ElderLaw Answers Blog

As The New York Times describes in a recent article, the litigation over Brooke Astor’s estate and will is far from unique.  Where there’s money, there are people who will use improper means to grab it.  Where someone has dementia or is dependent on others for care and companionship, they may be induced to alter their estate plan. 

Where a family member feels scorned for  being left out of the will or left out socially, she may suspect undue influence where none exists.  It can be psychologically necessary to believe that Mom was tricked rather than accepting that Mom loved you less or that some long term resentments were reflected in the will.

All of this can lead to litigation which can be expensive both financially and emotionally.  In most cases, good lawyering can prevent such litigation, but not always. 

Our firm is involved in a case where a woman left everything equally to her seven children.  There’s no dispute over the finances.  But the mother owned antiques, jewelry and other items of financial and sentimental value.  She left a list saying who should receive what, which is what attorneys advise clients to do, and the executrix worked out a system for distributing what wasn’t on the list.  Yet one daughter is challenging both the list and the system, which has led to considerable expense and delay.

In short, the best laid plans can avoid a lot of problems, but some may be unavoidable.

Ted Banther’s Estate Planning and Special Needs Blog provides an excellent primer on what steps to take when looking for a special needs planning attorney, starting with asking friends, family members and other professionals.  He also provides the National Academy of Elder Law Attorneys, the Special Needs Alliance and the Academy of Special Needs Planners as groups whose members provide special needs planning services. 

Unfortunately, Banther gives somewhat more weight to the Alliance, a small (some would say elitist) invitation-only group of attorneys over the Academy, which is open to all attorneys seeking to provide better service to their clients who need special needs planning.  But, of course, I helped found the Academy and was not invited to join the Alliance, so I might be a bit biased.

In a recently issued report, the Kaiser Family Foundation analyzes the long-term care insurance industry to determine whether it might fill the long-term care funding gap.  In 2007, long-term care insurance paid for only about 2 percent of the $200 billion spent nationally on long-term care.   

As baby boomers age, the need for long-term care is likely to skyrocket, further straining individual, state and federal budgets which are already at the breaking point.  The question is whether private long-term care insurance can make a significant dent in current and future costs.

Kaiser in its report, Closing the Long-Term Care Funding Gap: The Challenge of Private Long-Term Care Insurance, produced by the Kaiser Commission on Medicaid and the Uninsured, answers the question in the negative.  While it finds that the policies are beneficial to those that own them, the premium costs are such that only the well-off are purchasing them.  It sees the numbers to continue to grow, but not to the point “that the long-term care insurance market will experience the kind of dramatic growth necessary to shift a substantial portion of the long-term care financing burden from Medicaid and individuals to private insurance.”