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 In September 2014, the Superior Court of Pennsylvania, an intermediate appellate court, issued a "nonprecedential" written opinion affirming the convictions, concluding: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)

Friday, August 22, 2014

SSRN Potpourri: Recent Elder Law Articles Posted on SSRN

Articles recently posted by U.S. law school academics on the Social Science Research Network's (SSRN's) Elder Law Studies network:

August 22, 2014 in Cognitive Impairment, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Retirement, Social Security | Permalink | Comments (0) | TrackBack (0)

Friday, August 15, 2014

ABA Journal: Activists Seek to Challenge "Protectionist" Funeral Laws

A recent issue of the ABA Journal reports on the latest efforts to challenge "antiquated" funeral laws, the subject of decision in Heffner v. Murphy, 745 F.3d 56 (3d Cir. 2014): 

"According to [Joshua Slocum, executive director for the nonprofit Funeral Consumers Alliance], most states regulate the funeral business with boards that are packed with established funeral directors. As a result, regulations tend to suppress legitimate complaints and smother new competitors.  That's one of the complaints behind Heffner v. Murphy... that may end up before the U.S. Supreme Court.  Plaintiff Ernest Heffner, a licensed funeral director from York [Pennsylvania] claimed that the Pennsylvania Funeral Directors Law imposes 'arbitrary, burdensome and unreasonable' restrictions on funeral businesses, including who may own funeral homes and requirement for on-site embalming rooms."

According to the ABA Journal, "the libertarian-leaning Institute for Justice has stepped in and petitioned the U.S. Supreme Court for certiorari.  IJ senior attorney Jeff Rowes says the case raises legal issues central to a core mission for the institute: stopping unreasonable regulations on small businesses."  The petition for certiorai was filed July 15, 2014.

For more, read "Regulated to Death: Consumer Activitists Seek Certiorari for Challenge to 'Protectionist' Funeral Laws," by Lorelei Laird.

August 15, 2014 in Advance Directives/End-of-Life, Estates and Trusts, Ethical Issues, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 6, 2014

Tennessee: Limits on Estate Planning Attorney's Authority to Disclose Will

 

In recent Formal Ethics Opinion 2014-F-158, the Board of Professional Responsibility for the Supreme Court of Tennessee addressed the following interesting question:

"Can a lawyer who represented a testator refuse to honor a court order or subpoena to disclose, prior to the client's death, a Will or other testamenatry document executed when the testator was competent on the basis that the document is protected against disclosure by the attorney-client privilege or confidentiality."

The Board's opinion indicates that not only "may" the lawyer refuse to disclose the will, but where circumstances indicate the client is no longer able to give informed consent because of intervening dementia, the lawyer may have a duty to raise all "nonfrivolous grounds" to protect the will from disclosure, including privileges under Tennessee statutes, citing Rule of Professional Conduct 1.6(c)(2). 

In opening its analysis, the Board noted that it has become "increasingly common for courts to appoint attorneys in a representative capacity to represent individuals suffering from dementia and/or Alzheimer's who are the subject of a dispute or litigation regarding management of the individual's funds and/or person." During the course of the dispute, parties may attempt to seek review of the will prior to the death of the testator, citing reasons such as the need to "engage in estate planning." 

The Board acknowledged the potential for facts that would permit the lawyer to disclose the contents of the disabled client's will, such as when a "lawyer believes the disclosure of the contents ... would be in furtherance of client's interest."

In commentary on the Tennessee Board Ethics Opinion, the ABA/BNA Manual on Professsional Conduct, in Vol. 30, No. 15, observed that "a 2010 law review article cites demographic patterns that have increased the likelihood of such scenarios," pointing to "A Common Thread to Weave a Patchwork: Advocating for Testatmentary Exception Rules,"  3 Phoenix L. Rev. 729, 734-35 (2010) by then law student Andrew B. Mazoff, now an attorney in Phoenix.

Thanks to my colleague and ethics guru, Laurel Terry, for sharing this ethics opinion.

August 6, 2014 in Cognitive Impairment, Estates and Trusts, Ethical Issues, State Cases | Permalink | Comments (0) | TrackBack (0)

Tuesday, August 5, 2014

ABA Family Advocate Warns "Don't Let Divorce Derail Retirement Plans"

Arin Fife, from the family law firm of Boyle and Feinberg in Chicago, offers "Don't Let Divorce Derail Your Retirement Plans: Understanding Your Options Before, During and After Your Marriage" in the Summer issue of the ABA's magazine Family Advocate.  She reviews retirement basics, including differences between defined benefit and defined contribution plans, how accounts are valued, how accounts may be divided and addresses what do do with contributions during the divorce proceedings.  She reminds that a low-income spouse may be advised to delay a divorce if approaching the ten-year anniversary of the marriage date, thereby maximizing Social Security options based on the stronger earner's SSA record. She warns that some "states consider this an offset against accumulation during marriage. Ask your lawyer for clarification in your state." 

Lots of good tips here, including the reminder that if retirement accounts will be divided using a "Qualified Domestic Relations Order" or QDRO, it is important to give the plan administrator an opportunity to review and "pre-approve" the plan, thereby avoiding arguments or surprises after the property division or divorce is complete.   

August 5, 2014 in Estates and Trusts, Retirement, Social Security, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Friday, August 1, 2014

Faces of Courage: Denver Broncos Owner Resigns and Discloses Alzheimer's

I have great respect for individuals who publicly disclose their diagnosis of Alzheimer's Disease or other serious, progressive conditions.  The Denver Bronco's owner Pat Bowlen, frequently described as one of the "most iconic owners in NFL history," recently disclosed that his decision to step down completely at age 70 was connected to his struggles with Alzheimer's.  According to the Denver Post, "Bowlen had first revealed to [the newspaper] in May 2009 that he was experiencing short-term memory loss."  

News reports on Bowlen also demonstrate the importance of succession planning tools such as "trusts" to manage assets, particularly when there is a goal or plan for continued family involvement.   

August 1, 2014 in Dementia/Alzheimer’s, Estates and Trusts | Permalink | Comments (0) | TrackBack (0)

Monday, July 28, 2014

Highlights from the 17th Annual Elder Law Institute in Pennsylvania

Recently a former law student who is considering a career change asked me about elder law, wanting to meet with me to discuss what is involved. I'm happy to chat any time with current and former students, especially about elder law, but this time my advice was simple:  "Drop everything and go to Pennsylvania's 2014 Elder Law Institute."  Indeed, this year saw some 400 individuals attend. 

Important to my advice was the fact that ELI is organized well for both "newbies" and more experienced practitioners.  After the first two-hour joint session, over the course of two days there are four sessions offered every hour.  One entire track is devoted to "Just the Basics" and is perfect for the aspiring elder law attorney.  Indeed, I usually sponsor two Penn State law students to attend.  As in most specializations, in elder law there will is a steep learning curve just to understand the basic jargon, and the more exposure the better.

One of my favorite sessions is the first, "The Year in Review," a long tradition at ELI and currently presented by Marielle Hazen and Rob Clofine.  Marielle reviews new legislation and regulations, both at the state and federal level, while Rob does a "Top Ten Cases" review.  Both speakers focus not just on what happened in the last 12 months, but what could or should happen in the future.  They frequently pose important policy perspectives, based on recent events. 

Among the highlights from the year in review session:

  • Analysis of the GAO Report on "Medicaid: Financial Characteristics of Approved Applicants and Methods Used to Reduce Assets to Qualify for Nursing Home Coverage" released in late June 2014. Data collection efforts focused on four states and reportedly included "under cover" individuals posing as potential applicants. The report summarizes techniques used to reduce countable resources, most occuring well within the rules and thus triggering no question of penalty periods.  Whether Congress uses the report in any way to confirm or change existing rules remains to be seen.
  • A GAO Report on Medicaid Managed Care programs, also released in June, concluding that  additional oversight efforts are needed to ensure the integrity of programs in the states, which are already reporting higher increases in outgoing funds than fee-for-service programs.
  • The need to keep an eye open for Pennsylvania's Long Term Care Comission report, expected by December 2014. Will it take issue with the Governor's rejection of the Affordable Care Act's funding for expansion of Medicaid?
  • Report on a number of lower court decisions involving nursing home payment issues, including a report on a troubling case, Estate of Parker, 4 Pa. Fiduciary Reporter 3d 183 (Orphans' Court, Montgomery County, PA 2014), in which a court-appointed guardian of the estate of an elderly nursing home patient "agreed" to entry of a judgment, not just for nursing home charges, but also for pre- and post-judgment interest, plus attorneys' fees for the nursing home's lawyer of almost 20% of the stipulated judgment, in what was an uncontested guardianship. 

In light of the number of nursing home payment cases in Rob's review, perhaps it wasn't a surprise that my co-presenter, Stanley Vasiliadis, and I had a full house for our session on "Why Am I Being Sued for My Parents' Nursing Home Bill?" We examined how adult children (and sometimes elderly parents of adult children in care) are finding themselves the target of collection efforts by nursing homes, including actions based on theories of breach of promise (contract, quatum meruit, and promissory estoppel), fault (common law fraud or statutory claims of "fraudulent transfers), or family status, such as statutory filial support.

The extensive course materials from all of the presenters, both in hard copy and electronic formats, are available for purchase directly from the Pennsylvania Bar Institute

July 28, 2014 in Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Cases, Health Care/Long Term Care, Housing, Legal Practice/Practice Management, Medicaid, Medicare, Programs/CLEs, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Sunday, July 20, 2014

17th Annual Elder Law Institute in Pennsylvania: Packed Program on July 24-25

The growing significance and scope of "elder law" is demonstrated by the program for the upcoming 2014 Elder Law Institute in Philadelphia, Pennsylvania, to be held on July 24-25.  In addition to key updates on Medicare, Medicaid, Veterans and Social Security law, plus updates on the very recent changes to Pennsylvania law affecting powers of attorney, here are a few highlights from the multi-track sessions (48 in number!):

  • Nationally recognized elder law practitioner, Nell Graham Sale (from one of my other "home" states, New Mexico!) will present on planning and tax implications of trusts, including special needs trusts;
  • North Carolina elder law expert Bob Mason will offer limited enrollment sessions on drafting irrevocable trusts;
  • We'll hear the latest on representing same-sex couples following Pennsylvania's recent court decision that struck down the state's ban on same-sex marriages;
  • Julian Gray, Pittsburgh attorney and outgoing chair of the Pennsylvania Bar's Elder Law Section will present on "firearm laws and gun trusts."  By coincidence, I've had two people this week ask me about what happens when you "inherit" guns.

Be there or be square!  (Who said that first, anyway?)     

July 20, 2014 in Advance Directives/End-of-Life, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Legal Practice/Practice Management, Medicaid, Medicare, Programs/CLEs, Property Management, Retirement, Social Security, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 15, 2014

Faculty Share Work from Australian Research Network on Law & Ageing

Representatives from some 16 countries participated in the 2014 International Elder Law and Policy Conference at John Marshall Law School on July 10-11.  There was impressive participation -- especially given the distances for travel to attend the short and intense conference -- by faculty members from Australia, including Dean Wendy Lacey from the University of South Australia School of Law, Associate Dean Meredith Blake from the University of Western Australia School of Law, Lisa Barry from Macquarie University Law School in Australia, and Eileen Webb from the University of Western Australia School of Law. 

I learned that there is a strong research network on law and ageing topics in Australia, ARNLA.  Many of the issues they are addressing mirror issues recognized elsewhere in the world, even as the laws and standards may differ between the countries.  Several of the Australian participants reported on recent research or works in progress.Flag_of_Australia_(converted)_svg

For example, Meredith Blake addressed the challenge of using advance directives to honor the directions or wishes of a principal after the individual develops dementia.  She pointed out that unlike some U.S. states that require agents to follow the principal's known wishes or directions, in Queensland the use of a "best interest" standard for agents acting under health care directives may frustrate the wishes of the principal.  Using a detailed and realistic hypothetical to illustrate concerns, Professor Blake urged adoption of a more flexible approach. 

Eileen Webb's presentation focused on how property law concepts in Australia may help or hinder efforts to respond to instances of potential financial abuse, as where an older individual allows or directs transfer of property interests to other family members or unrelated individuals "without adequate protection or for consideration which is illusory."

Professor Webb introduced me to a new but useful label,"family accommodation arrangements," which she reported was one of the most frequent sources of concern for elder abuse in Victoria.  I was particularly impressed by graphs she created to illustrate and organize potentially applicable legal theories, including fraud, undue influence, estoppel, failed joint ventures, common intention and contributions to purchase price for third parties.  The theory of law used to pursue a claim may affect the relief available. Professor Webb urged adoption of specific legislation in Australia to better address the potential for abuse through property transfers.

July 15, 2014 in Advance Directives/End-of-Life, Crimes, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Property Management | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 8, 2014

The Challenges of Enacting Uniform Laws on Powers of Attorney

If one looks at the Uniform Law Commission website, it appears that slow but steady progress is being made by states in adopting recommended legislation governing Powers of Attorney (POAs).  The ULC recommendation reflected more than four years of research and drafting, culminating in a detailed proposal for POAs issued in 2006.  According to the website, 16 states have enacted the uniform law, with an additional four states, Connecticut, Mississippi, Washington, and my own home state, Pennsylvania, considering adoption in 2014.   The ULC's recommendations were a deliberate attempt to "preserve the durable power of attorney as a low-cost, flexible, and private form of surrogate decision making while deterring use of the power of attorney as a tool of financial abuse of incapacitated individuals." 

On July 3 last week, Pennsylvania's Governor Corbett signed legislation, now designated as Act 95 of 2014, making significant changes to the existing law governing POAs in Pennsylvania.  However, the passage of this law also demonstrates how so-called "uniform" laws may be less than uniform from state-to-state in terms of their actual requirements, and I tend to wonder whether other states have also enacted some variation on the ULC's recommendation. 

Pennsylvania Act 95 of 2014 (available as HB 1429 here) took more than 3 years of drafting, redrafting, hearings, negotiations, and compromises to accomplish.  The spur for adoption was a court decision invalidating transactions executed in reliance on a "void" power of attorney, one purportedly "signed" with an X by a woman while hospitalized.  The majority decision put the financial impact on the party accepting the POA, without regard to whether it was using good faith in relying on a document that may appear valid on its face.  After that decision, many Pennsylvania retirement plan administrators, banks or other financial institutions were reluctant to  honor POAs, fearing they could become the guarantor of misused authority.  See Vine v. Commonwealth of Pennsylvania State Employees Retirement Board, 9 A.3d 1150 (Pa. 2010). 

PA Act 95 of 2014 addresses the "Vine" question by clarifying a grant of immunity for any person who in "good faith accepts a power of attorney without actual knowledge" of voidness or other invalidity.  But Act 95 also mandates certain execution protocols, including:

  • for most but not all POAs, requiring the principal's signature, mark or third-party signature to occur in front of two adult witnesses;
  • requiring the principal to acknowledge his or her signature before a notary public or other individual authorized by law to take acknowledgments;
  • continuing the requirement that principals must sign "notice" forms, but now with enhanced warnings about the significance of POAs, including the recommendation that "before signing this document, you should seek the advice of an attorney at law to make sure you understand it;"
  • continuing the requirement that agents must sign an acknowledgement of certain responsibilities, now including an obligation to "act in accordance with the principal's reasonable expectations."

Each of these execution requirements, although certainly permitted by ULC's proposal (and perhaps also entirely consistent with the ULC's concern about the potential for financial abuse), is greater than what is required by the Uniform Law on Powers of Attorney. 

At the same time, the Uniform Power of Attorney Act includes potential remedies for abuses of POAs not addressed by old or new law in Pennsylvania, including Section 116 that would grant spouses, parents, descendants and presumptive heirs the right to seek judicial review of an agent's conduct. One open question in Pennsylvania is whether wider standing to challenge suspected abuse is necessary.

One takeaway message from the history of more than 8 years of consideration by states of the Uniform Law on POAs, and more than 3 years of consideration in Pennsylvania about how or whether to adopt some or all of UCL's specific approach, is that achieving uniformity of state civil laws is not an easy task.  That makes me even more appreciative of the effort and comparative "ease" of adoption of early efforts at uniformity, such as the uniform commercial code and the recognition that interstate sales transactions would benefit from consistency.

Portions of Pennsylvania Act 95 of 2014, including the grant of immunity for good faith reliance on POAs by third-parties, are immediately effective, while other portions of the law take effect on January 1, 2015.  The Pennsylvania Elder Law Institute on July 24-25 in Philadelphia will have several sessions addressing the effect of the new law.

ElderLawGuy Jeff Marshall also has a great overview of the new Pennsylvania law on his blog.  Hat tip also goes to Pennsylvania attorney Bob Gerhard for keeping Pennsylvania practitioners up-to-date on the bill numbers and enactment details. 

July 8, 2014 in Advance Directives/End-of-Life, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Programs/CLEs, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Thursday, June 12, 2014

U.S. Supreme Court Addresses Status of "Inherited" IRA Accounts in Bankruptcy

On June 12, the U.S. Supreme Court issued its decision in Clark v. Rameker, concluding that "inherited" IRAs are not protected from a holder's creditors during bankruptcy.  Justice Sotomayor delivered the opinion for a unanimous court.  In so ruling, the Court rejected application of the "retirement fund" exemption, because unlike a holder's self-funded IRA, inherited accounts lack the "planning" motivation that justified protection of the funds as a retirement asset.  

 Forbes described the result as "an opinion with far-reaching implications."   

Hat top to ElderLawGuy Jeff Marshall as the first to send the link this decision. 

June 12, 2014 in Estates and Trusts, Federal Cases, Retirement | Permalink | Comments (0) | TrackBack (0)