Cremation Solutions Create 3D Head Shaped Urns

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Cremation Solutions, a Vermont company, offers a creative way to memorialize a loved one, in the form of a 3D-printed head-shaped urn that imitates the likeness of  a loved one.   The Urns are created from photos and allow unique personalization characteristics.

A full-sized urn approaches 12 inches in height, big enough to hold the cremains of an adult. There are also  smaller options referred to as "keepsakes" meant to hold just a portion of the cremains 

The 3D-printed Urns do not come outfitted with hair, but hair can be added digitally or in the form of a wig.  

The smaller urn option is priced at $600 and the larger option is priced at $2600. 

The urns are not limited to using the likeness of a loved one; urns can be fashioned using the likeness of another, such as a your favorite actor, hero, or political figure, including former Presidents Barack Obama and Donald Trump.  

Source: Deborah Corn, 3D-Printed Head Shaped Urns Coming To Mantle Near You. UM CREEPY!, Prime Media Center, (last visited April 27, 2021). 

Pennsylvania Court Adds Another Reason Why "Springing" Powers Should Rarely Be Used

"Springing" powers of attorney are often advocated by those who seek to reduce the dangers of a broader General Durable Power of Attorney instrument. In a "springing" power of attorney, the authority conferred to the agent only “springs” into place upon incompetency or incapacity. 

Personally, I rarely utilize springing powers. I recently wrote that these instruments: 

"can present a challenge to orderly succession of decision-making because dementia and cognitive impairment are not “bright line” determinations.  The uncertainty regarding whether the conditions have been satisfied can leave the family powerless to effectively protect assets [for or] from a vulnerable senior, particularly given the prevalence of fraud and financial abuse by third parties. Remember these documents are largely reliant upon third parties accepting them, and if they are rejected, our only real alternative may be court and much more invasive and expensive guardianship/conservatorship.  

Attorney Betsy Simmons Hannibal outlined the disadvantages of "springing" powers writing for NOLO.com:

• Delay. Instead of being able to use the power of attorney as soon as the need arises, the agent must get a “determination” of your incapacity before using the document. In other words, someone – usually a doctor – must certify that you can no longer make your own decisions. This could take days or weeks and disrupt the handling of your finances.
• HIPAA/Privacy issues. State and federal laws, including the Health Insurance and Portability Act (HIPAA), protect your right to keep medical information private. This means that doctors can release information about your medical condition only under very limited conditions. To certify your incapacity, your agent will need to provide proof that the doctor may legally release information about you to your agent. You may be able to resolve this issue by completing a release form before you become incapacitated. However your agent could still run into problems caused by bureaucracy or by the doctor’s confusion about what is legally required. Navigating these issues could cause serious headaches and delays for your agent.
• Definition of incapacity. To state the obvious, if your power of attorney requires you to be incapacitated, then you’ll have to be incapacitated before your agent can help you manage your finances. But what does “incapacity” mean, and to whom? If you make a springing power of attorney, your document will have to define incapacity. Then, when it comes time for the determination, your doctor will have to agree that you meet that definition. But how do you know now what health changes will cause you to need help managing your finances? What if you want help before you become incapacitated as defined by your document? What if you have some good days and some bad days? What if your agent or your lawyer believes you no longer have capacity, but your doctor disagrees? These gray areas may make it difficult, if not impossible, for your agent to help you when you need it. 

A Pennsylvania appeals court has added one more significant concern regarding these instruments; a court may utterly ignore the "springing" limitation and confer authority to an agent even when there is no incompetency or incapacity,  based upon the "circumstances" in a particular case.  The court  ruled that an agent may act on behalf of a principal under a springing power of attorney, even if the principal has not been declared incompetent if the parties intended to enter into a general power of attorney as supported by the evidence.   Stecker, et al v. v. Goosley, et al. (Pa. Super. Ct., No. 1266 EDA 2020, April 15, 2021).

Mercedes R. Goosley was the owner of a residential property in Pennsylvania. In 2013, she gave one of her six children, Joseph, power of attorney using a boilerplate form that Joseph downloaded from the internet.  Unbeknownst to Joseph, the power of attorney required Mercedes to be declared incompetent for Joseph to act as her agent. In 2015, Mercedes moved into Joseph’s home and lived with him for two years under his care. In 2017, at the age of 90, she entered a nursing home.

Without a declaration of Mercedes’ incompetency, Joseph then listed her home for sale and accepted a purchase offer from the Santos family as agent for his mother under the power of attorney. At the time, Joseph’s brother, William, was living in the home. Joseph instructed William to move out prior to the settlement date of March 15, 2018. On February 27, however, William obtained the deed for the residence from Mercedes and refused to proceed with the sale. On March 28, the Santos family filed a complaint in equity against Mercedes, Joseph and William.

Following a trial in January 2020, the court declared the conveyance from Mercedes to William null and void and granted specific performance to the Santos family. Mercedes died shortly after the trial. Judgment in favor of the Santos family was entered and William appealed, arguing that Joseph lacked the authority to act as his mother’s agent and that William needed to protect his interest in the home under Medicaid’s caregiver exemption.

The Superior Court of Pennsylvania affirmed the judgment. The court found that Joseph had the authority to enter into a sales agreement on behalf of Mercedes even without a declaration of her incompetency. The court determined that the parties had intended to execute a general power of attorney as evidenced by the fact that Joseph had held himself out as Mercedes’ agent since 2013 and routinely conducted affairs on her behalf without Mercedes restricting or objecting to his agency. Further, after learning that the 2013 document was not a general power of attorney, Mercedes and Joseph executed a new, general power of attorney and Joseph continued to act as her agent.

The court further rejected William’s contention that he was justified in interfering with the sales agreement to protect his legal interest in the home under the caregiver exemption, finding that he did not care for his mother while living in her home.

At first glance, this decision appears reasonable.  Careful consideration, nonetheless, raises questions.  How, for example, was the court able to determine that there wasn't a  "creep" in the agent's use of authority corresponding with the principal's declining capabilities?  What prevents every agent from simply expanding their authority incrementally until the principal is incapable of objecting or protesting?  How did the court determine that the agent was acting under the conferral of authority in the earliest days after execution of the instrument, and not acting with the expressed consent of the principal who was independently able to ratify decisions to third parties?  What did the court make of the fact that the agent selected the instrument conferring authority, which might have caused the principal comfort in conferring authority to the agent while the  principal was still healthy and able to make decisions?  For example, in a contractual relationship, the instrument is construed against the drafting party.  

Simply, "springing" powers don't provide the safety or protections sought, and present the parties and the estate other challenges.  The better strategy in most cases is to confer authority to a person in whom the principal has trust and confidence.  

Inherited IRA Beneficiaries May Be Required To Take RMD’s

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.

A Signed and Recorded Deed is Necessary to Prepare A Deed Funding Your Trust

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:

1. The legal description may have been changed by interlineation at the time of recording;
2. 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");
3. 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.  

Early COVID-19 Vaccinations Reduce Nursing Home Cases

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:

• Seniors Dying from Isolation Amid Pandemic- One Analysis Suggests Tens of Thousands;
• Heartbreaking Study Finds that Contact with Nursing Home Residents Fell by More than Half;
• Survey Suggests 64% of Residents Don't Leave Rooms to Socialize; More Report Profound Loneliness. 

The statistics also provide even more evidence that the vaccination is effective in reducing the spread of the disease. 

Source: D. Brown, "Nursing homes with early COVID vaccinations less likely to have new COVID cases,"  McKnight’s Long-Term Care News April 20, 2021).