Wills, Trusts & Estates Prof Blog

Editor: Gerry W. Beyer
Texas Tech Univ. School of Law

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Friday, January 30, 2015

CLE on Powers of Attorney in Disability Planning

CLE Photo

The American Bar Association Section of Real Property, Trust and Estate Law is holding a CLE entitled, Powers of Attorney in Disability Planning: Silver Bullet or Landmine? on February 3rd, from 1:00-2:30 PM ET via webinar.  Here is why you should attend:

The power of attorney began as a simple instrument for disability planning for those of modest means. However, it has become an extremely powerful tool in late-in-life-estate planning, financial management during disability and health care decision-making.

This panel discussion will cover:

  • Guidance for advising clients and the attorney-in-fact about powers of attorney;
  • Ethical issues in the drafting and use of powers of attorney; and
  • Drafting powers of attorney to accommodate the continuation of the estate planning process after disability of the principal in a changing tax environment, address health care decision-making and end of life care consistent with the principal's wishes, authorize the attorney-in-fact to access the principal's digital assets to the extent possible, and customize a power of attorney to reflect the client's unique situation rather than relying on standard forms.

January 30, 2015 in Disability Planning - Health Care, Disability Planning - Property Management, Elder Law, Estate Planning - Generally | Permalink | Comments (0) | TrackBack (0)

Tom Benson Defends His Competency Against Daughter, Grandchildren

Gavel2As I have previously discussed, the daughter and grandchildren of the New Orleans Saints and Pelicans owner, Tom Benson, have challenged his competency after he decided to transfer the teams to his wife. On Tuesday, Benson's attorney's filed their response in the case defending his competency, and alleging that the move does not come out of concern for Benson but rather a desire to take control of the teams for themselves.

See Katie Moore, Attorney Fires Back at Saints/Pels Owner's Heirs, WWL TV, Jan. 28, 2015.

Special thanks to Brian Cohan (Attorney at Law, Law Offices of Brian J. Cohan, P.C.) for bringing this article to my attention.

January 30, 2015 in Disability Planning - Property Management, Elder Law | Permalink | Comments (0) | TrackBack (0)

Monday, January 26, 2015

A Devastating Practice In Debt Collection

Lillian PalmeroWhen Lillian Palermo became incapacitated at age 80, her husband and power of attorney regularly rolls his wife’s wheelchair at a nursing home in Manhattan.  Yet last summer, after Mr. Palermo disputed nursing home bills that doubled Mrs. Palermo’s copays and complained about employees who dropped his wife on the floor, Mr. Palermo was shocked to find a guardianship petition filed by the nursing home, asking the court to give a stranger full legal power over Mrs. Palermo.

Few people are aware that a nursing home can take such a step.  However, the growing practice has become routine, illustrating the power nursing homes wield over residents and families amid changes in financing of long-term care. 

In a random sample of 700 guardianship cases filed in Manhattan over a decade, researchers found that more than 12 percent were brought by nursing homes.  Lawyers and others agree that nursing homes primarily use such petitions as a means of bill collection.  At least one judge has ruled that the tactic is an abuse of the law, but the petitions force families into costly legal ordeals. 

While it is a drastic measure, nursing home lawyers argue that using guardianship to secure payment for care is better than suing an incapacitated resident who cannot respond. 

See Nina Bernstein, To Collect Debts, Nursing Homes Are Seizing Control Over Patients, The New York Times, Jan. 25, 2015.

Special thanks to Joel Dobris (Professor of Law, UC Davis School of Law) for bringing this article to my attention.

Special thanks to Lewis J. Saret (Attorney, Washington D.C.)  for bringing this article to my attention.

January 26, 2015 in Disability Planning - Health Care, Disability Planning - Property Management, Elder Law, Estate Planning - Generally, Guardianship | Permalink | Comments (0) | TrackBack (0)

Approaching Issues of Capacity

Writing 2

While capacity can be an issue at any age, it is statistically most common among the elderly.  Many people decline in mental and physical ability as they age and capacity becomes a concern.  However, it is a well-known pillar of capacity law that practitioners cannot assume that capacity is an issue.  It is the professional’s responsibility to probe and verify in order to confirm or dispel any concerns surrounding an assessment of capacity. 

An advisable way to approach extracting issues of capacity with an elderly individual is through delicate conversation and encouraging openness.  Though it is important to avoid offending clients who may be uncomfortable, this is a crucial issue to ensure proper estate planning.  Sometimes, apparent symptoms of incapacity can result from cultural differences between client and lawyer.  Other times, apparent cultural issues can mask signs of incapacity.  As a lawyer, information regarding capacity may govern whether or not you can take instructions or act for the person, or whether any will prepared will ultimately be valid. 

See Ian M. Hull, How Lawyers Should Approach Issues of Mental Capacity, The Huffington Post Canada, Jan. 24, 2015.

Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.

January 26, 2015 in Disability Planning - Health Care, Disability Planning - Property Management, Elder Law, Estate Planning - Generally, Professional Responsibility, Wills | Permalink | Comments (0) | TrackBack (0)

Sunday, January 25, 2015

Battle Continues Over Louisiana's Largest Fortune

Tom Benson

Two days after Tom Benson announced a drastic shift in his succession plan, experts say that a newly launched court battle could come down to the trusts that Benson has created over the years. 

This includes a key document, which was drawn up in 2009, when Benson named his now-estranged daughter and grandchildren as the majority beneficiaries to his sports empire in an irrevocable trust.  “An irrevocable trust is a trust generally created during someone’s lifetime that is exactly what it says—it can’t be revoked.” 

Now, Benson will leave his billion-dollar-plus fortune to his current wife of ten years, Gayle Benson.  However, due to the irrevocable trust, this will not be easy.  “A lot of what’s going to play out is what’s actually in that trust itself.  Especially when you’re trying to divest a beneficiary of their interests in the underlying assets, it’s especially difficult to do.”    

Attorneys in the suit will return to court February 10th for procedural matters.

See Fight Over Louisiana’s Largest Fortune Continues, WDSU News, Jan. 23, 2015.

January 25, 2015 in Current Affairs, Disability Planning - Property Management, Estate Administration, Estate Planning - Generally, Trusts | Permalink | Comments (0) | TrackBack (0)

Friday, January 23, 2015

Family Files Suit Claiming Tom Benson Incompetent to Control New Orleans Saints, Pelicans

Tom Benson

The struggle for control of the New Orleans Saints and Pelicans escalated Thursday when family members associated with Rita Benson LeBlanc filed a lawsuit claiming that the teams’ owner and family patriarch Tom Benson is incompetent and is being directed by a manipulative wife and her allies of the sports empire. 

The suit was filed one day after Tom Benson unexpectedly announced plans to transfer future ownership of the clubs to his wife, Gayle, cutting off his daughter, Renee LeBlanc and his two grandchildren, Ryan and Rita LeBlanc.  The lawsuit seeks to block the succession change and presents numerous claims that Benson is mentally and physically unfit to manage his personal or business affairs.  The petitioners (named as Renee, Rita and Ryan LeBlanc) are also requesting an independent board-certified geriatric psychiatrist to examine Benson. 

The suit attempts to paint Gayle Benson as a “gold-digging opportunist who has taken advantage of her husband’s unfit state of health and ostracized family members in grasping for power and riches.”  Petitioners are asking the court to appoint Renee LeBlanc as executor of Benson’s sports and business ventures, with Rita LeBlanc in a secondary position.

See Jeff Duncan and Manuel Torres, Rita Benson LeBlanc, Family File Suit Claiming Tom Benson Incompetent to Control New Orleans Saints, Pelicans, The Times Picayune, Jan. 22, 2015.

See also Jeff Duncan, New Orleans Saints, Pelicans Ownership Shocker: Wife Gayle, Not Granddaughter Rita, Will Control Empire After Tom Benson Dies, The Times Picayune, Jan. 21, 2015.

Special thanks to Sarah Elizabeth Gelfand (George Washington University Law School) for bringing these articles to my attention.   

January 23, 2015 in Disability Planning - Property Management, Elder Law, Estate Administration, Estate Planning - Generally | Permalink | Comments (0) | TrackBack (0)

Monday, January 5, 2015

To Spring or Not to Spring?

Power of attorney

One of the biggest and most hotly debated questions regarding power of attorney (POA), is whether or not they should spring—meaning whether they should be effective immediately upon execution or whether the should become effective only upon a determination that the principal is disabled. 

An argument in favor of springing powers is that the agency might be too much power to grant an individual who may be tempted to abuse the power.  Opponents of springing recognize that generally POAs for healthcare are used when the principal cannot communicate for him or herself, and usually in an emergency situation.  Thus, the delay of jumping through hoops to make the instrument effective wastes time, incurs unnecessary costs and delays urgent action. 

Those who are skeptical in naming a spouse or other agent can simply limit access to springing powers.  The attorney or advisor can hold the originals and duplicates of the instrument and be instructed to deliver them to the agent only if the attorney or other trusted advisor agrees that the conditions necessitate the agent’s instant action on the principal’s behalf. 

See Kim Kamin, Powers of Attorney: To Spring or Not to Spring? Wealth Management, Jan. 5, 2015.

Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.

January 5, 2015 in Disability Planning - Health Care, Disability Planning - Property Management, Estate Planning - Generally | Permalink | Comments (0) | TrackBack (0)

Sunday, January 4, 2015

New Pennsylvania Power-of-Attorney Law

LawA new law in Pennsylvania went into effect along with the new year on January 1, that is intended to protect those who appoint a power of attorney. The new law, Act 95, requires additional notice to be given regarding what powers the person designated as power-of-attorney will have, and also requires all newly granted powers to be both notarized and witnessed. The new law also requires more specificity of what powers are being granted to be included in the documents. An additional safeguard of expanding standing for challenges to the actions in power-of-attorney arrangements was considered during the drafting of the new law but were not included.

See Paul Muschick, Two New State Laws Are Meant to Protect You and Your Money, The Morning Call, Jan. 3, 2015.

January 4, 2015 in Disability Planning - Property Management, Estate Planning - Generally, New Legislation | Permalink | Comments (0) | TrackBack (0)

Wednesday, December 31, 2014

New Year's Resolutions for Estate Planning

New YearWhile prepping the New Year's resolutions for tonight, take time to consider  making  an annual estate planning resolution to take a look through and update relevant documents. Here are some steps to help with the resolution to review:

  • Take inventory of any life changes that occurred in the past year, or since the last update.
  • Take a look at any planning documents, such as a will or revocable trust, and check to see if the executor and trustee designations, and beneficiaries are still accurate and if any newly acquired property needs to be accounted for.
  • Give thought to whether the individuals designated as financial and health care power of attorney are still a good fit.
  • Make sure a living will is in place with current wishes for health care decisions.
  • Review and reconsider if necessary all beneficiary designations for life insurance plans and retirement accounts.

See Linsey Glosier & Doug Stanley, Your Estate Planning New Year's Resolution Checklist, Bryan Cave, Dec. 30, 2014.

Special thanks to Brian Cohan (Attorney at Law, Law Offices of Brian J. Cohan, P.C.) for bringing this article to my attention.

December 31, 2014 in Disability Planning - Health Care, Disability Planning - Property Management, Estate Planning - Generally | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 30, 2014

Limitations of ABLE Act

Law1As I have previously discussed, the recently passed ABLE Act allows for disabled individuals to set up a tax-free savings account that will not act to disqualify the individual from receiving disability benefits. However, an individual who is qualified to have an ABLE account is limited. Here are some disqualifiers from ABLE eligibility:

  • The individual developed their disability after turning 26-years-old.
  • Inability to get a doctor to certify the disability as a "severe and chronic mental or physical impairment."
  • The state that the individual lives in does not adopt and implement the ABLE Act.

See Robert Deschene, ABLE Act Not For Everyone, Deschene Law, Dec. 26, 2014.

Special thanks to Brian Cohan (Attorney at Law, Law Offices of Brian J. Cohan, P.C.) for bringing this article to my attention.

December 30, 2014 in Disability Planning - Property Management, Estate Planning - Generally, New Legislation, Non-Probate Assets | Permalink | Comments (0) | TrackBack (0)