Wills, Trusts & Estates Prof Blog

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

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Tuesday, October 7, 2014

Keys to Being a Health Care Proxy

Hospital care

Being a health care proxy can be one of the most serious responsibilities conferred upon you.  This power to make medical decisions for your loved ones in case he or she cannot, encompasses talking with your loved one’s medical tam about treatment choices and deciding on a course of action.  It may also entail making end-of-life decisions.  Below are some guidelines in taking on such massive responsibilities:

  • Be able to say no. You do not always have to be someone’s health care proxy if they ask.  “It may be hard enough coping, even without the added responsibilities of making health care decisions.  But it is an important way to help someone you care about.”
  • Understand the lingo. There are three kinds of health care proxies: agent, surrogate and guardian.  In all cases, a proxy is a person who can make health care decisions for someone else.
  • Talk it over. “Spend time discussing the wishes of the individual at the time you agree to serve as the agent.  Discuss religious and moral beliefs to know how they would make decisions on medical care.  Do not be afraid to address the issues.”
  • Get access to records. You should have access to your loved one’s medical records and any information you need about the patient’s health or health care.  Ask for clear explanations so you can understand the patient’s medical condition and what treatment options are available.

See Pamela Yip, Learn Your Loved One’s End-of-Life Wishes While You Can, Dallas News, Oct. 3, 2014.

October 7, 2014 in Disability Planning - Health Care, Elder Law, Estate Planning - Generally, Guardianship | Permalink | Comments (0) | TrackBack (0)

Monday, October 6, 2014

Ohio's Guardianship System to be Revamped


State representatives in Ohio have drafted legislation to reform the state’s guardianship system, using problems uncovered in a series of stories in The Columbus Dispatch newspaper as a guide.  “This is about protecting the state’s most vulnerable people.  We want to hold those in charge of others responsible and ensure they know what’s expected of them.”

House Bill 624 calls for a ward’s bill of rights.  The bill would also require probate courts to give guardians a handbook that specifies how to care for a ward, manage assets and talk with doctors. 

In May, an investigation by The Dispatch revealed that unprincipled lawyers and selfish family members who are court-appointed guardians for people had been deemed incompetent to handle affairs by the probate judge.  The investigation found there were no statewide standards and that many courts lacked necessary safeguards or ignored their own rules. 

The bill proposes to codify 19 separate rights.  First, a ward must be “treated with dignity and respect.”  Other important rights for wards would force courts to implement other changes as well. 

The bill has bipartisan support and is expected to sail through the Ohio House and Senate. 

See Lucas Sullivan, Josh Jarman, and Mike Wagner, Bill Would Spell Out Wards’ Legal Rights in Guardianship System, The Columbus Dispatch, Oct. 5, 2014.

October 6, 2014 in Estate Planning - Generally, Guardianship, New Legislation | Permalink | Comments (0) | TrackBack (0)

Proposed Changes to Ohio Guardianship System

LawCurrently, Ohio does not have codified statewide standards for the state's guardianship system. Rather, standards that guardians must meet vary by county, and recent investigations in the state have exposed abuse of those in the guardian's care and ineffective enforcement of existing standards.

To address these concerns, Rep. Dorothy Pelanda and Sen. Shannon Jones, are backing House Bill 624. The proposed legislation would create a ward’s bill of rights, and give those appointed guardians by the state's probate courts rights such as being “treated with dignity and respect.” The text of the bill may be read here.

See Lucas Sullivan, Josh Jarman, & Mike Wagner, Bill Would Spell out Wards' Legal Rights in Guardianship System, The Columbus Dispatch, Oct. 5, 2014.

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

October 6, 2014 in Guardianship, New Legislation | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 1, 2014

Caregiver Murder Case Goes to Jury


On Tuesday jurors began deliberating the fate of a caretaker accused of stealing more than $500,000 from an 88-year-old Rancho Bernardo man before killing him so that she could become independently wealthy. 

Denise Goodwin, 47, is charged with twelve counts, including murder, and also faces a special allegation for financial gain in the death of Gerald Rabourn.  In his closing argument, Deputy District Attorney Bill Mitchell told jurors that Goodwin was a “predator disguised as a caregiver who targeted elderly men with money and no family nearby.”  Mr. Rabourn trusted the defendant and allowed her access to his bank account after she convinced him that she could help him with his finances.  “Gerald Rabourn was sucked in and taken to the cleaners . . . [Goodwin] had found her golden goose.” 

When the defendant obtained the money she used it to buy property in Temecula, telling people she had gotten an inheritance from her father.  Yet, Goodwin got her name added to Mr. Rabourn’s account and changed the direct deposit so that she could gain access to his $3,000-a-month pension check.  Moreover, Goodwin signed a quit-claim deed on Rabourn’s home and listed it for $381,000 and later took in the profits from the sale.

See Kelly Wheeler, Jury Deliberations Begin in Caregiver Murder Case, ABC 10 News, Sept. 30, 2014.

October 1, 2014 in Current Affairs, Elder Law, Estate Planning - Generally, Guardianship | Permalink | Comments (0) | TrackBack (0)

Delaware Guardianship Rule Change

LawNew amendments to the rules for Delaware courts' regarding court-appointed guardianship requirements became effective on September 19. The amendment changes the requirements of Court of Chancery Rule 180. A court-appointed guardian is no longer required for a minor if their property at issue is valued at $25,000 or less.

See Carl Neff, Chancery Amens Guardianship Rule 180, Delaware Chancery Law Blog, Sept. 28, 2014.

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

October 1, 2014 in Guardianship, New Legislation | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 17, 2014

Guardians Arrested For Abusing Disabled Woman

JailA couple in Toledo, Ohio was recently arrested and charged for allegedly abusing and neglecting a 53-year-old woman that they are the legal guardians of. In 1994, Norman and Susan Demski were named the guardians of Lori Demski, who was deemed mentally and physically disabled.

Mr. Demki found his sister Lori badly injured and bleeding when he returned home after Lori was left alone for five hours, according to court affidavits. Lori was taken to the hospital where it was determined that she was attacked by two dogs at the home, had broken bones, and what appeared to by human bite marks on her body, according to police reports. The couple has been released, but cannot contact Lori.

See Taylor Dungjen, Woman’s Guardians Arrested in Abuse Case, Toledo blade, Sept. 9, 2014

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

September 17, 2014 in Estate Planning - Generally, Guardianship | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 9, 2014

Elderly Couple's Marriage Questioned

Old newlyweds

After 96-year-old Edith Hill and 95-year-old Eddie Harrison had been companions for more than a decade, they finally married earlier this year.  Hill’s daughter, Rebecca Wright, does not understand the fuss over her mother’s marriage, “Anybody who wants to get married must have a little dementia.” 

However, the courts are not amused and the future for the newlyweds remains uncertain.  Legally, the wedding has been problematic, as Hill has been declared incapacitated for several years.  At a hearing earlier this month a judge said he believes that Wright, co-guardian over her mother, acted improperly by taking her mother to get married without the court’s permission. 

Cary Cuccinelli, represents Patricia Barber, the sister who opposed the marriage, said that the wedding occurred without other family members’ knowledge, and that it complicated the matter of how to eventually distribute Hill’s estate.  “Legally, Mr. Harrison now has a right to a portion of Ms. Hill’s estate.

The judge removed Wright and Barber as Hill’s guardians and subsequently appointed a lawyer, instructing her to “investigate the marriage and take all actions appropriate and reasonable to protect the best interests of Edith Hill.”    

See Matthew Barakat, Marriage of Newlyweds, Ages 96 and 95, Questioned, SF Gate, Sept. 9, 2014.

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

September 9, 2014 in Elder Law, Estate Administration, Estate Planning - Generally, Guardianship | Permalink | Comments (0) | TrackBack (0)

Monday, September 1, 2014

Book on Guardianship Alternatives in Texas

Guardianship alternativesA 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.

September 1, 2014 in Books, Books - For Practitioners, Estate Planning - Generally, Guardianship | Permalink | Comments (0) | TrackBack (0)

Friday, August 22, 2014

Booklet Series on Managing Someone Else’s Money

CFPB_LogoThe Consumer Financial Protection Bureau has released a series of informative guides entitled, Managing Someone Else’s Money. Here is a description of the series from the CFPB website:

Millions of Americans are managing money or property for a loved one who is unable to pay bills or make financial decisions. This can be very overwhelming. But, it’s also a great opportunity to help someone you care about, and protect them from scams and fraud.

We are releasing four easy-to-understand booklets to help financial caregivers. The Managing Someone Else’s Money guides are for agents under powers of attorney, court-appointed guardians, trustees, and government fiduciaries (Social Security representative payees and VA fiduciaries.)

The guides help you to be a financial caregiver in three ways:

  • They walk you through your duties.
  • They tell you how to watch out for scams and financial exploitation, and what to do if your loved one is a victim.
  • They tell you where you can go for help.

August 22, 2014 in Books, Disability Planning - Property Management, Estate Planning - Generally, Guardianship, Non-Probate Assets, Professional Responsibility, Resource Links, Trusts | Permalink | Comments (0) | TrackBack (0)

Monday, July 28, 2014

Planning For Your Kids

Children2It is important to have a plan in place for your children in the event of your death.  Who will be your child’s guardian and who will be the guardian of your estate?  While these difficult decisions may not have one right answer, there are several important considerations to take into account when you are making your will and planning your child’s future.

Although you are allowed to designate someone as the guardian of your child, in most states the court has the final decision as to who will be the most appropriate caregiver.  “It’s at the discretion of the court as to what’s in the best interest of the child.”   When drafting your will, it is important to take into consideration that your money and your child can go in opposite directions.  Two types of guardians can be specified in your will—the guardian of the child, and the guardian of the property of the estate.  Though they can be the same person, that is not a requirement.  “Naturally, the answer is different for everyone and depends on what you want for your child as well as his or her caregiver . . . The person who looks after and cares for your child may not be the same person you’d want handling his or her financial life, as they may require a different skill set.  To control risk, some people decide to keep the roles separate.” 

The best way to do this is by creating a trust.  In establishing a trust, you can be explicit about how those funds are to be used for the care and education of the child.  When thinking about the appropriate dollar amount to leave for your child’s care, remember that children are expensive.

See Kathryn Tuggle, How to Give Away Your Kids, The Street, July 28, 2014.

July 28, 2014 in Estate Planning - Generally, Guardianship, Trusts, Wills | Permalink | Comments (1) | TrackBack (0)