Aging and the Law Final

Aging and the Law

Final Exam 2017

Directions: First copy the question and write your answer below the question. YOU MUST ABIDE BY THE DIRECTIONS. Late papers will NOT be accepted. NO EXCEPTIONS.Remember: DO NOT PLAGIARIZE. PLAGIARIZM is CHEATING. Good Luck!

I. Love and Marriage Among the Elderly

a. Explain the statement: “Medicaid cannot require a cohabitating partner to be responsible for the other partner’s medical bills.” (5 points)

II. Wills, Trusts and Estates:

a. Shirley, during her life, gives Joanna $30,000 cash to hold and invest for the benefit of Carl. The money is merely being held for Carl by Joanna in an account that is earning interest on the principal. Shirley still has control over the trust instrument and can change or cancel it at any time. This type of trust is known as a_________________________________________. (2 points)

1. What is an inter vivos trust? (2 points)

2. Who is the settlor of this trust? Who is the trustee? Who is the beneficiary? What is the corpus of the trust? (4 points)

3. Who will get the investment income from the principal of the trust? When Shirley dies, is the corpus of the trust a probate or non-probate asset? Explain. (2 points)

4. If Shirley becomes too ill to care for herself requiring her to move to a long-term care facility, are these assets (in the trust) protected for purposes of Medicaid eligibility? Explain.

(2 points)

5. Would your answer to #4 change if the trust were an “irrevocable inter vivos trust?” Explain. (2 points)

b. Jackie, in her will, leaves her 4 carat diamond ring to her daughter Karen. Upon her death, Jackie no longer owns the ring. However, Jackie stipulated in her will that if she no longer possessed the ring upon her death, Karen could select any item of jewelry from Jackie’s estate. Can Karen take a different piece of jewelry? Explain your answer. Are there any qualifications placed on this bequest? If Jackie did not stipulate that Karen could select any other item of jewelry from Jackie’s estate would Karen be the rightful owner of the 4 carat diamond ring? Explain. (Reference and define the legal term for this occurrence). (6 points)

III. Aging and the Law

Elder Law professionals counsel clients in estate/life planning. Acting as an Elder Law professional, based on the scenario below, answer the questions which follow regarding your client’s estate/life plan.

Billy calls your office on behalf of his father, Dan. Dan is recently widowed, 73 years old, in good health and active, but both father and son are concerned for Dan’s future. Dan has two other sons, Jon, age 40, and Rob, age 36, and one daughter, Nancy, age 31. Billy, age 38, is married with four children, all under the age of twelve, Jon is divorced with three children, ages 14, 17, and 19, Rob is single with no children, and Nancy is married with a new baby, 8 months old.

1. Now that Dan’s wife has passed, he does not know if he should stay in his permanent home located in Dobbs Ferry, Westchester County, New York. Dan has no mortgage on the house. Dan wonders if he should create a trust that allows him to continue to live in his home. Name and explain the type of trust to which Dan is referring. (3 points)

2. Dan has heard about reverse mortgages, should Dan consider a reverse mortgage? Define and explain. (3 points)

3. Dan is thinking about gifting his assets, during his life, to his children and grandchildren. If Dan wants to gift his children and grandchildren during his life, how should he proceed to do so? Explain how these gifts can be given during life without incurring any federal gift tax. If gift tax were imposed, who would pay the tax? (5 points)

Billy and Dan arrive at your office for a consultation. Dan brings to the consultation previously drafted financial and estate/life planning documents.

4. How would you proceed? What is an estate/life plan? Who is your client? (8 points)

5. Both Billy and Dan ask to be in the conference room as you discuss Dan’s financial and estate/life plan. How would you handle this situation? (3 points)

At the meeting, Dan produces a will and a power of attorney. The will does not name his wife as a beneficiary, it only names his wife as the executor and his son, Billy, as successive executor. The will leaves all his property, real and personal, outright, to his children and grandchildren, by representation. From your observation and discussion with Dan, it appears to you that Dan is of “sound mind and memory.”

6. What is the importance of this observation? (2 points)

Dan also has a durable power of attorney naming Billy as power of attorney.

7. Are these documents sufficient for Dan’s estate/life plan? Explain. (2 points)

8. What does it mean to distribute the property to his children and grandchildren “by representation?” (3 points)

9. Billy says that since he has power of attorney (POA), he has the power to draft Dan’s will for Dan. Is this correct? Explain. (3 points)

10. Billy also believes he can make health care decisions for his father. Is Billy correct? Explain. (3 points)

11. Dan also wants to be sure his pets are well provided for after his death. He presently has three dogs and is considering adopting a fourth dog from the shelter. Can he provide for his pets after his death? How? (4 points)

12. Dan’s best friend, James, has been seriously ill for many months with kidney disease. Dan would like to designate that upon his death he would like to donate his kidney to James, if James is still alive. Can Dan designate who should get his kidney? Technically, this is a testamentary disposition; that is, it takes effect upon Dan’s death; however, should this bequest be included in Dan’s will? Why or why not? (3 points)

13. Below is a list of some of the documents you should draft for your client.

Briefly explain each document. (Remember your client has no legal background; therefore, be sure to explain each document and its importance in terms he will understand). (Do not plagiarize) (10 points)

a. Last Will and Testament

b. Power of Attorney

c. Living Will

d. DNR

e. Health Care Proxy

14. Three months elapse and Dan calls your office. He would like to meet with you regarding the previously drafted documents. Dan arrives at your office two days later with Cecilia, his new girl friend. Dan would like to have a prenuptial agreement drafted. He wants you to explain a prenuptial agreement to Cecilia. Explain, in language Cecilia, who has no legal background, will understand. (Do not plagiarize) (2 points)

15. His fiancee, Cecilia, also wants a prenuptial agreement drafted. Cecilia does not have a will, therefore her estate would be distributed according towhat law in New York State? Should you draft both prenuptial agreements, one for Dan and one for Cecilia? Explain. (4 points)

16. How do you reconcile a prenuptial agreement and a surviving spouse’s right of election? (2 points)

17. How do you reconcile a prenuptial agreement and a surviving spouse’s rights under intestacy law? (2 points)

18. Based on the facts above, which court would have jurisdiction over Dan’s estate? Why? (2 points)

IV. Guardianship

1. Define AIP and IP. What are the duties of a guardian of an IP? (4 points)

2. If a guardian were appointed for the IP, does the guardian have the power to revoke the IP’s will, Power of Attorney, or Health Care Proxy/Agent, or DNR, or living will? Explain. (3 points)

V. Should Everyone Have an Estate/Life Plan? Explain. (4 points)

Extra Credit Questions:

1. Sources for Seniors:

Search the web: What kinds of services are provided for seniors in Westchester County, New York? (Include the website address or addresses)

2. Your responses to the questions below are greatly appreciated. Thank you.

a. What did you like most about this online class?

b. What did you like least?

c. How can this course be improved?

d. Additional comments: