Oldest of old 85 and older
Internationally oldest old 80 and over
24 countries have higher life expectancy then we do.
High rates of HIV
Elder law generalities
More likely fixed income
More likely to be incapacitated or legally incompetent then general population
Can be more susceptible/vulnerable to outside influences (many times caused by isolation)
Harder to go to meetings (more likely with single)
Health and disability issues
Difference between being patronizing or protecting
Peace of mind/priorities may be different then normal (long term insurance, passing on estate).
Worry about physical frailty, security, estate, how they are going to die.
Health care directive.
Hearing/vision issues (distracting noise, big print)
Ask questions to check assumptions. Not fit all elder law clients.
WHO is the client? Hypo- issues;
-joint clients coming in, make sure both are coming in of own free will
-if gifting something big/responsible doublecheck with that person
-competent
-what is their financial goals?
-health?
-family members cut out of will?
Primary goal as elder law attorneys is to improve life of our clients.
Medicaid planning; be careful that protecting assets doesn’t’ take priority over goal of bettering elder’s life.
Brantley case- serious discipline problems. Illustrates risk of serious disciplinary action very slim for all but must serious stuff, but still be careful sanctions not only issue.
Model rules of professional responsibility;
Doesn’t often apply to elder law. problems
-presuppose single autonomous client who comes in with legal problem is competent, will pay own fees. And client’s goals are him/herself and their finances.
Elder law;
-often come in as family/couple doesn’t have clearly defined legal problem, not always competent, sometimes fees paid by family. Goals are expanded to estate and family.
Better to use ACTEC commentaries (real estate and trust I believe).
MRPC-
Doesn’t define client.
Rule 2.2 allowed lawyer to be mediator (not in all states now)
1.6 (a) confidentiality of information.
1.7 current clients. Not use information to disadvantage of client.
Not draft will in which lawyer is beneficiary
(f) can’t accept compensation for representing a client from one other then the current client unless; 1. informed consent 2. no interference with lawyers professional judgment or lawyer-client relationship 3. information protected as in 1.6.
1.9 conflict of interest former client. Can’t (after) represent another person in same or substantially related matter if materially adverse to former client. (unless informed consent, in writing).
NALA own standards.
Rule 1.14 client with diminished capacity.
New rule; MN made it easier to take protective action on behalf of impaired client. Mandatory reporting of financial or physical abuse-usually to adult protective services.
For exam ask;
1. Who is the client? Who you decide and then who you say. (beware of confidentiality rules for nonclients).
a. who has the legal problem?
b. who benefits from proposed course of actions?
c. who needs special protection?
d. who made the appointment?
e. Who communicates with lawyer, attends meetings, makes phone calls?
f. who perceives themselves as clients? (if they are wrong send a nonengagement letter!!!)
g. who provides substantial information?
h. Who pays the bill?
i. who is the focus of the proposed action?
j. Who signed the retainer agreement?
2. what rules of professional conduct might be relevant?
a. client under disability?
-have client, starting to diminish; can go slowly
-singing client on with cognitive disability; bigger issue.
Professor opinion 1.14 gives more leeway to take on representation of client who has impairments, but doesn’t mean they can do documents.
Incapacity/disability definition; some lawyers use tests, some just say doesn’t feel right. Family thoughts.
1.14; must maintain a normal relationship to client as much as possible. Some jurisdictions prohibit from instituting guardianship proceedings.
3. other potential ethical problems?
a. joint/multiple representation;
husband and wife; yes, rules permit. Joint they are client. Multiple, must meet separately and treat as separate clients.
Parent and child; potential conflict more significant, with estate and inheritance and responsibility for elder.
Elder and fiduciary; even when represent fiduciary, still represent elder interests as well.
IN MN contact disciplinary board to ask what you can do.
OK to send one or both to someone else.
Engagement or nonengagment letter.
Instead of just withdrawing at problem, send to someone else.
RETIREMENT;
Public pensions;
Social security
SSI
Veterans benefits
- Employer-sponsored pensions-
- private employers-
i. ERISA;rules of participation, eligibility, minimum vesting standards, reporting and disclosure to govt. and to plan participants, funding standards, actuarial standards, fiduciary conduct, and past service liability amortization rules.
1. vesting; 5 years of service or chart from 3-7 years with percentage from 20-100.
2. amendments; COBRA, retirement equity act (protected maternity leave, spousal rights, lowered age for plan participation, Americans with disabilities act.
3. pension benefit guarantee corporation (now in hole)
ii. defined benefit- benefit is defined. Employer takes risk. Usually tied to earnings/length of service or both. Usually just employer, not individual accounts.
iii. Cash balance plan (defined benefit plan where each participant credited with dollar amount and at end lump sum” problem for older workers.
iv. defined contribution-specific amount goes in, employee takes risk. Usually benefit is % of employee’s salary or years of service. Sometimes employee contributions or match. Sometimes stock, 401k, profit sharing..
- govt. as employer
i. used to be nice pension, not as nice, but still good.
- Keogh plans; self employed individuals tax retirement act;
i. Defined contribution or defined benefit.
- Taxation §402; taxability of beneficiary of exempt trust. Amount actually distributed shall be taxable to distribute in year it was distributed.
- Distribution;
i. Lump sum (in one year)
ii. Annuity (usually once a month-for life)
iii. Penalities for early distributions
1. 10% excise tax if before age 59.5.
a. Are exceptions.
iv. Penalities for delayed distributions
1. no later then required date or high tax.
2. if dead, then no later then year after death. Unless spouse beneficiary then same as 1.
Private personal retirement oriented investments
- Traditional IRAs-if got taxable compensation during year then can contribute.(excludes pension payments, ss, unemployment)
- Spouse; no joint. Instead spousal traditional IRAs, limits in iRC § 219(c)
- Taxable (when distributed tax deferred contributions, or non-deductible IRA, tax deferred growth only)
- Subject to early 10% penalty (except medical insurance,higher education or first time homebuying)
- Roth IRAs- pay taxes going in, don’t pay taxes on distribution. AND distribution not included in taxpayers income. MAX contribution of 3,000. income ceilings higher then for traditional and no required beginning date for distributions.
- Other savings accounts and money in mattress.
- Rollovers-when assets are transferred from one plan to another plan. Different rules depending on which plan (see detailed outline page 30)
- Direct-from one plan to another
- Distributions-transfer through owner- usually time limit (60 days)
Public pension system;
-principal purpose is a public pension system to protect workers (wage/salary).
-SS based on work history and financed through payroll deductions and trust fund reserves.
-SSI based on characteristic (age, disability) + income criteria and financed through general revenues, no cola adjustments and congress could cut it.
-veteran’s based on nature and character of services, nature of disability and its connectedness to military service and financed through general revenues.
ISSUES:
Future insolvency of SS- reduction of working retired ratio
Fewer Private pension systems
Decreased personal savings
Long term interest rates/market uncertainties
Federal budget deficits
Special problems;
- Amount of benefits/poverty (poverty guidelines; 9,800 a year).
- Retirement/income tradeoff- if under full retirement age, then income reduces SS benefits.
- Taxation of benefits-tax rate on SS benefits if you work is very high.
- Reduction of benefits
- Disabled elderly-access to disability benefits?
- Women
- Minority populations
- Used to be if got minimum for ¼ of year got credit, now have to earn certain amount, but can only get 4 credits a year.
- Need 40 credits to get SS.
- Multiple employers in single benefit period (because taxed on amount under 94,000 for each employer, then have to file for refund).
- Self employment and nanny problem (babysitters, cleaning people, drivers, health aids, private nurses, domestic workers etc. value of actual worker is 40% higher then indp. Contractor –benefits). Indepdent worker must pay (15.3% social security, private health insurance, other benefits).
- Taxation of benefits- depending on beneficiary’s total AGI (minimum amount 25,000 single/ 32,000 if married filing jointly), portion of SS benefits may be taxable. Depends on total income and marital status.
- Reduction of benefits based on separate earnings; only applies to benefits before full retirement age. Only to earned income.
- Under full retirement age, 1$ in benefits deducted for each 2$ earned above limit (2006-12,480).
- For year of full retirement age, 1$ in benefits deducted for each 3$ above 32,240/ 2006. until month beneficiary reaches FRA.
- After full retirement age, benefits with no limit on earnings (earnings must be earned income).
- Earnings limit money taken away from benefits the next year-can get hardship waivers
- Alienation of benefits; nature of social security program intended to keep poor out of poverty. So not within reach of creditors. BUT can be garnished to pay child support and after death goes to estate and estate can be used to pay creditors.
*must amend ss statement in 1 yr or can’t
SOCIAL SECURITY; generally; COLA cost of living (automatic for SS, not for SSI)
- SS (ss fund) –
- Taxing income; maximum amount taxed around 94,000 for SS, but medicare tax no limit. Credits earned by amount of money 920$ (4 a year max). If two employers in single year, must pay under both (until 94,000) then get refund at end of year, but must apply for it.
- Independent contractor test/exception; if pay household employee more then 1500 a year (2006), then must pay ss. If more then 600 then must file, but don’t have to withhold.
- Worker benefits- entitled by 62, but full retirement age is higher. Benefit calculated by average of 35 years highest wage. (O for each year you didn’t work) Have to be retired (substantial services test>45 hrs presumed not retired,,15> presumed retired).
1. how many credits has this person earned? (need 40 for benefit).
2. if no, eligible based on someone else’s work history
3. if yes, is her benefit based on someone else’s work history higher?
4. what is benefit? (35 highest years of wages)
5. what is eligibility age? 62, full retirement 66-67(born 1960..).
6. if taking early, how much benefit reduced by?
7. if taken later, how much increased by?
8. if working (EARNED INCOME), how much benefit reduced by?none if full retirement age. If under; 1$ deducted for 2$ earned above 12,480 (2006). Less for the year you reach full retirement age.
9. max. 2,053. steady minimum wage earner 721. (more or less if 6 and 7)
10. benefits taxed? Only if additional income. Yes, if income higher then 25,000 (single) 32,000 (married).
- Actual benefits
i. Average SS payment is 1,000.
ii. Benefit to lifetime minimum low wage worker is 500$. Not enough to keep out of poverty.
iii. Highest lifetime benefit if delay getting until 70, little over 2,000.
- Spouse/dependent benefits
i. Spousal benefits not available until spouse applies. About ½, if spouse takes early your benefit reduced.
ii. Dependents if unmarried, under 18. under 19 but in public school, 18 or older and severely disabled (started before 22).
- Survivor’s benefits;
i. Full benefits at full retirement age (100%), or reduced (71-94%) as early as 60 (unless remarried). Disabled early as 50.
ii. Also ok any age, if takes care of deaceased child who gets ss.
iii. Ok at any age if unmarried child under 18 or up to 19 if in elementary/secondary school full time. (75%). Sometimes stepchildren, grandchildren or adopted children.
iv. Child can receive benefits at any age if he or she was disabled before 22 and remains disabled.
- Divorced spouse;
i. Not remarried, spouse has to qualify, divorcee has to be;
1. Married to spouse at least 10 years
2. At least 62 years old
3. Unmarried
ii. Can get survivor benefits to.
iii. About ½ of original spouses benefit- not penalized if original spouse takes early.
- Legal process; 42 USC § 407 provides that social security payments are not subject to garnishment or other forms of legal process.
i. Except disability can be garnished to pay child support and ok after death.
- SSDI-disability benefit for workers who can no longer work.
i. Disabled, blind or elderly
ii.
iii. Have to live in US
iv. Have to apply for other benefits available.
v. Must have work history that corresponds to age. Payments pretty generous average payment is 944.50
vi. Must be income eligible
1. exempt;
a. first 20 personal needs
b. first 65$ from working
c. then ½ of additionl income you earn from working (to limit).
d. Value of food stamps
e. Shelter from private non-profit organizations
vii. Must be asset eligible.
1. can’t have more then 2,000 single or 3,000 married.
2. exempt;
a. value of homestead
b. life insurance policies of 1,500
c. one car
d. clothing and household
e. burial plot
f. burial funds (up to 1,500)
viii. basic benefit; 635 single, 934 married, some states supplement
- Fairness issues; lower wage and amount of years worked for women and minority populations. Also for lower life expectancy pop (native American) not as fair and discrimintation.
- SSI- poverty program, general fund
- Assures fairly modest income to persons disabled blind or elderly.
- Criteria
i. Disabled or elderly (65 +)
ii.
iii. Live in US
iv. Have to apply for any benefits available to you (ss for example)
v. If qualify then automatically qualify for medical assistance.
vi. Income eligible
1. total income from all sources then take away
2. first 20$ (personal needs allowance)
3. first 65$ from working
4. than ½ of additional income earned from working (up to limit)
5. value of food stamps NOT counted
6. Shelter you get from private nonprofit organizations not counted, but if family counted.
7. then take the amount you are left with and add X to bring income up to certain minimum (X is your SSI benefit).
vii. X=benefit, X= 635 single, 934 married, some states supplement
viii. Asset eligible
1. count;
a. bank accounts
b. cash
c. real estate
d. liquidation value of stocks and bonds
e. most trusts count, be depends on availability
2. don’t count- here is where family can help without affecting benefit.
a. life insurance policies of 1,500 or less
b. one car
c. clothing and household
d. burial plot
e. burial funds (up to 1,500)
3. can’t have more then 2,000 in assets if single, 3,000 if married couple applying.
4. if left with more then that, then spend down. But can’t transfer assets without getting compensation back.
- FICA-federal insurance contributions act; law that requires you to pay in
- 12.4% to OASDI/Social security /6.2% to employee, 6.2% to employer(self employed must pay, but may deduct this part of tax)
- 2.9% to Medicaid
- 15.3% total.
Other public pension systems; (all system
Means tested social welfare
“egalitarian” social welfare
US
More you put in the more you take out.
Combination
Medicare;
B-now flat rate (maybe 100$), starting in 2007 will have to pay more if make (as couple) over 180,000.
D-prescription drug benefit
VETERANS BENEFITS (general fund)
As reward for service to nation. Depends on the service and the disability. Sometimes families can get too.
Retirement (for career military) example 50% salary after serving 30 years
Health care-veterans home, VA hospital, prescription drug program
Disability benefits for service related disability
Burial benefits
Sometime survivor benefits
Poverty (need based) must have served at least 1 day during wartime
Planning for retirement;
1. Employer based pension plans.
a. Unions started their own, but when market crashed they fell apart.
b. Then unions began to negotiate pension plans with employers through collective bargaining, first plans (1920) pay as go, didn’t work.
c. 1942 new tax code. To qualifty for stautory treatment of employer contributions under new code plan required;
i. For exclusive benefit of employer’s employees or their beneficiaries
ii. Purpose of distributing the corpus and income to employees
iii. Impossible for employer to use or divert fund before satisfying plans liabilities to employees and their beneficiaries
iv. Nondiscriminatory as to extent of coverage.
d. ERISA 1974- Employee Retirement Income Security Act
i. New requirements including rules of participation, eligibility, minimum vesting standards, reporting and disclosure to govt. and to plan participants, funding standards, actuarial standards, fiduciary conduct, and post service liability amortization rules.
ii. Applies only to private plans (except church)
iii. Amendments
1. 1978 SEP-IRA pension alternative for small employers. Added 401k. making employee contributions to employer-sponsered thrift plans tax deferred.
2. 1981 economic recovery tax act of 1981, emphasized tax deferral incentives to promote saving. Increased ceiling on KEOGH plans and IRA
3. 1984 retirement equity act. Menat to address variety of issues of special concern to women. Protected period for maternity leave, lowered age for plan participation, certain mandatory spousal rights in pension plan.
4. 1985 COBRA requiring sponser of group health plan to make continuation coverage available to certain employees, spouses, ex spouses, dependents and others for periods up to three years after coverage might otherwise cease.
5. 1986 tax reform act –reduced top brackets of income taxation (1993-restored top bracket)
6. 1990 Americans with Disabilities Act (ADA) prevents discrimination against disabled persons in provision of pension or health insurance benefits.
7. 1997 roth IRA
8. 1998, IRS restructuring and reform act- clarified rules governing IRAs
9. 2001 economic growth and tax relief reconciliation act, increased contributions that can be made to defined contribution plans and 401ks. Increased benefits that can be paid under defined benefit plans, increased contributions that can be made into IRAs, changed rules governing rollovers and changed rules governing taxation of benefits.
10. 2002 job creation and worker assistance act, technical corrections to EGTRRA (economic growth and tax relief reconciliation act)
2. Types of pension plans;
a. Defined benefit plan.
i. Employer bears risk-pension benefit guarantee corporation, which is now in hole.
ii. Not contributory, no individual accounts
iii. Benefit is from specific formula,
1. flat benefit formula (dollar amount for every year of service)
2. career average formula (earn percentage of pay each year, or average yearly earnings over time of participation).
3. final pay based on average earnings during some last years of work (usually five).
iv. Cash balance plan. Defined benefit plan where each participant has account credited with dollar amount that resembles employer contribution, generally determined by % of pay. Then each account is credited with earned interest. This plan provides benefits in form of lump sum or annuity (problem for older workers).
b. Defined contribution plan
i. Employee bears risk
ii. Employers make contributions to accounts set up for each employee. Current contribution is defined, but not level of benefits. Sometimes employee contributions.
1. savings or thrift plan-employee funded
2. profit sharing plan- provides for contributions of employer based on profits for a year (no obligation).
3. money purchase pension plan, employer contributions mandatory
4. employee stock ownership plan- ESOP tax qualified employee benefit plan, shares stock.
5. 401k arrangement- coda employee elects to have some portion of salary contributed to plan, treated as pretax reduction in salary (private only- public is 403(b)) best of all possible worlds.
c. Vested or NON vested pension plans;
i. Non vested where employee has not completed required years of creditable service in order to earn right to receive benefits under terms of plan. Usually 3-10 years.
ii. Vesting is when employee has completed required number of service needed to receive benefits under plan at some point in the future. ERISA has specific vesting rules (if you want to get tax benefits from their program).
d. ERISA vesting rules; (§203, 29 U.S.C. §1053). OK if
i. Employee who has completed at least 5 years of service has nonforfeitable right to 100% of employees accrued benefit from employer contributions. or
ii. Employee has nonforeitable right to percentage of the employee’s accrued benefit from employer contributions under following table.
1. years of service, nonforfeitable %.
2. 3, 20
3. 4, 40
4. 5, 60
5. 6, 80
6. 7+, 100
FOR FINAL, just know basic architecture of options
e. Self employed individual tax retirement act 1962 keogh plans (either defined contribution or defined benefit). Also called self-employed pension.
f. Increasing participation in pension plans. Defined benefit going down, defined contribution participation going up.
g. Taxation-
i. 402.a- taxability of beneficiary of exempt trust. (what is actually distributed in year it was actually ..)
h. Pension distributions
i. Annuity distrubitions- paid in regular payments (usually for life)
ii. Lump sum- all in one year
iii. Rollovers …
i. Penalties for delayed distributions
i. No later then required beginning date (then 50% tax)
ii. For required beginning date see p. 249 of book. If dead, no later then year after (year of participants) death. Unless spouse is sole beneficiary , then ok until dead person hits 70.5. if no designated beneficiary then automatic 5 year rule.
3. private savings
a. Traditional IRAs
i. If get taxable compensation during year then can contribute, (not pension payments, SS or unemployment compensation).
ii. no joint iras for spouse (spouse ira if doesn’t qualify for own, IRC 219(c)
iii. taxable when distributed (unless from taxed income then get some break)
iv. 10% early penalty tax (unless medical insurance if ind. Unemployed, higher ed. Expenses of person, spouse or dependent, or up to 10,000 for first time home buying expenses of person, spouse, ancestor, descendant>
v. Minimum distribution rules and 50 % tax if fail to comply.
vi. Two kinds; deductible or nondeductible.
1. deductible is tax deferred contributions and growth
2. nondeductible is tax deferred growth only, (you pay contributions from after tax income).
b. Roth IRAs
i. Pay taxes going in, but don’t pay taxes on distribution (and distribution not included in taxpayer’s income). Max contribution of 3,000/year. Income ceilings higher then traditional roths (no required beginning date for distributions).
c. Rollovers
i. Direct- when assets are transferred directly from one plan or IRA to another plan or IRA.
ii. Distributions- assets are transferred to plan participant or IRA owner who then transfers them to second plan or IRA.
d. Rollovers from pension funds
i. Distributions ineligible for rollover; if required under minimum required distribution rules and if in form of annuity for lifetime( joint lives or 10 yrs+)
ii. Rollover distribution; completed in 60 days. Subject to income tax withholding at 20%. Then treated as refundable credit on taxpayer’s return for that year (so have to come up with other funds for that year).
iii. Direct rollovers; erisa requires plans to permit eligible distribution to any eligble retirement plan, but doesn’t require plans to accept direct rollovers.
iv. Amounts that can be rolled over. Distribution from pension plan can be rolled over into defined contribution plan by direct rollover, traditional IRA by direct rollover or rollover distribution.
v. Who? Only distributions to employee may be rolled over (sometimes after death, spouse can)>
e. Rollovers from IRAs
i. Distributions ineglible for rollover; minimum required distributions can ‘t be rolled over.
ii. Traditional IRA-Traditional IRA. Ok if within 60 days, no withholding. Unlimited direct, 1 per year for rollover distribution.
iii. Roth IRA to Roth IRA, ok if within 60 days, no withholding, same limits as above.
iv. Traditional IRA to pension plan. Ok within 60 days if all funds are attributable to rollovers from pension plans. (known as conduit IRAs).
v. Traditional IRAs to Roth IRA. Yes if income doesn’t exceed 100,000 and not married filing seperatly. Treated as distribution and taxable under standard rules, but no early penalty of 10%.
4. Property management
a. Reasons for plan
i. Future incapacity
ii. Tax issues
iii. Planning for long term care
b. Other issues/depending upon client;
i. Single, married, committed relationship
ii. Age and stage of life
iii. Ethical issues (especially when relinquishing control of own property)
iv. CAPACITY;
1. presumption of capcity
2. level needed depends on document
a. will (low threshold)
b. powers of attorney
c. health care directive
d. deed
e. trust
f. sale of land (high capacity)
g. other contracts
3. minor can’t enter into binding contract. minor can’t enter into health care directive.
4. determining;
a. check statutes and case law for level needed
b. generally person has to understand nature and objects of her bounty (possible heirs, extent of wealth etc.) and be able to make some decision that she wants property to go here or there.
c. Capacity can be temporary or come and go
d. TEST EVERY DOC, EVERY CLIENT
e. Medical def. of capacity different. Then legal.
f. Lawyer can use, talking, measures, mini-mental, best judgment, if you can sleep. If questionable then send person of do be evaluated.
g. Take notes, but confidential unless doc contested in adversarial setting.
c. Types of planning (least restrictive to most restrictive)
i. Delegation of powers of authority
ii. Powers of attorney, advance directives for health care
iii. Forms of property ownership that affect rights to sell or pass on. (joint tenancy with right of survivorship ex.)
iv. Trust, legal entities that actually own property, but managed for the benefit of the settler or third party beneficaiaries.
v. Guardianship/conservatorship, third party assumes exclusive legal authority over persons financial or personal affair. .( Some states conservators can change will)
vi. Plenary or limited
1. MN adopted uniform standards
2. guardianship , must be incapacitated
3. conservatorship, can’t manage money/bills
d. durable powers of attorney for property
i. needs lots of trust
ii. principal; party conveying authority to another
iii. attorney in fact, agent; party given authority to act on behalf of another.
iv. Can be limited in time or function
v. Only used for property management, not for health care
vi. Three kinds
1. durable-survives incapacity of principal, but not death.
a. In MN called statutory durable POA. (long power of attorney-free form)(short statutory form). Can use both for two separate agents.
2. springing- bad idea. Comes into affect when something happens usually incapacity. But quagmire about who determines. Always question about validity of doc. DON”T DO THIS (instead springing in fact, put in safe deposit box or keep with lawyer)
3. common-law; nondurable only valid as long as principal competent
vii. principal must be competent when execute and cannot revoke when incompetent. Competent test; ability of principal to understand nature, scope and extent of business she is about to transact.
viii. Formalities
1. in writing and signed by principal.
2. also usually 1-2 witnesses (professor says do 2 then valid everywhere)
3. notary
4. statutory notice (at top of doc, that giving away rights etc.)
5. information of drafter (name, address,,,)
6. filing/registration requirements (depends on jurisdiction)
7. consider laws of other jusridictions (other states where hold land, have business or travel to regularly)
ix. attorney in fact requirements
1. competent adult
2. client should consider
a. ability of proposed AIP tp carry out financial activities
b. trustworthiness
c. limits on gifting powers (or not)
d. other considerations
x. scope of power
1. state law governs
2. powers must be enumerated in doc (some cross off, some say mark).
3. special issues;
a. payment of attorney in fact
b. means of revocation
c. accounting
d. gifting- first 10,000 to person not counted for taxes. IRS says gifts are reocable transfers and in estate. (depends on jurisdiction)
e. can separate powers with more then one power of attorney
f. alternative agents (or co-agents)
xi. revoking;
1. by written revocation of principal
2. death of principal
3. might require notice to third parties if revoked
xii. nature of fiduciary obligations of attorney in fact
1. best interest (as AIF perceives)
2. stand in shoes (do as principal would do)
3. mixture?
4. conflict of ethical problems;
a. should attorney draft poa naming self as AIF? Safer to send to another attorney.
b. Should attorney named as AIF in springing power, also be person to determine competency?
c. Can attorney who serves as AIF gift property to herself?
xiii. Conflict with other documents;
1. wills-
2. guardianship depends on state (in MN conserators can change power of attorney).
e. Joint ownership and joint accounts
i. Joint tenancy- each tenant owns undivided interest in entire property and right of survivorship (depends on state law if can transfer with strawman to convert to tenancy in common). judicial partition.
ii. Tenancy in common. each tenant owns an undivided interest in a portion of the property. interest passes to beneficiary or heirs. Each tenant can sell freely.
iii. Tenancy by entiretly (1/2 states) joint ownership between spouses. Can be used to avoid probate, because of right of survivorship, but one spouse acting alone generally cannot partition or transfer interst.
iv. Joint bank accounts
1. easy to deal with incapacity issues
2. rights during lifetime, belongs to parties in contribution of deposits. If married rebuttable presumption equal amount.
3. rights at death. Sums belong to surviving party. can extrinsic evidence be used to prove presumption of survivorship contained in standard form for joint tenancy account. Usually presumption joint tenants entitled to survivorship right. But may be rebutted.
4. distinguish between ownership and access.
v. Reach of 3rd parties;
1. creditors, tenancy by entirety cannot be unilaterally partitioned by one spouse. Also protects money from creditors. MN homestead exempts certain amount of money from creditors.
2. gift taxes. If gift is complete then gift, if any reserve power then not gift.
3. estate taxes; gross estate includes entire value of
a. joint tenancy with right of survivorship
b. tenancy by entirety
c. deposit of money, bond or other instrument in name of decedent and any other person and payable to either or survivor
d. exceptions; property for which decedent did not furnish all consideration
e. property acquired by gift, bequest, inheritance
f. property held by spouses
g. where decdent had only nominal interst
h. joint accounts; not good unless married, risk and survivorship rights consistent with marriage not so with others.
vi. Care contract in exchange make daughter joint tenant for joint tenancy with rights of survivorship?
vii. Transfer on death deed. Very handy not many jurisidictions. “at instant of my death property I own in fee simple too”before will kicks in . law decides if for cars/houses etc.
f. Agency accounts
i. where agent is authorized to make transactions on an account. Writing signed by all parties, death termiates autority. Agent has no beneficial right to funds.
1. bank must pay to agent and that discharges any duty of bank (unless notified)
2. durable power of attorney bettern then joint account.
3. no can create agency account that may survive incapacity-confusing form.
g. Revocable trusts; (p. 42 of detailed outline)
i. Reasons for traditional trusts
1. Tax benefits
2. Ensure that irresponsible or immature heir doesn’t get direct access to inheritance.
ii. Supplemental needs trust/ special needs
1. allows income to be held in trust for elderly of disabled person so that they can qualify for public benefits such as medical assistance (not considered assets for those benefits). By statute.
iii. Can be revocable or irrevocable
iv. Uniform guardianship and conservator act’s version of custodial trust below
1. legal entity that holds property for benefit of another (usually but not always a natural person).
2. created through docs that establish trust and names the entities who a. manage trust b. benefit from trust.
a. For UCTA trust must conform to certain principles sect. 2
b. then must put property in it!!
3. Uniform trust code §602-revoking
a. (a) unless terms provide trust is irrevocable then settler may revoke or amend.
b. (c)may revoke or amend by
i. Substantial compliance with method provided in terms of trust or
ii. If terms of trust do not provide method, then; a later will or codicil that expressly refers to the trust or specifically devises property that would otherwise have passed according to the terms of the trust; or
iii. By any other method manifesting clear and convincing evidence of the settlor’s intent.
a. custodial trusts and uniform custodial trust act.
a. Designed to provide a statutory standby intervivos trust for indididuals who are typically not very affluent or sophisticated and possibly represented by attorneys engaged in general rather then specialized estate practice. Most frequent use is elderly, but also could be sued for adult child incapacitated, adult persons in military or those leaving country temporarily.
b. Allows any kind of property, real or personal tangible or intangible to be made the subject of a transfer to a custodial trustee for benefit of a beneficiary.
c. Appropriate for enactment as well in states which have not adopted either UTMA or the UPC.
d. Adult beneficiary who is not incapacitated may 1. terminated 2. receive so much of income as she may request 3. give custodial binding instructions for investment.
e. In absence of direction, custodial trustee manages property subject to standard of care.
f. Incapacity of beneficiary does not terminate 1. custodial trust 2. designation of successor custodial trustee 3. power or authority of trustee 4. immunities of 3rd persons relying on actions of the custodial trustee.
g. Adopted in MN
h. Methods of making custodial trust
i. Transfer in trust. Written transfer directing transferee to hold property as custodial trustee under UCTA. Transfer must designate a beneficiary and transferor is authorized to name himself as successor.
ii. Written declaration, describes property, names beneficiary, indicates declarant holds property as a custodial trustee under UCTA. But here, property owner can’t be sole beneficiary.
iii. Springing. Custodial trust effective upon occurrence of that future event. Must be in writing and clearly indicate that property is to be held in custodial trust for named beneficiary.
iv. Other methods can be ok, but not necessarily.
v. Acceptance of custodial trust property triggers trustee’s duties.
vi. Legal title to property is in trustee. Beneficiary of custodial trust has only beneficial interest in property.
vii. Cn’at have successive interests.
viii. If beneficiary competent then trustee must follow their directions (acting more as agent).
ix. If beneficiary incapacitated then trustee does not have to follow power of attorney. Trustee is authorized to use trust property as the trustee considers reasonably prudent for the use and benefit of the beneficiary and individuals whom the beneficiary supported and those legally entitled to beneficiaries support.
x. Trustee provided with broad powers.
h. Generally revocation
i. beneficiary delivering writing to trustee indicating intent to revoke
ii. automatically upon death of transferor.
iii. Settler has power to revoke if trust doc. Give him/her that power.
iv. Destruction of doc. Doesn’t revoke
i. General Trust creation.
i. Elements
1. proper intention to do so
2. must make inter vivos or testamentary transfer of trust property to trustee (for trust can be made by property owner’s declaration that certain of the declarant’s own property is now held by the declarant in trust for one or more others or for both the declarant and others. Sometimes created by contract even before transfer. (contract, insurance, retirementplan beneficiary designations)
3. no consideration necessary. but must intend to be immediate trust.
4. if interest in land, SOF require creation be man ifested and proved by written instrument.
5. if will-testamentary trust, then necessary to satisfy requirements of state’s statute of wills.
6. UTC
a. §401-methods of creating trust
b. §407 evidence of oral trust
c.
ii. terminology
1. settler/transferor; person creating trust
2. trustee; person/entity charged with managing trust
a. duties; UCTA section 7
b. obligations respecting trusts assets; UCTA section 8-9
3. beneficiary; person/entity benefiting from trust.
iii. Who holds assets held by trust
1. legal ownership; trustee has
2. beneficial ownership; beneficiary has
iv. tax treatment;
1. ordinary income and capital gain in trusts are fully reportable on grantors individual income tax return.
2. IRC §2038 if trust revocable, then principal of trust is included in estate. (hard to write one that is excluded).
j. Revocable trusts and the reach of creditors
i. During settlor’s lifetime.
1. restatement second of trusts §156 rule; where a person creates for his own benefit a trust with a provision restraining the voluntary or involuntary transfer of his/her interest.. creditos can reach (the trust estate)”.
a. Leach v.
ii. After settlor’s death
1. used to be cases favored heirs, but change in policy now favor creditors. Some state legislation.
k. Revocable trusts and Medicaid,
i. Using revocable trusts to shield assets during lifetime of Medicaid recipient. Corpus of trust is considered resource available to individual for determinaing Medicaid eligiability. And any income that could be generated is considered as well.
l. Governmental claims on assets of Medicaid receipient after the recipient’s death; the case of assets in a revocable trust.
i. In some states; Cost of medical assistance provided to reciepient becomes debt of reciepients estate or estate of recipient’s surviving spouse. Vary by state.
ii. But assets exempt during life, remain exempt after death (for life of spouse, until beneficiary has no surviving child under 21 or son long as the recipients child is blind or disabled. P. 307
m. Revocable trust as an alternative to guardianship.
i. Emotional and financial costs to guardianship, trust not so much. Good alternative.
n. Revocable trust as an alternative to the durable power of attorney
i. Cost is more of trust. And need attorney, but also higher possibility of abuse. Important if use attorney in fact, define role particularly.
o. Revocable trust as will substitute
i. Four main substitutes-which when properly created same as will.
1. life insurance
2. pension accounts
3. joint accounts
4. revocable trusts
ii. not much difference, except trust would be easier for client who owns estates located in more then one state.
5. guardianship/conservatorship
a. general- varies upon jurisdiction and court/judge. mn guardian can override preplanning (like health care decision). No uniformity.
b. Reason- mostly alzheimers
c. Terms
i. Alleged incompetent person (AIP)/respondent
ii. Ward(guardianship) conservatee (for conservatorship). Used once court made judgment that guardianship is warranted.
iii. Guardian-
iv. Conservator
v. Petitioner- seeking apt of guardian for AIF (person who files petition)
vi. Protective proceedings- involving apt of conservators not guardian.
6. types;
a. plenary –complete legal authority over ward. Ward loses virtually all personal and legal rights.
b. limited- guardian’s authority limited to functions described in letters of guardianship.
c. Conservatorship- limited to financial matters.
7. role of guardian ad litem
a. Mn calls visitor. (some jurisdictions no right to counsel, this replaces)
b. GAL serves as advisor or informer to court regarding AIP’s need of guardianship.
c. Officer of court, doesn’t serve AIPs needs
d. Not advocate on behalf of ward
e. Gal never becomes appointed guardian.
f. Lawyers can be Gals, but don’t serve as lawyers
g. Can be professional guardian. (national guardianship association, just have to pass tes)
8. state law
a. no fed. unless veterans (then they have to be notified)
9. disadvantages
a. expensive not uniform, impersonal,
10. advantages
a. matter of survival, isolated elders without family, limited, substitute for power of attorney
11. guardianship proceedings;
a. fiction of protection
b. bifurcation process
i. determination of incompetentency
ii. appointment of guardian or conservator
c. procedural requirements
i. article 3 of uniform guardianship and protective proceedings act.
1. anyone may file
2. jurisdiction (mn probate court)
3. and venue (legal domicile of respondent or residence or districts having interest in proceeding) promotes forum shopping.
ii. No interstate rules, nothing fed. lots of conflicts.
d. Phase I
i. Notice and service of process (requires personally served on respondent-)(notice must be given to persons listed in petition, but failure doesn’t preclude guardianship).
ii. Ct appoints visitor
iii. Motions and discovery
iv. Rights of AIP depends on jurisdiction
1. right to be present –should be constitutional
2. right to counsel depends on state
3. right to guardian ad litem, depends on state
4. right to evaluation- depends on state if can get and weight judge will give, costs imposed on incapacitated person, battle of experts
5. rules of evidence apply – depends on judge/jurisdiction
6. right to cross examine, usually not always
v. adjudication of incapacity
1. standard-
a. status focus standards(based only on status, old age, deteroioration of mentality, most states don’t use.
b. Functional standard, objective behavior evidence of functional limitations in daily activities
2. burden of proof- legal presumption of capacity
a. most jurisdictions clear and convincing
3. findings of fact/conclusions of law- written, can appeal.
e. Phase II
i. Appointment of guardian
1. minimum qualifications; adult, not related to responsdent (statutes have rest)
2. ward has legal status of child, modern trend is to make power in limited terms.
3. guardian can delegate duties
4. usually guardian can’t alter will, trusts, health care directives (not mn)
ii. duties of guardians
1. fiduciary duty of guardian to ward (statute will say one of following)
a. continuing pattern (substituted judgment) do things as ward was doing them.
b. Best interest, guardian decides by best interest, most popular
c. Substituted judgment, modern way to say continuing pattern.
2. fiduciary duty of conservator
a. compensation – depends on order, some jurisdictions family no.
f. dissolution/revocation
i. Revocation by restoration- of capacity
ii. Continues until terminated, even if ward/guardian moves
iii. Death terminates
g. Ethical issues
i. Would fight make worse, is worth it
ii. Can it be done with power of attorney etc.
iii. If clients lawyer wants to petition, have client get another lawyer
12. elder abuse;
a. triggering factors who must report
i. Depends on state.
ii. MN says 1. engaged in social services, 2. health professions
iii. Very few obligations if not mandatory reporter and risks if pursue.
iv. If made in good faith, protections from statute
v. Defense to defamation is truth
vi. Attorney for agent (power of attorney) has obligations to signer.
b. Some states need permission of joint tenant for certain accounts to sell or give to another joint tenant.
c.
13. Health care
a. Private mostly
i. Usually through employer
b. Medicare- payroll tax-
i. Who; elderly, disabled
ii. part A-hospital benefit
1. automatically when turn 65
2. covers short term stays in long term care
a. limit is 100 days per spell of illness (home for 30 days for new spell)
b. have to be in hospital 3 nights
c. is co-pay (912$)
3. skilled nursing care first 20 days fully covered. Days 21-100, co-payment (105$ per day in 2003) required. After 100 days Medicare pays nothing. Beneficiary is responsible for fees to cover first three pints of non-replaced blood per calendar year. (option to pay or have blood replaced).
a.
iii. medigap policy (A-K) a is lowest, each package is better and costs more. MN called medicare supplement.
1. designed to cover costs not covered by medicare
2. 6 month window must apply within 6 moths of enrooling for part b benefits or can reject based on medical condition.
iv. Part B-medical insurance-premium financed
1. Covers
a. Visits for acute injury and follow up
2. Doesn’t cover well care coverage/preventive medicine
3. Eligibility on work history. (can get without work credits, but have to pay extra premium when sign up)
4. to sign up, have to enroll, pay premium per month. If don’t sign up 60 days before 65 then can next enrollment, but pay penalty.
5. SMI- beneficiary’s payment share is; one annual deductible (100$), monthly premiums; co-insurance payments for SMI services (usually 20% of medically allowed charges); deductible for blood; payment for anything not covered by medicare.
6.
v. Part c
1. different way of getting medicare HMO
vi. part D-prescription drug program
1. financing from general revenues/cost estimates way off
2. prohibition in law restricts center for medicare for negotiating for lower drug benefits
3. plans
a. stand alone-separate benefit offered by health care providers or prescription drug co.
b. managed care plans-part of broader package of medicare benefits.
vii. General
1. cost of medicare increasing and in worse danger then social security
2. 42 million medicare beneficiares
3. managed care alternative not popular (unless states require, for those on Medicaid)
4. providers don’t like either, starting to turn away or treat different patients on medicare.
5. Does not cover long term care (average cost per year 75,000) (only medical part of it (not room/board/custodial components).
6. provider payments are fixed amount based on patients diagnosis.
7. under medicare managed care, provider gets fee per person and usually preventative care covered.
c. Medicaid-poor (MN called medical assistance)
i. Financed by general fund
ii. Medicaid waiver (states want to pay for more services or reduce requirement etc. mn made possible to get certain care in home instead of institutionalized, ex. Income waiver for traumatic brain injury.
iii. States don’t have to have Medicaid (but then don’t get fed. money-
iv. Income limits very low. If qualify for SSI then qualify for Medicaid.
v. Substantive benefits
1. qualify get everything,
a. doctor visits
b. prescription drugs
c. if can find provider who accepts Medicaid
d. and patients on Medicaid get treated differently.
e. Pays for long term care
f. MN state law and some others says can’t charge Medicaid and normal patients diff for service.
d. Dual eligibles- part D
i. People on Medicaid could get drugs they needed no copay,
ii. But now with part d, medcaid has to get drugs through part D
iii. But can only be in plans where price is lower then average cost of all plans.
e. Fixes/problems
i. Fix- Categorize each part d plan so same each year.
ii. Problem uses resources each year
iii. Problem donut hole
iv. 
v. Penalty if don’t sign up for D when eligible, then do later (about 1% a month)
14. long term care insurance
a. tax incentives for
b. Benefits not subject to fed. income tax
c. Can deduct unreimbursed care that is greater then 7.5% of adjusted gross income
d. Can deduct portion of long term care premiums for qualified plan based on age, if have unreimbursed medical expenses greater then 7.5 % of adjusted income (most people don’t make that ).
15. medicare and Medicaid
a. Medicare pays first, Medicaid last resort.
16. Medicaid;
a. Depends on state.
b. But generally if qualify for SSI, ok for Medicaid; qualify;
i. Entitled to part A
ii. Financial resources not more then 4,000, or 6,000 (couple).
iii. Monthly income is at or below certain level. 691$ or 925$ couple. QMB (pays medicare premiums, deductibles, and coinsurance.
iv. Less then 825$/1,105 SLMB (pays part B premium).
v. 926/1,241 (QI-1) pays for medicare part B premium.
vi. 1,194/1,603 QI-2, small part of medicare part B premium.
c. medical need.
d. Income test
i. (states with cap; usually cap is at 300% of SSI and some lower, 1993 omnibus reconciliation act, miller trusts.)
ii. (states w/o income cap, cost of care needs to be more then income)
e. Resource test; cannot retain over 2,000 in nonexempt resources.
i. exempt;
1. home
2. car
3. household goods, family keepsakes, memorabilia
4. life insurance (1,500 death benefit or less)
5. real property, equipment or materials used in income producing trade or business.
6. Irrevocable burial plans.
ii. non exempt
1. cash assets
2. cash value of life insurance policies if person or spouse is owner
3. resource as beneficiary of grantor trust made before …
4. trust created after 1993, if benefit of individual/spouse if revocable, or if irrevocable, and discretion of distributions.
5. Fair market value of real estate other then home
17. Spousal impoverishment.
a. Division of assets modifies resource test in context of well spouse remaining in community. Spouse retains all exempt property. nonexempt pooled and shared (spouse gets min of 18,162 and max of 90,660). If total greater then 36,334 and less then 181,320, spouse gets ½. After institutionalized spouse spent down his half to 2,000, then met resource test.
b. Proper Spending down;
i. prepaid exempt burial plans for both marital partners
ii. improvements and repairs to exempt home
iii. upgrade of family care
iv. payments of medical and other expenses for both marital partners.
v. DO NOT BEGIN SPENDING DOWN UNTIL AFTER INSTITUTIONALIZED because assets divided when enter nursing home, this keeps spouses half as high as possible.
c. Community spouse potential eligible for spousal income allowance. P.443
d. Transfer test;
i. transfers must be for adequate consideration (or may get penalty).
ii. might incur penalty;
1. disclaimer of inheritance or failure to exercise spousal election which diminishes he applicants resources
2. triggering event which makes a revocable trust irrevocable
3. addition of other owners in joint tenancy or as reminderman to real property; and uncompensated transfers by community spouse after 1993 if resource eligibility obtained under spousal imporverishment provisions.
iii. Look back period is 36 months. Look back period for trusts is 60 months.
e. Penalty for transfer; divide amount of gift be average monthly cost of nursing home care. (example 10,000 gift in
f. Medicaid is life loan. Estate recovery
18. addition to outline chapter 10
19. chapter ten; End of life issues
a. Viatical settlements/accelerated benefits
i. Definition;
1. contractual arrangement by which a person near death can sell life insurance policy for % of face value.
ii. To get money out:
1. eligibility;
a. owned policy for 2+ years (because of contestability clause).
b. Current beneficiary must sign waiver
c. Terminally ill with life expectancy 2-4 years or less.
d. Usually require release of medical records
2. advice;-especially careful because regulatory issues, especially for internet
a. get several offers
b. check to see if licensed and status
c. take time, don’t relent to high pressure tactics
d. verify investor has cash for payout
e. insist on escrow account
f. insist on timely payment; 2/3 days after policy changes and 2/3 months total.
3. benefit;
a. can be 25%-100% of value, depends on how short life expectancy.
b. Lump sum or installments
c. Can affect Medicaid eligibility
d. Can affect taxes (although not fed if 2 years expectancy or less)
iii. For investing;
1. risks;
a. rate of return is not guaranteed… may not die in expected time.
b. Term insurance (if outlives term, no payout)
c. Group policies (premium might go up because it changes to individual)
d. Contested by family members
e. IRA- might be tax problems if invested in viatical settlements
f. They are not liquid investments
g. Check promises and guarantees closely.
h. Life insurance co. might go out of business. (sometimes govt guarantees policy, but cap).
2. advice
a. make sure there is a viator
b. make sure the policy wasn’t sold to anyone else
c. expect uncertainty for time of payout
d. term insurance risky
e. group policies, can be liability
b. Right to die
i. Constitutional
1. Cruzan v. director
a. US SC acknowledge right to refuse lifesaving hydration and nutrition protected by 5th and 14th amendment due process.
b. Also US SC upheld standard that must prove that such action was consistent with patients previously manifested wishes, to die or have surrogate make decision.
2. schiavo case
a. different because here family was split. (Cruzan it was family against state govt).
b. similar- neither woman had advance directive/living will.
3. living wills
a. definition-gives wishes and maybe surrogate to make health care decisions, but only applies when terminally ill (focused on disease process and if can be treated and term of life)
i. does not count for chronic illness or persistent vegetative state etc.
ii. look carefully at language of state statute to see what is eligible.
b. Terms;
i. Tube feeding; not iv, tube in stomach
ii. Brain death- no spontaneous movement or breathing
iii. Do not intubate- breathing tube, respirator, ventilator
iv. Do not resuscitate- restart heartbeat or breathing
v. Life sustaining procedures- artificial measures that sustain, restore, or supplant vital function where only prolong death and death would be imminent if not.
vi. Persistent vegetative state; upper portion of brain destroyed by have breathing, sleep wake cycles, involuntary movements (some argue this is death, here is where living will won’t kick in, but advance directive will).
4. patient self determination act (dec 1991)
a. requires people admitted for care to be questioned by health provider to see if they have advance directives.
b. Gives patient rights
i. Confidentiality
ii. Informed consent (know and consent)
1. medical condition
2. purpose of treatment
3. why need
4. what it might do
5. what it might not do
6. what might happen if Y or N
7. other possible treatments
iii. Provider required to give you infor
iv. Can refuse medical treatment
c. Unique to US, that patients have right to make decision about own health care. Normally it is health care professional. But reform efforts going on.
5. advance directive for health care
a. Search google, mn advance directive. MN board of aging distributes one on their website.
b. Every state allows (except for
c. MN guardian trumps health care directive. (use when guardian is not available)
d. Can include
i. Living will (for terminal)
ii. Durable power of attorney for health care (when incapacitated)
1. mn works even before incapacitated
2. two capacity issues
a. must have capacity to draft
b. kicks in when incapacitated
iii. Do not resuscitate
iv. Do resuscitate
v. Anatomical gifts (organ donation)
vi. Funeral- autopsy
vii. Stated views …
e. To cancel or revoke-
i. Yes even if not competent (but can’t change or make new)
ii. Destroy or someone destroy in your presence
iii. Sign and date written statement
iv. Verbally tell doctor or tell someone to tell doctor (but attending dr must be told before effective).
f. Advice
i. Give copies to dr, those named in doc. And family/friends
ii. Do living will only if have no one close you trust
iii. Even if no living will or health care directive, can tell doctor what you want and that is also effective.
iv. Generally don’t need official form
6. physician assisted suicide
a. distinctions (some say artificial)
i. passive-omissions, refuse to treat
ii. active- acts
b.
i. Very low numbers 129 in 5 years.
ii. Narrow eligibility
1. 18+
2. resident
3. capable
4. terminally ill 6 m. or less
5. 2 requests made 15 days apart
6. written request
7. other dr confirm diagnosis
8. dr must request notice of kin
7. palliative and hospice care
a. treatment not for curing (because can’t be) but for comfort and quality of life.
b. Not so good, needs help,
c. Best way to help training and support for providers, community, medical school
8. anatomical donations (organ donation)
a. more demand then supply
b. uniform anatomical gift act
i. every state has some version
c. cases;
i. alcor cryogenically frozen
ii. rahman v. may good faith provision (not research-ct yes good faith)..
1. honest belief
2. absence of malice
3. absence of design to defraud or to seek unconscionable advantage.
iii. Jacobs v. marin hosp..
1. reasonable searched? Yes over 12 hours.
d. Allocation of donated organs
i. Private entity decides priority list and rules.
ii. MN law legal presumption that you want to donate, but still won’t do it without families consent.
iii. 42 C.F.R. 121.1 ct seq 2000
1. Living donors;
a. Requirement for living donors
i. competent
ii. willing to donate
iii. free from coercion
iv. medially and psychosocially suitable
v. fully informed of risks and benefits to donor
vi. same to recipient
vii. same to alternative treatment
b. benefits to both must outweigh risk.
2. 100+ bed hospital must have independent donor advocate.
3. Must study health outcomes for living donors
4. Living donors should get some kind of preference if they need one.
5. Must study disparities in organ transplant rate especially kidney
iv. Problems of interpretation of statute
1. wheat v. mass
2. alleged organ sharing federal funds so govt. entity (NO), monopoly anti-trust act (NO).
c. defining death
i. uniform determination of death act
1. legal standard;
a. whole brain death- irreversible cessation of all functions of entire brain
b. tradition- heart and lungs fail
c. some argue- high brain standard- irreversible cessation of capacity for consciousness.
