Sunday, January 25, 2015

How Do You Tell Family You Have Alzheimer's?

NPR's All Things Considered began a series on January 24th that follows Greg O'Brien's journey with early-onset Alzheimer's, beginning with his diagnosis at age 59.  There is lots of important stuff here, including the need for family dialogue and understanding.  One dialogue is between the father and son, about why it was important for the son to serve as his  dad's agent under a Power of Attorney. 

Here's an excerpt from O'Brien's powerful account:

"How do you tell your kids that you got Alzheimer's? It sucks.

 

I had planned this family meeting, so all the kids were home and we're going to go out to dinner. I knew I had to talk beforehand.So I'm in the bathroom, you know I felt a little bit like Luca Brasi in The Godfather, practicing my speech. 'On the day of your daughter's wedding....'

 

I could hear, 'Daddy,where are you?' So I came out and I went over the fact that their great-grandfather, my grandfather, had died of Alzheimer's and my mother, which they knew. And now it's come for me...."

To read or listen to the series on public radio or podcast, follow the NPR links here.  O'Brien also has a book, On Pluto - Inside the Mind of Alzheimer's.

January 25, 2015 in Cognitive Impairment, Dementia/Alzheimer’s, Estates and Trusts | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 21, 2015

Midweek Potpourri: Recent Elder Law Articles from SSRN

Catching up with three new elder law-related articles from SSRN that look very interesting:

"The Universality of Medicaid at Fifty" by University of Kentucky Law Professor Nicole Huberfeld, forthcoming in the Yale Journal of Health Policy Law & Ethics:

"This essay, written for the Yale Law School symposium on The Law of Medicare and Medicaid at 50, explores how the law of Medicaid after the ACA creates a meaningful principle of universalism by shifting from fragmentation and exclusivity to universality and inclusivity. The universality principle provides a new trajectory for all of American health care, one that is not based on individual qualities that are unrelated to medical care but rather grounded in non-judgmental principles of unification and equalization (if not outright solidarity). This essay examines the ACA's legislative reformation, which led to universality, and its quantifiable effects. The essay then assesses and evaluates Medicaid’s new universality across four dimensions - governance, administration, equity, and eligibility. Each reveals a facet of universality that underscores this new principle’s importance for health care into the future."

"The Troubled State of America's Nursing Homes," by Temple Law's graduate, Albert Moran:

"This paper analyzes nursing home failures in light of the federal regulatory regime that oversees them. Section II provides a framework for the discussion of nursing homes by describing the choices seniors have for their living arrangements. In order to establish context for the current social and legal space inhabited by nursing homes, Section III traces the historical development of the modern nursing homes, with a particular focus on the landmark laws of the 1960s that paved the way for late-twentieth century proliferation of nursing homes. With this background in mind, Section IV explores the federal regulatory regime that governs nursing homes, and Section V details the bodies and mechanisms that enforce federal rules and regulations. Section VI provides evidence and statistics regarding the prevalence of abuse and neglect in nursing homes and argues that these data evidence a troubled regulatory system. Section VII examines the Patient Protection and Affordable Care Act, which has been heralded as the most significant legislation affecting the healthcare industry in decades, and concludes that the law does not contain provisions that will serve to reduce elder abuse and neglect in any significant way. Section VIII offers recommendations to improve nursing home care in light of the foundation provided by PPACA. Section IX discusses potential blowback that these and other solutions may present and urges reformers to proceed carefully and thoughtfully before enacting any proposed reform."

"Probate Law Meets the Digital Age," by George Washington Law Professor Naomi Cahn, for the Vanderbilt Law Review:

"This Article explores the impact of federal law on a state fiduciary’s management of digital assets. It focuses on the lessons from the Stored Communications Act ('SCA'), initially enacted in 1986 as one part of the Electronic Communications Privacy Act. Although Congress designed the SCA to respond to concerns that Internet privacy posed new dilemmas with respect to application of the Fourth Amendment’s privacy protections, the drafters did not explicitly consider how the SCA might affect property management and distribution. The resulting uncertainty affects anyone with an email account."

January 21, 2015 in Estates and Trusts, Health Care/Long Term Care, Housing, Medicare | Permalink | Comments (0) | TrackBack (0)

Sunday, January 18, 2015

Florida Supreme Court Advises on "Medicaid Planning" by Nonlawyers as "Unlicensed Practice of Law'

Following extensive hearings and related proceedings, including revision of an earlier proposed advisory opinion by the Florida Bar's Standing Committee, the Florida Supreme Court issued a per curiam opinion on January 15, 2015, addressing certain Medicaid planning activities, concluding that when performed by nonlawyers, they constitute the "unlicensed practice of law" (UPL), thereby leading to potential sanctions. Florida Supreme Court

The ruling focuses on actions by nonlawyers who assist with one or more of the following activities leading up to an application for Medicaid: (1) drafting of personal service contracts, (2) preparation and execution of Qualified Income Trusts; or (3) rendering legal advice on implementation of Florida law to obtain Medicaid benefits. The Court expressly distinguished the "preparation of the application for Medicaid benefits" as being outside of its opinion, pointing to federal law as authorizing nonlawyer assistance in the application process. 

The Elder Law Section of the Florida Bar was the petitioner seeking the advisory ruling.

In the detailed conclusion, the "harm and potential harm" from "unregulated" nonlawyers selling trust packages was outlined:

Continue reading

January 18, 2015 in Consumer Information, Estates and Trusts, Ethical Issues, Legal Practice/Practice Management, Medicaid, State Cases | Permalink | Comments (1) | TrackBack (0)

Monday, January 12, 2015

"Broad POA Form" + Theft by Agent = Potential Liability for Lawyer? Maybe...

We have written often recently (see here and here) about problems with Powers of Attorney (POAs), and a pending case in Minnesota appears at first to be another sad tale of an agent's alleged self-dealing.  The Minnesota Court of Appeals set up the fact pattern as follows:

"The attorney is asked to draft a power of attorney for his elderly client.  The document is drafted by a secretary.  The lawyer never meets the client.  Neither the lawyer nor the secretary ever discusses the ramifications of signing the document with the client.  The document allows the attorney-in-fact to transfer all of the client's assets to himself.  Days after the [elderly uncle] signs the document, that is precisely what happens." 

The nephew used the POA to drain the uncle's accounts of more than $227,000.

Was the nephew liable for conversion?  By the time that question was answered by the courts in the affirmative, the nephew was in bankruptcy -- and the money was apparently gone. 

The uncle's estate looked for deeper pockets, and focused on the law firm that provided the broadly worded POA "form."  The Minnesota Court of Appeal's split decision -- focusing on whether summary judgment for the defendant law firm was proper -- outlines several points that should be considered by any law firm that has drafted a POA, including whether such "forms" should ever be provided to individuals without accompanying legal advice.

Continue reading

January 12, 2015 in Crimes, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Legal Practice/Practice Management, State Cases | Permalink | Comments (0) | TrackBack (0)

Wednesday, December 31, 2014

Maryland Court of Appeals Confirms Disbarment of "Elder Law" Attorney

On December 23, 2014, the Maryland Court of Appeals issued a detailed opinion explaining the disbarment of Attorney Michael C. Hodes, in proceedings initiated by the state's Attorney Grievance Commission. Hodes, an attorney with 39 years of experience, reportedly held himself out as concentrating his practice in estate planning and elder law. At the core of the charges against Hodes was "self-dealing," by improperly using money from a specific decedent's account and over $270,00 from a related trust account for his own needs.  He attempted to avoid disbarment, arguing that the sums should be characterized as a loan, that he had made restitution and his alleged misconduct was not in his role as an "attorney."

The Court concluded, however, that an attorney can be disciplined for violations of Rules of Professional Conduct, including conflict of interest, arising from conduct as an agent and trustee for an irrevocable trust created from assets from a decedent's estate, even if the attorney had been acting in a personal or non-legal capacity. 

Hodes argued as mitigation that he had an established reputation as a trustworthy and knowledgeable attorney, with no prior history of disciplinary sanctions, and pointed to his roles as an adjunct professor at two area law schools and his role as a regular commentator on "elder law" for the radio.  The court was unpersuaded, observing, "Yet, with all of his knowledge and experience in the practice areas of elder law and estates and trusts, Respondent displayed a remarkable lack of insight into his professional responsibility as an attorney and fiduciary. He continued to insist that he had taken a 'loan' of $270,000.00 from the Trust in order to pay personal bills, as if this form of self-dealing was acceptable."

The Maryland Court of Appeals also rejected Hodes' argument that the sanction of disbarment was excessive, as compared to prior disciplinary cases. The Court noted that to the extent the cases could be cited as permitting leniency for intentional misconduct, they "are no longer part of our modern attorney discipline jurisprudence."

For more, see here (Baltimore Business Journal), describing Michael Hodes' future plans. 

December 31, 2014 in Estates and Trusts, Ethical Issues, Legal Practice/Practice Management, Property Management | Permalink | TrackBack (0)

Saturday, December 20, 2014

"Smart Talk" about Guardianships, POAs, Elder Abuse & Access to Justice in the Courts

Here is a link to a podcast for a Smart Talk program from WITF Public Radio, where Zygmont Pines, Esq., Court Administrator for the Commonwealth of Pennsylvania and I were invited to talk about quite a few "hot" topics from Pennsylvania Supreme Court's Elder Law Task Force.  The Task Force released its big Report and Recommendations last month. 

The topics strike me as quite universal, not Pennsylvania specific.  If you make it to the last few minutes (or skip ahead), there is an especially poignant moment with a family caregiver, who tells a real life story that will strike a chord with many. 

 

 

December 20, 2014 in Consumer Information, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Health Care/Long Term Care | Permalink | Comments (1) | TrackBack (0)

Friday, December 19, 2014

Pennsylvanians Face New Requirements for Effective POAs Written in 2015

Starting on January 1, 2015, Pennsylvanians have new rules that apply in order to create effective Powers of Attorney (POAs).  The changes are wrought by Act 95 of 2014, and were stimulated in large part by a case decided in 2010 that invalidated a POA that had been executed under suspicious circumstances.  We discussed the background here.

There are important, and sometimes subtle options for principals to consider in accepting or rejecting the "default rules" in the Act.  All of the changes were intended to provide better protections for principals from abuse by agents, but not all principals will want those protections, particularly if it means more risk of third-party intervention or oversight.  For an up-to-date and thoughtful summary of the changes and implications, read ElderLawGuy Jeff Marshall's recent blog post on "What You Need to Know."

For attorneys seeking the latest information on POA drafting and best practices, the Pennsylvania Bar Institute is offering several CLE programs around the state in January 2015.

December 19, 2014 in Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Saturday, November 29, 2014

Oregon Court Invalidates State's Attempt to Expand Medicaid Estate Recovery

On November 26, 2014, in Nay v. Department of Human Services, the Oregon Court of Appeals invalidated a 2008 attempt by the state to expand Medicaid estate recovery rules to reach assets conveyed prior to death by the Medicaid recipient to his or her spouse. 

The court's ruling analyzes the portion of federal statutory law that permits, but does not require, states to expand Medicaid estate recovery programs to cover "any other real or personal property and other assets in which the [deceased] individual had any legal title or interest at the time of death... including such assets conveyed to a survivor, heir, or assign of the deceased individual through joint tenancy, tenancy in common, survivorship, life estate, living trust or other arrangement."  Analysis of this language, which was mirrored by Oregon statutory law, leads the court to conclude that some ownership interest at time death of the Medicaid recipient must be present to make the asset a valid target of Medicaid estate recovery:

"Therefore, we conclude that 'other arrangement' in the context of the definition of “estate” means that assets transferred from the deceased 'individual'—the Medicaid recipient—by operation of law on account of or occurring at the recipient's death are included in that definition. Thus, the 'including' clause in the federal permissive definition of 'estate' incorporates nonprobate assets that are transferred from the Medicaid recipient to a third party by operation of law or other mechanism, but in which the deceased Medicaid recipient retained legal title or 'any' interest at the time of his or her death."
The appellate court then analyzes property law principles and elective share rules in Oregon, concluding that the state rulemaking attempt to reach pre-death interspousal transfers is not within the scope of the federal (or state) authorization:
 
"By including the 'interspousal transfer' text in the pool of assets from which the state can recover from the surviving spouse's estate, the rule includes assets that necessarily were transferred before the recipient's death. Because we have concluded that such predeath transfers are antithetical to the definition of estate as provided by federal and state law (requiring that the recipient have an interest in the property at the time of his or her death), we conclude that DHS's amendments of OAR 461–135–0835(1)(e)(B)(iii) relating to interspousal transfers exceeded its statutory authority granted by ORS 416.350 and 42 USC section 1396p, and we hold those provisions invalid."
The petitioner in this case, Tim Nay, is a Portland, Oregon attorney and former president of NAELA. By ruling in favor of the petitioner on the scope of authority for rule making issue, the appellate court found it unnecessary to address the petitioner's alternative argument on constitutionality of the rule

November 29, 2014 in Estates and Trusts, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, State Cases | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 25, 2014

Factors to Consider In Determining Whether to Preserve Elder's Interest in Primary Residence

New Jersey Elder Law Attorney Linda Ershow-Levenberg outlines factual and legal issues to consider in deciding how to handle the family residence in a recent article for Experience, the ABA publication for the Senior Lawyers Division.  She warns that the "real trick is balancing [the clients'] financial security against the hopes of their heirs."

She begins by urging lawyers to resist a simplistic inquiry or "one size fits all" approach to elder law planning, stressing that lawyers should consider the impact of a proposed real estate conveyance on:

  • the elder's right to remain in the home;
  • a Medicaid application for either at-home or institutional services;
  • the income taxes of both transferor and transferee;
  • the elder’s financial and physical ability to remain in the home;
  • the elder’s estate plan; and
  • present and future liens and mortgages.

She observes that frequently an elder's "plan" to divide property equally among children or other heirs conflicts with the way in which property is already titled, noting that sometimes the choice of  co-owners or death beneficiaries was intentional.  "As often as not, however, the elder simply did not understand that beneficiary designations such as 'POD' (pay on death) or 'ITF (in trust for) control the disposition of an asset despite contrary instructions in the will."  Additional complicated and conclusive presumptions may exist, arising from the form of title for real property, that also may conflict with a will, thus triggering expensive challenges that could have been avoided with more comprehensive understanding of the client's estate.   

The article appears to be written for non-specialist lawyers, who are often asked to do "simple" estate planning that, in the wrong hands, can result in anything-but-simple outcomes for the family. 

Here's the link for more on "Preserving the Primary Residence: The Minefield of Real Estate Transactions in Elder Law Planning."

The theme of this issue of Experience is "Real Estate Issues Affecting the Elderly," and the issue includes discussion of the pitfalls of reverse mortgages, income tax liability connected to foreclosures, and "unique" property rights issues for seniors in Western states, including water rights.

November 25, 2014 in Estates and Trusts, Housing, Property Management | Permalink | Comments (0) | TrackBack (0)

Monday, November 24, 2014

Proposed Changes to Attorney Disciplinary Rules Follow Recent Theft Reports

Several high profile incidents, such as those reported here in our Blog and here by the Philadelphia Inquirer, involving attorneys disciplined or convicted of theft of client funds, have triggered proposed changes in Pennsylvania's Rules of Professional Conduct for attorneys. The rule changes proposed by the Pennsylvania Supreme Court's Disciplinary Board include:

  • imposing restrictions on an attorney's brokering or offering of "investment products" connected to that lawyer's provision of legal services;
  • clarifying the type of financial records that attorneys would be required to maintain and report, regarding their handling of client funds and fiduciary accounts;
  • clarifying the obligation of attorneys to cooperate with investigations in a timely fashion;
  • clarifying the obligation of suspended, disbarred, or "inactive" attorneys to cease operations and to notify clients "promptly" of the change in their professional status. 

The Disciplinary Board called for comments on the proposed rule changes, noting that although individual claims against the Pennsylvania Lawyers Fund for Client Security are confidential, "Fund personnel can attest that from time to time, the  number of claims filed against a single attorney will be in double digits and the total compensable loss will amount to millions of dollars."  The comment window closed on November 3. 2014.

In recommending changes, the Disciplinary Board noted common threads running through many of the cases, including:

Continue reading

November 24, 2014 in Crimes, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Cases, Federal Statutes/Regulations, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Monday, November 17, 2014

Would Trustees' Investment in High-End Art Be Consistent with Fiduciary Standards?

We're discussing fiduciary duties for trustees in my Wills, Trusts & Estates course and perhaps that is why an article in the November- December issue of the ABA publication, Probate & Property, caught my eye.  The cover article is "Painting a Not-So-Pretty Picture: Art as an Alternative Investment in Fiduciary Accounts."  Author Michael Duffy, from Goldman Sachs, reports on recent eye-popping headlines for auction sales of artwork.  He  discusses the sales figures against the background of fiduciaries seeking better-than-conservative returns through use of alternative investments.  He outlines the tangible and not-so-tangible variables at the heart of art investment, leading to his thesis:

"It is the position of this author, however, that trustees should not be persuaded by the seemingly lackluster performance of their traditional investments reltative to these sensational headlines and that they should ignore the steady drumbeat of savvy marketers who have a vested interest in convincing them otherwise. There are simply too many considerations when buying and selling art that call into question the prudence of any such endeavor when undertaken by a fiduciary held to the highest investment standards under the law."

It is interesting to note that "absence of federal and state regulation" is one of the reasons for caution cited by this financial services author.

November 17, 2014 in Estates and Trusts, Ethical Issues, Property Management | Permalink | Comments (0) | TrackBack (0)

Thursday, November 13, 2014

Does "Unlimited" Gifting Power in POA Protect the Agent from Criminal Liability for Self-Gifting? PA Appellate Court Says "No"

Following a nonjury trial in 2012, David Patton was convicted of 95 counts of statutory theft by unlawful taking, arising out of his use of a power of attorney (POA).  The POA named him as agent for his 86 year-old aunt.  At issue was more than $200,000. Patton appealed the conviction, alleging the POA that expressly granted him authority to make "limited or unlimited gifts," made it impossible for him to be held liable for theft by cashing checks and making withdrawals from his aunt's accounts for his personal use in 2008, 2009 and 2010. In September 2014, the Superior Court of Pennsylvania, an intermediate appellate court, issued a "nonprecedential" written opinion affirming the convictions, concluding:

"Simply stated, we reject Appellant's bold claim that the 'unlimited gift' provision in the power of attorney provided Appellant with a license to steal [his aunt's] assets and use all of her money for Appellant's own benefit. To the contrary, the gifting power was clearly subject to the condition [stated in a statutorily required affidavit signed by Appellant] that Appellant use the power 'for [his aunt's] benefit' - and Appellant clearly violated this condition when he took all of [his aunt's] money and used it as if it was his own. Therefore, since Appellant's actions were not authorized by the power of attorney, Appellant's sufficiency of the evidence claim necessarily fails."

In reaching this decision, the appellate court adopted the trial court's "meticulous" rulings as its own.  In the trial court's final order, the judge rejected the defendant's testimony that he had no awareness or notice that using the POA  to make the transfers in question was a crime.  The trial judge wrote: "He did not need to be notified in writing to know that he could be charged with theft for taking for his own personal use over $200,000 of [his aunt's] savings, using some of it to go gambling in Erie and depriving her of sufficient funds to pay for her nursing home care in her old age."

An additional interesting, and perhaps confusing aspect of the case, is testimony by the attorney who drafted the POA. 

When called by the defense to testify as "an expert" on powers of attorney, as well as a fact witness, the attorney testified he "always" included both "limited and unlimited" gifting authority in his POAs.  He testified he explained to the aunt that the broadly-worded POA enabled the agent to "do anything that she could do." On direct examination, he testified the gifting language was "completely unconditional." 

Continue reading

November 13, 2014 in Crimes, Estates and Trusts, Ethical Issues, Legal Practice/Practice Management, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Wednesday, November 12, 2014

Should Estates Be Permitted to Sell Decedents' Body Parts, With Proceeds to Heirs or Beneficiaries?

Professor Reid Weisbord at Rutgers Law School - Newark has a new essay that takes on a challenging, two-part question: Whether a donor's estate should be permitted to sell a decedent's body parts or organs posthumously and whether the proceeds of such sales will be distributed to the donor's heirs or beneficiaries.  Professor Reid suggests an appropriate starting place is to define and provide for "anatomical intent" of the donor.  Before you start imagining vendors on Craigslist or at Sothebys, be advised the essay anticipates a regulated system.

You probably want to read more about this topic, correct?  See "Anatomical Intent" by Reed Weisbord from the November issue of Yale Law Review Forum.

November 12, 2014 in Advance Directives/End-of-Life, Estates and Trusts, Property Management | Permalink | Comments (0) | TrackBack (0)

Sunday, November 2, 2014

"Her Dying Wishes" Aren't Enough to Justify Forgery of Her Will

Catherine "Kitty" Haughey passed away in 2004, a widow without children of her own.  Her godson lived with her the last two years of her life in County Armagh in Northern Ireland.  She was leaving behind the lovely sounding "Annie's Cottage" and Larkin's, a family pub, along with a substantial sum of cash.  Directions for distribution of her property were contained in a will dated two weeks before her death. A Pub in Northern Ireland

Ten years later, her godson has pled guilty to forgery of that will, although still trying to rationalize his actions by saying the new document that gave him the house and pub "reflected her dying wishes." He was finally compelled to concede he'd gone about "changing the will in the wrong way."

Indeed he did, with help in drafting and "witnessing" the will coming from a surveyor and a local doctor, both of whom earlier pled guilty to assisting in the forgery.  They received suspended sentences. 

The 53-year-old "godson," Francis Tiernan, tried to avoid prosecution in Northern Ireland by fleeing the court's jurisdiction and fighting extradition after he was discovered in the south of Ireland.  His prison sentence is three years. 

The actual will, dated 2003, had left Tiernan just £1000, while the reported value of the property was more than £1,000,000. An autopsy was performed following exhumation of Kitty Haughey's body, showing she died of natural causes. Her death came close in time to those of her only two siblings.

Hat tip to Dr. Joe Duffy of Queen's University Belfast for sending me this story. For another tale of misuse of legal documents to gain control over a pub in Ireland, see "The Lesson of the Irish Family Pub" that I wrote for Stetson Law Review in 2010.  That time the "help" came from a lawyer who contended he was representing the "family" in preparing deeds. For more on Francis Tiernan's woes and indications of his colorful past, see links below. 

November 2, 2014 in Crimes, Estates and Trusts, Ethical Issues, International | Permalink | TrackBack (0)

Tuesday, September 16, 2014

PA Attorney Disbarred After Ten Years of Involvement In "Living Trust Scams" Targeting Seniors

Following several months of investigation of complaints from older adults and their family members, in 2004 the Pennsylvania Attorney General announced a civil suit against an array of companies and individuals, including several attorneys, alleging their participation in a scheme to defraud through sales of unnecessary revocable living trusts and unsuitable annuities and insurance products. The alleged target was "senior citizens age 65 and older."

Ten years later, one of the Pennsylvania attorneys named in that original investigation, Brett B. Weinstein, has been disbarred.  This particular disciplinary action has been a lo-o-o-o-ng-time coming.

Beginning as early as 2000, the Pennsylvania disciplinary board received complaints about Weinstein's role in the sales by non-lawyer third-parties of so-called "living trusts," often packaged with high-priced annuities.  Weinstein himself rarely met with the clients, and provided little in the way of legal advice or counseling.  He was formally cautioned about his use of unsupervised non-lawyers to provide legal advice and in 2001 he entered into a written Assurance of  Voluntary Compliance. 

The conduct, however, apparently did not stop.  An undercover investigator was used to document continued problems.   In recommending disbarrment, the Disciplinary Office concluded that from 2002 to 2012, acting on his own and in concert with others, Weinstein "assisted sales and delivery agents for a series of estate planning companies  in the un-authorized practice of law." Further, he engaged in "false and misleading conduct, failed to consult with his clients concerning their objectives and placed his own interests above his responsibilities to his clients."

In discussing the case against Weinstein and rejecting his attempts to justify his conduct, the Disciplinary opinion points to a long-history of concerns about attorneys involved with living trust "mills" in other states (including Colorado, Missouri, and Ohio), where the products are pushed on older persons with little or no analysis of the clients' real legal needs and specific financial circumstances. Read here for the complete Disciplinary findings and the PA Supreme Court Order dated July 28, 2014.

September 16, 2014 in Consumer Information, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Legal Practice/Practice Management, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Monday, September 15, 2014

Tailoring Powers of Attorney: Beyond the Minimum Statutory Requirements

One of our great readers, attorney Paul Meints from Bloomington, Illinois, has shared ideas about how to make Powers of Attorney (POAs) more responsive to practical concerns, including  the possibility that when tough times eventually occur, the principal may fail to realize or recognize his or her own waning abilities, including the ability to drive safely.  Here is language Paul has tailored to address these potential concerns:

Inability to Function as Principal; Inability to Operate a Motor Vehicle in a Safe and Proper Manner:

My successor Agent or My Attorney may execute and deliver an Affidavit that I am unwilling or unable to serve or to continue to serve, and such affidavit shall be conclusive evidence insofar as third parties are concerned of the facts set forth therein, and in such event any person acting in reliance upon such affidavit shall incur no liability to my estate because of such reliance.  The decision as to determining my inability (1) to properly, prudently, and fully function as Principal and/or (2) to operate a motor vehicle shall be made by a Committee consisting of three of the persons [or such person’s designee] named on page one together with one other person selected by my attorney or the family committee.  I authorize all health care providers who may have provided, or be providing me with any type of health care (physical and mental), to disclose all direct or Protected Health Information (HIPAA/PHI) to each member of the family committee.  If, in the Committee's sole and ab­solute judgment, I am so incapacitated by reason of illness, age, or other cause that I am incapable of expending funds for my own use and benefit or am not giving prompt attention to my financial affairs,  then my successor agent is authorized to act on my behalf.  If, in the Committee's sole and ab­solute judgment, I am so incapacitated by reason of illness, age, or other cause that I am incapable of operating a motor vehicle in a safe, proper, and prudent manner, then my successor agent, My Attorney, or both are authorized to release and terminate my driving privileges.

I like the fact that this language realizes that not all agents will feel comfortable making decisions on sensitive matters by acting alone, and that the POA actually provides guidance for how to make an ulitimate decision about the principal's inability to handle finances or drive. In essence, this POA would appear to permit the agent to override the principal's resistence. Thanks for sharing this language, Paul.  Reactions from other readers?  Would your state recognize the vailidity of such language? 

September 15, 2014 in Cognitive Impairment, Estates and Trusts, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Sunday, September 7, 2014

Photographer Vivian Maier: A Search for Her Heir Began with Law School Studies...

One of the challenges of teaching a course called Wills, Trusts, and Estates, is drawing diagrams to chart intestate succession in an effort to explain what happens when you don't create an estate plan (or your written estate plan has gaps or defects).   I'm always looking for good stories to incentivize my students.

That's one reason why I found "The Heir's Not Apparent" by Randy Kennedy so interesting, as the New York Times writer describes the search for missing heirs of American photographer Vivian Maier, who died in 2009, apparently without a will.   According to the article, a suit to establish the rights of a previously unknown heir, a first cousin in France,  has been filed by Virginia attorney David Deal (himself a photographer), "who said he became fascinated with Maier's life in law school and took it upon himself to try to track down an heir." 

Maier's post-death fame as a "street photographer" has created a market for her huge cache of mostly unpublished photos, part of which was purchased by an individual for $380 in a thrift auction in Chicago.  However, the suit rests on the premise that "[u]nder federal copyright law, owning a photographer's negative or a print is distinct from owning the copyright itself.  The copyright owner controls whether images can be reproduced and sold."

A 2014 documentary, Finding Vivian Maier, helps to give "color" to her interesting story of a life quietly filled with black and white photographs.

 

 

September 7, 2014 in Current Affairs, Estates and Trusts, Film | Permalink | Comments (0) | TrackBack (0)

Friday, August 29, 2014

Kaiser Health News: Will Calif. Governor Sign Legislation Limiting Medicaid Estate Recovery?

From Kaiser Health News (in partnership with NPR and Capitol Public Radio):

"A bill passed by the California legislature this week is putting Gov. Jerry Brown in a delicate position: Sign the measure and support consumer demands for a change in the state’s policy on recovering assets from Medicaid enrollees or keep the current system that generates about $30 million used to provide Medicaid benefits to more residents.

 

The governor typically does not comment on bills until he receives the actual text from the legislature. His Department Of Finance, however, opposes the bill, pointing out that the recovered assets help the state provide services to others. The bill that just passed the legislature this week, would prohibit the state from trying to recoup some of the money spent on older Medicaid enrollees for ordinary health coverage by recovering assets after they die.

 

Federal law requires states to recoup money spent on institutional care, such as nursing homes, by Medicaid, the state-federal health care program for low-income people. But it also allows states to recover costs from people after they die if they received basic medical services through Medicaid at the age of 55 or older. 

 

In California, advocates of the bill say the current law is complicating enrollment in Medi-Cal, the state’s Medicaid program, with some people refusing to sign up, and others terminating enrollment for fear of not being able to pass on their estate.The state has enrolled 2.2 million people into Medi-Cal under the Affordable Care Act."

For more, see "Calif. Bill Would Protect Estates of Many Who Received Medicaid."

 

August 29, 2014 in Estates and Trusts, Medicaid, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Thursday, August 28, 2014

The Latest Ruling on "The Most Litigated Will In History"

Pennsylvania has a long and colorful history with charitable trusts and bequests coming from wealthy entrepreneurs, including the histories of The Barnes Foundation and The Hershey Trust, both of which have generated "classic" cases studied in law school courses.

This week, a Philadelphia Court of Common Pleas (the trial level court) issued the latest decision on the Stephen Girard Trust from 1831, the "painstaking details" of which created Girard College.  For much of its existence Girard College functioned as a multi-year, residential boarding school program for orphan boys.  Past court cases have resulted in rulings that permitted significant "deviations" from the terms of the wealthy philanthropist's will, including admission of minority students, female students, and expansion of the definition of "orphans" to admit students who still had one living parent.

At issue now is whether the trustees (actually a "Board of City Trusts" created by statute in 1869 to administer trusts left to Philadelphia for charitable purposes) will be permitted to further "deviate" from the settlor's original vision for the school, in order to create a more "financially sustainable" model. 

Despite the long history of changes, leading the court to describe Stephen Girard's will as "the most litigated will in history," the court treated the latest proposals -- elimination of the residential program and "high school" classes -- as triggering a stricter standard of review, under the doctrine of cy pres:

"This Court does not agree that the requested modifications relate to administrative provisions of Stephen Girard's Will.  The design of Girard College as a boarding school, intended to provide a residence, as well as an education to its students is reflected in the very terms of the Will....

 

Rather than an administrative decision, this Board [of City Trusts, acting as trustees] is seeking a cy pres remedy.  This doctrine, unlike administrative deviation, is applied where a change is sought to the purpose of the trust.... Divorcing the residential aspect of Girard College and the high school program from a Girard education is inconsistent with the very terms of the Will and the directions of the testator.

 

The cy pres doctrine, now codified,... permits this Court to approve a change in the terms of a Trust to direct it to purposes that are as close as reasonably possible to the settlor's original intent and that are possible to fulfill.  The cy pres doctrine cannot be invoked until it is clearly established that the direction of the donor cannot be carried into effect."

After reviewing the evidence about the operating finances of Girard College, the court takes the time to commend the trustees "for beginning to confront the myriad of financial, educational and institutional challenges currently facing Girard College."  Nonetheless, the court concludes that based on the financial information it  "cannot permit the Board to modify the Will of Stephen Girard as requested.... This Court cannot treat those proposed changes as administrative deviations and will not apply the cy pres doctrine absent a showing that achieving those objectives is impracticable."

In addition to the discussion that clearly distinguishes the law of "deviation" from "cy pres," the outcome is also notable because:

  • The court had earlier rejected "standing" for a Girard College alumni group that sought to oppose the proposed changes;  
  • The changes were denied despite the fact that the Attorney General, who has statutory standing to enforce terms of charitable estates in Pennsylvania, had apparently declined to take action;
  • The court appointed an individual to serve as "amicus curiae" to examine and report on the Trustees' proposal to modify the trust terms and the individual's recommendations were clearly important to the ruling. 

Pennsylvania Attorney Neil Hendershot (and Dickinson Law alum)  who represented the Girard College Alumni Association, and who alerted me to this interesting decision, has additional details on his Pa Elder, Estate and Fiduciary Law Blog.  Thanks, Neil!

Whether the trial court's decision will be appealed is not yet known. 

And by the way, as evidence of the long litigation history of the Stephen Girard Trust, this latest ruling is filed under what appears to be the original -- or at least a very early -- Orphan's Court docket number: "O.C. No. 10 DE of 1885." A docket number that lasts 129 years? Impressive.

August 28, 2014 in Current Affairs, Estates and Trusts, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Saturday, August 23, 2014

NYT: "Ubiquity of Powers of Attorney Has Led to Fears of Fraud"

The New York Times uses the history of one family's struggle to demonstrate growing concern on the part of banks and other financial institutions about potential misuse of popular documents such as powers of attorney or trusts to access accounts.  In "Power of Attorney Is Not Always the Solution," writer Paul Sullivan tells the story of "Carol" and her brother, now suffering from dementia, who years before had named his sister as his agent: 

"[W]hen she looked at the power of attorney, she noticed that he had used her legal first name, Carol, which she had all but abandoned in childhood, not the middle name she had used instead.

 

She didn’t think much of it until she went to the first of the many banks he used. She presented the power of attorney, explained the situation and waited. Instead of getting access to his accounts to pay for his care, she was told the bank would not honor her power of attorney because the name was wrong....

 

She said she has lost countless hours from work and her own family sorting out payment for his care. After supplying a pile of documents, the two that seemed to have helped were an affidavit from her brother’s lawyer saying that Christine is the person he wanted to have control over this affairs and a document from the Social Security Administration that was the missing link for the various iterations of her name.

 

She has been able to move some of his assets into a trust for his care, yet she remains baffled by a process that is far from over. 'It’s insane,' she said. 'He was all buttoned up with all the documents you needed. But he could outlive me, which is going to be interesting. Then what happens?'"

Hat tip to to Prof. Laurel Terry, and her early morning practice of reading the New York Times, for alerting us to this piece!

August 23, 2014 in Estates and Trusts, Property Management | Permalink | Comments (0) | TrackBack (0)