The blog reports information of interest to seniors, their families, and caregivers. Recurrent themes are asset and decision-making protection, and aging-in-place planning.
The SECURE Act became law on January 1, 2020 and made several changes to the rules for retirement accounts. One provision is that non-spouse beneficiaries of IRAs, with a few exceptions, must deplete the account within 10 years of the original owner’s death. This applies to all deaths after January 1, 2020. With this requirement, the SECURE Act put an end to the IRA Trust, which allowed IRA beneficiaries to stretch the Required Minimum Distributions (RMDs) over beneficiary’s entire lifetime. Stretching was limited to a child and/or a grandchild or a qualifying trust benefitting a child and or a grandchild.
Many legal experts who analyzed the SECURE Act assumed the new 10-year rule would work like the existing 5-year rule for IRAs whose owners died prior to 72 and that had no designated beneficiary: although all funds had to be depleted within that time frame, no annual RMDs were required. The publication of IRS 590-B on March 21, 2021 (see pages 11-12), suggests the assumption was wrong and that the Internal Revenue Service requires RMDs.
590-B appears to suggest that not only would non-spouse beneficiaries of IRAs have to empty the entire account within ten years, but they also might be required to take annual required minimum distributions in years 1-9. Those withdrawals would be based on the beneficiary’s own age and life expectancy.
The tax implications are significant. Beneficiaries of traditional IRAs would have to pay taxes on their withdrawals, based on their tax bracket. Beneficiaries of Roth IRAs would lose the opportunity for the entire amount to grow tax-free before withdrawing it all at the end of the ten-year period. This, of course, is the federal government's intention; the SECURE Act removes the tax benefits of stretch IRAs and ensures the government a meaningful opportunity to collect taxes as soon as possible.
The IRS rule has not been finalized, and is now open for public comment. Non-spouse IRA beneficiaries should be aware that depending on what happens, they may have to take a withdrawal this year.
RMD's for 2020 were waived, by the way, due to COVID-19.
One of the more common questions clients ask is why they must provide a recorded deed in order to prepare a new deed funding a trust? The question often follows a client forwarding an unsigned deed that a title company provides the buyer of property in a closing package. Unfortunately, these unsigned documents do not provide the information needed to prepare a new deed.
A previously recorded deed is needed for a variety of reasons. The most important of these is that a new deed must include a reference to the prior recorded deed, which reference is an Instrument Number (Book and Page Number in older deeds) best obtained from the recorded instrument.
There are other reasons:
The legal description may have been changed by interlineation at the time of recording;
Limitations or restrictions to further recordings may have been noted on the deed by the Engineer's (Tax Map) office, e.g. "No Further Transfers Without A Survey");
The name or marital status of a party may have been altered or supplemented immediately prior to, or at the time of recording.
The bottom line is that the most recently recorded deed is necessary. Sometimes an attorney can, and will if possible, obtain the deed electronically in those counties that make the records available online. In a few cases, however, the deed is unavailable electronically, either because the county does not make recorded deeds available online, or the deed may have been recorded prior to the date on which the county began online electronic availability. Older deeds may not be accessible in even the largest counties that first began online electronic availability.
You can obtain your deed from either the county recorder or from the title company that closed your purchase or last re-finance transaction.
If you need additional help, email Chris at chris@donohew.com. She can offer additional assistance, including ordering a tax and legal report from an abstracting company if necessary.
A new study recently found that facilities that started the COVID-19 vaccination process earlier were less likely to have new cases compared to providers who started inoculations weeks later.
"Early group" nursing homes had 2.5 fewer COVID-19 infections per 100 at-risk residents after one week when compared to late group facilities. In addition, they had 5.2 fewer cases per 100 after five weeks.
The study, led by Brown University researchers, was conducted using data from 280 Genesis HealthCare facilities. Nursing homes in the early group conducted their vaccine clinics from Dec. 18, 2020 to Jan. 2, while the late group’s clinics were between Jan. 3 and 18.
Rates of hospitalizations and deaths were also down for providers who started the vaccination process earlier. Findings showed that after seven weeks earlier vaccinated facilities five fewer hospitalizations and/or deaths per 100 infected residents.
Brown University biostatistician and co-author Roee Gutman said the findings reveal just how quickly the vaccine starts to work within long-term care facilities.
“We see that the mRNA vaccine is useful and has a strong protective effect relatively soon after it is being administered,” Gutman told McKnight’s Long-Term Care News. The full study was published in the Journal of the American Geriatrics Society.
“It is significant because the original Pfizer trial was not performed on this population and it only examined severe COVID cases. Because residents are tested regularly, we can see that the number of infections is lower than those that vaccinated later and a measure of COVID severity is lower. Second, we see that the mRNA vaccine works on this very old and frail population,” he added.
Researchers said they hope the findings “make it possible for nursing homes to begin controlled efforts to open up to family visitation and alleviate other restrictions, thus reversing the social isolation which has become virtually universal during the pandemic.” As previously discussed on this blog, isolation has been devastating to this older vulnerable population:
A person's home may not be suitable for aging in place, and a person's specific needs may make impossible independent living. Aging in Place Planning is NOT myopically focused on the home as the ONLY care alternative, and should never be seen as suggesting the home as the only available care location. This is obvious to those who understand that the hospital is always an institutional care alternative absolutely necessary for acute or emergent care. Many worry, appropriately, that unhealthy attachment to the home can be dangerous.
There is little question that, especially if poorly planned or oriented, the home can be a dangerous place for a vulnerable senior. Isolation, alone, can be mentally, emotionally, and physically destructive. Short or long term health care challenges, whether physical, cognitive, emotional, or psychological, may necessitate alternatives to the home. Many consider aging in place as properly (even necessarily) considering a community, or other social safety net, as an alternative to blind reliance upon the physical location of the home.
NPR has published an excellent video describing aging in place as a complicated array of alternatives and choices. The video describes well the dangers of over-reliance upon a location without careful consideration of whether the location is appropriate. NPR appropriately suggests that quality of care and quality of life should be the ultimate goals of any care alternative.
Regardless, crisis planning is often made more difficult by lack of pre-planning, condemning an objective to remain at home as long as possible to failure. Institutional care is the obvious option to those who have no answer to questions such as:
How can you manage care in your home if you have cognitive or physical impairment?
How can you access vital services if you are unable to drive?
How can you manage medication?
How can you protect your physical security?
How can you manage/avoid isolation and separation from family and friends?
There are literally an infinite number of possible questions a senior and his or her family or caregivers must and should pose and answer to ensue the safety and afford the autonomy a senior may value. This is the point of planning: planning puts one in the best possible position to identify and implement options that may not be obvious or possible in crisis.
There is also, the "other hand;" simple reliance on institutional care to solve every care or support challenge is as myopic as over-reliance upon a particular home. Institutions are well-suited for meeting some needs, but poorly suited to meet others, and one institution may be better at meeting certain needs than another.
Aging in place planning is not easy, and there is no "one-size-fits-all" result for everyone. But just like any form of planning, considering, identifying, empowering, and ultimately implementing choices prior to need is preferable to reactionary crisis response.
Every journey begins with a first step, and like with any form of planning journey, that first step should be identification and articulation of your objectives, considering fully your specific needs and circumstances.
New Mexico’s governor recently signed a bill legalizing assisted suicide. The “Elizabeth Whitefield End of Life Options Act,” is named for a late state district court judge who died of cancer in 2018, and who became an advocate for assisted-suicide in her final years.
The bill allows licensed physicians, osteopathic physicians, nurses, and physician assistants to prescribe a lethal dose of medication for terminally-ill patients who are deemed capable of self-administering the dose.
New Mexico is now the eighth state to have legalized physician-assisted suicide, along with California, Colorado, Hawaii, Montana, Oregon, Vermont, and Washington. The District of Columbia has also legalized the practice.
The state’s Catholic bishops had strongly opposed the bill, which was passed by the House in February and by the Senate in March, largely along a party-line vote.
Archbishop John Wester of Santa Fe characterized the legislation as “the worst in the nation.”
Archbishop Wester explained his opposition:
“God’s law calls us all to recognize and protect the life and dignity of each and every human being, especially the most vulnerable. This includes unborn children and those at the end of life. We are promised that God’s law will ultimately bring peace and new life, especially to those who are suffering."
The bill requires two licensed health care providers, one of them a doctor, to determine and certify a patient’s terminal illness. Patients in hospice do not require a second confirmation.
If the patient has a history of a mental health disorder or intellectual disability, or if health care providers believe a patient might have a disorder, the patient must be referred for a mental health assessment before a prescription is filled.
Two witnesses must be present for the request to receive a lethal dose of medication and only one may be a relative of the patient. The bill requires a 48-hour waiting period between the prescription being written and filed.
Some amendments were struck before it passed the state Senate. Amendments allowing for insurance collectionreimnbursement and waiving liability for health care providers were removed.
The bill still also contains a state residency requirement, which a 2019 version of the legislation did not include. Some critics warned that the previous bill would have enabled “suicide tourism” where patients would travel from out-of-state to receive a lethal prescription. That bill also allowed for lethal prescriptions to be issued remotely through telemedicine; the current bill does not permit electronic options, and requires instead physical presence.
The 2021 bill does include a conscience exemption for health care providers who refuse to provide a lethal prescription, but it requires them to inform the patient and refer them to another provider who will provide the prescription.
As a lawyer, I welcome options for my clients, but remain frustrated that inconsistency in drafting and implementing legislation might cause denial of these options. Patients are prevented every day from implementing or enforcing their wishes by actual or perceived liabilities of health care professionals and institutions. Protecting patient choice by absolving health care providers of liability for patient's choices seems a clear.
