Wills, Trusts & Estates Prof Blog

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

A Member of the Law Professor Blogs Network

Friday, July 18, 2014

Uniform Fiduciary Access to Digital Assets Act

ComputerThe Uniform Law Commission has approved the new Uniform Fiduciary Access to Digital Assets Act. With huge technology advancements changing where assets are stored, a legal update is needed to accommodate the increase in digital assets. The Act adopts “media neutrality”, which means that the individuals who would gain access to tangible property as a fiduciary after the owner dies, such as personal representatives, or during the owner’s life, such as a guardian, will now also have access to the digital assets. However, if the owner has previously expressed a desire that the assets be kept private, then those wishes will be honored.

See, Uniform Fiduciary Access to Digital Assets Act Approved, Uniform Law Commission, July 16, 2014.

July 18, 2014 in Estate Administration, Estate Planning - Generally, Guardianship, New Legislation | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 15, 2014

Minnesota Addresses Thefts by Court-Appointed Guardians

MinnesotaAfter the discovery of abuse by court-appointed guardians in Minnesota, the state audited 24 random accounts handled by Alternate Decision Makers, Inc. The findings uncovered problems with ten accounts ranging from missing documents to possible indications of theft. Allegations of theft by the guardians include unreasonably high fees accessed, missing property, and personal items sold off after the protected person died. The suspicious accounts discovered by auditors are being sent to judges for review and to be remedied.

See James Eli Shiffer, Conservator’s Thefts Prompted 24 State Audits, Star Tribune, July 14, 2014.

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

July 15, 2014 in Current Affairs, Disability Planning - Health Care, Disability Planning - Property Management, Elder Law, Guardianship, Professional Responsibility | Permalink | Comments (0) | TrackBack (0)

Friday, July 11, 2014

Father's Indecencies Funded by Disabled Son's Trust Fund

Laeske

An Appleton man has been charged with stealing more than $360,000 from his disabled son’s trust fund to pay for his drugs, pornography and vacations. 

Police say Todd Laseke, 48, transferred $502,672 from the trust fund into his personal bank accounts between 2008 and 2011.  While Laeske was permitted to take a $3,000 monthly allowance, almost $400,000 was spent beyond his stipend.  Beginning in October 2010, the register in probate asked Laseke to explain this “substantial” spending, however, he did not comply.  Officials subsequently appointed a guardian ad litem to represent Laseke’s son and investigate.  Through subpoenaed documents, it was discovered that money was being spend on trips to Florida, a minivan as well as marijuana and cocaine. 

On Tuesday, Laseke filed paperwork for a court-appointed attorney.  The court commissioner set a $100,000 signature bond and he was not taken into custody.

See Ariel Cheung, Police: Man Used Disabled Son’s Trust Fund for Drugs, Porn, The Northwestern, July 8, 2014.

July 11, 2014 in Estate Planning - Generally, Guardianship, Trusts | Permalink | Comments (0) | TrackBack (0)

Thursday, July 10, 2014

Estate Planning Documents Every College Graduate Should Have

GraduationAfter graduating from college and entering the coveted “real world,” drafting an estate plan is not necessarily on the top of everyone’s to-do-list.  However, after starting your first job, preparing an estate plan is vital.  Below are five documents that should be part of your estate plan:

  1. Durable Financial Power of Attorney. This is where you name an agent to act on your behalf concerning your personal financial affairs.  Generally, your agent would step into this role if you were unable to handle your own affairs.  This can be a family member, a close friend, or a private fiduciary. 
  2. Health Care Power of Attorney. This is similar to the Financial Power of Attorney, except it is used for decisions concerning your health care.  You must name an agent who can assist with placement, if you must be moved to a rehabilitation facility, and is often given the authority to follow your wishes regarding life-sustaining treatment. 
  3. Last Will and Testament. A will allows you to provide to whom and in what manner your assets will be distributed upon your death. 
  4. Beneficiary Designation. Make sure there is a beneficiary designation on your 401(k)s and IRAs.  A beneficiary designation states that upon your death, the assets held in that account pass immediately to the named individual.  If you do not have a beneficiary designation, the funds will be distributed as part of your estate. 
  5. Beneficiary Deed. This allows you to name an individual who will receive your interest in real property at your death.  If you are married, a beneficiary deed would only be used at the death of the second spouse.  There are times when use of a beneficiary deed may not be in your best interest (i.e., if you want the property to be distributed to minor children.)

See Amber Curto, Five Estate Planning Documents Every Young Professional Should Have, Nat Law Review, July 7,  2014.   

July 10, 2014 in Estate Planning - Generally, Guardianship, Non-Probate Assets, Trusts, Wills | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 8, 2014

Article on End-of-Life Care in Connecticut

HealthErin A. O’Neill, recently published an article entitled, End-of-life care in Connecticut: whose decision is it and when does the conversation begin?, 27 Quinnipiac Prob. L.J. 317-343 (2014). Provided below is an excerpt from the article:

A 49-year-old woman has been suffering from multiple sclerosis for more than twenty years. Her condition continues to worsen. She can no longer sit up, swallow, or speak well enough to be understood by others. One year ago, she developed respiratory arrest, became cyanotic, and was hospitalized. She was given a tracheostomy and put on a respirator. To this day, the body's secretions that collect in the tube must be suctioned from the tube every couple of hours, requiring the removal of her respirator, which prevents her from breathing. She is semi-comatose, and only her brain stem, which controls her heartbeat, body temperature, and some reflexive actions, functions. She cannot see and it is believed that she cannot hear. After two months of treatment, she has shown no sign of improvement. At best, she can be described as awake but unaware. The prognosis for improvement is hopeless, but she is still kept on the respirator. 1

This woman has no living will or other advance directive; therefore, her father has been appointed as her conservator 2 by the probate court. Her father is faced with the difficult decision of whether to sustain his daughter's life in such a hopeless state, or remove the respirator and let her pass. He decides to ask the hospital to remove the respirator. 3 The hospital refuses to honor the request without a court order, and the matter is brought to the probate court. 4

July 8, 2014 in Articles, Disability Planning - Health Care, Guardianship | Permalink | Comments (0) | TrackBack (0)

Thursday, July 3, 2014

Article on The Uniform Power of Attorney Act

Vallario

Angela M. Vallario (University of Baltimore School of Law) recently published an article entitled, The Uniform Power of Attorney Act: Not A One-Size-Fits-All Solution, 43 U. Balt. L. Rev. 85-118 (2014).  Provided below is a portion of the author’s introduction:

A power of attorney is a staple of the modern estate plan, providing a simple way to avoid a guardianship and allowing an agent to manage a principal's assets when necessity or incapacity requires it.  The nature of the power of attorney is to give an agent legal authority to act on the principal's behalf for financial matters.  However, abuse by agents has caused reluctance among third parties to accept power of attorney documents, and this, in turn, has caused uproar for estate planners and their clients. 

In response to this agent abuse and subsequent third party reluctance to accept power of attorney documents, the nation's attorneys have been forced to share war stories, as well as tricks and solutions, in an effort to minimize the problems and embarrassment created when power of attorney documents are prepared and executed one day and not honored the next. In some cases, attorneys have even begun to advise their clients to use certain financial institutions likely to honor the legal-drafted document and to avoid those institutions reluctant to do so. Additionally, attorneys have been forced to contact the legal departments of banks, threaten suit, and in some situations use a costly and time-consuming alternative, the guardianship.

July 3, 2014 in Articles, Estate Administration, Estate Planning - Generally, Guardianship | Permalink | Comments (0) | TrackBack (0)

Thursday, June 26, 2014

Summer Vacation Checklist

Summer

Summer season is in full swing, which means travel and vacations are a high priority on everyone’s list.  One thing that may not make a traveler’s to-do list is estate planning; however, it is just as, if not more important than the vacation you plan to take. 

Because Americans spend more time planning their vacation than their estate, knowing what would happen to your family if something happened is critical to traveling with peace of mind.  Before embarking off on vacation, check off a few of these items:

  • Guardianship for minor children. If you have minor children, it is critical to choose guardians for your kids.  Give your children’s caretaker the legal short-term guardianship needed to ensure they could make decisions for your kids in an emergency, and lay out a plan for long term guardianship.  These documents should stand alone, and not be buried in your will.
  • Complete an estate plan. Now is the time to complete your estate plan to make sure your children do not have to navigate the waters of the probate system alone.
  • Update any existing plans. If something has changed since you last made your estate plan, now is the time to make an update.
  • Review beneficiaries. Beneficiaries of your retirement accounts, life insurance and other assets should be reviewed frequently to ensure the proper beneficiaries are named. 
  • Organize a legacy drawer. Make sure to have an organized file of account statements and your full estate plan before you leave.  Include a list of usernames and passwords to your online accounts and tell your family where they can locate this file.

See Bonnie Bowles, 7 Must-Do’s Before Your Summer Vacation, Examiner, June 25, 2014. 

June 26, 2014 in Estate Planning - Generally, Guardianship, Non-Probate Assets, Wills | Permalink | Comments (0) | TrackBack (0)

Wednesday, June 11, 2014

Casey Kasem Must be Fed, Judge's Orders

Casey KasemAs I have previously discussed, a judge recently put Casey Kasem’s daughter, Kerri Kasem, in control of decisions on his medical care. Now, a California judge has made another ruling in terms of Kasem’s care. After Kerri implemented end-of-life measures, which stopped Kasem’s doctors from providing nutrition, hydration and medication, the judge ordered that all three must be reinstated.  A court-appointed-attorney was instructed to visit Kasem and his doctors, and report back at a hearing scheduled for Friday.

See Martha Neil, Judge Says ‘Top 40’ Radio Personality Casey Kasem Must be Fed, Hydrated and Medicated, ABA Journal, June 10, 2014.

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

 

 

 

June 11, 2014 in Current Affairs, Disability Planning - Health Care, Elder Law, Guardianship | Permalink | Comments (0) | TrackBack (0)

Monday, June 9, 2014

Battle Over Control of Casey Kasem’s Medical Care Continues

Casey KasemAs I have previously discussed, the family of Casey Kasem has been battling for control over his medical care and visitation of the ailing radio personality. His wife, Jean Kasem, previously had control of medical decisions and was not allowing his children from a previous marriage to visit him. Now a judge has given control of Kasem’s care to his daughter and ordered that the children and their step-mother cannot visit Kasem at the same time. Which may be best, as one recent exchange between the two sides involved Jean Kasem throwing packaged meat at her step-daughter.

See The Associated Press, Judge: Casey Kasem’s Daughter in Charge of Care, My Fox News, June, 6, 2014.

Special thanks to Ryan Kellus Turner (General Counsel & Director of Education, Texas Municipal Courts Education Center) for bringing this article to my attention.

June 9, 2014 in Current Affairs, Disability Planning - Health Care, Guardianship | Permalink | Comments (0) | TrackBack (0)

Friday, June 6, 2014

Family Caregivers Receive Much Needed Help

Hospital

Enormous pressure from Medicare and other payers has left hospitals discharging patients faster than ever.  They often go home, receiving little to no professional assistance, leaving family members must provide complex care. 

A survey taken by AARP and the United Hospital Fund in 2011 found that half of family caregivers perform medical tasks with little or no training.  Almost 80 percent manage medications, more than one-third change dressings and care for wounds, and nearly one-quarter use incontinence equipment or give enemas. 

Project RED (Re-engineered discharged) is a new solution that builds on a highly successful discharge planning tool and has been used in at least 500 hospitals.  RED is a toolkit that takes facilities step-by-step through an effective discharge. Recently, RED has added a template for engaging family caregivers in the discharge process by guiding hospitals through several steps: Identify the primary family caregiver, assess her needs (and the patient’s), document the information, and train her in the skills needed to help loved ones after discharge. 

AARP has also developed model state legislation, known as the CARE Act (Caregiver, Advise, Record, Enable Act) that would require hospitals to identify and record the name of the main family caregiver and notify that family member when the patient is discharged.  The hospital would furthermore teach the caregiver the skills needed to help the patient after discharge.

See Howard Gleckman, Finally, Some Help for Family Caregivers After Hospital Discharges, Forbes, June 4, 2014. 

June 6, 2014 in Disability Planning - Health Care, Elder Law, Estate Planning - Generally, Guardianship | Permalink | Comments (0) | TrackBack (0)