trust. Therefore, the assets are counted towards Medicaid’s asset limit.

   MAPTs cannot be used to shelter or reduce assets if the applicant is immediately applying for Medicaid.

Planning well in advance of needing long-term care Medicaid is the best course of action when considering a Medicaid Asset Protection Trust. This type of trust is not suitable for persons who need Medicaid immediately or within a short period of time. This is because MAPTs are a violation of Medicaid’s look back period if not set up prior to 5 years (2.5 years in California) before one applies for Medicaid. That said, there are other planning strategies for those who need Medicaid currently or in the near future.

Benefits of a Medicaid Asset Protection Trust

The assets in a Medicaid asset protection trust not only allow one to meet Medicaid’s asset limit without “spending down” assets, but the assets are also protected for the beneficiaries listed by the trustee. This means the assets are safe from Medicaid estate recovery. In simplified terms, when a Medicaid recipient passes away, the state in which the individual lived and received Medicaid benefits, attempts to collect reimbursement for which it paid for long-term care. This is done via the deceased’s estate. However, if one’s home and other assets are in a MAPT, the state cannot come after those assets. Learn more about Medicaid estate recovery.

Shortcomings of a Medicaid Asset Protection Trust

Planning well in advance of the need for Medicaid, if at all possible, is the best course of action. Medicaid asset protection trusts are ideal for persons who are healthy and don’t foresee needing Medicaid in the near future. This is because MAPTs violate Medicaid’s look back period. This is a period of 60-months in all states, with the exception of California, which only looks back 30-months. (New York is in the process of implementing a 30-month look back period for long-term home and community based services). During the look back period, Medicaid checks to ensure no assets were sold or given away for less than they are worth in order for one to meet the asset eligibility limit. For Medicaid purposes, the transfer of assets to a Medicaid asset protection trust is seen as a gift. Therefore, it violates the look back rule. This can result in a period of Medicaid ineligibility. Therefore, a MAPT should be created with the idea that Medicaid will not be needed for a minimum of 2.5 years in California and 5 years in the rest of the states.

In addition, once the assets have been transferred to a MAPT, the trustee no longer has control or access to them. They no longer are considered owned by the individual.

Given the fairly expensive fees associated with the creation of a Medicaid Asset Protection Trust ($2,000 – $12,000), they are typically not used for assets less than $100,000. Should a family need to reduce one’s assets to qualify for Medicaid in amounts less than $100,000 there are other approaches.

Gifting Assets vs. Creating a Medicaid Asset Protection Trust

While there is more flexibility with gifting assets and it does not require any legal work, it also violates Medicaid’s look back rule. As previously mentioned, this results in a period of Medicaid ineligibility as a penalty. Therefore, like with MAPTS, gifting should occur 5 years (2.5 years in California) in advance of the need for Medicaid. In addition, capital gains taxes are a common concern with gifting.

What Type of Assets can go in an Asset Protection Trust?

A number of different types of assets can be put into a Medicaid Asset Protection Trust, including one’s home. When a trustee places his or her home in a MAPT, he or she can continue to live in the home. In fact, it is even possible to sell the home and for the trust to buy another one. However, there is one exception to this rule. In Michigan, a home is considered a countable asset when placed in a MAPT. Stated differently, the home is non-exempt and is counted towards Medicaid’s asset limit.

Other assets that are placed in MAPTS include real estate other than one’s primary home, checking and savings accounts, stocks and bonds, mutual funds, and CDs. In most cases, transferring retirement accounts (401k’s and IRAs) is not recommended due to tax implications with cashing out the plans and transferring them to a MAPT.

If assets that produce income are placed in the trust, the trustmaker is able to collect the income. Said differently, the principal is protected by the trust and the trustmaker receives the income produced by the principal. However, Medicaid also has income limits, so it’s important that this income does not cause one to have income over the limit. As of 2021, most states have an income limit of $2,382 / month for a single senior applying for long-term care. (To see income requirements in the state in which one resides, click here). In the situation where a Medicaid applicant is in a nursing home, income produced by the principal generally goes to the nursing home to help pay the cost of care.

How Do Medicaid Asset Protection Trust Rules Change by State?

Medicaid Asset Protection Trust rules are not only complicated and tend to change frequently, they also differ based on the state in which one resides. As mentioned above, Michigan considers a home in a trust, even if it is irrevocable, a countable asset. California Medicaid (Medi-Cal), on the other hand, has very lax rules in regards to transferring a home to a trust. In CA, a home, even in a revocable trust, is exempt from Medicaid’s asset limit and is safe from estate recovery. This is very unusual. In most circumstances, revocable trusts do not keep assets safe from Medicaid’s asset limit and estate recovery. In addition, in CA, the state can only seek reimbursement of long-term care costs from those assets that go through probate (a legal process where a deceased person’s assets are distributed). If assets have been transferred to a revocable living trust, it is safe from estate recovery. This means it will avoid probate and estate recovery and the need for MAPTs are not as great in the state of CA as in other states.

Wisconsin also stands apart from the other states. In WI, trusts that are irrevocable can generally be altered or cancelled if all parties (trustmaker, trustee, and beneficiaries) are in agreement.

Is an Attorney Needed to Set up a Medicaid Asset Protection Trust?

It is imperative that a Medicaid Asset Protection Trust be set up correctly in order to ensure the assets transferred into the trust are exempt from Medicaid’s asset limit. As previously mentioned, the rules change frequently, as well as vary by state. This makes it important to have the trust created by someone who is familiar with the MAPT laws in one’s specific state. Also, remember that this type of trust needs to be created well in advance of the need for Medicaid, so as to not violate Medicaid’s look back rule. Incorrectly setting up a MAPT can inadvertently cause one to be ineligible for Medicaid, defeating the purpose of creating one. Therefore, an attorney should be used to set up a Medicaid Asset Protection Trust. Private Medicaid Planners often work with attorneys to keep costs low for their clients.

How Much Does it Cost to Create a Medicaid Asset Protection Trust?

The cost of creating a Medicaid Asset Protection Trust varies significantly from a low of $2,000 to a high of $12,000. While the price might seem high, in reality, a MAPT ends up saving persons money in the long run. This is because the nationwide average cost of nursing home care is over $7,750 / month, and a MAPT prevents one from having to pay out of pocket for nursing home expenses (and other long-term care costs).

When considering the cost, there are a lot of variables. First, some attorneys don’t strictly do MAPTS. Rather they do a package of sorts. This may include a pour-over will, powers of attorney, advance health care directive (living will), and HIPAA medical information releases, in addition to the MAPT. Cost can be impacted by if the client is single or married, the assets being transferred into the trust, and if a crisis plan is needed. In addition, price varies by geographic location, with the price in urban areas generally costlier than in rural areas. The experience of the attorney can also impact the cost.

Alternatives to a Medicaid Asset Protection Trust

In addition to Medicaid asset protection trusts, there are other planning strategies to help lower one’s countable assets. These may include funeral trusts and annuities. In addition, there are also strategies to help lower one’s income to become eligible for Medicaid.

Read more related articles here:

How to Use a Trust in Medicaid Planning

Benefit or Backfire: Navigating the Irrevocable Medicaid Trust

Also, read one of our previous Blogs at:

WHAT IS MEDICAID’S 5 YEAR LOOK BACK, AND HOW CAN IT AFFECT ME?

Click here to check out our On Demand Video about Estate Planning.

medicaid trusts

Getting Around the Transfer Penalty for Pooled-Trust Transfers for Individuals 65 Years and Older

Getting Around the Transfer Penalty for Pooled-Trust Transfers for Individuals 65 Years and Older

Medicaid laws can be cumbersome and tricky. Federal statutes set out the framework for certain Medicaid eligibility rules and states can interpret them differently. One such rule can be found in 42 U.S. Code § 1396p(d)(4)(C), which covers transfers to pooled trusts. Based on differing interpretations of this statute, some states impose a transfer penalty when an individual over age 65 transfers funds within the look-back period to a pooled trust; some states do not. Minnesota has the former rule, but in a recent case, did allow a Medicaid applicant over age 65 to transfer funds into a pooled trust without the imposition of a transfer penalty.

In this case, David moved into a long-term care facility. His siblings sold his home. David petitioned a court to transfer his proceeds into a pooled special-needs trust. The court issued an order allowing the transfer. Disbursements from the trust were limited to the sole discretion of the Trustee, and could only be made for items or services not covered by Medicaid. David was 65 years old at the time the funds were transferred to the pooled trust. Because Minnesota penalizes transfers to pooled trusts for folks 65 years and older, David was assessed a penalty period where he wasn’t eligible for long-term care Medicaid benefits. David appealed.

Minn. Stat. § 256B.0595 outlines the prohibition on the transfers of assets, along with the exceptions to the transfer rules. In line with federal rules, it states that a Medicaid applicant can’t give away assets for less than fair market value during the look-back period. If the applicant does, a penalty period is instituted where the applicant won’t be eligible for Medicaid benefits for a certain period of time. Such statute also states that no penalty will be imposed if the applicant shows that he did receive fair market value for the transfer, or he intended to receive fair market value for the transfer.

David argued that he did receive fair market value for his transfer to the pooled trust. The Trustee testified that although he had discretion when making distributions, if he were to deny a reasonable request, it would be in bad faith and thus a breach of contract. Indeed, the expenditures from the trust showed that David received items such as an adaptive recliner, dental work, wheelchair cushions, and fees for guardian services. It was estimated that his pooled trust account would be depleted in two years; David’s life expectancy was roughly 15 years.

A state official testified at the hearing that a transfer to a pooled trust by a beneficiary over age 65 was evaluated as an uncompensated transfer so she didn’t complete any further analysis of the case. The human services judge ruled in favor of the state, stating that because distributions were discretionary, “no ‘reasonable seller/buyer or objective observer’ would consider the exchange to be a transfer for fair market value.” David appealed and the district court reversed, concluding that David indeed received adequate compensation for the transfer in the form of his interest in the pooled trust assets. The state appealed and the court of appeals affirmed the district court’s ruling. The state appealed again and now we have this ruling from the Supreme Court of Minnesota.

The judge here did recognize that Minnesota statues have an age limit for when transfers to a pooled trust will not incur a penalty. However, if the Medicaid applicant is over that age limit, there are other ways to avoid a penalty – by showing that the applicant received, or intended to receive, valuable consideration for the asset. The opinion then goes into an analysis of what valuable consideration means. The state argued that fair market value equates to cash, and valuable consideration is something other than cash but “of equivalent market value”. The state said that David did not have the funds as unrestricted access to cash and also future goods and services should not be taken into consideration when analyzing whether an applicant received valuable consideration for the transfer.

The judge disagreed, saying that “…under the intent exception to the asset-transfer rules, Minn. Stat. § 256.0595, subd. 4(a)(4), we hold that ‘valuable consideration’ means compensation that is approximately equal to the fair market value of the transferred asset.” Also, notably, the court stated that David didn’t have to show convincing evidence that he intended to receive fair market value; instead, he only needed to make a satisfactory showing that he did. The latter is a lesser standard, and the court found that David met that standard. In the end, David’s transfer to the pooled trust at age 65 did not incur a penalty, as he received valuable consideration for the transfer.

This is a huge win not just for David and other Minnesotans who may need to qualify for long-term care Medicaid, but it may just be a win for applicants who live in other states that penalize transfers to pooled trusts for applicants over 65 years of age. Has the Supreme Court of Minnesota paved the way to get around the age limit rule? Possibly so.

Read more related articles here:

Exceptions to Counting Trusts Established on or after January 1, 2000

Supplemental Needs Trusts –Protecting Access to Medicaid, SSI and Other Benefits

Also, read one of our previous blogs at:

Can My Family Benefit From A Special Needs Trust?

Click here to check out our On Demand Video about Estate Planning.

Undue Influence

Recent Case Analysis of Undue Influence

Recent Case Analysis of Undue Influence

Undue Influence is when someone pressures another in such a way that the person being influenced is not acting by their own free will; they are being coerced into taking a certain action. The person being influenced does not understand the repercussions of their actions.

Recognizing undue influence is a job for many – lawyers, financial advisors, notaries, bankers, and family members. Due to the nature of undue influence, it is often carried out by loved ones and kept hidden from others. Undue influence often happens in the case of illness, where there is a deterioration in physical and mental abilities. The bad actor will take advantage of the ill person, and unduly influence them into taking actions to benefit the bad actor.

The issue of undue influence was recently litigated in Malousek v. Meyer. Here, we have Molly and Greg who began cohabitating in 2009. In 2015, Molly was diagnosed with cancer and began treatments. By 2017, her health had drastically deteriorated. In mid-October of 2017, the pair added Greg as a joint owner on Molly’s bank accounts, changed beneficiary designations in Greg’s favor, got married, and executed a quitclaim deed in order to have the home transfer to Greg upon Molly’s death. In addition, Molly executed a power of attorney naming Greg’s son, Mark, as agent.

By October 23, Molly passed away. Her adult children, A.J. and Courtney, filed a declaratory judgment action seeking to have all the property interest changes reversed and the marriage annulled. Their reasoning was that Molly lacked capacity to make these decisions, she had previously indicated that she did not want to get married and did not want Greg or Mark as beneficiaries, and thus was the victim of undue influence. The district court found in favor of A.J. and Courtney, declaring that the marriage was annulled and ordered that the property be conveyed to Molly’s estate. Greg and Mark appealed.

The instant case is out of the Nebraska Supreme Court. The court reviewed the evidence in the case. Plaintiffs’ arguments and evidence were as follows:

  • In 2010, Molly began wearing a ring that she had bought and told friends and family it was a commitment ring but that she did not want to ever get married again.
  • Mark eventually lived with Molly and Greg and several witnesses testified that Molly would routinely complain about having to financially support Mark.
  • Witnesses also testified that Molly complained that Greg spent too much of her money on alcohol, sometimes buying friends rounds of drinks and expecting her to pay for it.
  • Further testimony stated that in 2013, Greg asked to be included on the home’s deed and Molly told him no.
  • Molly was quoted as saying that Greg was “leeching” or “mooching” off of her.
  • Friends testified that Molly had stated, as late as August 2017, that she was thinking about leaving Greg $50,000 but nothing else.
  • In June 2017, Molly contacted her attorney to draw up both healthcare and financial powers of attorney, naming A.J. as agent. Molly made statements to her attorney that she did not need further estate planning because since she was single her assets would pass to her children, which is what she wanted.
  • Molly’s nail technician, who had done her nails every 3 weeks for years, testified that on September 14, 2017, Greg’s sister drove Molly to the appointment. The nail technician testified that Molly appeared frustrated with Greg’s sister and Molly told Greg’s sister to “Give me a break. Let me breathe.” The sister would also ask the nail technician what Molly had talked about during the session.
  • Near the end, friend and family couldn’t get in touch with Molly via phone. Greg would always answer and says Molly was unavailable or sleeping. Greg did not mention the marriage to any of Molly’s friends or family.
  • On October 10, 2017, Greg’s best friend came to the house and at that time, Molly did not recognize him.
  • The bank manager who assisted with adding Greg’s name to the accounts testified that Molly appeared sick and “couldn’t even walk” and that Greg was “holding her up”. Upon request, Greg refused to let the bank manager and Molly talk alone. Greg held Molly’s hand to help her sign the necessary documentation.

The Defendants’ arguments and evidence were as follows:

  • When Molly executed new beneficiary designation forms, Molly’s financial advisor and attorney were present. They both testified that Molly led the conversation and stated that she wanted to leave a certain amount to her children and to leave two residences to Greg. The attorney told Molly that if Greg’s names were on the deeds, he would have to pay inheritance taxes when Molly passed, if the two were not married. Molly supposedly replied “Then we’ll get married.”
  • The wedding officiant testified that he had a conversation alone with Molly before the ceremony and she appeared coherent and that the occasion was a happy one.
  • The notary who acknowledged the quitclaim deed and powers of attorney testified that Molly appeared to be coherent and uncoerced.
  • Greg produced evidence from Molly’s physician that stated Molly was oriented at her appointments between late 2016 and October 19, 2017, save the October 18 appointment where she was incoherent.

The court quoted Miller v Westwood and gave the elements of proving a claim of undue influence: “(1) that the person who executed the instrument was subject to undue influence, (2) that there was opportunity to exercise undue influence, (3) that there was a disposition to exercise undue influence for an improper purpose, and (4) that the result was clearly the effect of such undue influence.” The court further went on to state that undue influence is sometimes difficult to prove with direct evidence and other factors may need to be inferred.

In the end, the Supreme Court ruled for Molly’s children. The court stated that as Molly’s health deteriorated, there was a sequence of events carried out to transfer her property to Greg, it was done in secret, contact with Molly’s friend and family was controlled, and the effect of the transactions was contrary to her prior stated wishes. Importantly, the Supreme Court noted that witness credibility is an issue for the trier of fact, giving the district court deference since that court had the opportunity to observe and question the witnesses. The district court obviously found the Plaintiffs’ witnesses to be more credible than those called by the Defendants.

There are a few lessons from this case. The first is to plan early, while still healthy. This way, the likelihood of an argument for undue influence can be decreased. The second lesson is that practitioners need to be aware of undue influence and have a procedure to analyze each case for its presence. Talk to clients and their families about undue influence and the warning signs. Finally, it might be best to encourage clients to talk on their friends and family about their estate plan, so everyone is aware and on the same page before the client’s death.

Read more related articles at:

How Can We Identify Undue Influence in Our Elderly Clients?

Undue Influence Revisited

Elder Abuse:  The Impact of Undue Influence

Also, read one of our previous Blogs at: 

How to Combat Elder Financial Abuse

Click here to check out our On Demand Video about Estate Planning.

 

EP and EL

Elder Law Versus Estate Planning: Not So Different After All

Elder Law Versus Estate Planning: Not So Different After All

How different is elder law from estate planning, really? Estate planning, in part, deals with helping clients plan for disability, minimize taxes at their death, and to help their estate pass to their desired beneficiaries under conditions set by the client. Estate planning can also involve asset protection, retirement planning, and business succession planning.

Elder law involves many of the same issues, but for an aging population. As we age, our needs change – both health and legal needs. For example, in elder law, attorneys often help clients plan for the possibility of needing long-term care and how to pay for it without depleting all of their savings. Elder law can also involve helping clients already receiving long-term care. Helping people with disabilities is also an important area of elder law, as is assisting wartime Veterans in obtaining care-related benefits.

What is estate planning?

Estate planning is a proactive task. It is all about preparing for the inevitable – death. Proper estate plans establish the who, what, and when of what happens to a client’s property after the client’s death. The plan provides a roadmap for families to follow when they can no longer look to the client for guidance.

A client will express his or her desires concerning the distribution of their property after their death, and the attorney will know the best strategies to obtain the desired outcome. This could include drafting one of the following for a client: last will and testament, revocable living trust, irrevocable trust, special needs trust, pour-over will, business formation documents, and documents to transfer assets.

Without a recognized estate plan, the court decides how to distribute the decedent’s property. The results can be devastating to families that have discussed informal arrangements that were not properly established through appropriate planning. Planning for where the client’s money goes, who will care for their children, what happens if they become disabled, whether trusts are in order, and avoiding probate are all important focal points for the estate planning attorney.

Estate planning is an ongoing task. Estate plans should be updated whenever the client experiences noteworthy life changes. Acquiring a rental house, selling an existing home, buying stocks, new children or grandchildren, marriage or divorce are all significant reasons for the estate planning lawyer to recommend revisiting the existing plan.

The estate planning lawyer’s purpose is to minimize estate taxes through trusts, establish caretakers for children, name executors, and identify beneficiaries for IRA’s, life insurance, and other financial assets. Plans also include funeral arrangements, charitable contributions, and personal property distributions. These lawyers commonly create wills and trusts to manage the needs of their clients.

An estate planning attorney will likely draft a durable power of attorney and medical power of attorney for their clients, as a part of their estate plan. These documents give a named person the authority to make medical or financial decisions for the client, should the client become incapacitated. Without these documents in place, a client’s family would have to file a lawsuit against the client in order for a judge to give someone the authority to make these decisions. Finally, an estate planning attorney will likely draft a living will or medical directive for each client. This document states the client’s wishes regarding life support and other medical care in the event the client is incapacitated or otherwise unable to state their wishes.

What is elder law?

Where estate plans lay the groundwork for a client’s desires for their family and their assets after their death, an elder law attorney focuses on the many needs of the senior population. This often includes focusing on preserving assets and obtaining medical care while the client is elderly or incapacitated.

Planning for long-term care, whether in advance of the need for it or when the need arises, is a difficult road to navigate. Qualifying for Medicaid or Veteran’s benefits can be a confusing and strategic process, especially when a client has assets in their name. An elder law attorney can advise a client how to protect these assets in the best manner while qualifying the client for medical benefits as soon as possible. Many elder law attorneys are experts at Medicaid planning for long-term care. Although Medicaid is a federal program, states vary on qualification criteria. An elder law attorney can help a client preserve assets, fill out and submit the Medicaid application, handle any Medicaid hearings or appeals, talk with Medicaid or nursing home employees, and ensure the client continues to qualify for Medicaid.

If an elderly client becomes incapacitated, planning is needed to protect their assets and obtain the necessary medical care. Hopefully the client had the proper estate planning in place and has written documentation of their wishes in the event of incapacitation. Then, the elder law attorney will help the client’s family carry out those wishes in the best manner possible. Does the client require a special needs trust? A conservatorship? How are they going to pay for their medical care? Do they have the proper support network in place to provide trusted and competent care? These are some questions an elder law attorney can help their clients answer.

An elder law attorney will also advise clients on senior rights, age discrimination, elder abuse, and other issues that impact the senior community. Seniors can be targets for crime and discrimination and some will need an elder law attorney to help battle these issues. Many states are recognizing the wide-spread and growing problem of elder abuse and are starting initiatives, such as crime units, to aid seniors in their struggle against crime and abuse. An elder law attorney can assist their senior client in recognizing abuse and crime, reporting it, and making sure their rights are protected.

Expanding Into the Elder Law Realm

Estate planning attorneys write the blueprints for a future event, the passing of his or her client, and help that client protect his or her assets along the way. Elder law attorneys help seniors navigate their changing needs as they age. Many lawyers find that these areas of law often overlap, both in skill and clientele. Because of this, many estate planning attorneys find it useful and beneficial to also offer elder law services. Their existing client-base likely needs elder law services now or in the future. Why not offer more services to existing clientele, with whom the attorney already has a good rapport? It would be advantageous to both the attorney and the client if these additional services were available. Attorneys could increase their workload while the client can stay with the same trusted attorney over their lifespan, as their needs change.

Skills used in estate planning can also be useful in elder law. For example, seniors will need to make sure they have their disability documents in place and have a plan for their assets after they pass. Seniors will have some of the same goals that a traditional estate planning client might have. An estate planning attorney can cross these estate planning skills over into a new area of law, elder law, pathing the way for additional revenue while offering a more comprehensive set of services.

In Sum

For an estate planning attorney, it would be a practical choice to expand their practice to include specialization in elder law areas. Estate planning clients will develop elder law needs at some point during their lifetime. Why not be ready to satisfy them? Even younger clients can succumb to illness or disability and the skills used in elder law could be helpful for their needs. Estate planning attorneys often find it easy to expand on their skills to include elder law, since there are similarities and overlapping between the two. Expanding to include elder law in an attorney’s practice can mean the difference between getting that additional business or the client being referred to someone else that does.

Read more related articles at: 

The Difference Between Elder Law and Estate Planning Attorneys

Do You or a Family Member Need to Hire an Elder Law Attorney?

Do you need an estate plan?

Also, read some of our previous Blogs here:

When Do I Need an Elder Law Attorney?

How Do I Find a Great Estate Planning Attorney?

Click here to check out our On Demand Video about Estate Planning.

IRAs and Medicaid Crisis Planning

Dealing with IRAs in Crisis Planning

Dealing with IRAs in Crisis Planning

Thank you to our guest blogger Dale M. Krause, J.D., LL.M., President and CEO of Krause Financial Services, for leading this conversation on dealing with IRAs in crisis planning.

One of the biggest questions my office receives is how to handle a large IRA when conducting crisis planning for either Medicaid or VA. When dealing with VA planning, IRAs are always considered countable assets. In Medicaid planning, the specific rules vary from state to state, but they are considered countable assets in most states. This causes a big problem for attorneys and their clients when trying to accelerate eligibility for Medicaid or VA, however there are ways to save your client’s IRA and still qualify them for benefits.

Don’t Liquidate the Account!

Liquidating an IRA can have some devastating effects on your client. First, the entire value is considered taxable income. This could mean tens of thousands of dollars of tax consequences for your client. Additionally, the amount of the IRA could elevate your client’s tax bracket, forcing them to pay an even higher amount in taxes. Beyond the typical tax consequences of liquidating an IRA, if your married client’s income for the year is above $44,000, up to 85% of their Social Security benefits become taxable. Additionally, their Medicare Part B and Part D premiums could increase.

Alternative Solutions

Using an immediate annuity is a great way to eliminate an IRA as a countable asset and accelerate eligibility for benefits. The annuity contains zero cash value and is considered income only to the owner. Transferring the funds to the annuity is a tax-free event. Rather, the IRA funds are taxed as the annuity payments are made within each calendar year. In short, any tax consequence associated with the IRA are spread out over the term of the annuity.

In VA planning, the annuity can be structured to ensure the claimant’s income does not exceed their UMEs. Both level-pay and balloon-style annuities are available, which means the claimant has maximum flexibility with this product. Additionally, the annuity can be converted to be “Medicaid compliant” at any time should it become necessary.

In Medicaid planning, the annuity is the perfect solution for a community spouse with a large IRA. There are no limitations on the income of the community spouse, therefore the income from the tax-qualified Medicaid Compliant Annuity will not affect the eligibility of the institutionalized spouse. If you have a case that involves an institutionalized spouse with a large IRA, consider using the “Name on the Check Rule”. Ownership of the account cannot be transferred, therefore “Name on the Check Rule” involves the institutionalized spouse purchasing a tax-qualified annuity and designating the community spouse as payee. For Medicaid purposes, this diverts the income directly to the community spouse and it does not become part of the institutionalized spouse’s Medicaid co-pay. (Note: Success of this strategy varies from state to state).

Three Ways to Learn More about IRAs in Crisis Planning

1. Visit Krause Financial Services’ website www.medicaidannuity.com or give them a call at (866) 605-7437 for more information on how to handle IRAs in Medicaid and VA planning. They offer a variety of educational materials for elder law attorneys, including webinars and state-specific resources. The 2018 Krause Report is also available and is a comprehensive guide to crisis planning.

2. Better yet, meet Dale Krause at Symposium 2018. He is presenting “Dealing with IRAs (and Other Tricky Assets) in Medicaid and VA Pension Planning” on July 31 at 4:00 p.m. (View Full Symposium Agenda)

3. Can’t wait? Watch the course “Strategies Using IRAs in Veteran Benefits & Medicaid Planning” Dale Krause recorded for ElderCounsel.

Read more related articles at:

Can an IRA Affect Medicaid Eligibility?

Fixing the Leak: Avoiding IRA Liquidation in Crisis Medicaid Planning

IRA Taxes: Rules to Know & Understand

Coronavirus Relief for Retirement Plans and IRAs

Also, read one of our previous Blogs at:

Must I Liquidate My IRA Before I Can Apply for Medicaid?

Click here to check out our On Demand Video about Estate Planning.

 

 

Transfer Penalty for Pooled Trusts

Getting Around the Transfer Penalty for Pooled-Trust Transfers for Individuals 65 Years and Older

Getting Around the Transfer Penalty for Pooled-Trust Transfers for Individuals 65 Years and Older

Medicaid laws can be cumbersome and tricky. Federal statutes set out the framework for certain Medicaid eligibility rules and states can interpret them differently. One such rule can be found in 42 U.S. Code § 1396p(d)(4)(C), which covers transfers to pooled trusts. Based on differing interpretations of this statute, some states impose a transfer penalty when an individual over age 65 transfers funds within the look-back period to a pooled trust; some states do not. Minnesota has the former rule, but in a recent case,  did allow a Medicaid applicant over age 65 to transfer funds into a pooled trust without the imposition of a transfer penalty.

In this case, David moved into a long-term care facility. His siblings sold his home. David petitioned a court to transfer his proceeds into a pooled special-needs trust. The court issued an order allowing the transfer. Disbursements from the trust were limited to the sole discretion of the Trustee, and could only be made for items or services not covered by Medicaid. David was 65 years old at the time the funds were transferred to the pooled trust. Because Minnesota penalizes transfers to pooled trusts for folks 65 years and older, David was assessed a penalty period where he wasn’t eligible for long-term care Medicaid benefits. David appealed.

Minn. Stat. § 256B.0595 outlines the prohibition on the transfers of assets, along with the exceptions to the transfer rules. In line with federal rules, it states that a Medicaid applicant can’t give away assets for less than fair market value during the look-back period. If the applicant does, a penalty period is instituted where the applicant won’t be eligible for Medicaid benefits for a certain period of time. Such statute also states that no penalty will be imposed if the applicant shows that he did receive fair market value for the transfer, or he intended to receive fair market value for the transfer.

David argued that he did receive fair market value for his transfer to the pooled trust. The Trustee testified that although he had discretion when making distributions, if he were to deny a reasonable request, it would be in bad faith and thus a breach of contract. Indeed, the expenditures from the trust showed that David received items such as an adaptive recliner, dental work, wheelchair cushions, and fees for guardian services. It was estimated that his pooled trust account would be depleted in two years; David’s life expectancy was roughly 15 years.

A state official testified at the hearing that a transfer to a pooled trust by a beneficiary over age 65 was evaluated as an uncompensated transfer so she didn’t complete any further analysis of the case. The human services judge ruled in favor of the state, stating that because distributions were discretionary, “no ‘reasonable seller/buyer or objective observer’ would consider the exchange to be a transfer for fair market value.” David appealed and the district court reversed, concluding that David indeed received adequate compensation for the transfer in the form of his interest in the pooled trust assets. The state appealed and the court of appeals affirmed the district court’s ruling. The state appealed again and now we have this ruling from the Supreme Court of Minnesota.

The judge here did recognize that Minnesota statues have an age limit for when transfers to a pooled trust will not incur a penalty. However, if the Medicaid applicant is over that age limit, there are other ways to avoid a penalty – by showing that the applicant received, or intended to receive, valuable consideration for the asset. The opinion then goes into an analysis of what valuable consideration means. The state argued that fair market value equates to cash, and valuable consideration is something other than cash but “of equivalent market value”. The state said that David did not have the funds as unrestricted access to cash and also future goods and services should not be taken into consideration when analyzing whether an applicant received valuable consideration for the transfer.

The judge disagreed, saying that “…under the intent exception to the asset-transfer rules, Minn. Stat. § 256.0595, subd. 4(a)(4), we hold that ‘valuable consideration’ means compensation that is approximately equal to the fair market value of the transferred asset.” Also, notably, the court stated that David didn’t have to show convincing evidence that he intended to receive fair market value; instead, he only needed to make a satisfactory showing that he did. The latter is a lesser standard, and the court found that David met that standard. In the end, David’s transfer to the pooled trust at age 65 did not incur a penalty, as he received valuable consideration for the transfer.

This is a huge win not just for David and other Minnesotans who may need to qualify for long-term care Medicaid, but it may just be a win for applicants who live in other states that penalize transfers to pooled trusts for applicants over 65 years of age. Has the Supreme Court of Minnesota paved the way to get around the age limit rule? Possibly so.

Read more related articles at:

Exceptions to counting Trusts- SSA

Recent Minnesota Ruling: Medicaid Transfer Penalty Exception for a Pooled Trust

Also, read on of our previous Blogs at :

Can My Family Benefit From A Special Needs Trust?

Click here to check out our On Demand Video about Estate Planning.

Larry King Will

Larry King and the Holographic Will

Larry King and the Holographic Will

Larry King passed away in January due to complications with COVID-19. At the time, he was in the middle of a divorce from his seventh wife, Shawn. His net worth is estimated to be some $144 million. Shawn has been adamant that the pair have had an estate plan in place for many years. However, last month, a holographic will was found.

A holographic will is one that is handwritten by the Testator. Some states do not allow for such wills, but in states that do, many of the traditional execution requirements are relaxed, such as not requiring a notary or witnesses. In California, Larry’s presumed domicile, holographic wills are allowed. To be valid, the holographic will must be in the Testator’s own handwriting and signed and dated by the Testator. And, of course, the Testator must be of age and of sound mind.

Larry’s holographic will basically cut Shawn out. It stated: “In the event of my death, any day after the above date I want 100% of my funds to be divided equally among my children Andy, Chaia, Lary Jr (sic) Chance & Cannon.” Andy and Chaia both passed away in 2020.

Shawn is contesting the holographic will. She says that her and Larry had a good relationship, even after the divorce filing. She said that they talked every day. She also claims that Chance and Cannon both support her contest.

Shawn also points to two postnuptial agreements that were presumably drafted to preserve Larry’s estate for Shawn. In addition, she points to the fact that in California, a divorce needs to be finalized before one can revoke a joint estate plan. Since their divorce hadn’t been finalized, their prior estate plan should control.

Will the holographic will be upheld? While this may be battled out in court, a likely scenario is that the estate will attempt to settle with Shawn in the interest of privacy. Notably, only about $2 million of Larry’s estate is subject to the will; other assets were held in trust. Why would Shawn contest the holographic will when it only controls such amount? “It’s the principle,” she said.

Read more related articles at:

Making a Will in the COVID-19 Era

Holographic Will

The 2021 Florida Statutes: PROBATE CODE: INTESTATE SUCCESSION AND WILLS

Also read one of our previous Blogs at:

Click here to check out our On Demand Video about Estate Planning.
Medicaid Work Requirements

The Current State of Medicaid Work Requirements

The Current State of Medicaid Work Requirements

Former President Trump made it very clear during his presidency that he supported Medicaid work requirements. Indeed, the former Administrator for Centers for Medicare & Medicaid Services (CMS), Seema Verma, under Trump’s administration, issued policy memoranda on how states could submit Section 1115 waivers in search of work requirement approval.

Thereafter, several states submitted such waivers, including Arkansas, Arizona, Iowa, Indiana, New Hampshire, Kentucky, Kansas, Maine, North Carolina, Mississippi, Ohio, Utah, Oklahoma, and Wisconsin. Kentucky was the first to attempt to implement such work requirements. Under that waiver program, each Medicaid recipient would be required to work, look for work, or participate in volunteer work for 80 hours each month. If the requirement wasn’t met, Medicaid coverage would be lost for 6 months. There were several exceptions to the rule, such as for pregnant women, full-time students, primary caregivers to dependents, the elderly, and the disabled.

However, days before the new work requirements were to become effective, a federal judge blocked the new rule. Similar litigation ensued in other states. Kentucky re-drafted their waiver application, and it was once again approved. During the litigation process, however, a different governor was elected and Kentucky subsequently rescinded the waiver.

Arkansas was the first state to actually implement such work requirement policy. They had their program in place for about a year before a federal judge halted it. A study conducted on the year-length program found that the work requirements did not increase employment and those that lost Medicaid coverage had adverse consequences, such as resulting medical debt and delayed medical care.

So, what is the current state of Medicaid work requirements? The Supreme Court of the United States had granted certiorari in Cochran v. Gresham; arguments were to commence on March 29. However, earlier this month, the Court removed the case from their docket. The current-acting CMS Administrator, Elizabeth Richter, sent letters to various states indicating that CMS was beginning a process of determining whether to withdraw the Section 1115 waivers seeking Medicaid work requirements, as the agency no longer believes work requirements supports the overall objectives of the Medicaid program. Because no states currently have Medicaid work requirements and President Biden’s administration and CMS both do not support work requirements, the Supreme Court has considered the case moot. For now, work requirements are a non-issue and the Supreme Court has declined to move the case forward.

Read more related articles at:

  A Snapshot of State Proposals to Implement Medicaid Work Requirements Nationwide

Waivers with Benefit, Copay, and Healthy Behavior Provisions: Approved and Pending as of September 8, 2021

MEDICAID WORK REQUIREMENTS

Also, read one of our previous Blogs at:

WHAT IS MEDICAID’S 5 YEAR LOOK BACK, AND HOW CAN IT AFFECT ME?

Click here to check out our On Demand Video about Estate Planning.

 

dying alone due to Covid -19

Dying Alone Due to COVID-19: Do the Needs of the Many Outweigh the Rights of the Few—or the One?

Dying Alone Due to COVID-19: Do the Needs of the Many Outweigh the Rights of the Few—or the One?

  • Institute of Virology and Technical Innovations, IVIT (CONICET-INTA), Consejo Nacional de Investigaciones Científicas y Técnicas, Buenos Aires, Argentina

The Situation

The COVID-19 pandemic, caused by infection with the severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2), has been striking the world since it was first identified in December 2019 in China. The World Health Organization (WHO) declared the outbreak a “public health emergency of international concern” on January 30th, 2020, and recognized its pandemic status on March 11th. The pandemic has caused universal psychosocial impact and global economic disruption. Discourse and measures have been discussed focused on lockdown strategies, healthcare policies, application of emerging treatments, accelerated clinical trials, among others. Management guidelines are continuously updated based on emerging findings. However, as the disease spreads through a community, suffering deepens due to strict procedures that, arguably, may be questioned from an ethical standpoint. The pandemic has sufficiently disrupted and impaired people’s livelihood worldwide, and every effort to prevent any additional suffering must be made.

Many have died in isolation. Dying alone is not justifiable, even in times of infection with a pandemic virus, particularly when the impact of imposing such a radical measure on the course of the epidemic is, at least, questionable. Indeed, some have reported that the concern and anxiety of being discriminated against delay the presentation to healthcare services, and delayed diagnosis is associated with more severe disease, mainly in the elderly and in vulnerable groups. The fear of being alone in hospital is another barrier in seeking healthcare, and as the number of infected individuals increases within a community, more information on this “loneliness” is perceived and feared. One may argue that the situation, and the subsequent delay in seeking healthcare, would result in negative feedback that ends up sustaining disease spread in a population that is not willing to let their elders die in isolation.

Patients with severe COVID-19 are hospitalized and left alone in a room where “spaceship-dressed” health professionals visit them, speaking behind their mask and shields, trying to keep their own social distance with the patient. When patients are transferred to medium or intensive care units, they completely lose connection with their family and friends. They stay in isolation, and in many cases, eventually die, without ever having had a chance to share a final world with their beloved ones.

Beyond the Healthcare System, COVID-19 Patients

This scene replays itself in many hospitals all over the world, worsened by the teams of exhausted healthcare workers who are overwhelmed and do not receive either psychological support or at least get enough rest. Distressed people then take care of depressed–stigmatized sick and lonely people, worsening an already bleak scenario. Communication also fails. Doctors reportedly call the family once a day, to give quick feedback on the status of the patient with little room for questions. Many calls must be done in a stretched time frame and news is not always good. Healthcare workers also suffer. There is no face-to-face contact—never, nor even between caregivers and patients. For the family, the physician becomes just “a voice on the phone.” One may argue that the pandemic has demonstrated, worldwide, the massive failure of healthcare systems, in many cases, exhausted by decades of cuts to funding, training, and preparedness.

The presence of family accompanying the patients at the intensive care units has shown to be beneficial for the critical patients, their family, and the healthcare workers, supported also by the medical ethics literature. Possible options to give a solution for the loneliness of critical COVID-19 patients, proposing different alternatives for bringing company to the deathbed, including seeing the family across a shield or even pets have been proposed . Wakam et al. published a perspective article, sharing some experiences of a group of physicians assisting COVID-19 patients. The authors reviewed day-life situations and propose to work harder in developing protocols to bridge the physical distance between the sick person and the family. They underlined the importance of being compassionate to families that are confronting the loss of their loved ones. No one deserves to die alone. There is an urgent need for creative solutions to help the patients feel some connection with their beloved ones without risking anyone’s health.

There is also an urgent need to re-think healthcare systems and public health policy in times of pandemics, to debate options to improve the humane assistance to improve patients’ experience. Detailed and worldwide applicable policies must be discussed and pursue the humane care of COVID-19 patients. An overwhelmed healthcare system should not be an excuse for mistreatments or, in many cases, unethical behavior.

At times when reality resembles science fiction, there is, perhaps, some wisdom in one of the lessons many of us received as children in one of the most renowned and remembered science fiction series: the needs of the many, never, ever should outweigh the needs and rights of the few, or the one. The needs of each one should be addressed even during the most devastating pandemic humankind has witnessed over the last century.

If we lose humanity, it will be our fault. We will not be able to blame it on the virus.

Author ContributionsThe author confirms being the sole contributor of this work and has approved it for publication.Conflict of InterestThe author declares that the research was conducted in the absence of any commercial or financial relationships that could be construed as a potential conflict of interest.

Citation: Capozzo AV (2020) Dying Alone Due to COVID-19: Do the Needs of the Many Outweigh the Rights of the Few—or the One? Front. Public Health 8:593464. doi: 10.3389/fpubh.2020.593464
Received: 12 August 2020; Accepted: 30 October 2020;
Published: 30 November 2020.

Edited by:Le Jian, Government of Western Australia Department of Health, Australia
Reviewed by:Penrose Jackson, Vermont Public Health Institute, United States

Copyright © 2020 Capozzo. This is an open-access article distributed under the terms of the Creative Commons Attribution License (CC BY). The use, distribution or reproduction in other forums is permitted, provided the original author(s) and the copyright owner(s) are credited and that the original publication in this journal is cited, in accordance with accepted academic practice. No use, distribution or reproduction is permitted which does not comply with these terms.Disclaimer: All claims expressed in this article are solely those of the authors and do not necessarily represent those of their affiliated organizations, or those of the publisher, the editors and the reviewers. Any product that may be evaluated in this article or claim that may be made by its manufacturer is not guaranteed or endorsed by the publisher.

Read more related articles at:

Do COVID-19 Patients Really Have to Die Alone?

COVID-19, Moral Conflict, Distress, and Dying Alone

Also, read one of our previous Blogs at:

What If Grandma Didn’t Have a Will and Died from COVID-19?

Click here to check out our On Demand Video about Estate Planning.

 

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