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.
Sunday, November 1, 2015
The four-day annual meeting for LeadingAge, a trade association for providers of senior services with "6,000+ members and partners including not-for-profit organizations representing the entire field of aging services, 39 state partners, hundreds of businesses, consumer groups, foundations and research partners," starts today, November 1, in Boston The program offerings are impressive with as many as two dozen choices per educational session and keynote addresses by high profile individuals, such as Monday's speaker, Dr. Atul Gawande, famed author of a best selling and much discussed book that challenges thinking on end-of-life case, Being Mortal.
I find LeadingAge as an organization to be fascinating, not least of all because of the scope of providers under its umbrella, but also because it has proven itself to be very responsive to changes in the market place. It was once known as AAHSA or American Association of Homes and Services, but voted to change its name to LeadingAge in 2010.
More changes are in the works, as long-time and much respected Larry Minnix is retiring as the head honcho of LeadingAge. Nonprofit Continuing Care Retirement Communities (CCRCs) were once a major (perhaps even the most dominate) part of the membership, but as the senior care and services market is changing that is less and less true, especially with trends in favor of mergers and acquisitions, including not infrequent transitions to for-profit operations. Interestingly, during this year's meeting, LeadingAge is announcing a new for name for CCRCs. Stay tuned!
This organization clearly understands the need for change to stay attractive to consumers. At the same time, name changes can also complicate understanding by consumers of the choices available to them -- and can complicate state efforts to evaluate and, where appropriate, regulate different models of senior and adult housing and care services.
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)
Monday, October 19, 2015
Recently I was reading an issue of The Senior Care Investor, a subscription-based news service that reports on the "World of Senior Care Mergers, Acquisitions, and Finance," and doing so since 1948.
For approximately the last three years, most of the M & A activity has been in assisted living (AL) and memory care (MC). Senior Care Investor reports that CCRCs are "beginning to make a comeback" as the housing market recovers and prospective residents are again able to use equity in their homes to finance transitions into CCRCs. The most recent issue also indicates some development money is returning to the skilled nursing facility market, even as overall M & A activity in senior housing is lower in 2015 than in 2014.
I've been watching quite a bit of activity over the last few years in conversions of nonprofit senior housing operations to "for profit" and there is more evidence of that in the latest report. But the most recent issue (Issue 9, Volume 27) also reports on a "rare for-profit to not-for-profit deal," with a New Mexico-based company, Haverland Care LifeStyle Group, purchasing a new AL/MC community in Oklahoma.
Also, the Senior Care Investor reports on a faith-based, not-for-profit CCRC provider that has decided to sell an entrance fee model (one that's in transition to an "all rental" model) that will offer independent living, AL, MC units and nursing home beds. What happens when senior housing operations are fully "private pay" AND "rental" models AND disconnected from a faith-based organization? Can they maintain their tax-exempt status? In other words, if the public is paying market rates (and thus higher rates based on any market increases) with no promises of future care if the residents run out of money, is that senior housing enterprise still a nonprofit operation entitled to be treated as exempt from federal income taxes?
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).
Monday, October 12, 2015
Last week was "Mental Illness Awareness Week," and in recognition of that fact, Maryland Attorney Michael E. McCabe, Jr. posted an important Blog item on representing clients with diminished capacity. I'm impressed that discussion of the need for lawyers to appreciate the potential for mental health to impact any aspect of the lawyer-client relationship is written for the IPethics & INsights blog, his law firm's " resource for intellectual property rights attorneys."
In other words, the topics of mental health and legal capacity are not exclusively the province of estate planners, elder law attorneys, disability law practitioners or poverty law experts.
He notes at the outset:
According to the leading mental health organization in the country, 1 in 5 adults in the United States suffers from some form of mental health condition or disorder. Thus, it is likely that at some point in your legal career, you will be representing an individual client or a representative of a corporate client, who suffers from some degree of mental illness.
Attorney McCabe points to ABA Model Rule of Professional Conduct 1.14 as guidance, while also suggesting:
A two-prong test may be useful when determining the existence and degree of a client's mental illness:
(1) "take reasonable steps to optimize capacity," and
(2) "perform a preliminary assessment of capacity."
Attorney McCabe also links (although not directly attributing his recommendation) to Charlie Sabatino's important 2000 article, "Representing a Client with Diminished Capacity: How Do You Know It And What Do You Do About It?"
I suppose I do have a small quarrel with the author, however. The title of his post is "What They Didn't Teach You in Law School: Representing Client with Diminished Capacity." Mr. McCabe graduated law school in 1992, and perhaps diminished capacity was not well addressed by law schools at that time. Although it could be my bias as an academic interested in aging policy, I believe law schools have changed with the times. Certainly I find myself teaching the importance of "capacity" issues and the attorney-client relationship, and I start this in my 1L course on Contracts, while digging deeper into the field of mental health impacts in Wills/Trusts/Estates and, of course, Elder Law. Other faculty members address mental health in a variety of other contexts, including courses on education law.
If Mr. McCabe is right that law schools are not currently addressing the complex concerns attached to mental health, then certainly the moral from his column is "we need to do better."
My thanks to Attorney McCabe, and to Dickinson Law Professor Laurel Terry for sharing his article.
October 12, 2015 in Cognitive Impairment, Current Affairs, Dementia/Alzheimer’s, Ethical Issues, Health Care/Long Term Care, Legal Practice/Practice Management, Property Management | Permalink | Comments (0)
Tuesday, October 6, 2015
We have mentioned Hendrik Hartog's book, Someday All This Will Be Yours: A History of Inheritance and Old Age, (Harvard Press 2012) on this Blog as we did on this post outlining a recent symposium law review with articles inspired by the book. I've been remiss, however, in not recommending the book directly.
So let me correct that oversight now. If you haven't read Princeton Professor Hartog's book, or if (as was true for me for too long) you have allowed the book to sit on your "to read" stack, it's time to get to it. The book is a treasure of analysis, commentary, legal history, critique and provocation arising from the simple proposition that in many relationships, someone often utters (or thinks they have heard) words to the effect, "when I'm gone, someday, all this will be yours." The underlying legal question is what happens when no document (such as a will, a trust, or a contract) puts that pledge into writing.
I find much to talk about when reading Hartog's words. One curious item he describes is a poem, "Over the Hill to the Poor House," published by Will Carleton in 1872. Hartog explains that the poem is the source for the now common saying "over the hill" to refer to persons of a certain age. But Hartog points out that the poem's poignancy comes from its all-too-true narrative by one woman about what it can be like to grow old, frail and widowed, even if you have a large family of loving children.
From the closing lines of the poem:
An’ then I went to Thomas, the oldest son I’ve got,
For Thomas’s buildings’d cover the half of an acre lot;
But all the child’rn was on me—I couldn’t stand their sauce—
And Thomas said I needn’t think I was comin’ there to boss.
An’ then I wrote to Rebecca, my girl who lives out West,
And to Isaac, not far from her—some twenty miles at best;
And one of’em said’twas too warm there for any one so old,
And t’other had an opinion the climate was too cold.
So they have shirked and slighted me,an' shifted me about-
So they have well-nigh soured me,an' wore my old heart out;
But still I've borne up pretty well, an' wasn't much put down,
Till Charley went to the poor-master, an' put me on the town.
Over the hill to the poor-house--my chil'rn dear, good-by!
Many a night I've watched you when only God was nigh;
And God 'll judge between us; but I will al'ays pray
That you shall never suffer the half I do to-day.
And for a colorful "sung" version of the poem, with a change in gender for point-of-view, go to Lester Flatt and Earl Scrugg's version of Over the Hills to the Poorhouse.
Over 140 years later, we still hear the phrase "over the hill" in less-than-kind contexts, but one hopes the prospects for care and assistance are not quite as grim as described in these verses.
Monday, October 5, 2015
Sorry for the short notice, but on Tuesday, October 6, 2015 from noon to 1 p.m. (Eastern time), the Pennsylvania Bar Institute is hosting a very timely (and cleverly titled) webinar, focusing on the impact of the Third Circuit's recent decision in Zahner on Medicaid planning generally and specifically on the sue of annuities.
Here is a link to PBI's details on "The A to Zahner on Medicaid Annuities," including how to register.
Illinois adopted a new law, Public Act 098-1093, effective on January 1, 2015 that assigns a "presumptively void" status to bequests made to non-family caregivers, if the transfer would take effect upon the death of the cared-for person. The law applies only to post-effective date bequests that are greater than $20,000 in fair market value. The statutory presumption can be "overcome if the transferee proves to the court" either:
1. by a preponderance of the evidence that the transferee's share under the transfer instrument is not greater than the share the transferee was entitled to receive under ... a transfer instrument in effect prior to the transferee becoming a caregiver, or
2. by clear and convincing evidence the transfer was not the product of fraud, duress or undue influence.
The law only applies in civil actions where the transfer is challenged by other beneficiaries or heirs.
(Fun) Spoiler Alert: The new law plays a clever "starring role" in the Fall 2015 season premiere of The Good Wife. Let's see how many of our law students were watching!
October 5, 2015 in Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Film, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (1)
Wednesday, September 16, 2015
Catching up on a bit of reading, I notice that the Uniform Laws Commission has a committee hard at work on drafting proposed revisions to the 1997 Uniform Guardianship and Protective Proceedings Act (UGPPA). University of Missouri Law Professor David English is Chair of that committee, with many good people (and friends) on the working group.
In reviewing their April 2015 Committee Meeting Summary, available here, I was interested to see the following note under the discussion heading about "person-first language:"
Participants engaged in a lively discussion of the desirability of person-first language, and possible person-first terminology. There was general agreement that the revision should attempt to incorporate person-first language. For the next meeting, the Reporter [University of Syracuse Law Professor Nina Kohn] will attempt a draft that uses language other than "ward" or "incapacitated" to the extent possible and utilizes person-first language instead (precise wording still to be determined). The Reporter will also attempt to use a single term that can describe both persons subject to guardianship and those subject to conservatorship.
I've struggled with "labels" in writing and speaking about older adults generally, and incapacitated persons specifically. It will be interesting to see what the ULC committee recommends on this and even more daunting tasks, including how to better facilitate and promote "person-centered decision-making" and limited guardianships.
September 16, 2015 in Cognitive Impairment, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Property Management, State Statutes/Regulations | Permalink | Comments (0)
I always spend some time in my elder law class discussing different methods of property ownership including the use of joint accounts. Many of my students may themselves be named jointly with someone on a bank account. In working through the pros and cons of the use of joint accounts, I strive for my students to understand why some clients may title their property jointly and the implications of doing so. I was please to find this easy to understand infographic on joint accounts. Published by AARP and the American Bankers Association Foundation, Look Before You Leap. Is a Joint Account Right for Me? packs a significant amount of information in one page. The infographic covers the reasons people choose joint accounts, what one needs to know before making the choice, and alternatives to joint accounts.
It's a great tool for our classes!
BTW, the ABAF also has a campaign on educating elders and caregivers, Safe Banking for Seniors. You can sign up for email announcements for updates, etc. about the campaign.
Tuesday, September 15, 2015
As we have tracked recently on this Blog, in a number of states, including Florida and Nevada, serious questions have been raised about the roles of guardians for disabled and elderly persons, and the extent to which there should be public oversight of guardians, especially "paid" guardians, including public guardians, "professional" guardians or "private" guardians.
In Florida, newly proposed legislation, Senate Bill 232 (filed in September 2015) would seek to clarify state oversight of all guardians, following on the heels of amendments to Florida state law enacted in mid-2015. Florida's legislature may take up the latest bill early in 2016, according to media reports. Key provisions in the bill include:
- renaming of the current office of "public guardianships," with expanded duties and responsibilities, to create the "Office of and Professional Guardians;"
- addition of findings about the potential need for a "public guardian" where there is "no willing and responsible family member or friend, other person, bank, or corporation available to serve;"
- a requirement that "professional" guardians "shall" register with the state;
- directions to establish a comprehensive system for receipt and state action on complaints made about professional guardians.
From reading SB 232, it seems to me there may be some attempt to appease the concerns about the potential for overregulation of so-called "professional" guardians, as new language in Section 744.2001 requires development and implementation of a new "monitoring tool to ensure compliance of professional guardians with standards" set by the Office, but this "monitoring tool may not include a financial audit " as specified in another section of the law (emphasis added).
Funding will be needed to make expanded oversight effective.
September 15, 2015 in Consumer Information, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Property Management, Social Security, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Tuesday, September 8, 2015
Deadline 9/14/2015: Comments Due to CMS re "Binding Arbitration" in Nursing Home Admission Agreements
Erica Wood, a director for the ABA Commission on Law and Aging, writing for the August 2015 issue of the ABA's Bifocal Journal, reminds us that the Centers for Medicare and Medicaid Services (CMS) is seeking comments on proposed changes to rules affecting Long-Term Care Facilities that participate in Medicare and Medicaid programs, including the issue of whether CMS should prohibit "binding" pre-dispute arbitration provisions in nursing home contracts. The deadline for public comments is 5 p.m., on Monday, September 14, 2015. Electronic comments, using the file code CMS-2360-P, can be submitted through this portal: http://www.regulations.gov.
How do you feel about pre-dispute "agreements" binding consumers, including consumers of long-term care, to arbitration? Your comments to CMS can make a difference!
I remember my first encounter with "binding" pre-dispute arbitration provisions in care facilities. In the early years of my law school's Elder Protection Clinic, a resident of a nursing home had purportedly "given away" possessions to an aide at nursing home, who promptly sold them on EBay. The resident was lonely and the "friendship" included the aide taking her out the front door of the facility, via a wheel chair, on little outings, including trips where the resident could visit her beloved house, still full of a life-time of antiques and jewelry. (The resident might have recovered enough to go home -- although eventually a second stroke intervened.)
September 8, 2015 in Cognitive Impairment, Consumer Information, Current Affairs, Estates and Trusts, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare, Property Management | Permalink | Comments (0)
Monday, September 7, 2015
I hope everyone is lucky enough to have a colleague such as Professor Laurel Terry here at Dickinson Law. In addition to being the guru on regulation of lawyers, particularly for lawyers working across international borders, she's a good friend, organized, AND a guru of travel. Whenever I have a travel question, I know she probably has sorted out the options and will have great advice.
So, I wasn't surprised on this holiday Labor Day weekend that she had considered "generational" travel issues, including whether you can devise or inherit "frequent flyer miles."
Turns out you can ... depending. Professor Terry pointed to this Smarter Travel blog, addressing which airlines have clear policies on inheritance. You will want to look for your own favorite (least unfavored?) airline, but to summarize: "In sum, American, Continental, and US Airways say "yes," Air Canada says "maybe," Jet Blue and United say "no way," and the others ignore the issue."
Friday, August 28, 2015
Sometimes "small" cases reveal larger problems. A recent appellate case in Pennsylvania is a reminder of how practical solutions, such as establishing a joint bank account to facilitate management of money or to permit sharing of resources during early stages of elder care, may have unforeseen legal implications later. In Toney v. Dept. of Human Services, decided August 25, 2015, the Commonwealth Court of Pennsylvania ruled that "half" of funds held in a joint savings account under the names of the father and his son, were available resources for the 93-year-old father. Thus the father, who moved into a nursing home in May 2014, was not immediately eligible for Medicaid funding.
The son argued, however, that most of the money in the account was the son's money, proceeds of the sale of his own home when he moved out of state almost ten years earlier:
"The son alleged that his father used the bulk of that money to maintain himself, with the understanding that any money remaining from that CD after his father's death would revert to him. The ALJ, however, rejected the son's testimony as self-serving and not credible...."
Wednesday, August 26, 2015
Traditional estate practice attorneys are facing ever-increasing competition from commercial sites offering document preparation for set fees, usually through use of on-line templates for wills and similar estate planning documents. LegalZoom, Inc., the brainchild of attorneys, including Brian Lee and Robert Shapiro (of O.J. Simpson trial fame) and begun in 2001, is one of the biggest commercial document companies.
Traditional lawyers point out that they provide not just "documents" but core counseling and advice about the larger issues that may be involved in proper estate planning. Recently, however, I've noticed LegalZoom is also touting availability of "legal help" through its television commercials, with the tagline "Real Attorneys. Real Advice." Here's a link to one recent example.
The small print at the bottom of the page at the end includes full names and locations of the several attorneys who say "hi" during the television commercial, plus the following:
"This is an advertisement of a prepaid legal services plan, not for an individual attorney. This is not an attorney recommendation or legal advice. No comparative qualitative statements intended.... For the attorneys' full addresses, a list of non-appearing attorneys and more information, please visit legalzoom.com."
Earlier this year, LegalZoom filed an antitrust lawsuit against the North Carolina Bar, asserting that the organization was "unreasonable barring" the company from offering a prepaid legal services plan in its state. The suit cites the February 2015 decision by the U.S. Supreme Court in North Carolina State Board of Dental Examiners v. Federal Trade Commission. LegalZoom filed an amicus brief in that case outlining its theory that misuse of state bar regulatory authority to restrict access to legal advice harms consumers.
August 26, 2015 in Consumer Information, Current Affairs, Estates and Trusts, Ethical Issues, Federal Cases, Legal Practice/Practice Management, Property Management, State Statutes/Regulations | Permalink | Comments (0)
Monday, August 24, 2015
In a recent guardianship case reviewed by the North Dakota Supreme Court, the alleged incapacitated person (AIP), a woman suffering "mild to moderate Alzheimer's disease and dementia," did not challenge the need for an appointed representative, but proposed two friends, rather than any relatives, to serve as her co-guardians. The lower court rejected her proposal, finding that a niece, in combination with a bank, was better able to serve as her court-appointed guardian/conservator.
On appeal, the AIP challenged the outcome on the grounds that the court had made no findings that she was without sufficient capacity to choose her own guardians. In The Matter of Guardianship of B.K.J., decided on July 30, 2015, the ND Supreme Court affirmed the appointment of the niece, concluding that although state law requires consideration of the AIP's "preference," no special findings of incapacity were necessary to reject that preference.
Contrary to [the AIP's] argument [State law] does not require the district court to make a specific finding that a person is of insufficient mental capacity to make an intelligent choice regarding appointing a guardian. While it might have been helpful to have a specific finding, we will not reverse so long as the district court did not abuse its discretion in appointing a guardian.... Here, it is clear the district court was not of the opinion [that the AIP] acted with or has sufficient capacity to make an intelligent choice. Rather, the district court's findings noted [she] testified that she did not trust [her niece] anymore, but was unable to recall why . . . .
Decisions such as these can be inherently difficult to manage, at least in the early stages, especially if the AIP is unlikely to cooperate with the decision-making of the "better" appointed guardian.
Friday, August 14, 2015
In a recent article for the University of Baltimore Law Review, John C. Craft, a clinical professor at Faulkner University Law, draws upon the history of legislation governing powers of attorney to advocate a return to effectiveness of the POA being conditioned by an event, such as proof of incapacity. Professor Craft, who is the director of his law school's Elder Law Clinic, writes:
Section 109 in the Uniform Power of Attorney Act should be revised making springing effectiveness of an agent's powers the default rule. Springing powers of attorney provide a type of protection that may actually prevent power of attorney abuse. The current protective provisions in the UPOAA focus in large part on the types of abuse that occur after an agent has begun acting for the principal. As opposed to arguably ineffective “harm rules” intended to punish an unscrupulous agent, springing powers of attorney are a type of “power rule” intended to limit an agent's “ability to accumulate power . . . in the first place.” The event triggering an agent's accumulation of power -- the principal's incapacity -- may never occur. A financial institution may prevent an unscrupulous agent from activating his or her power and conducting an abusive transaction simply by asking for proof that the principal is incapacitated. In addition, making springing effectiveness the standard serves the goal of enhancing a principal's autonomy.
For his complete analysis, read Preventing Exploitation and Preserving Autonomy: Making Springing Powers of Attorney the Standard.
August 14, 2015 in Advance Directives/End-of-Life, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Legal Practice/Practice Management, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)