Monday, October 20, 2014
Stan Rule has written a review on John E. S. Poyser's book entitled, Capacity and Undue Influence. Provided below is an excerpt from the review:
John E. S. Poyser has written a remarkable textbook, Capacity and Undue Influence, published this year by Thomas Reuters Canada Limited. The book is about gratuitous wealth transfers including by will, beneficiary designations, through jointures, inter vivos trusts and gifts directly to beneficiaries. Mr. Poyser does not deal with (or purport to deal with) capacity for other legal transactions, such as contracts, except peripherally to assist in explaining capacity to make testamentary and inter vivos gifts.
If, by focusing on gratuitous wealth transfers, the topic is narrower than the book’s title might imply, it is also much richer. In addition to discussing the criteria for capacity to make a will, Mr. Poyser also discusses the requirements of knowledge of approval of the contents of a will, including the doctrine of righteousness, in considerable depth. Estate litigators will be familiar with challenges to inter vivos gifts on the basis of undue influence, including claims founded on relationships of dependence or potential dominance, but how about challenges based on unconscionable bargains and unconscionable procurement? Although unconscionable bargains may be more closely associated with contracts, Mr. Poyser explains the principles and their applicability to gratuitous gifts. Unconscionable procurement? I had never heard of it before. Although perhaps the doctrine is a bit dusty, Mr. Poyser makes a good case that unconscionable procurement is applicable in modern times.
For the rest of the favorable review, see Stan Rule, John Poyser's Capacity and Undue Influence, Rule of Law, Oct. 13, 2014.
Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.
Friday, October 17, 2014
A new casebook by Raymond C. O'Brien (Catholic-D.C.) & Michael T. Flannery (Arkansas-Little Rock) entitled The Fundamentals of Elder Law, Cases and Materials will be available October 25, 2014 and may be pre-ordered now. Provided below is a description of this new book:
This casebook contains the fundamentals for a lively, contemporary course in elder law. It emphasizes illustrative factual cases and statutes, and is supported by materials from elder law practitioners and statistical data. It is distinctive in its emphasis upon state and federal court decisions, not simply recitation of statutory provisions. Elder law is of burgeoning historical and social importance. Statistics indicate that by 2030 almost one-fifth of all Americans will be 65 or older. Among the legal issues pertinent to an aging population are estate planning objectives in the context of possible incapacity, integrating nonprobate and probate transfers, asset protection planning, philanthropy and dynasty options, and beneficial tax planning. Recently enacted statutes provide guidance in personal health care decision-making and designating guardians and surrogates to exercise authority when needed. And clients and institutions require legal assistance to navigate federal benefits such as Medicare, Social Security, Veterans Benefits, and the interaction of state-federal Medicaid opportunities. Statistics also indicate that almost two-thirds of all individuals over age 65 will need some form of long-term care. For many, the choices will involve home care or some form of institutional care, with payment derived from private funds, insurance, or government assistance. All of these options will involve legal parameters.
Monday, September 22, 2014
Mary Christina Wood has published a book entitled, Nature's Trust: Environmental Law for a New Ecological Age, which explores concepts surrounding the public trust doctrine. Provided below is a description of the book from Cambridge University Press:
Environmental law has failed us all. As ecosystems collapse across the globe and the climate crisis intensifies, environmental agencies worldwide use their authority to permit the very harm that they are supposed to prevent. Growing numbers of citizens now realize they must act before it is too late. This book exposes what is wrong with environmental law and offers transformational change based on the public trust doctrine. An ancient and enduring principle, the trust doctrine asserts public property rights to crucial resources. Its core logic compels government, as trustee, to protect natural inheritance such as air and water for all humanity. Propelled by populist impulses and democratic imperatives, the public trust surfaces at epic times in history as a manifest human right. But until now it has lacked the precision necessary for citizens, government employees, legislators, and judges to fully safeguard the natural resources we rely on for survival and prosperity. The Nature's Trust approach empowers citizens worldwide to protect their inalienable ecological rights for generations to come.
Special thanks to Brian Cohan (Attorney at Law, Law Offices of Brian J. Cohan, P.C.) forbringing this book to my attention.
Tuesday, September 16, 2014
End of life decisions are difficult conversations to have with family and friends, and thus, avoided by many people for fear of placing an undue burden on their loved ones. While children, attorneys, and financial advisors often ask, people still find it difficult to discuss medical and financial directives. They simultaneously overlook significant issues frequently arising after death.
Barbara Sedoric has crafted a innovative solution to help families decipher the important details when the unthinkable does occur. The LastingMatters Organizer enables individuals to document and leave all-inclusive and easy-to-use instructions (in print or online) that can inform and guide their loved ones after death. Topics covered range from funeral plans and obituaries, to online passwords and details concerning family traditions and genealogy.
The Organizer is a tool that can help anyone, at any age, by diminishing the costs, time, and the stress of family pressures surrounding the grieving process. Conversely, the graphics, the pointed questions, and the Organizer’s thoroughness make it easy and intuitive for someone to complete.
Special thanks to Barbara Sedoric (LastingMatters President and Founder) for bringing this to my attention.
Monday, September 1, 2014
A Road Map to Guardianship Alternatives, by Sarah Patel Pacheco provides forms and guidance for utilizing available alternatives to court-supervised guardianship in Texas. Provided below is a description of the book from Texas Bar Books.
Texas guardianship proceedings can be intrusive, burdensome and costly. Practitioners should be aware of the many alternatives to guardianship that are available to Texas residents. This guide provides an overview of those alternatives, including specific forms that can be used to avoid a court-supervised administration of affairs.
A Road Map to Guardianship Alternatives, previously published as Contingency Planning, is intended to support practitioners in every area by providing knowledgeable and cost-effective legal support to families making plans for financial and medical care. This useful handbook has been expanded and updated to reflect legislative changes that have occurred since the previous publication.
The book is organized to easily direct both general practitioners and seasoned estate planning attorneys through situations in which the time and expense of creating a guardianship is not in the best interest of the client. It alerts practitioners to events that may be anticipated, such as travel, planned surgery, and administering the assets of minors or the infirm.
A Road Map to Guardianship Alternatives Digital Product, containing the entire book as an internally hyperlinked, word-searchable PDF file and all forms in Wordformat, is included at no additional charge.
Sunday, August 31, 2014
The American Institute of Certified Public Accountants (AICPA) has published the latest version of their Statement on Standards in Personal Financial Planning Services. Provided below is a description of this guide from AICPA.
The AICPA’s Statement on Standards in Personal Financial Planning Services (SSPFPS No. 1), was issued to provide authoritative guidance and establish enforceable standards for members practicing in PFP. SSPFPS No. 1 was issued in January 2014 and is effective beginning July 1, 2014.
CPAs are licensed and regulated by their state boards of accountancy. Additionally, all AICPA members are required to follow a rigorous Code of Professional Conduct which requires that they act with integrity, objectivity, due care, competence, fully disclose any conflicts of interest (and obtain client consent if a conflict exists), maintain client confidentiality, disclose to the client any commission or referral fees, and serve the public interest when providing financial services. The vast majority of state boards of accountancy have adopted the AICPA Code of Professional Conduct within their state accountancy laws or have created their own.
Over the past three decades, a growing number of CPAs have expanded into providing personal financial planning services to individuals and families. The Compliance Toolkit was designed to provide non-authoritative guidance via checklists, engagement letters, and more to aid in compliance with SSPFPS No.1. For an overview of the challenges facing practitioners and the tools available to provide CPAs with guidance in determining whether SSPFPS No. 1 compliance is required, listen to this podcast on Understanding and Applying the Statement on Standards in PFP Services.
Saturday, August 30, 2014
The third edition of the Tax Management Portfolio, Estate Planning, has been published by William P. Streng, Esq. (Vinson & Elkins Professor of Law, University of Houston Law Center). This Portfolio provides helpful guidance for estate planning professionals. Provided below is a description of the Portfolio from Bloomberg BNA.
Estate Planning is designed as an authoritative and practical working tool for attorneys, accountants, and others involved in estate planning practice. The basic estate, gift, and trust planning concepts are presented in a descriptive and conveniently accessible form. Written by William P. Streng, Esq., Vinson & Elkins Professor of Law, University of Houston Law Center, and Consultant, Bracewell & Giuliani LLP, this Portfolio analyzes the development of an estate planning strategy; fundamentals of the federal transfer tax system and related federal income tax rules; lifetime donative asset transfers; gratuitous property transfers at death; generation-skipping transfers; special property transfer planning considerations (e.g., community property, life insurance, charitable transfers, closely held corporations); and post-mortem planning.
Friday, August 29, 2014
In his new book entitled, Unretirement, Chris Farrell asserts that developing skills can help you earn income past traditional retirement age offers a better return on investment than any other financial instrument.
Farrell defines “unretirement” as the financial impact of working longer. If people can work into their 60s, they will make much more in the course of a year than they could from saving. This changes the financial landscape, as people will no longer need to tap into their retirement nest egg during these years.
The first place to being is by asking yourself what kind of work you want to be doing. “Don’t romanticize any particular idea—research it. Think about how you can take your existing skills and move into a different sector of the economy with those.”
The notion of “unretirement” further suggests that you can wait to claim social security, which in turn creates a wealthier society, healing the economic crisis.
See Mark Miller, Why ‘Unretirement’ Might Be Your Best Retirement Strategy, Reuters, Aug. 28, 2014.
Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.
Wednesday, August 27, 2014
ABA Publishing has released an innovative new book by Seymour Goldberg entitled, Can You Trust Your Trust? This book is written in an accessible and practical manner, and is easily comprehensible. It is an indispensable resource for anyone looking to use a trustee or is involved with trusts and estate planning. Further details are provided below:
A trust is frequently seen as the alter ego of a will. Trusts are often worthwhile but can be nightmares if improperly administered. As a result of the revamping of state trust laws in many states, trustees often find themselves with more questions than they were ever prepared for, without easily discernible answers, such as:
- Are there ever occasions where I shouldn’t provide for a long-term trust?
- How do I know if I can trust my trust?
- What should I look out for?
- What should I look for when selecting an institutional trustee to administer my trust?
- What trustee liability issues should I be aware of?
All of these questions and more should be taken into consideration when deciding whether or not it makes sense for you to provide for trusts in your estate plans.
Monday, August 25, 2014
The Federal Deposit Insurance Corporation (FDIC) and Consumer Financial Protection Bureau (CFPB) have made available a resource guide entitled Money Smart for Older Adults. The guide provides information for financial planning and, avoiding and addressing elder financial exploitation. Provided below is the introduction to the guide:
With over 50 million Americans aged 62 and older1, Older Adults are prime targets for financial exploitation both by persons they know and trust and by strangers. Financial exploitation has been called “the crime of the 21st century” with one study suggesting that older Americans lost at least $2.9 billion to financial exploitation by a broad spectrum of perpetrators in 2010.2
A key factor in some cases of elder financial exploitation is mild cognitive impairment which can diminish an older adult’s ability to make sound financial decisions.
This epidemic is under the radar. The cases tend to be very complex and can be difficult to investigate and prosecute. Elders who lose their life savings usually have little or no opportunity to regain what they have lost. Elder financial abuse can result in the loss of the ability to live independently; decline in health; broken trust, and fractured families.
Awareness and prevention is the first step. Planning ahead for financial wellbeing and the possibility of diminished financial capacity is critical. Reporting and early intervention that results in loss prevention is imperative.
Money Smart for Older Adults is designed to provide you with information and tips to help prevent common frauds, scams and other types of elder financial exploitation in your community. Please share this information as appropriate.