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.
Britney Spears is one of the handful of celebrities that managed to survive a public breakdown. In 2008 her life had become what could charitably be called a public catastrophe with antics ranging from her famous shaved head to sparring with paparazzi. Compelled to action by a series of involuntary psychological evaluations, her family went to court and requested the appointment of a conservator to manage her affairs. Eight years on, the arrangement remains in place but has helped craft a renaissance for the once beleaguered pop-star. Her toned down personal life that stays out of the muckraking press combined with a booming career has brought her star back up to dizzying heights that once seemed lost forever. But there are storm-clouds on the horizon. Some critics have emerged arguing that the Spears has stabilized to the point that the conservatorship should come to an end. They point to the cost of the arrangement, which has amounted to millions of dollars, and view it as a siphoning of money from her estate. However, all indications point to Spears being satisfied with the current state of affairs as it has allowed her to be one of the highest earning women in the music industry while be able to have a stable home life with her young children. But, as with all things, only time will tell what may become.
See Serge F. Kovaleski & Joe Coscarelli, Is Brittany Spears Ready To Stand Alone?, The New York Times, May 4, 2016.
Special thanks to Joel Dobris (Professor of Law, UC Davis School of Law) for bringing this article to my attention.
Monday, April 18, 2016
An advanced directive is a tool that enables people to have control over their future and what type of end-of-life care they will receive. This article discusses how uncommon it is for Americans to use this estate planning tool. The two forms of directives that are discussed in this article are instruction directives and proxy directives. It explains the requirements for each of these two directives and the process that people have to go through to create an advanced directive. Making decisions about end-of-life care can be stressful for people, but it is important to tackle these issues now so that people can have control over their lives. People who put these decisions off might end up having these decisions made for them. Advanced directives can protect patients when they are most vulnerable.
See Jamie Zuckerman, Why Do So Few Americans Have Advanced Directives?, Wealth Management, April 18, 2016.
Special thanks to Jim Hillhouse for bringing this article to my attention.
Thursday, April 14, 2016
In 2000 the Japanese legislature, dismayed by the number of seniors that lacked the ability to manage their own affairs, instituted a new nationwide system for guardianship. Since that time, the number of cases in the system has steadily increased in no small part due to the large number of retirees that reside in the country. But with that increase came a downside, the number of cases involving guardian misconduct began to rise as well. In response, the government instituted special trust accounts that require court approval for withdrawals by the guardian and, more recently, passed rules that further increased the oversight of the courts after a number of guardians were caught using ward's money for luxury items and gambling. Despite these setbacks, the Diet seeks to expand the program since the majority of individuals who lack the mental capacity to conduct their own business still greatly exceeds the number of guardians appointed.
See, Financial misconduct by legal professionals acting as guardians hits record high, The Japan Times, April 13, 2016.
Special thanks to Brian Cohan (Attorney at Law, Law Offices of Brian J. Cohan, P.C.) for bringing this article to my attention.