Friday, February 5, 2016
My friend and mentor Jeffrey Marshall, a/k/a ElderLawGuy on Twitter, once again uses practical experiences to illustrate how "planning in advance" for the possibility of emergencies makes sense, particularly as our loved ones age. He tracks the aftermath of an always dreaded "fall," an event in the life of an older person that too often can precipitate a downward spiral in the absence of a holistic care plan plan:
[M]y wife and I were thousands of miles away. How could we get her the immediate help that she needed?
Fortunately, the help was available. My wife and I had previously hired a professional care manager, Bonnie, in the town where gramma lives. As soon as we got the call from the emergency room we contacted Bonnie and filled her in. She swung into action at once. She visited gramma and evaluated her condition. She implemented a system of caregivers to stay with gramma. She set up a Monday morning appointment with gramma’s physician, attended it with her, and reported back to the family.
Bonnie served as the family’s eyes and ears and local expert and was able to ensure that gramma got the care and support she needed when she needed it.
For more details, read Jeff's blog post, "Caring for Mom when you are far away." I know that in my own family, who also lives far apart, over the course of my regular visits home I probably visited 10 different care providers with my mother or sister. This was during the year before we actually made the decision for my father. I kept saying "we can make these decisions without an emergency." It became my mantra. Not every emergency needs to be an emergency....
Tuesday, February 2, 2016
Prolific scholar Richard Kaplan, from Illinois Law, has a new article with a clever title. Here's a taste from the abstract for “What Now? A Boomer’s Baedeker for the Distribution Phase of Defined Contribution Retirement Plans:”
Baby Boomers head into retirement with various retirement-oriented savings accounts, including 401(k) plans and IRAs, but no clear pathway to utilizing the funds in these accounts. This Article analyzes the major factors and statutory regimes that apply to the distribution or “decumulation” phase of defined contribution retirement arrangements. It begins by examining the illusion of wealth that these largely tax-deferred plans foster and then considers how the funds in those plans can be used to: (1) create regular income; (2) pay for retirement health care costs, including long-term care; (3) make charitable donations; and (4) provide resources to those who survive the owners of these plans.
This very practical article appears in NYU's Review of Employee Benefits and Executive Compensation, Chapter 4, for 2015.
Friday, January 29, 2016
Following up on my post last week about the surge of interest in filial responsibility laws in South Korea, including the alternative concept, "filial duty contracts," recently I was interviewed as part of a English-language radio news broadcast in South Korea. The host asked for a comparative, international perspective. I thought the host's reaction to hearing about U.S. cases was interesting -- suggesting that lawyers (or perhaps law professors) aren't sufficiently tuned into the family emotions involved in the topic! Here's the podcast (about 10 minutes) from the live radio program.
Monday, January 25, 2016
I think I might like winter better, if it always happened "conveniently" and with plenty of notice, as did Saturday's snow in Pennsylvania. For once, I was prepared to be at home, with a stack of good reading materials for catching up when the joys of house-cleaning and snow shoveling faded.
I am intrigued by the Fall 2015 issue of the NAELA Journal that focuses on how advances in genetic testing and medicine may be reflected in the roles of lawyers who specialize in elder and special needs counseling. A leading article in the issue introduces the three primary uses of modern genetic testing -- for diagnosis of disease, for determination of carrier status, and for predictive testing -- while reminding us there are limits to each function. In looking at age-related issues, the authors note:
Genetic testing is beginning to reveal information regarding susceptibilities to the diseases associated with old age: Alzheimer’s disease, Parkinson’s disease, diabetes, and cancer. Genetic test results showing a higher risk of such diseases can result in a cascade of consequences. Francis Collins, mentioned at the beginning of this article, responded to his test results thoughtfully by making lifestyle changes to reduce the probability that the increased genetic risk would be expressed in actual disease. It is important to note that, for some conditions, lifestyle factors’ influence on disease risk is understood; however, for many of the conditions that affect seniors, this influence is not yet known.
Other reactions to a high-risk test result may be more aggressive than diet and exercise changes. A well-publicized example is Angelina Jolie’s bilateral mastectomy. She was cancer-free but learned that she carries a BRCA1 mutation, which increases her lifetime risk for breast and ovarian cancer. She chose to undergo prophylactic mastectomy to reduce her breast cancer risk, whereas other women choose to increase breast cancer surveillance, such as undergoing more mammograms and breast MRIs. Both options are available to women who carry a BRCA1/2 mutation.
Will those found to be at elevated risk for more complex conditions such as Alzheimer’s disease or Parkinson’s disease make premature life choices, such as early retirement or marriage, based on perceived risk? Earlier in this article it is explained that an individual’s genotype rarely determines his or her medical destiny. For example, many people with a higher genetic risk for Alzheimer’s disease will not actually develop it, while many with no apparent higher genetic risk will. Is the risk that members of the general public will misunderstand and overreact to the results of a genetic test sufficient reason to prevent them from obtaining the information gleaned from such a test? Should we be ensuring that those undergoing genetic testing are aware of its benefits and limitations through individualized genetic counseling? This, of course, presents its own challenges of access and availability.
In reading this, it seems likely that lawyers may encounter complicated issues of confidentiality, especially when counseling "partnered" clients, while also increasing the significance of long-range financial planning and assets management.
For more, read Genetic Testing and Counseling Primer for Elder Law and Special Needs Planning Attorneys, by CELA Gregory Wilcox and Rachel Koff, Licensed Certified Genetic Counselor.
January 25, 2016 in Advance Directives/End-of-Life, Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Discrimination, Estates and Trusts, Ethical Issues, Retirement, Science | Permalink | Comments (0)
Friday, January 22, 2016
In South Korea, "filial duty" is apparently a hot topic, as reflected by a recent Korean Supreme Court ruling and a public survey. And it is more than a theoretical concept or moral obligation, with "contract" law principles now coming into play. As reported in English by the Korea Herald, published on December 30, 2015:
More than 75 percent of South Koreans surveyed by a local pollster think “filial duty contracts” -- a legal document that makes it mandatory for all grown children to financially and emotionally care for their aged parents -- are necessary should they receive any gifts such as real estate or stocks from them.
The survey results were released two days after the Supreme Court ruled in favor of an elderly father who filed a suit against his son, who, in spite of signing a filial duty contract, did not care for his ill mother as promised after receiving a personal estate. The court acknowledged the legality of the document and ruled the son must return the property to his father, as the property was gifted in exchange for his support.
Although "filial duty" has long been considered an important, traditional value in Korea, "the nation's changing family structure" and high costs for housing and education apparently have made it more difficult for elderly Koreans to rely on their children for voluntary care. The survey, of 567 Koreans, showed strong support for greater enforcement of "filial duty contracts."
Under the current law, a donor may rescind a gift contract if the recipient committed an act of crime against the donor, or if “the beneficiary is obliged to support the donor but does not do so.” However, the law also states that rescinding a gift contract does not have any effect once the gift has already been given to the beneficiary.
For more details, including a report on a pending bill that would give "Korean parents the right to sue their children in case of mistreatment and to ask them to return any gifts," read "77% of South Koreans See Need for 'Filial Duty Contracts.'"
Wednesday, January 20, 2016
Are you teaching an elder law this semester? If so, and your students are interested in sample papers to help them think about approach, scope, organization and how to provide support for their thesis statements, I've found this batch of articles helpful, even though they are now almost 10 years "old."
The nine short articles by law students (including two former students from my own law school) were published in a student journal following a competition sponsored by the National Academy of Elder Law Attorney (NAELA) and are nicely introduced by my Blogging collaborator, Becky Morgan. They demonstrate an array of topics and writing styles, and thus are useful to discuss in a writing and research class. I'm sorry that the NAELA competition is no longer available to students, as was a very nice way for students to get further mileage from their classroom research on elder law topics, and helped encourage them to revise and polish drafts!
January 20, 2016 in Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Cases, Health Care/Long Term Care, Housing, International, Medicaid, Medicare, Social Security, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Monday, January 11, 2016
It's time for the new semester!!! Always such an exciting time for all of us. I wanted to see if anyone is doing anything new or innovative in your classes that you wanted to share. Are you assigning any movies or books (other than law school books) to your students? One of the books I'm considering suggesting is On Pluto: Inside the Mind of Alzheimer's. I'm also thinking of an assignment where the students research various technologies that are designed to help an elder age in place or stay safe. I'm happy to share results with those of you interested. Let us know your ideas and suggestions!
Monday, January 4, 2016
The New York Times on December 18, 2015 ran an article about LTC insurance. Long-Term Care Insurance Can Baffle, With Complex Policies and Costs opens with this compelling statement: "[insuring] for long-term care is a lot like trying to cover the future financial impact of climate change. It’s a universal problem that looms large, is hard to predict and will be costly to mitigate." The article provides a critical look at the need for long term care insurance and the hurdles that are faced by those considering the need for long term care.
[I]t is a notoriously confusing and not always reliable product. That’s why few people turn to such insurance. Some 70 percent of those over age 65 will require some form of long-term care before they die, but only about 20 percent own a policy.
Instead, millions of those who end up needing long-term care pay for it out of pocket or, after impoverishing themselves, turn to the government for support.
The article takes a look at the costs of the policies, when coverage kicks in, and the limitations of such insurance. The article offers some suggestions for those considering such a policy and concludes with some food for thought:
As if these questions weren’t difficult enough, there are also estate planning considerations. You may want to leave something to your heirs and not want to see your estate consumed by long-term care expenses in your final years.
For those in such situations, experts advise consulting an elder law attorney and fee-only financial planner who doesn’t make money from recommending the policies. That’s the best way to receive an objective — and nuanced — evaluation on whether this product makes sense for you.
Monday, December 21, 2015
The November/December 2015 issue of the ABA magazine (Volume 32, Issue 2) GPSOLO, the publication for members of the Solo, Small Firm and General Practice division of the American Bar Association, is devoted to Elder Law. The issue can be found on-line (and viewing does not seem to be restricted to division members!). The articles are also available on Westlaw.
- How to Make Money Practicing Elder Law, by Andrea G. Van Leesten, who practices in California and who is the 2015-16 Diversity Director for the Division;
- Representing Elder Physical Abuse Victims, by California practitioner Mark Redmond, who has "focused primarily on representation of elders in cases of physical and financial abuse for the last 15 years;"
- Advocating for Elders Suffering Financial Abuse and Exploitation, by Nicole Le Hudson, who focuses her San Diego practice on disability and elder law and who is a "member of the court-appointed attorney panel for conservatorships;"
- The State of Age Discrimination Law: An Update, by Brian McCaffrey, who focuses his New York practice on employment litigation;
- Estate Planning for Old Age and Incapacity, by Sheila-Marie Finkelstein, who practices estate planning in Irvine, California;
- Counseling Clients about Health Care Toward the End of Life, by Sally Balch Hurme (who I just discovered while reading her article recently retired from 23 years of consumer advocacy with AARP -- but who is still clearly very active in elder law, thank goodness!);
- How to Fund Long-Term Care Without Medicaid, by Eileen Walsh, from Louisville, and I have to admit I read her article first - she explores Medicare, insurance, VA benefits and reverse mortgage options); and
- What Every Lawyer Needs to Know About Planning for Retirement, by Cynthia Sharp who "works with motivated lawyers seeking to generate additional income."
Charlie Sabatino brings to bear his 30 years of experience and careful thought to the question of whether having older clients automatically means you are practicing "elder law," in his column "GP Mentor: When Does Serving Older Clients Become Elder Law?" Hint? The answer may depend on whether you are working in the best interests of the senior.
In addition, there is a great Resource Guide of recent texts on Elder Law and the Division Chair's essay on recognizing Elder Abuse. PLUS, there's a detailed shoppers's guide to cameras, mobile phones ans more in the 2015 Tech Gift Guide -- for those of you still searching for gift ideas for your favorite elder law attorney!
Thursday, December 17, 2015
Following the Third Circuit's ruling in the Zahner case in September 2015, Pennsylvania's Department of Human Services recently issued an Operations Memo providing guidance on how the state will evaluate the effect on Medicaid eligibility of so-called "non-qualified" annuities purchased during the look-back period. The Ops Memo #15-11--01, issued November 16, 2015, provides in part:
Prior to the Zahner decision, in order to be actuarially sound, an annuity had to have a payment term that was equal to the individual's life expectancy. If the annuity was either shorter or longer than the annuity owner's life expectancy found on the Life Expectancy Tables in LTC Handbook Chapter 440 Appendix D, then the purchase price of the annuity was used to determine an ineligibility period for payment of LTC [long term care] services.
Effective immediately, due to the Zahner decision, the definition of "actuarially sound" has changed. Annuities will now be considered actuarially sound if the annuity payment term is either short than, or equal to, the owner's life expectancy.
It will be interesting to see "what happens next" in the world of Medicaid planning. My thanks to Pennsylvania Elder Law attorney and all-round research guru Rob Clofine for sharing the link.
Is a Court-Appointed Guardianship, Using Paid, Private Guardian, "Worse Than Prison"? Latest from Nevada
As we've reported several times over the course of the last year, concerns about cost, misuse of authority, and lack of appropriate oversight of court-appointed guardians for adults in Clark County (Las Vegas), Nevada, have lead to a state-wide inquiry into how better to protect the civil rights of alleged incapacitated persons. According to news reports recent proceedings before the Nevada Supreme Court Guardianship Commission, one judge described past neglect of the alleged incapacitated individual's rights as being "worse than being sent to prison."
A frequent concern raised by family members has been the cost of court-appointed guardians, particularly for individuals or family members who disagree with either the need for a guardianship or the scope of the guardian's powers over the individual or the individual's assets. During the most recent proceedings addressing potential solutions, judges and others argued that a solution to some of the abuses was court-appointment of a lawyer at the outset of any guardianship proceeding to represent the interests of the individual. Thus, there is some irony, that an additional layer of potential costs -- the cost of the appointed counsel -- would be argued as part of the solution. On the other hand, limiting the amount of money such an attorney can charge (whether paid from the individual's estate or from public funds), can have the practical effect of what might be described as "de minimus" representation.
The Nevada proceedings have attracted considerable attention from media nationally -- and from family advocates challenging court-supervised guardianships in other states and who are sharing information about problems and potential solutions. My thanks to Rick Black for sharing news from Nevada.
December 17, 2015 in Cognitive Impairment, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Legal Practice/Practice Management, State Statutes/Regulations | Permalink | Comments (4)
Thursday, December 10, 2015
While researching potential fact patterns to use in my Wills, Trusts and Estate exam (which the students have now taken, although I remain in the Valley of Doom, for those grading essay exams), I came across a recent American Law Institute-CLE course with a very useful outline of "hot" topics in estate, trust and conservator litigation, prepared by Los Angeles attorneys Terrence Franklin and Robert Sacks. Also available on Westlaw as SW037 ALI-CLE 923, from June 2015, their list of hot topics includes:
- Legal Standards for Lack of Mental Capacity: contrasting the standards used for assessment of capacity to make wills and revocable trusts, versus more immediate lifetime gifts, and pointing to the Commentary to Uniform Trust Code Section 601 that observes that "Given [the] primary use of the revocable trust as a device for disposing of property at death, the capacity standard for will rather than that for lifetime gifts should apply."
- Legal Standards regarding Undue Influence: noting that "will and trust contests rarely rely on either a lack of capacity or undue influence claim alone. Usually, these claims are filed together, on the theory that even if the testator had the minimum level of capacity necessary to execute a valid will, her capacity was so diminished that she was more susceptible to the undue influence alleged. And California cases for decades have shown the tough burden a contestant has in contests on grounds of lack of capacity and undue influence."
- Pre-Death Contests: discussing standards used for decision-making by appointed guardians or conservators, including "substituted judgment," as well as states that have adopted statutory procedures that "expressly allow for pre-death determination of the validity of a will or trust," including Arkansas, Alaska, North Dakota and Ohio. See e.g., Ohio Rev. Code Ann. Section 2107.081 to 085.
- Intentional Interference with Expected Inheritance: summarizing the influential 2012 case of Beckwith v. Dahl, recognizing the tort of IIEI in California.
In the outline linked above, the authors also addressed practical estate planning topics, such as the importance of asking "why" when crafting dispositive provisions in estate documents, whether to videotape execution of testamentary documents, and whether to use "no contest" clauses.
December 10, 2015 in Cognitive Impairment, Consumer Information, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Legal Practice/Practice Management, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Sunday, December 6, 2015
According to one U.K. source, the current Chancellor of the Exchequer, George Osborne, supports "removing barriers for new and emerging companies, in order to create better functioning business ... the lifeblood of a thriving economy." Apparently part of that proposal is to permit on-line real estate agents. From The Economic Voice:
Mr Osborne’s intention is for the Government to “further reduce barriers so that it’s easier for alternative business structures, such as supermarkets and estate agents, to offer legal services such as conveyancing.” A consultation next spring will look to remove these existing barriers for alternative business models in legal services, as well as making legal service regulators independent from their representative bodies....
However Mr Osborne’s big statement was the Government’s intention to inject innovation into the home buying process. They want to ensure that the modernisation of the estate agency sector through the online space, continues to provide consumers with quicker, better value routes to selling their home. Mr Osborne wants to encourage new business models such as online only estate agents, to enhance price competition in the real estate sector – as he believes they are yet to properly penetrate the property market.
Hat tip to Dickinson Law Professor Laurel Terry for the link.
Monday, November 23, 2015
Mass. Appellate Court Reinstates Legal Malpractice Verdict Following Flawed Medicaid-Planning Advice
In October 2015, the Massachusetts Court of Appeals addressed the question of whether there were damages flowing from a lawyer's Medicaid advice to an older couple. The lawyer had counseled that, for Medicaid planning reasons, the couple should not retain a life estate in a house purchased with their money but held in the name of their adult children. The court found the surviving mother suffered real damages, even if eviction from the house by her children was unlikely. Key allegations included:
Thirteen years later, in July of 2007, the Brissettes [the parents] and two of their four children, Paul Brissette and Cynthia Parenteau, met at [Attorney] Ryan's office to discuss the Brissettes' desires to sell the South Hadley home and to buy property located in Springfield. They discussed the prospect of putting the Springfield property in the names of Paul and Cynthia. Ryan told the Brissettes that if they reserved life estates in the Springfield property, they could be ineligible for Medicaid if they applied any time within five years of getting the life estates. He also told them that if they took life estates in the Springfield property, there could be a Medicaid lien against that property when they died. There was evidence that the Brissettes asked about “protection,” but Ryan told them that he did not feel that the Brissettes needed protection because they could trust their children to do what they wanted them to do. In reliance on Ryan's advice, the Brissettes decided that the Springfield property would be bought with their money but put in Paul's and Cynthia's names, and that the Brissettes would not have life estates in the Springfield house.
After her husband's death. Mrs. Brissette concluded she wished to own "her" home in her own name, but the children declined to re-convey the property to her.
During the malpractice trial, Lawyer Ryan conceded his advice about the effect of a life estate on Medicaid and/or a Medicaid lien was wrong, and expert witnesses also testified that the incorrect Medicaid advice was "below the standard of care applicable to the average qualified attorney advising clients for Medicaid planning."
Tuesday, November 10, 2015
On November 6, 2015 the appellate division of New York's Supreme Court addressed an issue long brewing in some states, whether Continuing Care Retirement Communities (CCRCs) can insist on "private pay" for skilled nursing care despite a resident's "eligibility" for Medicaid under state and federal laws. In Good Shepherd Village at Endwell, Inc. v. Yezzi, the unanimous panel affirmed summary judgment in favor of the CCRC on the payment question.
The decision highlights Congressional DRA action in 2005/6 that amended federal Medicaid law to expressly permit CCRCs to offer contracts that require residents to "spend on their care resources declared for the purposes of admission before applying for medical assistance." The DRA amendment was a response to the industry's lobbying efforts, following a 2004 decision by a Maryland appellate court in Oak Crest Village, Inc. v. Murphy that held such a contractual provision violated the federal Nursing Home Residents' Bill of Rights, viewed as prohibiting nursing homes from conditioning admission on guarantees of private pay.
In the New York case history, the couple apparently signed two separate documents, beginning with a "contract" at the time of their entrance into the CCRC that required them to pay both an entrance fee ($143,850) and "basic monthly fees" of approximately $2,550 to cover the cost of independent living. Any need for skilled nursing care would be assessed "an additional charge." That contract provided that residents could "not transfer assets represented as available" for less than fair market value. When the wife needed skilled care, the couple signed a second document, referred to in the case as an "admission agreement," for treatment in the CCRC's skilled nursing unit. The "admission agreement" reportedly required the Yezzis to "pay for, or arrange to have paid for by Medicaid" all services provided by the CCRC.
Thursday, November 5, 2015
Are There Limitations on Estate "Re-Planning" Following Adult Adoptions, Especially for Same-Sex Couples?
In my course on Wills, Trusts and Estates, students always seem to be intrigued by "adult adoptions." There can be a variety of reasons for an adult adoption, often tied to estate planning goals, including attempts to create statutory heirs that can nullify challenges by other family members to bequests in traditional estate documents, such as wills or trusts on the grounds of "undue influence." Sometimes the cases are connected to sad facts, such as the troubled life of tobacco heiress Doris Duke, who at age of 75 adopted a much younger woman, but came to regret that fact, leading to a mostly unsuccessful attempt at disinheritance. Robert Sitkoff's casebook on Wills Trusts & Estates has a fascinating profile of the Duke case, even though the original reasons for the adoption were not entirely clear.
In the news this week is a less unhappy, but still complicated case -- and I imagine there could be similar cases around the country -- where in 2012, after forty years as a same-sex couple, a retired teacher adopted his partner, a retired writer:
Now, they're trying to undo the adoption to get married and a state trial court judge has rejected their request, saying his ability to annul adoptions is generally limited to instances of fraud.
"We never thought we'd see the day" that same-sex marriage would be legal in Pennsylvania, Esposito, 78, told CNN in a telephone interview. The adoption "gave us the most legitimate thing available to us" at the time, said Bosee, 68.
Tuesday, November 3, 2015
A recent article in the Wall Street Journal focuses on challenges in state courts to how guardianships operate and the role of courts in appointment and oversight of guardians. Titled "Abuse Plagues Systems of Legal Guardianships for Adults," the on-line version of the article carries the subtitle of "Allegations of financial exploitation and abuse are rife, despite waves of overhaul efforts." The article uses extensive details from just two guardianship caess, one in the state of Washington involving a 71 year-old woman, and one in Florida involving an 89 year-old "mother," to develop its theme of financial exploitation and abuse, pointing to critics that say "many elderly people with significant assets become ensnared in a system that seems mainly to succeed in generating billings."
The article includes statements from National Academy of Elder Law Attorneys president elect, Catherine Seal, providing a contrasting view of properly-managed guardianships. She is quoted as saying, "The worst cases that I see are the ones where there is no guardian."
Arizona is identified in the article as a state that has adopted safeguards on unnecessary or abusive fees "by establishing fee guidelines" in 2012. Of course it did so after a significant 2010-2011 investigative news series by the Arizona Republic in Maricopa County that exposed a series of cases in which court permitted fees and delays significantly impacted the alleged incapacitated persons' financial resources.
The WSJ article, I think, can be criticized for using just two cases of conflict to dramatize allegations of systemic problems, characterized as exploitation. We need to talk about systemic reform needs by looking beyond single case reports
It seems clear, however, if you follow the pockets of deeper investigations from across the nation, including recent challenges in Florida and Nevada where allegations focused on an array of court-permitted problems, including delays generating more costs, or overly cozy relations between court-appointed guardians and courts, or the absence of monitoring systems, that there are larger systemic issues in need of watchful eye and, in certain jurisdictions, critical examination and reform.
My thanks to Marilyn Berquist and Rick Black for recommending the WSJ article.
Thursday, October 22, 2015
In one of those feature articles that The New York Times does so well, N.R. Kleinfeld reports The Lonely Death of George Bell. It is a sad story, as Mr. Bell died in his apartment at the age of 72 and no one "missed him," so his body was not discovered for days. You may have stopped reading precisely because it is such a sad story. But, at the same time, George's story is a surprising tale of the potential consequences of dying alone. The article lays out the layers of necessary decision-making, from the simplest of questions -- where will George be buried -- to the complex, where public authorities must hunt for an executor and for beneficiaries named in George's 30-year old will. Then, in turn they must hunt for their heirs, when it turns out that this modest man's death left behind almost a half million dollar estate and few living connections.
My thanks to Penn State law student Kevin Horne who shared with me the link to this interesting story. As he points out, this story gives another side to our course on Wills Trusts & Estates.
Wednesday, October 21, 2015
The ABA Section on Family Law has devoted the entire Fall 2015 issue of its Family Advocate magazine to "Crossing Paths with a Trust." The paper copy of the issue just appeared on my desk. The opening editorial advises family law attorneys advising clients considering divorce not to fear trusts:
Lawyers who simply take a deep breath and read the trust will often be surprised to learn that they have in their hands a road map for how assets will be managed, who gets what, when they get it, and under what terms.
The articles in the issue include a "plain English guide to trusts as a means of orchestrating assets in divorce cases," how trusts can interact with disclosure requirements for premarital agreements, how to address equitable division of interests assigned to trusts, the use of child support or alimony trusts, and the unique potential advantages for using trusts for "special needs" planning for disabled children. The issue ends with a bonus -- a primer on "will basics."
The articles underscore what I sometimes find myself saying to law students, that courses on "wills, trusts and estates" are about advanced family law issues, and that if families fail to address disputes among family members while they are still living, the issues may not be any less complicated when the asset-holding family member passes away.
The entire issue seems like a good resource for a wide audience, including law students. Unfortunately, the on-line version of Family Advocate issues is restricted to ABA Family Law Section members, at least during the first few weeks of publication. Apparently you can purchase paper copies (see for example the rates for the previous issue, for Summer 2015) , including bulk orders, although I find there is often a lag time for specific issues to become available to purchase. I guess you have to keep checking!
October 21, 2015 in Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Housing, Legal Practice/Practice Management, Property Management, Retirement, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Thursday, October 15, 2015
When One Spouse Uses Community Funds to Care for His Infirm Parent, Is That A Breach Of Fiduciary Duty to His Spouse?
Last week I spoke on filial support duties, and one question from the audience was whether Pennsylvania's filial support law could obligate someone to provide for a stepparent. My answer under Pennsylvania law was "probably not." My analysis was based on Pennsylvania cases, such as Commonwealth v. Goldman, that had used a strict definition of parent-child relationship for purposes of calculating the limits on indigent support obligations, although doing so in the context of in-laws rather than stepparents.
But something in the back of my mind was itching, and of course, over the weekend I started scratching. I remembered a case, which did seem to recognize a potential for indirect obligations to "parents-in-law."
The case is from California, where divorcing spouses were arguing over division of community property. One focus of the disputes was proceeds of the sale of a former house. While rejecting an argument that the sale of the property transmuted the funds into 50/50 separate property, a California appellate court was willing to consider the expenditure by the husband of some of these funds to care for his "infirm mother" to be a "community debt." Further, the court observed that unlike the obligation to "reimburse the community" for payment out of community funds to support a child not of that marriage, there was no statutory obligation to "reimburse the community" if the funds were used to care for one spouse's parent.
Pointing to California's "not commonly known" filial responsibility law, the court held that if the funds were actually spent for care of his indigent mother, such use did not constitute an "unauthorized gift."
The court went further, however, noting that "a spouse's debt payments may constitute a breach of fiduciary duty and run afoul" of California law dealing with contracts with third parties, when entered into by only one married party. A bit of a Catch-22 problem, right? However, this interesting fiduciary duty issue "was not raised" in the parties' briefs and therefore was not resolved on this appeal.
On remand, husband was "entitled to establish the funds were expended to support his mother, who was in need and unable to maintain herself." For the full analysis, including citations to the relevant California statutes, see In re the Marriage of Leni (2006).