A recent New York Times article profiles the lives of women who have no other option than to drop out of the work-force to care for an aging parent, at significant cost to the economy.
The burden of care for aging relatives is reshaping the lives of millions of others. About 15 percent of women and 13 percent of men 25 to 54 years old spend time caring for an older relative, according to the Labor Department. Among those 55 to 64, the share rises to one in five Americans. And 20 percent of these caregivers also have children at home.
According to a study released by the U.S. Census Bureau, more Millennials are living with their parents more than in any other living arrangement, with one in three 18-34-year-olds living at home. Add to this the fact that according to The National Alliance for Caregiving, about 34.2 million Americans have provided unpaid care to an adult age 50 or older in the last 12 months, and you have the classic description of the sandwich generation.
Among the findings from the Census Bureau study:
In the 1970s, 8 in 10 people married by the time they turned 30. Today, not until the age of 45 have 8 in 10 people married.
In 2005, the majority of young adults lived independently in their own household, which was the predominant living arrangement in 35 states. A decade later, by 2015, the number of states where the majority of young people lived independently fell to just six.
More young men are falling to the bottom of the income ladder. In 1975, only 25 percent of men, aged 25 to 34, had incomes of less than $30,000 per year. By 2016, that share rose to 41 percent of young men. (Incomes for both years are in 2015 dollars.)
Between 1975 and 2016, the share of young women who were homemakers fell from 43 percent to 14 percent of all women aged 25 to 34.
And the one that really sticks out to me…
Of young people living in their parents’ home, 1 in 4 are idle, that is they neither go to school nor work. This figure represents about 2.2 million 25- to 34-year-olds.
It is a well established principle of trust law that trustees are fiduciaries who owe specific duties to the beneficiaries of a trust. These duties can be grouped into duties of loyalty and duties of care.
But what if a trust has beneficiaries with adverse interests to one another? It is not uncommon for a trust to have two kinds of beneficiaries – a current beneficiary as well as a remainder beneficiary. That is, the current beneficiary may have rights to the income from the trust, and perhaps even discretionary rights to the trust’s assets (also known as the trust principal or corpus); whereas the remainder beneficiary may have rights or equitable interest in what is left in the trust (the remainder) after a period of years or upon the death of the current beneficiary. These adverse interests can test the mettle of most individual or family trustees as both beneficiaries are owed duties of loyalty and care.
The Brady Bunch
Suppose Mike Brady created a trust to take effect at his death. His trust includes the following (summarized) instructions:
At my death, my trustee shall pay to my surviving spouse the net income from my trust for as long as my spouse shall live.
In addition to the net income, my trustee may also pay to my surviving spouse from the trust’s principal, as much as my trustee shall deem necessary to maintain my spouse in [her] accustomed standard of living.
Upon my spouse’s death, my trustee shall distribute my trust to my surviving children (Greg Brady, Peter Brady, and Bobby Brady) in equal shares.
Now supposed that when Mike Brady dies, Carol Brady is appointed to serve as trustee of Mike’s trust. Or, perhaps Mike’s oldest son, Greg, is appointed as trustee. This is not only permitted but done frequently, presumably to avoid paying a professional trustee. The conflicts to the Duty of Loyalty are obvious.
For example, if Carol Brady is trustee, it stands to reason that she would want to maximize current income from the trust while minimizing principal growth. Likewise, if Greg is trustee, he would want to maximize his ultimate share of the trust by investing for growth rather than income. In addition, asking either party to objectively define “accustomed standard of living” puts them both in awkward, if not conflicting positions. Should Alice’s services as a live-in housekeeper continue to be paid after everyone has moved on? Carol could certainly argue that the expense met the accustomed standard of living test, but would Greg require Carol to pay for it herself, or would he deny it saying it wasn’t necessary any longer?
Perhaps when Mike and Carol were in the attorney’s office, their response to these hypothetical situations was typical. “Oh our kids would never argue over this.”
It is possible to be loyal to both beneficiaries even if there are adverse interests. However, doing so requires a great deal of objectivity, scrutiny, and immunity to emotional persuasion. A wise trustee will establish clear expectations and open communication early in the relationship to avoid favoring one beneficiary over the other and risk breaching the duty of loyalty.
Once a legal document is completed and signed, it is often carefully laid to rest in a safe deposit box or file drawer and comes out again only when a party dies or a conflict arises.
Prudent persons periodically review and update their legal documents. Just how often depends, of course, on the document and which circumstances have changed. The following list sets forth some events that may require the updating of a legal document.
Life Events
● Marriage. ● Dissolution of a marriage (divorce). ● Death of a spouse. ● Disability of a spouse or child. ● A substantial change in estate size. ● A move to another state. ● Death of executor, trustee or guardian. ● Birth or adoption. ● Serious illness of family member. ● Change in business interest. ● Retirement. ● Change in health. ● Change in insurability for life insurance. ● Acquisition of property in another state. ● Changes in tax, property or probate and trust law. ● A change in beneficiary attitudes. ● Financial responsibility of a child.
If there is any question as to the effect of a change in circumstances on your will, trust, buy-sell agreement, asset titles and beneficiary designations, etc., contact the appropriate member of your team and have it reviewed before a crisis arises.
The Long Term Care Community Coalition (LTCCC) is a nonprofit organization dedicated to improving quality of care, quality of life and dignity for elderly and disabled people in nursing homes, assisted living and other residential settings.
LTCCC focuses on systemic advocacy, researching national and state policies, laws and regulations in order to identify relevant issues and develop meaningful recommendations to improve quality, efficiency and accountability. In addition to providing a foundation for advocacy, LTCCC uses this research and the resulting recommendations to educate policymakers, consumers and the general public. Consumer, family and LTC Ombudsman empowerment are fundamental to our mission.
LTCCC’s work is grounded in its organization as a New York State based coalition of consumer, community, civic and professional organizations, bringing together these different stakeholders to identify & address the systemic issues that affect quality of care and dignity in long-term care.
Click on the links below to download easy-to-use files for each state. Each file includes information on: Each facility’s direct care RN, LPN, and CNA staffing levels; Staffing levels for important non-nursing staff, including administrators and activities staff; and The extent to which the facility relies on contract workers to provide resident care.To facilitate
Caregiver burnout is a state of physical, emotional and mental exhaustion. It may be accompanied by a change in attitude, from positive and caring to negative and unconcerned. Burnout can occur when caregivers don’t get the help they need, or if they try to do more than they are able, physically or financially. Many caregivers also feel guilty if they spend time on themselves rather than on their ill or elderly loved ones. Caregivers who are “burned out” may experience fatigue, stress, anxiety and depression.
What causes caregiver burnout?
Caregivers often are so busy caring for others that they tend to neglect their own emotional, physical and spiritual health. The demands on a caregiver’s body, mind and emotions can easily seem overwhelming, leading to fatigue, hopelessness and ultimately burnout. Other factors that can lead to caregiver burnout include:
Role confusion: Many people are confused when thrust into the role of caregiver. It can be difficult for a person to separate her role as caregiver from her role as spouse, lover, child, friend or another close relationship.
Unrealistic expectations: Many caregivers expect their involvement to have a positive effect on the health and happiness of the patient. This may be unrealistic for patients suffering from a progressive disease, such as Parkinson’s or Alzheimer’s.
Lack of control: Many caregivers become frustrated by a lack of money, resources and skills to effectively plan, manage and organize their loved one’s care.
Unreasonable demands: Some caregivers place unreasonable burdens upon themselves, in part because they see providing care as their exclusive responsibility. Some family members such as siblings, adult children or the patient himself/herself may place unreasonable demands on the caregiver. They also may disregard their own responsibilities and place burdens on the person identified as primary caregiver.
Other factors: Many caregivers cannot recognize when they are suffering burnout and eventually get to the point where they cannot function effectively. They may even become sick themselves.
What are the symptoms of caregiver burnout?
The symptoms of caregiver burnout are similar to the symptoms of stress and depression. They include:
Withdrawal from friends, family and other loved ones
Loss of interest in activities previously enjoyed
Feeling blue, irritable, hopeless and helpless
Changes in appetite, weight or both
Changes in sleep patterns
Getting sick more often
Feelings of wanting to hurt yourself or the person for whom you are caring
Standing as a health surrogate doesn’t allow appointees to enter into nursing home arbitration agreements or other business agreements with providers, a Florida appeals court has ruled.
At issue was a nursing home attempting to force claims by a deceased resident’s estate into arbitration since one of the healthcare surrogates had signed an arbitration agreement during admission of the resident.
In making it’s ruling, the court stated:
“The heart of this case is whether a document that designates a healthcare surrogate is broad enough to allow that surrogate to consent to an arbitration provision in a nursing home admission form,” wrote Judge Robert Gross. “We hold that the narrow focus of the document is on the surrogates’ power to make healthcare decisions, not business choices concerning dispute resolution.”
In a case that stresses the importance of keeping accurate records, especially for paid family caregivers, a New Jersey appeals court upheld a penalty period imposed by Medicaid against a Medicaid applicant for payments the applicant’s daughter received for providing caregiving service. E.B. v. Division of Medical Assistance and Health Services (N.J. Super. Ct., App. Div., No. A-3087-15T4, July 13, 2018).
The daughter [J.W.] testified that, in 2003, her then eighty-year old mother moved into her home. There was an area of J.W.’s home which, although physically attached to the house, was a separate unit where her mother lived. Her mother moved into the apartment because she was afraid of living by herself and was unable to shop or cook for herself.
In 2009, J.W. resigned from her job in order to care for her mother full time. In addition to providing supervision, J.W. assisted her mother with the activities of daily living. In 2011, J.W. was finding it too difficult to make ends meet because she was not earning income. She determined she either had to return to work and let a third party care for her mother during the day, or pay herself from her mother’s savings to compensate her for providing companion services. She chose the latter solution.
After some adjustments, Medicaid determined that $69,211.90 paid from the mother’s funds in order to pay for companion services was not for fair value, and imposed a penalty period. [Normally, the length of the penalty period is determined by the disallowed transfer – $69,211.90 – divided by the average monthly cost of nursing case in the area in which the applicant lives. For example, if the average cost of care in her area was $6,000 per month, then the penalty period would last for roughly one year.]
In making its determination, Medicaid found that the “proof of services rendered on a daily basis to the petitioner deficient”. There were no log sheets or like records tracking the hours she worked and the duties she performed. Second, it found the hourly rate paid to J.W. was not substantiated as appropriate for companion services. Third, J.W. began receiving wages when it was “foreseeable that advanced age and deteriorating condition would require intensive care and the possibility of entering a nursing care facility.” Finally, he observed there was no pre-existing written agreement between the mother and J.W. to pay for the subject services.
In denying her appeal, the Superior Court of Appeals in New Jersey stated:
We understand J.W.’s reasoning, specifically, that if she had to return to work, petitioner may as well pay her rather than a third party to provide companion services, especially because J.W. is a family member and would have her best interests in mind. Nevertheless, “a transfer of assets to a friend or relative for the alleged purpose of compensating for care or services provided free in the past shall be presumed to have been transferred for no compensation.” N.J.A.C. 10:71- 4.10(b)(6)ii.
Family caregivers should take note and adopt written care agreements, and keep time and task logs to guard against similar penalty impositions. Above all, seek the advice of a qualified Medicaid attorney in the state the applicant lives in to help navigate the complex process of applying for Medicaid.
In a case that speaks of the importance of choosing a qualified trustee who has proper internal controls and procedures, and who is governed by an appropriate regulatory body, The Ohio Supreme Court suspends two attorneys for one year after they negligently managed an elderly woman’s affairs. Cleveland Metro. Bar Assn. v. Zoller and Mamone (Ohio, No. 2014-1389, Nov. 8, 2016).
The client, a widow of a former mayor of Cleveland and a former justice of the Supreme Court of Ohio, retained the law firm to administer the estate of her late husband. Having come to increasingly rely on the partners in the firm, the client later engaged the firm to manage her money, to pay her bills, and to handle other aspects of her financial and personal life. The client sought to be able to live independently in her own home, to afford around-the-clock care, and to make generous gifts to her family members and charitable causes.
In it’s findings, the court stated:
[The Respondents] assumed the responsibilities of operating and maintaining the special account when they opened the account and agreed to be authorized signatories. But they failed to ensure that the account was a separate, interest-bearing trust account for [Client’s] benefit during the six-year period in which substantial client assets passed through it. They also failed to maintain even a modicum of oversight over the account by failing to accurately record each transaction that affected the account and failing to reconcile the account against the monthly statements issued by the bank. Their abdication of these most basic duties to [client] resulted in more than 30 overdrafts of the account and $1,000 in associated bank fees. Respondents’ failures to act also facilitated the misconduct of their father, [name removed], who not only wrote and signed checks on the special account (even though he was not an authorized signatory) but who also collected excessive and undocumented legal fees from [client]—fees that averaged approximately $55,000 each year for six years, though more than $250,000 of those fees was actually collected in just the first two years of the representation.
An Indiana Court of Appeals opinion underscores the importance of accountings in trust administration, but also raises questions about why families place siblings in adversarial positions to begin with.
According to an article posted by the Indianapolis law firm of Faebre Baker Daniels, the original case involved three siblings, Scott, Jeff and Stacey – and arose after Scott and Jeff began to question some of Stacey’s actions as trustee of their respective trusts – specifically, her handling of the trusts’ joint ownership of multiple parcels of real property. Shortly after the siblings executed a mediated settlement agreement and partitioned the properties, Scott sued Stacey, as trustee of his trust, alleging she failed to provide an accounting and had misused trust assets. Scott also alleged misappropriation of $107,000 of trust assets, which were characterized as trust expenses – which were in fact legal fees Stacey had incurred “years before the most recent trust-related litigation,” apparently with other family members.
One of the duties of a trustee (known as fiduciary duties) is to keep trust property separate and to maintain – and make available to trust beneficiaries – adequate records, which Stacey admitted she had failed to do. Unfortunately for Scott, he did not bring his complaint until after the two-year statute of limitations had expired, and the trial court found Stacey did not commit a breach of trust as to the accountings.
Scott also demanded reimbursement for his attorney’s fees for bringing the complaint against Stacey, which after being denied by the trial court was reversed by the Indiana Court of Appeals and Stacey was ordered to pay Scott’s legal fees.
While the crux of the case deals with a trustee’s responsibility to maintain adequate records and provide them to a trust’s beneficiaries, the real story in this case is the human one – that of a family of siblings now divided – at least partly – because one was put into an adversarial position with the others. I wonder if the trustee fee savings was worth it?
