Trusts & Estates | Fraser Blog

Five Stories that Matter in Michigan This Week – January 6, 2023

The Federal “Speak Out Act” Takes Effect

The Speak Out Act took effect on December 7, 2022, which prohibits employers from requiring employees to sign pre-dispute agreements that contain nondisclosure clauses or non-disparagement clauses that would have the effect of silencing employees concerning claims of sexual harassment or sexual assault.

Why it Matters: Requiring employees to sign such agreements is now a violation of federal law. Employers should review their current employee confidentiality agreements and revise them as necessary, keeping in mind that many state laws also limit what terms can be included in an NDA or similar agreements.

———

IRS Announces 2023 Standard Mileage Rates

The IRS announced the 2023 standard mileage rates used to calculate the deductible costs of operating an automobile for business, charitable, medical, or moving purposes. Beginning on January 1, 2023, the rate for business use is 65.5 cents per mile, an increase of 3 cents from the 2022 midyear rate.

Why it Matters: Self-employed individuals who operate an automobile for business use, as well as employers who reimburse employees who use their own vehicles to conduct business, should take note of these changes.

———

FTC Proposes Rules Banning Noncompete Agreements for Workers

On January 5, 2023, the Federal Trade Commission (FTC) published a proposed rule that would effectively ban the use of non-compete clauses in most employment agreements. The FTC’s guidance in proposing the rule says that 1-in-5 American workers are bound by some form of non-compete clause or agreement.

Why it Matters: These regulations (if adopted) will have wide-ranging impacts across many sectors of the economy. Employers should keep a close eye on these rules and be prepared to amend or revise their employment agreements accordingly.

———

Fed Issues Final LIBOR Replacement Rule

The United Kingdom’s Financial Conduct Authority (FCA), announced that the U.S. dollar LIBOR will cease after June 30, 2023. On December 16, 2022, the Federal Reserve Board issued its final rule governing the replacement of LIBOR as an interest rate benchmark.

Why it Matters: The final rule is complex. Businesses using LIBOR as a benchmark or index should make note of this upcoming change. Fraser Trebilcock attorneys will continue to monitor the situation and provide updates. Contact your Fraser Trebilcock attorneys if you have any questions.

———

Estate and Lifetime Gift Tax Exemption Update

Per the IRS, the 2023 Estate and Lifetime Gift Tax Exemption has increased from $12.06 million to $12.92 million. Additionally, the use of electronic signatures for Estate and Gift Tax forms has been extended to October 31, 2023.

Why it Matters: Individuals should take note of the increase in 2023 and plan accordingly. If you have any questions, please contact your Fraser Trebilcock estate planning attorney.

Related Practice Groups and Professionals

Five Stories that Matter in Michigan This Week – December 9, 2022

Probate Court May Appoint Guardian Even Though Patient Advocate Already in Place

In the case In re Guardianship of Tyler J. Newland, the Michigan Court of Appeals held in an unpublished decision that a probate court may appoint a guardian for an individual who already has a patient advocate in place. The case involved a hospital that petitioned the probate court for the appointment of a guardian, alleging that a guardian was needed because the advocate for one of the hospital’s patients was not acting consistent with the patient’s best interests.

Why it Matters: This case highlights the need for experienced and effective estate planning legal counsel. For help with your estate planning needs, please contact a member of Fraser Trebilcock’s Trusts & Estates team.

———

Minimum Wage Set to Increase, With or Without Court Action

On Monday, December 5, 2022, the Michigan Department of Labor and Economic Opportunity announced the effective minimum wages for 2023, setting the standard minimum wage at $10.10 per hour.

Why it Matters: The Department’s notice cautioned that the announced rates were subject to change, pending a decision by the Michigan Supreme Court regarding the Michigan Legislature’s amendment to a successful 2018 ballot initiative. In any event, workers and employers can expect higher wage rates in the new year, just how much higher will be determined in the coming weeks and months. Learn more on the subject.

———

The Demise of the Open and Obvious Defense? (Michigan’s Evolution of Premises Liability Law)

Premises liability cases are often litigated in Michigan with considerable difficulty. In a premises liability claim, a possessor of land owes a duty to an invitee to exercise reasonable care to protect them from an unreasonable risk of harm caused by a dangerous condition on the land. However, plaintiffs frequently find difficulty in successfully making claims under a premises liability theory due to the “open and obvious” defense.

Why it Matters: Michigan courts have traditionally held that the hazards presented by snow, snow-covered ice, and observable ice are open and obvious and do not impose a duty on the premises possessor to warn of or remove the hazard. However, the courts appear to be slowly eroding this traditional approach. Learn more on the subject.

———

Tax Changes Coming for Research & Experimental Expenditures

For tax years beginning in 2022, research and experimental (R&E) expenditures are no longer immediately expensed but rather must be amortized over five years (15 years for foreign expenditures). This change to the tax treatment of R&E expenditures was included as a revenue raiser for the federal government to help pay for other tax breaks in the Tax Cuts and Jobs Act passed at the end of 2017.

Why it Matters: Guidance is needed immediately for the 2022 tax year, especially for corporations that must prepare financial statements. The post-2021 tax treatment of R&E expenditures is inconsistent with financial accounting principles that requires most research and development costs to be expensed immediately.

———

Judge Upholds CRA’s Decision to Suspend Licenses for Flint Marijuana Business

As we covered in a previous newsletter, the Michigan Cannabis Regulatory Agency suspended Green Culture’s medical and recreational licenses after they were found to have sold unregulated products that may have contained several contaminants, such as mold and/or bacteria. Following a two-day hearing, a judge sided with the state agency and upheld the suspension.

Why it Matters: Marijuana businesses should heed this as a warning, the CRA are cracking down on businesses that do not follow the strict guidelines and rules laid out by the state agency. Contact our cannabis law attorneys if you have any questions.

Now is the Time to Optimize Your Tax-Planning Strategies for 2022 and Beyond

With year-end quickly approaching, reducing taxes is on many people’s minds. It’s been a tumultuous few years, with many changes to people’s individual circumstances and tax laws at state and federal levels. Now is the time to focus on your year-end taxes and engage in estate and income tax planning opportunities.

At Fraser Trebilcock, our tax attorneys have made sure you don’t have to start your preparations from scratch with year-end tax considerations.

Estate and Gift Tax Planning

The IRS recently announced that, due to inflation, the estate tax exemption will be increased to $12.92 million for individuals in 2023 ($25.84 million for married couples), up from $12.06 million in 2022. Currently, the lifetime gift tax exemption amount tracks the federal estate tax exemption for decedents of $12.06 million (and $12.92 for 2023). Keep in mind, however, that the lifetime estate and gift tax exemption amount is set to be cut in half at the start of 2026.

If you’re thinking about beginning an annual gifting program, or want to continue a program you’ve already started, there are some things you should know. From an estate and gift tax planning perspective, the most commonly used method for tax-free giving is the annual gift tax exclusion. This method allows you to give up to $16,000 for 2022 (increasing to $17,000 in 2023) to each donee, without reducing your estate and lifetime gift tax exclusion amount. It’s also important to note that there is no limit to the number of people to whom you may make such gifts, and that the annual gift tax exclusion is applied on a per-donee basis.

Additionally, you and your spouse could choose to combine your exemptions into a single gift from either of you. By sharing in the gift of one spouse, married donors may double the amount of the exclusion to $32,000 in 2022, or $34,000 next year. This method of transfer could help you save family income taxes, where income-earning property is given to family members in lower income tax brackets, who are not subject to the “kiddie tax.”

Have children in college? Qualifying tuition payments may also be made or continued, in addition to medical payments. These amounts do not count against the annual exclusion limit.

Another thing to remember is that if you’re required to submit a written valuation in connection with your annual gifting program, you might be able to utilize a single valuation, for gifts made in December of 2022 and January of 2023.

Income Tax Planning

Since we know that everyone would love to potentially reduce their overall tax liability for 2022, it’s important to consider various income tax planning techniques before years’ end. When evaluating appropriate planning techniques, you should review the overall impact of any such planning for the two-year period of 2022 and 2023.

Traditional income tax planning options include the postponement of income until 2023, as well as accelerating deductions into 2022. This strategy might allow you to claim larger deductions, credits, and other tax breaks for 2022 that are phased out over varying levels of adjusted gross income (AGI). If there’s a chance you might be in a lower tax bracket next year, it may be advantageous to try to arrange with your employer to defer a bonus that you may be entitled to until 2023.

With regard to accelerating deductions, consider using a credit card to pay deductible expenses before the end of the year, including charitable contributions. This can increase your 2022 deductions, even if you don’t pay your credit card until after the end of the year. If you expect to owe state and local income taxes when filing your return next year, consider asking your employer to increase withholding of state and local taxes (or pay estimated tax payments of state and local taxes) before the end of the year, so that you might deduct those taxes for 2022.

Other common elements of income tax planning may also include selling capital assets (such as stock investments) for the purpose of generating a capital loss to offset any capital gains that you have already realized for the year. When considering year-end tax planning moves, it is also important to take into account the potential impact of such planning on the alternative minimum tax for 2022, so be sure to consult with your tax attorney.

If you’re on the higher end of income earners, be wary of the additional 0.9% Medicare tax that applies to individuals receiving wages with respect to employment in excess of $200,000 ($250,000 for married couples filing jointly and $125,000 for married couples filing separately).

Retirement Planning for 2022

It’s never the wrong time to put a little extra focus on your retirement planning, especially towards the end of the year as tax-saving opportunities continue. As a taxpayer, you still have the ability to convert funds in a traditional IRA (including SEPs and SIMPLE IRAs), §401(a) qualified retirement plans, §403(b) tax-sheltered annuities or §457 government plans into a Roth IRA. You also might want to consider converting money which is currently invested in depressed stocks (or mutual funds) into a Roth IRA if you are eligible to do so.

These are just a few of the year-end tax planning considerations that you can make before the calendar turns to 2023, so make sure to consider your options while you still have time. And don’t forget that your taxpayer circumstances are unique, so not all of these suggestions will benefit everyone. To ensure that your specific needs are considered, discuss any techniques with a qualified tax advisor before making any changes.

This alert serves as a general summary, and does not constitute legal guidance. Please contact us with any specific questions.

Elizabeth M. Siefker is an attorney at Fraser Trebilcock in the trusts and estates practice group focusing on estate planning, elder law, and business planning. You can reach her at esiefker@fraserlawfirm.com, or at 517.377.0801.

Five Stories that Matter in Michigan This Week – November 4, 2022

IRS Announces 2023 Cost-of-Living Adjustment for Retirement and Health and Welfare Benefit Plans

The Internal Revenue Service recently announced 2023 cost-of-living adjustments for retirement and health and welfare benefit plans. The significant adjustments reflect the increase in inflation over the last year. The adjustments are detailed in IRS Notice 2022-55. For example, the contribution limit for a Simple 401(k) will increase to $15,500 in 2023 from $14,000 in 2022, and for a Health FSA, limits will increase to $3,050 in 2023 from $2,850 in 2022.

Why it Matters: Business owners and employers should be aware of these adjustments and share this information with employees as we approach the new year. If you have any questions regarding these adjustments, please contact our Employee Benefits team.

———

Viridis North, LLC Can Proceed with Lawsuit Against CRA

In November 2021, the CRA (formerly known as the MRA), issued its largest ever marijuana recall because of concerns over safety tests conducted by two companies, Viridis Laboratories, LLC, and Viridis North, LLC. These two companies filed a lawsuit against four individuals who were employed by the CRA in their individual capacities. Last week, U.S. District Court Judge Paul L. Maloney granted an order in part motion to dismiss all claims alleged by Viridis Laboratories, LLC, and Viridis North, LLC, except for, “Plaintiff Viridis North’s claim for violation of its substantive due process rights.” Viridis Labs. v. Kluytman, 1:22-cv-283, 12(W.D. Mich. Oct. 27, 2022).

Why it Matters: The decision by the Court allows Viridis North LLC to proceed with its lawsuit in determining whether or not there was a violation of their substantive due process rights stemming from the November 2021 marijuana recall. Fraser Trebilcock attorneys will monitor the situation as developments continue.

———

Year End Gift Tax Planning Perspective

Why it Matters: The method allows you to give up $16,000 without reducing your estate and lifetime gift tax exclusion amount. It’s also important to note that there is no limit to the number of people to whom you may make such gifts, and that the annual gift tax exclusion is applied on a per-donee basis.

———

Department of Labor Issues New Proposed Rule on Independent Contractors

The U.S. Department of Labor recently issued a Notice of Proposed Rulemaking that, if adopted, would change the standard for analyzing a worker’s classification as either an employee or independent contractor.

Why it Matters: Employers who misclassify employees can face severe financial consequences. That’s why it is important that organizations remain diligent in analyzing their workers’ classifications. Learn more on the subject.

———

EV Company Relocating to MI Recipient of Funds from MSF

A Utah-based electric vehicle company that is set to relocate their headquarters to southeastern Michigan, received a $2.5 million Michigan Business Development Program performance-based grant from the Michigan Strategic Fund to aid in the move.

Why it Matters: Officials in Michigan have been working hard to grow Michigan’s economy, and these programs are an incentive for businesses that are looking to relocate or expand their footprint in the state.

Related Practice Groups and Professionals

Five Stories that Matter in Michigan This Week – September 2, 2022

President Biden Announces Student Loan Forgiveness

On Wednesday, August 24, President Biden announced the federal government will extend the current pause on monthly student loan payments. President Biden also stated that the federal government plans to forgive up to $20,000 worth of student loan debt for those who qualify.

Why it Matters: President Biden is relying on the HEROES Act of 2003 [20USC 1098bb] to extend the pause on student payments as well as forgive certain amounts of student loans for qualifying individuals. There may be challenges to the President’s reliance on this statute to forgive student loan debt in the future. Learn more here from our attorney covering the news .

———

How Michigan Car Insurance Rates Stack Up Nationally

Following an influx of new car insurance companies into the state, Michigan has dropped from being the nation’s leader in cost of car insurance to fourth. The major effort in reducing costs is attributed to the 2019 auto insurance reform, which saw prices for automobile premiums drop considerably.

Why it Matters: Reduced costs for automobile owners is a positive sign for Michiganders. Elected officials are working towards providing consumers a choice for their automobile insurance, which in turn will reduce costs across the board.

———

Term Limits Will Be Prop 1 on November Ballot

It was recently announced that changes to Michigan’s term limits and financial disclosure requirements will be on November’s ballot as Prop 1. In 1992, Michigan voters voted in favor of a constitutional amendment for term limits. Since then, Michigan House members have been limited to three two-year terms and Michigan Senate members to two four-year terms— a maximum of 14 years between the two chambers.

Why it Matters: If Prop 1 passes, it would permit lawmakers to serve 12 years in Lansing, and all of that time could be spent in the House or Senate, or it could be divided between the two chambers. Additionally, elected officials would have to disclose their assets, income and liabilities, and their involvement in any businesses, nonprofits, labor organizations or educational institutions. Learn more here.

———

Voting Rights Proposal Fails to Make November Ballot

A voting rights proposal that would make changes to Michigan’s elections—including establishing early voting—failed to make this fall’s ballot. Michigan’s Board of State Canvassers deadlocked on whether to certify the Promote the Vote amendment for the ballot.

Why it Matters: The amendment would have increased absentee ballot access and preempted efforts to enact stricter voter ID rules for those casting ballots in person and for absentee voters. Promote the Vote indicated it would challenge the decision in court.

———

Michigan to Receive $50 Million from Federal Government for Historic 2020 Flooding

The Federal Highway Administration said Wednesday it will provide $50 million in emergency relief funds to Michigan to reimburse the state for repairs it made to roadways and bridges following severe flooding that took place in mid-Michigan in 2020.

Why it Matters: The money comes as part of a $513 million package the federal government is distributing across different states and territories. Only California and Puerto Rico will receive more than Michigan.

Related Practice Groups and Professionals

Insurance Defense | Emily Vanderlaan

Election Law | Garett Koger

Trusts & Estates | Elizabeth Siefker

President Biden Announces Student Loan Forgiveness

On Wednesday, August 24, President Biden announced that the federal government will extend the current pause on monthly student loan payments, which means that borrowers will not have to resume making payments until at least January. President Biden also stated that the federal government plans to forgive up to $20,000 worth of student loan debt, for those who qualify.

First, in order to qualify for loan forgiveness, student loan debt must be through the federal government, meaning that individuals who have private loans will not be eligible. Second, unmarried individuals must earn less than $125,000 per year to be eligible for up to $10,000 in student loan forgiveness. If you are married and file joint tax returns, or are a head of household, you will qualify for up to $10,000 in student loan forgiveness if your annual income is less than $250,000. Finally, if you meet these income requirements, and received a Pell Grant while in school, you could be eligible for $20,000 in forgiveness.

President Biden is relying on the HEROES Act of 2003 [20USC 1098bb], in order to extend the pause on student payments as well as forgive certain amounts of student loans for qualifying individuals. There may be challenges to the President’s reliance on this statute in order to forgive student loan debt in the future. For more information, please go to https://studentaid.gov/manage-loans/forgiveness-cancellation.

$400 Car Insurance Refunds – Will the Estates of Your Deceased Relatives Miss Out?

If you had a vehicle insured at 11:59 p.m. on October 31, 2021, you are eligible to receive a $400 refund if the insurance met the minimum insurance requirements for operating a vehicle on Michigan roads.

This refund is part of 2019 bipartisan auto reform legislation that requires the Michigan Catastrophic Claims Association to issue refunds of $400 per eligible vehicle no later than May 8, 2022.

Many Michigan drivers have already received their refunds by check or automatic deposit from their insurer. However, recently deceased individuals with qualifying vehicles are also eligible. Insurance companies may have mailed checks to an invalid address or directly deposited funds into a closed checking account.

If you are the personal representative of a decedent’s estate, contact the decedent’s insurance company to ensure that the refund is mailed to the personal representative’s address or deposited to the estate’s bank account.

If you require assistance, the experienced probate attorneys at Fraser Trebilcock can provide the guidance you need. Please contact us.

This alert serves as a general summary and does not constitute legal advice. Please contact us with any specific questions.

Heidi L. Pierce is a paralegal at Fraser Trebilcock focusing on estate planning and trust administration. You can contact her at 517.377.0858, or at hpierce@fraserlawfirm.com.

Why You May Need a Certificate of Trust When Selling Real Estate in Michigan

A last will and testament and a living trust are two of the most common estate planning methods. A living trust is attractive for many because it provides for an efficient and effective disposition of assets to loved ones, and unlike a will a living trust avoids probate court.

Once a trust is established it must be funded. Funding a trust is the process of transferring ownership of assets from the individual(s) who established the trust to the trustee of the trust, which involves titling assets in the name of the trustee. In almost all cases, the person who establishes and funds the trust also names himself or herself the trustee who has the right to manage all of the money, property, and assets that are placed inside of the living trust.

One asset that many people put in their trusts is real estate, be it a primary residence, vacant land, or otherwise. In Michigan, to the extent that a trustee decides to sell real estate that is part of a living trust, a certificate of trust will be required at or before the real estate closing.

What is a Certificate of Trust in Michigan?

Up until a few years ago, there were two different types of certificates of trust used in Michigan. One type was used for real estate transactions and the other was used mainly for financial transactions involving a trust.

Each type was governed by a different set of laws with quite different requirements. While each set of laws used the term “certificate of trust existence and authority,” one set was found in the statutes relating to Conveyances of Real Property and the other set was in the Michigan Trust Code. In 2018, as discussed below, Michigan law changed to harmonize the two statutes, simplifying our laws, reducing costs, errors, and confusion.

New legislation was signed into law in 2018 that, in essence, consolidated the two types of certificates of trust into one. Pursuant to the current law, a certificate of trust must include:

The name of the trust, the date of the trust, and the date of each operative trust instrument.
The name and address of each current trustee.
The powers of the trustee relating to the purposes for which the certificate of trust is offered.
The revocability or irrevocability of the trust and the identity of any person holding the power to revoke the trust.
The authority of co-trustees to sign on behalf of the trust or otherwise authenticate on behalf of the trust and whether all or less than all co-trustees are required to exercise the trustee powers.
A statement that the trust has not been revoked, modified or amended in any manner that would cause the representations included in the certificate of trust to be incorrect.

The certificate of trust may be signed or otherwise authenticated by the settlor, any trustee (including a successor trustee), or an attorney for the settlor or the trustee.

Do You Need a Certificate of Trust?

If you have a living trust, a certificate of trust will help the trustee open new financial accounts without needing to provide the entire trust. To the extent that real estate is in your trust, and you desire to sell it, the title company will require you to have a certificate of trust. Often, trustees are unaware of the need for a certificate of trust as part of the sale and are left scrambling in final days prior to the closing. If you are about to sell real estate titled in your name as trustee, you should obtain a certificate of trust early in the process to eliminate the stress and possible delays caused by not having the proper paperwork.

Even if you have a certificate of trust, it may need updating depending on when it was created. Because of the requirements imposed by the new statute, many certificates of trust that were created prior to 2018 are invalid. Additionally, since trustees and their addresses change from time to time, older certificates of trust are often out of date.

If you require assistance, the experienced trusts and estates and real estate lawyers at Fraser Trebilcock can provide the guidance you need. Please contact us.

Chair of Fraser Trebilcock’s Trusts and Estates Department, attorney Marlaine C. Teahan is a Fellow of the American College of Trust and Estate Counsel, and is the past Chair of the Probate and Estate Planning Section of the State Bar of Michigan. For help getting necessary legal authority for your loved one’s COVID-19 vaccine consent form, contact Marlaine at 517.290.0057 (cell) or mteahan@fraserlawfirm.com.

Interactive Long-Term Care Planning Decision Tree: Workshop Breakdown

When evaluating long-term care strategies for clients, the lawyer must ask a series of questions to understand the issues and variables to consider in planning. Every client has their own unique needs, requiring valuable insight from an experienced attorney. Fraser Trebilcock attorney Melisa M. W. Mysliwiec will be sharing key information with other attorneys in Michigan to help them better serve their own clients in long-term care planning. The presentation, titled “Interactive Long-Term Care Planning Decision Tree,” will be delivered to members of the Institute of Continuing Legal Education’s Elder Law Certificate Program on Friday, September 17, 2021.

The seminar will assist attorneys in identifying the critical information they can collect at the initial client meeting, and explore the issues and variables to consider in Medicaid-focused strategies and how they can impact the options available to their clients. Attorneys will learn using real-world scenarios and going through the decision tree step by step from start to finish.

Melisa, along with Rosemary Howley Buhl, Arthur L. Malisow, Charles S. Ofstein, and Amy Rombyer Tripp, will answer questions and provide advice on each step of the decision tree to have attendees walk away with a completed decision tree that they’ll be able to use as a model in their practice.

If you would like to talk with an attorney about putting legal plans in place, contact attorney Melisa M. W. Mysliwiec. Melisa focuses her work in the areas of Elder Law and Medicaid planning, estate planning, and trust and estate administration. She can be reached at mmysliwiec@fraserlawfirm.com or 616-301-0800.

Nursing Homes: Who Can Consent to Your Loved One’s COVID-19 Vaccine?

COVID-19 vaccines are here! The hardest hit individuals have been our front-line health care workers and loved ones in nursing homes and other congregate homes for the elderly and infirm. It is fitting that these two groups are the first among us to receive the vaccine.

Consent Forms Will Be Required

Lansing, Detroit, and Grand Rapids nursing home administrators have confirmed that they will require a consent form before any resident receives the vaccine. It is likely that most residents and most nursing home administrators will want all the residents vaccinated to obtain the best protection the vaccine affords to the community. Without the necessary consent forms in place, the delivery of COVID-19 vaccines to residents of nursing homes and congregate care communities will be delayed.

Who Can Sign the Consent Forms?

While logistics are still being worked out, we know that consent forms for COVID-19 vaccines can be signed by residents who:

are mentally competent
have a patient advocate who will consent (provided the patient advocate’s authority has been triggered by two doctors certifying that the patient is unable to participate in medical heath treatment decisions)
have a guardian who will consent

What If No One is in Place to Consent?

If your loved one is in a congregate care community and does not fall into one of the above categories, you should file a petition with the probate court for a temporary guardian with authority to consider and consent to the COVID-19 vaccine. At the same time, you may wish to consider requesting that the Court grant limited or full authority as guardian and conservator to assist your loved one with additional health care and financial decisions.

Probate courts are aware of this important issue and are ready to facilitate prompt review of such temporary guardianship petitions. One such Court, the Kent County Probate Court, issued a press release today urging action by families and nursing homes alike to take immediate action to enable prompt delivery of COVID-19 vaccines. News Release, Kent County Probate Court, Grand Rapids, MI – January 4, 2021.

In the News Release, Kent County Chief Probate Judge David M. Murkowski is quoted as saying:

“While many residents of nursing homes and family members have already taken the necessary legal steps to allow for important medical decisions to be made on their behalf, the court wants to make sure that there are no delays in vaccinating vulnerable populations. Family members have an obligation to waste no time in making sure that the proper steps have been taken to make sure their incapacitated loved ones can be vaccinated.”

Nursing Homes Can Also Be Proactive to Get Consent

Care facilities also face the issue of obtaining consent for vaccinating their residents who lack mental capacity, and have no patient advocate or guardian, or any family member willing to petition to become guardian. This type of situation places the facility in the position of petitioning for appointment of a public guardian authorized by the Court to act on the question of consent to vaccination and other health care decisions as may be needed.

Nursing home administrators should survey their residents to determine which residents cannot sign COVID-19 vaccination consent forms and help facilitate action by the patient advocate, guardian, or family member willing to petition probate court. Absent one of these options, nursing home administrators should file a petition seeking either a court-ordered vaccination or the appointment of a limited guardian with the power to consider and consent to the vaccination.

Questions? We can help.

Fraser Trebilcock’s Trusts & Estates lawyers are up to date with the current developments in this rapidly evolving area of public health and elder law. If you have questions, or need help, give us a call.