In the early 70s I was a law clerk with the boutique real estate Law firm in Cleveland. Firm consisted of 2 partners and I. Firm primarily represented those involved in the real estate industry. Among those clients was a developer who owned a number of projects including shopping centers, strip centers, and apartments. He learned, unfortunately, that his daughter had Huntington’s disease. Huntington’s disease is a progressive and debilitating disease with at approximately 20 your curve from the date of diagnosis until death. It is particularly pernicious disease which progresses slowly, until finally one is a physical vegetable, but retained most of one’s intellectual capacity. Basically, one becomes a prisoner in one’s own body. At the time of diagnosis, the daughter was approximately 28 years old. Her father wanted to take care of her and provide for her and her family and sought our assistance in the preparation of his estate planning documents including a will, trusts, health-care directives and other documents.
At this time there was no well-developed practice in what was to become known as Elder Care estate planning. The partners discussed what was the best way to handle this and decided that it would be best to send the client to one of the large downtown silk stocking law firms which had experts in estate planning. The client went to the firm which produced a wonderful tax efficient (lifetime trusts), with inter inter-vivos trusts (lifetime trusts), testamentary trusts, wills, and other estate planning documents. For the trustees, the law firm shows one of the major banks in Cleveland which had a large estate planning, trust, and probate department.
The client brought the estate plan and documents with its well designed tax benefits, trusts and tax Deficiencies to the partners for the partners thoughts.. The partners were appalled. In those days trust departments and banks were ill-equipped to handle real estate developers and those who owned major real estate investments. In plain language, the trust departments of banks were piss poor at managing and operating real estate and real estate investments Banks were wonderful in administering stock portfolios, but horrible in administering real estate. Real estate was and is a different animal. The partners and the clients then met and decided it was time for me to learn estate planning. Estate planning was an interest of mine while I was in law school and I had the opportunity to take several more advanced courses in estate planning in my remaining year of law school we knew this was not enough, so for the next year and ½, the partners sent me to seminars and continuing legal education on estate planning and estate planning for those with disabilities and special medical problems.
The more of estate planning to which I was exposed and the more which I was exposed to those with terminal long-term illnesses, the more I became convinced that it was inappropriate to allow the tax tail to wag the dog of estate planning. I developed a sensitivity for the persons with these afflictions and their families. I learned various types of modifications which needed to be made to housing and to ease the tasks of daily living Most importantly, I learned to ask the health experts for what accommodations should be made to ease the lives of the afflicted. I learned to provide for these items in the documents which I drew.
One of the more recent advances in estate planning is the use of advance directives. Advance directives usually refer to directions given in advance about how to handle medical decisions during the last stages of life. For a number of years we would write these as health-care directives without statutory guidance. Over the last several years many states have enacted statutes which allow for advance directives. Maryland has such a statute. Now, I spent a substantial amount of time reviewing the Maryland form with my clients to make sure they understand what they want and that they make the appropriate decisions for them in in choosing options and changing the standard language to conform with their desires.
Since the mid-70s I have been concerned with estate planning for those who are so afflicted and those who wish to take care of them from beyond the grave. Perhaps, the greatest lesson I have learned from more than 50 years of doing estate planning is that the questions which I ask are most important to determine what documents I write and how they are implemented. One size does not fit all.
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