Wills, Trusts & Estates Prof Blog

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

Saturday, February 17, 2018

Article on The Fight for Personhood, Legal Capacity, and Equal Recognition Under Law for People with Disabilities in Israel and Beyond

image from https://s3.amazonaws.com/feather-client-files-aviary-prod-us-east-1/2018-02-17/4a81ca95-fd30-4ca1-b4b0-5da476d5443a.pngArlene S. Kanter & Yotam Tolub recently posted an Article entitled, The Fight for Personhood, Legal Capacity, and Equal Recognition Under Law for People with Disabilities in Israel and Beyond, Elder Law Studies eJournal (2018). Provided below is an abstract of the Article:

In 2016, Israel became one of the first countries in the world to introduce supported decision-making as an alternative to guardianship in a nationwide law. The Israeli law was enacted as an amendment to Israel’s Guardianship and Legal Capacity Law. This law provides a model to other countries that are considering abolishing or revising their guardianship laws in light of the Convention on the Rights of People with Disabilities (CRPD). The United Nations adopted the CRPD in 2006. Since then, 175 countries have ratified it, including Israel, but not the United States. Article 12 of the CRPD specifically recognizes the right to legal capacity for all people with disabilities, as well as the right to support that some people with disabilities may need in order to exercise their right to legal capacity and equal recognition under law.

The purpose of this Article is to examine the extent to which guardianship is compatible with the fundamental values of international human rights law, especially the CRPD; and if not, to consider alternatives to guardianship that comply with human rights law. Part I of this Article reviews the historical and legal background of the development of guardianship laws, including arguments against guardianship from different points of view. Part II of the Article discusses the right to equal recognition under law prior to the CRPD, followed by Part III of the Article, which discusses the background and language of Article 12 of the CRPD. Part IV of this Article discusses the Israeli Legal Capacity and Guardianship Law of 1962 and its recent amendment, which reflects the movement in Israel to include supported decision-making as an alternative to the substituted decision-making regime included in Israel’s prior guardianship law. This Part also discusses recent Israeli Supreme Court decisions, which perpetuate the unwarranted denial of legal capacity for people with disabilities despite the Court’s human rights rhetoric. Part V of the Article discusses the background, language, and purpose of Israel’s new amendment to its Legal Capacity and Guardianship Law. Although Israel is not the first country to authorize supported decision-making as a matter of law, it is one of the first countries to adopt a nationwide law that specifically includes supported decision-making as a legal alternative to guardianship. Part VI of the Article discusses developments in other countries around the world as they strive to conform their domestic guardianship laws to the CRPD. This Article concludes with recommendations for other countries that are considering enacting domestic laws that protect the right to legal personhood and legal capacity of all people with disabilities in full compliance with Article 12 of the CRPD.

February 17, 2018 in Articles, Estate Planning - Generally, Guardianship | Permalink | Comments (0)

Wednesday, February 14, 2018

Article on La Protección De La Capacidad De Los Adultos Mayores a Través De La Autonomía De La Voluntad En El Derecho Chileno Y Comparado (The Protection of Capacity Through Autonomy Judgement in Chilean and Comparative Law)

image from https://s3.amazonaws.com/feather-client-files-aviary-prod-us-east-1/2018-02-13/31c82dee-c904-42ba-9f77-e28caa687d88.pngYasna Otálora Espinoza recently posted an Article entitled, La Protección De La Capacidad De Los Adultos Mayores a Través De La Autonomía De La Voluntad En El Derecho Chileno Y Comparado (The Protection of Capacity Through Autonomy Judgement in Chilean and Comparative Law), Wills, Trusts, & Estates Law eJournal (2018). Provided below is an abstract of the Article:

Spanish Abstract: El artículo tiene por objetivo resolver si en el sistema chileno una persona capaz podría designar anticipadamente, en virtud de la autonomía de la voluntad, a otra que se hará cargo del cuidado de su persona y bienes, esto es, nombrar una persona para cuando ya no esté en situación de protegerse a sí misma, de modo que su familia no sea obligada a recurrir a procedimientos judiciales de incapacitación, y, de ser posible, determinar cuál podría ser la figura jurídica idónea para que las personas puedan expresar esta voluntad.

English Abstract: The aim of the article is to resolve whether a capable person in the Chilean system could designate in advance that another person will take care of their person and property. That is to say, the possibility to appoint a person for the moment in which the person is not in a position to protect herself. Thus, the family is not forced to resort to legal incapacitation proceedings. Finally, the paper tries to determine the suitable legal form for elderly people to express this will.

 

February 14, 2018 in Articles, Estate Planning - Generally, Guardianship | Permalink | Comments (0)

Monday, December 11, 2017

Glen Campbell’s Will Doesn’t Include Three of His Eight Children

image from https://s3.amazonaws.com/feather-client-files-aviary-prod-us-east-1/2017-12-11/38fb5675-84b2-4718-9a05-2afb1e6bcf6e.pngAccording to documents filed in a Nashville court, Glen Campbell excluded his daughter, Kelli, and two sons, William and Wesley, from receiving any benefit from his estate. Campbell fathered a total of eight children over the course of four marriages. The children that were excluded from his will were all from his second marriage to Billie Jean Nunley. Kim Campbell, his fourth wife, is currently serving was the executor of his estate, which is estimated to be worth in excess of $50 million. Given the exclusion of three of Campbell’s children and his history of Alzheimer’s, the January 18 hearing on the filing may be the impetus for a protracted legal battle.   

See Glen Campbell’s Will Doesn’t Include Three of His Eight Children, Fox News, November 30, 2017.

December 11, 2017 in Current Events, Estate Administration, Estate Planning - Generally, Guardianship, Music, Trusts, Wills | Permalink | Comments (0)

Tuesday, September 26, 2017

Opinion 131: Representing Clients with Diminished Capacity Where The Subject of The Representation Is The Client's Diminished Capacity

Colorado11The Colorado Bar Association recently released Formal Ethics Opinion 131. An abstract of the opinion is below:

This opinion addresses the representation of clients where the subject of the representation is an adult protective proceeding (guardianship and conservatorship). It also encompasses ethical issues when the lawyer is acting as a guardian ad /item in an adult protective proceeding or when the lawyer represents an allegedly incapacitated person. While lawyers are appointed as guardians ad /item in the majority of adult protective proceedings, non-lawyers may also be appointed.

The Colorado Bar Association (CBA) has issued a separate formal ethics opinion that addresses representing clients with diminished capacity where the presence of diminished capacity is incidental to the lawyer's representation.  See CBA Formal Op.126, "Representing the Adult Client With Diminished Capacity" (2015). This opinion does not cover representation of individuals who are minors or who may have a mental incapacity in addition to their incapacity due to their minority.

September 26, 2017 in Estate Planning - Generally, Guardianship, Professional Responsibility | Permalink | Comments (0)

Monday, July 31, 2017

Uniform Law Commission Concludes 126th Annual Meeting

Government-meddling-475x280The Uniform Law Commission (ULC) approved six new acts at its recently-concluded 126th annual meeting in San Diego, California. Among the acts passed is the Uniform Regulation of Virtual Currency Business Act that constructs a statutory framework for the regulation of business activity involving virtual currencies. The Uniform Direct Trust acts clarifies the duties of direct trustees and those with the authority to direct them. The Uniform Guardianship, Conservatorship, and Other Protective Arrangement Act represents an updated guardianship statute designed to better protect the rights of children and adults subject to guardianship. The Uniform Parentage Act is a revision of the prior parentage act and addresses issues involving same-sex couples, surrogacy, and de facto parentage. The Uniform Protected Series Act offers a framework for the creation of a protected series limited liability company. And last, the Model Veterans Treatment Court Act provides a template for the establishment of veterans’ courts while still allowing for significant local discretion in order to better accommodate the realities found in different communities.

See Uniform Law Commission Concludes 126th Annual Meeting, Uniform Law Commission, July 19, 2017.

July 31, 2017 in Current Events, Estate Planning - Generally, Guardianship, Trusts | Permalink | Comments (0)

Tuesday, July 11, 2017

Article on Restoration of Rights in Adult Guardianship: Research & Recommendations

GulagErica Wood, Pamela Teaster & Jenica Cassidy recently published an Article entitled, Restoration of Rights in Adult Guardianship: Research & Recommendations, ABA Commission on Law and Aging with the Virginia Tech Center for Gerontology (2017). Provided below is an abstract of the Article:

Adult guardianship has been characterized as both a “gulag and a godsend” in which people with disabilities – including older individuals with dementia – lose their rights in the name of protection. Regardless of the good intentions of – and essential care provided by – many
guardians who often step in at crisis points, guardianship is one of society’s most drastic interventions in which fundamental rights are transferred to a surrogate, leaving an individual without choice and self-determination.

It appears that an unknown number of adults languish under guardianship beyond the period of need – and that others may never have needed the guardianship in the first place, as a less restrictive option could have sufficed. A guardianship may be terminated by the court in three scenarios: (1) the court finds that the person has regained the ability to make decisions; (2) the court finds that the person has developed sufficient decision-making supports and no longer needs the assistance of a guardian; or (3) additional evidence becomes available to show that the person does not meet the legal standard of an incapacitated person. While, on paper, each state provides for “termination of the order and restoration of rights,” there are no data on the frequency with which restoration occurs and under what circumstances.

To enhance self-determination of individuals subject to guardianship, the American Bar Association Commission on Law and Aging (ABA Commission) conducted a project to shine a light on the little known process of restoration.

July 11, 2017 in Articles, Elder Law, Estate Planning - Generally, Guardianship | Permalink | Comments (0)

Tuesday, March 28, 2017

Article on Wills, Trusts, Guardianships, and Fiduciary Administration

SurveyMary F. Radford recently published an Article entitled, Wills, Trusts, Guardianships, and Fiduciary Administration, 68 Mercer L. Rev. 321 (2016). Provided below is an abstract of the Article:

This Article describes selected cases and significant legislation from the period of June 1, 2015 through May 31, 2016 that pertain to Georgia fiduciary law and estate planning.

March 28, 2017 in Articles, Estate Planning - Generally, Guardianship, Professional Responsibility, Trusts, Wills | Permalink | Comments (0)

Monday, March 13, 2017

CLE on Advanced Elder Law & Guardianship Law

CLEThe State Bar of Texas is holding a CLE entitled, Advanced Elder Law & Advanced Guardianship Law Courses 2017, which will take place April 6–7, 2017, at the Westin Memorial City Hotel in Houston, Texas. Provided below is a description of the event:

Advanced Elder Law Course Topics Include:

  • Anatomy of a Will
  • Case Law Update: Texas and National
  • 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
  • Title Issues on Gift Deeds, Lady Bird Deeds, and Transfer on Death Deeds
  • Client Self Defense Against Abuse, Disputes and Neglect
  • Medicaid Applications: The View from 30,000 Feet
  • Handling Odd Types of Property
  • BYOD: Technology Tips for Elder Law Attorneys
  • Communicating Complicated Elder Law Concepts to Clients Who May Have a Hard Time Understanding Complicated Concepts

Advanced Guardianship Law Course Topics Include:

  • What's New in Guardianship
  • Tool Kit for Contested Guardianships
  • Supports and Services: Alternatives to Guardianships
  • Temporary Guardianships and Other Remedies v. TROs
  • The Interaction of POAs in Guardianships
  • Runaway Ad Litems
  • Fees and Costs in Guardianships
  • Effective Use of Management Trusts with or in Lieu of Guardianships: Guardians of the Estate
  • Creditors' Claims in Guardianships

Reserve Your Hotel Room Now to Get the Discounted Rate!

Call the Westin Memorial City Hotel at 281-501-4300 before the March 16 deadline to get the special rate of $189/night. Inform the hotel at the time of your reservation that you will be attending the State Bar of Texas course. You can also make your reservation online!

 

March 13, 2017 in Conferences & CLE, Current Events, Elder Law, Estate Planning - Generally, Guardianship | Permalink | Comments (0)

Tuesday, March 7, 2017

Article on Recent Changes to Virginia Wills, Trusts & Estates Law

Wills trusts estates J. William Gray, Jr. & Katherine E. Ramsey recently published an Article entitled, Wills, Trusts, and Estates, 51 U. Rich. L. Rev. 125 (2016). Provided below is an abstract of the Article:

The 2016 General Assembly of Virginia made substantial changes in the augmented estate rights of surviving spouses. It also modified and codified the rules governing powers of appointment. Other legislation affecting wills, trusts, and estates included clarifications and technical corrections relating to such subjects as creditors' claims to life insurance and annuities, court-created trusts, protection of adults from exploitation, creditor protection for residential property, unclaimed assets, guardianships, and nonstock corporation procedure. Five decisions of the Supreme Court of Virginia addressed fiduciary conflicts, tenancies by the entirety, lost wills, contract rights in residences, and no-contest clauses.

 

March 7, 2017 in Articles, Estate Planning - Generally, Guardianship, Trusts, Wills | Permalink | Comments (1)

Sunday, March 5, 2017

Article on Virginia Filial Responsibility Law

Filial lawsSylvia Macon recently published an Article entitled, Grow Up Virginia: Time to Change Our Filial Responsibility Law, 51 U. Rich. L. Rev. 265 (2016). Provided below is an abstract of the Article:

On its face, the Virginia law seems laudable, requiring private payment by family members for costs that would otherwise be incurred by the state. However, upon closer examination, significant issues regarding implementation and fairness arise. The Virginia statute has not lain dormant, but rather has been implemented without report. Other states have recognized the futility of filial responsibility laws and have preempted such abuse by repealing their laws. Virginia should act now to either repeal the statute or amend it to ensure its citizens avoid inequitable outcomes like the defendant in Pittas.

This comment discusses the background and development of filial responsibility laws in England, the United States, and Virginia in Part I. Part II explains the purpose behind implementation of such laws while Part III discusses the problems enforcing the filial responsibility law may cause. Lastly, Part IV explains why past reasons for keeping the law are no longer valid.

 

March 5, 2017 in Articles, Disability Planning - Health Care, Elder Law, Estate Planning - Generally, Guardianship | Permalink | Comments (0)