Wills, Trusts & Estates Prof Blog

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

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)

Tuesday, January 31, 2017

Book on the Fundamentals of Guardianship

Fundamentals of guardianshipSally 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.

 

January 31, 2017 in Books, Books - For Practitioners, Estate Planning - Generally, Guardianship | Permalink | Comments (0)

Wednesday, January 18, 2017

Article on Trusts & Estate Law Updates

Trust and estate lawBenjamin Orzeske recently published an Article entitled, Uniform Law Updates, 31 Probate & Property 10 (Jan/Feb 2017). Provided below is an abstract of the Article:

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. 

 

January 18, 2017 in Articles, Estate Planning - Generally, Guardianship, Technology, Trusts | Permalink | Comments (0)

Friday, January 13, 2017

CLE on Advanced Elder & Advanced Guardianship Laws

CLEThe 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.

 

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