Tuesday, January 31, 2017
Sally Balch Hurme recently published a book entitled, The Fundamentals of Guardianship: What Every Guardian Should Know (2017). Provided below is a summary of the book:
Serving as guardian is never simple or easy. Having the responsibility to make major life decisions for another is much more difficult than making decisions for oneself. Recent studies by the National Center for State Courts estimate that between one to two million adults are under court-supervised guardianship. The Administrative Conference of the United States estimates that approximately 75 percent of guardians are family members or friends. A constant refrain in multiple national studies and legislative reports is that once guardians are appointed they receive little instruction on how to carry out their responsibilities and have few resources to guide them.
Fundamentals of Guardianship is the much-needed, basic manual for new guardians that explains those roles and responsibilities. The court orders guardians to make decisions; Fundamentals of Guardianship explains how to make those decisions. It guides the new guardian step-by-step through the process of how to make responsible and ethic decisions, prudently manage another’s resources, avoid conflicts of interest, and involve the person under guardianship in the decision process. Fundamentals of Guardianship is the authoritative resource written by guardians with decades of experience and members of the National Guardianship Association.
This book will appeal to all who have been appointed as guardian or conservator, whether lawyer, family member, friend, volunteer, or public or private entity, as well as all those who serve vulnerable adults. Included on this list are judges, court administrators, law enforcement officials, adult protective services, social workers, health care providers, case managers, residential care administrators, long-term care ombudsmen, financial institutions, and financial advisors.
Wednesday, January 18, 2017
Uniform Laws Update provides information on uniform and model state laws in development as they apply to property, trust, and estate matters. The editors of Probate & Property welcome information and suggestions from readers.
Much of the 2016 legislative activity involved the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA). At press time, 20 states had enacted a version of RUFADAA. This innovative new law ensures that fiduciaries who manage the property of decedents and incapacitated persons will have access to on-line property and accounts as necessary.
Friday, January 13, 2017
The State Bar of Texas is holding a CLE entitled, 2017 Advanced Elder Law and Advanced Guardianship Law, which will take place April 6–7, 2017, at the Westin Memorial City on 945 Gessner Road in Houston, Texas. Provided below is a description of the event:
We hope you will join us for our upcoming live presentations of 2017 Advanced Elder Law and Advanced Guardianship Law in Houston on April 6-7, 2017 at the Westin Memorial City.
We are leading off this year with our Advanced Elder Law Course on Thursday, followed by Advanced Guardianship Law Course on Friday. Together these courses provide up to 13.25 hours (including 2.5 hours ethics) of MCLE credit while discussing some of the biggest topics in the field today.
Advanced Elder Law will cover:
- What You Don't Know Can Hurt You: Case Law and Legislative Updates
- Dealing with MERP Claims Through Probate Proceedings
- MERP - It Ain't a Lien and Here's Why
- How to Deal with the Transition Between VA and Medicaid
- Anatomy of a Will
- Title Issues on Gift Deeds, Lady Bird Deeds, and Transfer on Death Deeds
- Communicating Complicated Elder Law Concepts to Clients Who May Have a Hard Time Understanding Complicated Concepts
- Client Self Defense Against Abuse, Disputes, and Neglect
- Medicaid Applications - The View from 30,000 Feet
- Handling Odd Types of Property
Advanced Guardianship Law topics include:
- Tool Kit for Contested Guardianships
- Supports and Services - Alternatives to Guardianships
- Temporary Guardianships and Other Remedies v TROs
- The Interaction of POA in Guardianships
- Runaway Ad Litems
- Fees and Costs in Guardianships; A Trap for the Unwary
- Effective Use of Management Trusts With or in Lieu of Guardianships: Guardians of the Estate
- Creditors' Claims in Guardianships
Plus, attending Advanced Guardianship Law will qualify you for Attorney ad Litem certification!
Select rooms have been reserved at the Westin Memorial Hotel for State Bar registrants at the special rate of $189/night. Reserve your room by calling the hotel at 281-501-4300 and asking for the State Bar of Texas room block by March 16th or use the link above.
Wednesday, November 2, 2016
Mark B. Heffner recently published an Article entitled, From Idiots and Lunatics to Incapacitated Persons and Respondents: The Evolution of Guardianship Law in Rhode Island, 21 Roger Williams U. L. Rev. 554 (2016). Provided below is a summary of the Article:
This article will first examine Rhode Island's guardianship laws during the more than 200 years from Rhode Island's colonial era until 1985, and label this time as the “Dark Period.” In the next sections, entitled “First Light” and the “Dawn,” this Article will discuss how, after this over 200 year period of relative dormancy, Rhode Island's guardianship evolved rapidly over the comparatively short period between 1985 through 1996. This article will conclude with a section entitled “After the Dawn,” which will examine what has occurred (and has not occurred) in the twenty years following this period of rapid change.
Rhode Island's guardianship laws and its changes will be viewed through the prism of two areas: the grounds for the initiation of a guardianship proceeding and the procedural rights of the individual for whom the guardianship is sought. Guardianships, of course, involve many other aspects and requirements; however, focusing on these two significant areas will provide most vivid insight to Rhode Island's guardianship laws as they once existed and as they now are.
To highlight this evolution, this article will focus on provisions of Rhode Island's statutes pertaining to guardianship of adults. For, as the Rhode Island Supreme Court pointed out in Trustees of House of the Angel Guardian, Boston v. Donovan, “in this state the probate court derives its jurisdiction wholly from the statute.” Accordingly, this article will emphasize statutory provisions, discussing reported decisions of the Rhode Island Supreme Court which interpret the enactments of the General Assembly.
Saturday, September 10, 2016
Attorney-client privilege might be the most ancient of the confidential communication privileges. The privilege was codified in Florida at § 90.502. As time passed, the law evolved, creating an exception to privilege—the fiduciary-duty exception for when the client was a fiduciary and the lawyer’s services were for a third party. In 2011, however, Florida enacted § 90.5021, the fiduciary-lawyer client privilege, which appeared to infringe on the exception. This Section defines who qualifies as a fiduciary and further explains that the fiduciary-lawyer relationship would be protected just the same as a non-fiduciary relationship. Additionally, the Section explains that only the fiduciary is considered a client of the lawyer.
In Bivins v. Rogers, the plaintiff was the personal representative of his father’s estate. The defendant was one of several guardians appointed to exercise the father’s rights. After his father’s death, the plaintiff sued, seeking production of communication between the defendant and his attorneys and accountants. The question to the court was whether § 90.2051 precludes someone besides the client from waiving privilege when the client is a fiduciary. The court held that it does. This ultimately suggested that there was no ambiguity about the statute’s validity, making the fiduciary-duty exception irrelevant.
See Jordan Hammer, Personal Representative Cannot Waive Privilege Between Guardian and Attorney, Florida Probate Lawyers, September 8, 2016.
Thursday, June 30, 2016
As the age of technology flourishes, digital media assets are becoming increasing popular. The Florida Governor signed the Florida Fiduciary Access to Digital Assets Act into law on March 10, 2016. The Act allows people to plan for the management and disposition of their digital assets, such as emails, text messages, and social media accounts, by vesting fiduciaries with the authority to access, control, or copy these assets. Additionally, the Act has rules of priority for the disclosure documents where an online tool of disclosure will trump a user’s estate planning documents. Further, a custodian must comply with a request for disclosure of the digital assets when necessary. The Act goes into effect on July 1, 2016, and will apply to all fiduciaries acting under a will, trust, or guardianship.
See Jennifer J. Wioncek & Michael D. Melrose, Florida Passes Fiduciary Access to Digital Assets Act, Wealth Management, June 27, 2016.
Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.
Thursday, June 16, 2016
The theory behind guardianship is to protect incapacitated people. This relationship, however, can place the incapacitated person in a vulnerable position because not all guardians have good intentions. In response to this problem, recent changes have been made to guardianship laws in 18 states, including guardian background checks and improved access to the incapacitated person. Even with these changes, guardianship still presents challenges, which is why it is important to plan ahead and choose your guardian rather than allowing the court to do so.
See The Pros and Cons of Court Ordered Guardianships, Wealth Management, June 14, 2016.
Sunday, June 5, 2016
Nina A. Kohn & Catheryn Koss recently published an Article entitled, Lawyers for Legal Ghosts: The Legality and Ethics of Representing Persons Subject to Guardianship, 91 Washington L. Rev. (2016). Provided below is an abstract of the Article:
A person subject to guardianship has been judicially determined to lack legal capacity. Stripped of legal personhood, the individual becomes a ward of the state and his or her decisions are delegated to a guardian. If the guardian abuses that power or the guardianship has been wrongly imposed — as research suggests is not infrequently the case — the person subject to guardianship may rightly wish to mount a legal challenge. However, effectively doing so requires the assistance of an attorney, and persons subject to guardianship typically have not only been declared by a court to be incapable of directing their own affairs but have been stripped of the capacity to contract. As a result, those who wish to challenge the terms and conditions of their guardianship, or even merely to exercise unrelated retained rights, can be stymied because attorneys are unwilling to accept representation for fear that it is unlawful or unethical. Drawing on constitutional law, as well as the law of agency and contract, this Article shows why such representations are, contrary to the assumptions of many attorneys, not merely legally permissible but essential to protect fundamental constitutional rights. It then explores the professional rules governing attorney conduct in order to show how attorneys may ethically represent persons subject to guardianship. Finally, it proposes a modest change to the Model Rules of Professional Conduct to clarify attorneys’ duties in this context.
Tuesday, May 10, 2016
Imagine spending over $50,000 on a court-appointed guardian in just three months! This is the situation that 94-year-old Betty Winstanley faces. She was appointed a guardian when the court wrongly determined that she was incapacitated. Betty is concerned because her estate is being unreasonably distributed to guardianship fees instead of her future heirs.
Betty also continues her battle in court to get permission to move closer to her children. Unfortunately, the judge continues to delay this request because it would mean that Betty’s money moves elsewhere. With Betty’s struggle, it is easy to see how our legal system is mocking the laws created to protect our elderly.
See Diane Dimond, Plundering Grandma’s Estate Via Court-Ordered Guardianships, Rockland County Times, May 6, 2016.
Friday, May 6, 2016
I have previously discussed the ongoing trial over the competency of media mogul Sumner Redstone. This article goes into some detail describing the background of this current case. This legal battle is captivating people in both Hollywood and Wall Street because of the importance of Viacom to both the entertainment and business communities. Viacom is a massive media company that owns networks like CBS, Comedy Central, and MTV. Mr. Redstone has been having health problems lately and the future of Viacom could be tremendously impacted by what happens in the future. The court proceedings in this case are ongoing and there will likely be more developments to come. This blog has been continuously reporting on this case, and this article will provide the reader with an extensive amount of background information.
See Emily Steel, Sumner Redstone Trial Captivates Hollywood and Wall Street, The New York Times, May 5, 2016.
Special thanks to Joel Dobris (Professor of Law, UC Davis School of Law) for bringing this article to my attention.