Wills, Trusts & Estates Prof Blog

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

Monday, October 5, 2015

Convicted Guardianship Attorney Passes Away Before Sentencing

Disgraced attorneyAn attorney that was convicted of defrauding the people that he was supposed to protect passed away before he could be sentenced.  Paul S. Kormanik was supposed to appear in Franklin County Probate Court today to answer a contempt of court charge brought on by his failure to pay back one of his victims.  Back in August Mr. Kormanik plead guilty to four counts of stealing from wards that he was the court appointed guardian of, falsifying records, and taking tax payer money.  Kormanik had bragged in the past that he had the most wards of any guardianship attorney in the State of Ohio representing over 400 wards.  The disgraced attorney was one of several guardians highlighted in an investigative report from May 2014 titled “Unguarded.” 

See Mike Wagner, Convicted guardianship lawyer dies before sentencing, The Columbus Dispatch, October 5, 2015.

October 5, 2015 in Current Affairs, Estate Planning - Generally, Guardianship, Professional Responsibility | Permalink | Comments (0)

Friday, October 2, 2015

How The Supreme Court Same-Sex Marriage Decision Will Impact Texas Couples

Same-sexThis article discusses the major impact that the Obergefell decision will have on Texas same-sex couples.  The State of Texas uses a community property system where assets accumulated during the marriage are dived evenly.  Texas also recognizes common law marriages (informal marriages).  If a couple agreed to be married, lived together as a married couple, and represented to others that they were married then the elements of a common law marriage in Texas are met.  The question many lawyers and same-sex spouses are asking is whether this common law marriage rule will apply to same-sex relationships that were formed before the Supreme Court decision.  This would have a huge impact on how the same-sex couple’s property is distributed. 

See J. Daryl Hinze, How The ‘Obergefell’ Decision Affects Texas Same-Sex Couples and Everyone Who Practices Law, Texas Lawyer, October 5, 2015.

October 2, 2015 in Current Affairs, Estate Planning - Generally, Estate Tax, Guardianship, Income Tax, Intestate Succession, Trusts, Wills | Permalink | Comments (0)

Wednesday, September 30, 2015

Estate Planning Gets Difficult When Family Is Involved

Relatives fightingThis column discusses some of the difficult and emotional issues that can come up for estate planners whenever a client’s family members get involved.  Oftentimes client’s children will want the estate planner to provide them with their parent’s financial information.  This column discusses instances where a client’s child brought in their parents tax return or a parent wanted the estate planner to fill out a return for their child.  An estate planner must often have written consent from a client before disclosing their financial information to one of their family members.  It is also important for estate planners to avoid getting entangled in a client’s family disputes. 

See Jeff Stimpson, Blood Feuds: Handling Clients’ Families, Accounting Today, September 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.

September 30, 2015 in Estate Planning - Generally, Guardianship, Trusts, Wills | Permalink | Comments (0)

Monday, September 28, 2015

Bitter Legal Battle Over Guardianship Issue Spills Into Street

AutismProtesters have recently showed up to Munson Medical Center holding signs reading “Free Hannah G.”  Savannah Garcia, known as Hannah G, is an autistic person that has been a patient at the Munson Medical Center for over a month.  There is currently an ongoing legal battle in the local probate court between the center and Hannah G’s mother over guardianship.  Professionals at the center are concerned that Hannah G would suffer if her mother is involved in her care and have successfully entered an emergency petition that removed Samantha Garcia as guardian and named a replacement temporary guardian.  Doctors are concerned that Savannah might be experiencing Munchausen by proxy, a type of abuse that involves a caregiver adding to a person’s illness to gain attention.

See Matt Troutman, Guardianship battle spills to street, Traverse City Record Eagle, September 27, 2015.

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

September 28, 2015 in Current Affairs, Disability Planning - Health Care, Estate Planning - Generally, Guardianship | Permalink | Comments (0)

Thursday, September 24, 2015

Discipline Board Investigating Conflict Of Interest Issue

JudgmentA Washington D.C. Appeals Court has recently held that an attorney disciplinary board needs to investigate whether there was a conflict of interest when two attorneys represented both a mother and a son in a conflict involving a trust.  The attorney disciplinary board will need to determine if the two attorneys had to have informed consent from both the mother and son.  This dispute centered around a trust created in 2002 by Genevieve Ackerman.  The son, Dr. Stephen Ackerman, hired two attorneys "John T. Szymkowicz and his son, John P. Szymkowicz, to challenge the trust."  The attorneys ended up representing both the mother and son in the suit.  The court held that even though the interests of Dr. Ackerman and Ms. Ackerman might be aligned there was still a substantial risk of a divergence of interests.  The District of Colombia Court of Appeals decision can be read here

See Discipline Board Must Examine Whether Attorneys’ Representation of Both Mother and Son Was a Conflict, Elder Law Answers, September 24, 2015. 


September 24, 2015 in Current Affairs, Estate Planning - Generally, Guardianship, Professional Responsibility, Trusts | Permalink | Comments (0)

Article On Approaches To Selecting Legal Surrogates

ArticlePictureNina A. Kohn (Professor, Syracuse University - College of Law) recently published an article entitled, Matched Preferences and Values: A New Approach to Selecting Legal Surrogates, 52 San Diego L. Rev. 399 (2015). Provided below is an excerpt from the article:

Every day, hospitals are filled with incapacitated patients whose healthcare decisions are made by other people. The law recognizes such decisions as the patients’ own and, accordingly, the primary purpose of surrogate decisionmakers is to make the decisions that patients would make if able. Unfortunately, surrogate decisionmakers frequently make choices for patients that are inconsistent with patient wishes. Indeed, social psychology literature on surrogate decisionmaking finds a stronger correlation between surrogates’ decisions for patients and what surrogates would want for themselves than between surrogates’ decisions and what patients actually would want. Although others have treated surrogates’ tendency to project their own preferences and values on patients as a barrier to appropriate decisionmaking, this Article shows how savvy patients, advocates, and policymakers can capitalize on this tendency to improve healthcare decisionmaking. Specifically, it proposes that surrogate decisionmakers for health care be selected based, at least in part, on the extent to which they share patients’ treatment preferences. Where it is not possible to compare treatment preferences, or where an individual cares less about particular treatment decisions than about consistency with a set of values, surrogates should be selected based on shared values. Incorporating this approach into advance planning processes and the statutory law governing the selection of guardians and default surrogate decisionmakers could both increase the likelihood that decisions made are those patients would want made, and facilitate more flexible, context-appropriate treatment decisions.

Special thanks to Jim Hillhouse for bringing this article to my attention.

September 24, 2015 in Articles, Guardianship | Permalink | Comments (0)

Tuesday, September 22, 2015

Barron’s Experts Provide Estate Planning Advice

Financial advisorThe market is currently experiencing some volatility and there are many people that are concerned about their financial investments.  In this article four financial advisers answered questions in an interview about ways people can protect and grow their wealth for retirement in this volatile market.  One of the most important things that these planners stress is the need for families to communicate with each other.  These experts discuss ways clients can prepare for both short-term and long-term investment needs.  The experts all agreed that clients should do more to keep better track of their regular expenses.  It is also extremely important to make plans for things like power of attorney, guardianship, and life insurance. 

See Beverly Goodman, Retirement: How to Protect Your Health and Wealth, Barron’s, September 19, 2015.

Special thanks to Jim Hillhouse for bringing this article to my attention.

September 22, 2015 in Current Affairs, Elder Law, Estate Planning - Generally, Guardianship, Trusts, Wills | Permalink | Comments (0)

Monday, September 21, 2015

CLE On Trust Protectors For Trusts For Individuals With Special Needs

CLEThe American Bar Association is presenting a CLE entitled, Trust Protectors for Trusts for Individuals with Special Needs: Not an Option Anymore - But Not Just Boilerplate, Monday September 21, 2015, 12:00-1:30pm Central, online.  Here are some details about the event:

ABA Members join RPTE for $70 to save $55 on this and future RPTE teleconferences, sign up at Register online. Find upcoming programming here . You may also email Michael.Kesler@americanbar.org, or call 312-988-5260. Visit www.shopaba.org to update your preferences to receive future program announcements via e-mail.

This program will be available on audio CD and MP3. Order from the ABA Web Store
(search by program title or keyword).

Cancellations and requests for refunds will be honored on the following basis: Two business days or more, 100% refund; one business day or less, 100% refund minus the $25 administrative fee. Substitute registrants are welcome. The ABA will seek 1.5 hours of CLE credit in 60-minute states and 1.8 hours of CLE credit in 50- minute states in states accrediting ABA live webinars and teleconferences.* Credit hours granted are subject to each state’s approval and credit rounding rules. NY- licensed attorneys: This non-transitional CLE program has been approved for experienced NY-licensed attorneys in accordance with the requirements of the New York State CLE Board for 1.5 New York CLE credits.

September 21, 2015 in Conferences & CLE, Guardianship | Permalink | Comments (0)

Friday, September 18, 2015

Texas Makes Major Changes To Guardianship Law

TexasThe 2015 Texas Legislature made significant changes to the Estate Code which now calls for alternatives to complete guardianship be contemplated by a court. Before a guardian can now be appointed there must be a showing by clear and convincing evidence by the party seeking guardianship that alternatives have been considered and rejected as being unfeasible under the circumstances. In addition, the new legislation places more power into the hands of a ward by requiring the court to consider the ward's views on the proposed guardian as well as giving the ward, or an interested person, to right to petition for a restoration of rights be it full or partial. Lastly, a new chapter was added which proclaims a "bill of rights" which allows wards to raise any issue with the court which violates the bill of rights.

See Deborah C. Hiser, Texas is the first state to recognize supported decision-making as alternative to guardianship, Lexology, September 15, 2015.


September 18, 2015 in Guardianship, New Legislation | Permalink | Comments (0)

Monday, September 14, 2015

How Courts Might Consider Scores In Mental Status Exams

ExamThis legal post examines a recent Illinois Court of Appeals decision dealing with a low mental status exam score in a long-running guardianship case.  In Estate of Koenen the court held that a court appointed psychiatrist could bring up the fact that a man got a low score on the Montreal Cognitive Assessment (MOCA) to help make the case that he lacked sufficient mental capacity to manage his own affairs.  This was not the only evidence that was used, but the court did permit the experts testimony and exam scores to be used as evidence.  The Illinois Court of Appeals decision in this case can be read here.

See Katherine C. Pearson and Dickinson Law, What is the Legal Significance of “Scores” in Mental Status Exams?, LPB Network, September 11, 2015.   

September 14, 2015 in Current Affairs, Estate Planning - Generally, Guardianship | Permalink | Comments (0)