Wednesday, February 25, 2015
When Chicago Cubs legend Ernie Banks passed away, he had assets worth $16,000. Cook County Probate Judge James Riley gave his caregiver, Regina Rice, thirty days to provide a full accounting of Banks’ estate at the time of his death last month.
I have previously discussed the battle between Rice and Banks’ estranged wife, Elizabeth Banks, over what should be done with Ernie Banks’ remains and who should inherit his estate. Elizabeth Banks prevailed with the remains, having them buried at a cemetery a few blocks from Wrigley Field.
Banks is now contesting a will that her husband signed in October, without her knowledge, that specifies all his assets should go to Rice. Ernie Banks’ two sons will also contest the will.
At a short hearing yesterday, Elizabeth Banks’ attorneys were surprised that Rice’s attorney’s estimate of Ernie Banks’ estate was worth only $16,000. This prompted Judge Riley to order Rice to provide documentation about the assets. Moreover, Rice must seek the judge’s permission before selling any of the estate’s assets.
See Lawyer Says Ernie Banks Assets Worth $16,000, Associated Press, Feb. 24, 2015.
Monday, February 23, 2015
On February 9, Bear County Probate Judge Tom Rickoff ordered that two receivers take control of Tom Benson’s Texas-based fortune—a move that has not occurred more than a dozen or so times in the past thirty years.
This order sparked concern because it was based upon only a slight finding that Tom Benson is “stressed” by the pressures of sports fans and media scrutiny attendant to the probate proceedings, rather than probable cause or credible evidence of actual incompetence. Neither the United States Constitution, nor the Texas Estates Code allow this kind of overreaching by the courts, which deprives citizens of liberty or property without due process of law. Yet, Judge Rickoff cites a two-day hearing to justify the extraordinarily rare act of ordering a receivership over the 87-year-old’s fortune.
The receivers confirm the premature nature of Judge Rickoff’s unprecedented decision, stating that their immediate plans include “deciding whether the assets are in any danger.” Not only could this suggest that receivership was an abuse of discretion, but Benson’s attorneys characterize this move as a “fishing expedition.”
See Candice Schwager, Judge Rickoff’s Unprecedented Receivership Over 87-Year Old Tom Benson’s Fortune, Examiner, Feb. 22, 2015.
Special thanks to Brian Cohan (Attorney at Law, Law Offices of Brian J. Cohan, P.C.) for bringing this article to my attention.
Thursday, February 19, 2015
Eleanor B. Cashmore (Boston College Law School) recently published an article entitled, Guarding the Golden Years: How Public Guardianship for Elders Can Help States Meet the Mandates of Olmstead, 55 B.C. L. Rev. 1217-1251 (2014). Provided below is the article’s abstract:
The aging American population will quickly lead to a greater demand for long-term care and services for people who are unable to care for themselves. Some older adults may require other individuals to make informed decisions on their behalf. State guardianship programs must confront the tension of providing protections for people who are incapacitated while respecting their autonomy, particularly when making decisions involving a person’s residence. When elderly adults wish to stay in their communities and are capable of doing so, a lack of proper support may be a violation of the Americans with Disabilities Act of 1990 (“ADA”), as interpreted by the U.S. Supreme Court in 1999 in Olmstead v. L.C. ex rel. Zimring. One solution may be found in effective public guardianship programs. This Note explores the effect of Olmstead on state funding for long-term care, the implications of the Olmstead decision for guardianship, and common models of public guardianship. This Note then argues that existing public guardianship programs, if appropriately funded and held to proper standards, can help states meet the mandates of the ADA and Olmstead.
February 19, 2015 in Articles, Disability Planning - Health Care, Disability Planning - Property Management, Elder Law, Estate Planning - Generally, Guardianship | Permalink | Comments (0) | TrackBack (0)
Wednesday, January 28, 2015
On October 15th last year, Theresa Hartley, agent for Thomas Lee Thibodeaux, filed a lawsuit in Jefferson County District Court against Melissa Campbell. According to the complaint, Thibodeaux was married to Nina LaPierre when she passed away on September 11, 2001, leaving a holographic will that gave him two houses and a life estate in a Sour Lake property, making him and Campbell co-independent administrators of her estate.
The complaint states Campbell refused to take the steps to convey the properties to Thibodeaux and demanded he pay her $450,00, which Thibodeaux, 84, did in confusion. Campbell is accused of breach of fiduciary duty, fraud, violating the theft liability act, unjust enrichment, and tortious interference with inheritance rights. Moreover, the complaint alleges that Thibodeaux lacked capacity to enter into such a transaction.
See Annie Cosby, Inheritance Dispute Leads to Lawsuit, The Southeast Texas Record, Jan. 27, 2015.
Monday, January 26, 2015
When 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.
Wednesday, January 21, 2015
Guardianships and conservatorships are proceedings that provide for the care of minors or disabled adults who are unable to make responsible decisions concerning their own person or assets. The purpose of these proceedings is to protect and care for someone in need of assistance, but arguably amounts to taking away some of that individual’s civil rights.
While every state code includes specific provisions governing guardianship proceedings, in California, the state’s mental health laws allow for any individuals who are a danger to themselves or others to be detained for up to 72 hours for observation and treatment. The statute provides for additional involuntary confinement thereafter. If a judge finds that the individual is gravely disabled as a result of a mental disorder, then a conservator may be appointed, and the judge may specify the conservator’s specific powers.
Guardianships and conservatorships are becoming increasingly used in California by the parents of troubled Hollywood celebrities and former child stars, such as Britney Spears in 2008, and Amanda Bynes in both 2013 and 2014. Amanda’s case is a perfect illustration as to why the decision to initiate guardianship proceedings is especially delicate. When Amanda was under the conservatorship of her parents, she went through a series of troubling events, including an arrest for marijuana. Per the California statute, she was put under psychiatric hold and her mother was appointed to control her finances. Amanda was arrested again, and after she was released from the psychiatric hold, Amanda roamed the streets of Hollywood. The next scheduled hearing in Amanda’s conservatorship proceedings is set to take place in February.
See John T. Brooks and Jena L. Levin, Trending Now: Hollywood Guardianship and Conservatorship Proceedings, Wealth Management, Jan. 21, 2015.
Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.
Tuesday, January 6, 2015
Today an attorney was sentenced to sixteen months in prison for siphoning $262,000 from the estate of a disabled Army veteran.
Cuyahoga County Common Pleas Judge Timothy McCormick sentenced Kevin Purcell, 62, after hearing how the attorney stole the money from the estate of John Kane, who suffered from schizophrenia. “There is a special place in hell waiting for attorneys who steal from the defenseless,” said an assistant Cuyahoga County prosecutor.
Purcell served as a guardian for Kane since 1993 and administrator of his estate after he died in 2012. Last month, he pleaded guilty to aggravated theft and agreed to never practice law again. He also was ordered to pay restitution to Kane’s estate.
See John Caniglia, Lawyer Gets 16 Months in Prison for Fleecing the Estate of a Disabled Army Vet, Cleveland.com, Jan. 6, 2015.
Friday, January 2, 2015
I have previously discussed the contentious marriage occurring between 96-year-old Edith Hill and 95-year-old Eddie Harrison earlier this year.
Unfortunately, Harrison passed away just weeks after family members took Hill away to Florida. Hill’s time in Florida was supposed to be a two week vacation, however, when Hill did not return home as planned, Harrison began to realize she was not coming back. He became heartbroken and checked himself into a hospital after falling ill with the influenza. Harrison died shortly thereafter. Rebecca Wright, who was caring for the couple in their Virginia home, said, “He lived for her, and she lived for him. It’s the love story of the century.”
See Brett Zongker, Newlywed Man, 95, Dies After Wife Taken Away, Yahoo, Dec. 31, 2014.
Special thanks to Laura Galvan (Attorney, San Antonio, Texas) for bringing this article to my attention.
As I have previously discussed, the legal action against a court-appointed guardian in Ohio over alleged theft has many calling for the state to make significant changes to its guardianship system. A bill that was introduced in the state legislature at the end of 2014 failed that would have created stricter guidelines for court-appointed guardians and stronger protections for wards. The bill is expected to be edited and reintroduced in the coming session by one of the original co-authors, State Rep. Dorothy Pelanda.
See, Guardianship Bill Needed, The Columbus Dispatch, Jan. 1, 2015.
Special thanks to Brian Cohan (Attorney at Law, Law Offices of Brian J. Cohan, P.C.) for bringing this article to my attention.
Tuesday, December 30, 2014
According to the Pew Research Center, four in ten American adults have at least one step-relative in their family. While many step-families operate harmoniously, adults often “feel a stronger sense of obligation to their biological family members than they do to their step-kin.” Because of this, blended family finances can get messy.
Couples planning to blend families need to make financial arrangements that respect previous relationships with ex-spouses. Issues range from childcare and eldercare to complex matters involving businesses, investment assets and real estate. Below is a list of issues and solutions potential partners should consider:
- Credit Reports and Credit Scores. Extensive loans or bad credit for one or both partners can endanger future purchasing plans for auto, home or tuition.
- Assets and Liabilities. Potential partners should k now each other’s financial assets and liabilities and any issues connected with them.
- Legal Issues. Full disclosure is essential for matters such as divorce, child custody, foreclosure, bankruptcy, or other civil or criminal legal proceedings.
- Business and Estate Issues. If partners have significant estate or business assets assigned to children, former spouses or family members, those commitments need to be factored into the finances of the planned marriage or partnership.
See Jason Alderman, Yours, Mine and Ours: Planning Step-Family Finances, Pleasanton Weekly, Dec. 29, 2014.