Wills, Trusts & Estates Prof Blog

Terri Schiavo Analogue Recurs

According to Sean O'sullivan, Parents battle over life of brain-damaged daughter, delawareonline.com, Jan. 31, 2008:

In a case with parallels to the 2005 uproar over Terri Schiavo, a Newark father is fighting a court order that could allow the removal of a feeding tube and end the life of his brain-damaged daughter.***

According to court records, Lauren Marie Richardson, 23, is in a persistent vegetative state following a heroin overdose in August 2006. She was pregnant at the time and was kept alive at Christiana Hospital -- with feeding tubes and a breathing machine -- to allow her to give birth, which she successfully did in February 2007 to a healthy baby girl.

Late last week, a court awarded guardianship of Lauren Richardson to her mother, Edith Towers, who maintains her daughter did not wish to live this way and seeks to end artificial life support measures.***

Lauren Richardson, a Glasgow High School graduate, did not leave a "living will" stating her desires in such a situation, or use a mechanism in the Delaware law called an Advanced Health Care Directive, a simple form a person can fill out to make their end-of-life wishes clear.***

Special thanks to Alyssa A. DiRusso (Assistant Professor, Cumberland School of Law, Samford University) for bringing this article to my attention.

Britney Spears's Family Oversees Her Well-Being and Takes Charge of Her Estate

The following is from Howard Breuer, Britney's Family Gets More Power Over Her Estate, people.com, Feb. 14, 2008:

Britney Spears's family members tightened their grip on her finances Thursday as the court extended her father's co-conservator role and granted her brother influence over her day-to-day expenses.***

Her father Jamie Spears has been overseeing his 26-year-old daughter's well-being and her estimated $100-million fortune since Feb. 1, when Goetz named him and Andrew Wallet temporary co-conservators – giving them the right to employ bodyguards who control Britney's actions and restrict her visitors.***

Britney's father and Wallet were also granted the power to handle the singer's taxes, and Britney's brother Bryan, 30, was named as a trustee of her trust. According to court papers, trust funds are used "to pay for Britney's continued security, and to pay for her medicine, food, other day-to-day expenses and for psychiatric and other medical services."***

Special thanks to Alfred L. Brophy (Professor of Law, University of Alabama School of Law) for bringing this article to my attention.

Michigan in Need of New Legislation for the Legally Incapacitated

Nicole E. Bergeron (J.D. 2006, Thomas M. Cooley Law School), has recently published her article entitled Resuscitating Elderly Wards in Michigan: Should a Legal Guardian Be Allowed To Execute a “Do-Not-Resuscitate” Order on a Legally Incapacitated Individual's Behalf?, 9 T.M. Cooley J. Prac. & Clinical L. 257 (2007).

Here is the conclusion to her article:

Michigan's legally incapacitated are in desperate need of legislation designed to protect them from the implementation of overly aggressive resuscitative procedures. Legislation should focus on the drafting of new procedural laws that are designed to adequately protect a legally incapacitated individual's right to refuse unwanted and overly aggressive medical treatment. As a model for reform, the legislature should look to California's Due Process in Competence Determinations Act. Using the procedural protections outlined in this act as a framework, the legislature should be able to draft legislation that adequately preserves an individual's right to refuse unwanted medical treatment. Legislation should also focus on reforming current guardianship laws so that the rights of family members and relatives are given adequate priority and protection. Given proper reform, legislation should further seek to allow for the signing of DNR's by guardians who are specifically authorized by the court to deal with the ward's end-of-life concerns. This goal can be accomplished by expanding the scope of Michigan's Do Not Resuscitate Procedures Act, and proposing legislation designed to uniformly regulate the implementation of DNR's in both traditional and non-traditional health care settings.

Permanency Plans Protection Children (Illinois Emphasis)

Sarah Unsicker (Attorney at Law, Illinois) has recently published her article entitled Permanency Planning: Protecting Children from the Loss of Their Parents, 95 Ill. B.J. 656 (2007).

Here is an excerpt from the introduction to her article:

Parents want the best for their children, but they often fail to plan for the unexpected. One of the worst things that can happen to a child is the loss of a parent.

Parents can soften the blow by creating a permanency plan for their children. A permanency plan is a future custody plan for a child, to be implemented following the parent’s death or incapacity.

Illinois law makes available a wide array of permanency plans for Illinois parents. Besides traditional guardianships and wills, Illinois allows for standby guardianship, short-term guardianship, and standby adoption. These nontraditional permanency plans were developed in response to the AIDS crisis, but Illinois does not limit their use to terminally ill parents.

Judging Capacity of Older Adults in Guardianship Proceedings

Edie L. Greene (Professor of Psychology, University of Colorado at Colorado Springs) has recently published her article entitled Deciding to Let Others Decide; Judging the Need for Guardianship and Conservatorship, Prob. & Prop., Jan./Feb. 2008, at 47.

Here is the conclusion to her article:

All adults are presumed to possess capacity unless adjudicated otherwise in guardianship or conservatorship proceedings. This decision is ultimately a judicial one, though judges get significant input at these hearings from other professionals involved in the lives of older adults. Although all states have modified their guardianship statutes in recent years to define more precisely the bases for judgments of capacity and to include more specific and functional standards that emphasize a respondent’s ability to manage the tasks of daily living, differences linger among legal professionals in their judgments of older adults’ capacity and ability to care for themselves. Awareness of this situation can and should lead to increased dialogue among professionals about their common interest in protecting both the autonomy and the safety of older adults.

Elder Law and Guardianship CLEs

The State Bar of Texas is sponsoring the following seminars in Dallas at the Cityplace Conference Center:

• Advanced Elder Law Course 2008
  March 6, 2008
     
• Advanced Guardianship Course 2008
  March 7, 2008

Course highlights include:

• Expert Panels Discuss Public Benefits and Finance Issues
• Seven Strategies to Stay at Home Longer
• Attorney Ad Litem Certification
• Examining the Medical Expert Witness in a Guardianship Case
• ABA Enhancing Capacity Guidelines

Anna Nicole Smith Update

According to Lawyer for Smith's Baby Wants Payment, MSN Movies News, Oct. 15, 2007,

The attorney who represented Anna Nicole Smith's infant daughter in the rancorous dispute over the starlet's body is seeking nearly $200,000 for his work.

Richard Milstein served as the court-appointed guardian ad litem for Dannielynn Hope Marshall Birkhead. He has filed paperwork in state court in Broward County seeking $198,493.98 from a trust set up in Dannielynn's name.

Attorneys for the girl's father, Larry Birkhead, and Smith's longtime companion, Howard K. Stern, say Milstein's bill would exhaust nearly the entirety of an estimated $200,000 remaining in the trust, though the girl could eventually inherit millions more.

Milstein claims that for over two weeks, he had to devote virtually all of his time to this case.

Birkhead and Stern's lawyers claim that the amount sought is unconscionable and that Smith's mother, Virgie Arthur, should pay part of the bill.

The hearing is scheduled for November 8, 2007.

Special thanks to Neda Jahansouz (J.D. Candidate, Texas Tech University School of Law) for bringing this development to my attention.

Temporary Guardianship Awarded to an Injured Marine’s Mother

Marine John Graziano was severely injured in a car accident with his friend, Nick Bollea, at the wheel and is now fully incapacitated. Nick is the 17 year old son of a renowned wrestler Terry Bollea, better known as Hulk Hogan. After a hearing on October 10, 2007, Judge Lauren Laughlin awarded temporary guardianship of a critically injured Marine to his mother, Debra Graziano. As his temporary guardian, Debra will make decisions about medical care and veterans benefits of her son, who served in Iraq.

John’s father, and Debra Graziano’s estranged husband, Edward Graziano, unsuccessfully tried to appoint an independent guardian for his son. Edward Graziano’s recently retained attorney, Steven Hearn, was granted a continuance to have more time to prepare his case. During that time Hearn plans to investigate Edward Graziano’s concerns that his estranged wife is receiving financial support from the Bollea family. It is not clear whether John Graziano has a will and power of attorney, as is typical for the service members who are deployed overseas.

See Carlos Moncada, Mother of Injured Marine Named Interim Guardian, TBO.com, Oct. 11, 2007.

Standby Guardianship Legislation

Joshua S. Rubenstein (Co-Managing Partner, Katten Muchin Rosenman LLP, New York, New York) has published his article, Standby Guardianship Legislation: At the Midway Point, in the Summer 2007 33 ACTEC J. 2 (2007).

Here is the introduction:

Standby guardianship legislation allows a parent or guardian who suffers from a progressively chronic or irreversibly fatal illness to ensure the current, effective appointment of a guardian of the person or property of his or her minor children to act sometime in the future during the lifetime of the parent without affecting existing parental rights. The primary motivation behind the introduction of such legislation has been the proliferation of degenerative, incurable diseases, such as HIV/AIDS, cancer, multiple sclerosis, and the muscular dystrophy, among individuals who have minor children. The need is particularly acute for single parents, typically women, who carry the childcare burden alone. Standby guardianship legislation permits parents to plan for their certain impeding disability, incapacity, or death, and each state should enact legislation to enable parents to do so.

Standby Guardianships

Joshua S. Rubenstein (Co-Managing Partner, Katten Muchin Rosenman LLP, New York, NY) has recently published his article entitled Standby Guardianship Legislation: At the Midway Point, 33 ACTEC J. 2 (2007).

Mr. Rubenstein explains that "[s]tandby guardianship legislation allows a parent or guardian who suffers from a progressively chronic or irreversibly fatal illness to ensure the current, effective appointment of a guardian of the person or property of his or her minor children to act sometime in the future during the lifetime of the parent without affecting existing parental rights."

The conclusion of his article provides:

The past decade has seen the enactment of many new standby guardianship statutes. Currently, half of the states and the District of Columbia have incorporated such statutes into their bodies of law.  Hopefully, the remaining states will follow suit in the next decade, protecting the ability of terminally ill residents to provide and protect their children as fully as in the rest of the country.

Anna Nicole Smith Update

The court in the Bahamas is going to permit Dannielynn's father, Larry Birkhead, to leave the country with Anna Nicole Smith's daughter.

A custody dispute between Dannielynn's biological father (Larry) and her biological grandmother (Virgie Arthur) is still ongoing but it is going to be a court in the United States that will make the final decision.

The Bahamian court also updated Dannielynn's birth certificate to add Larry's name as the father and remove Howard K. Stern's name who had claimed to be Dannielynn's father.

The court also ordered Anna's mother to pay $3,000 to Birkhead in legal costs.

See AP, Bahamas court says Birkhead may leave with baby, CNN.com, April 27, 2007.

James Brown Update

According to AP, Judge allows James Brown's partner to choose special guardian for her son, International Herald-Tribune, April 25, 2007:

• Tomi Rae Hynie (James Brown's alleged fourth wife) may select the special legal guardian for her son according to an April 25, 2007 court ruling.
• This guardian will be Stephen M. Slotchiver (attorney, Charleston, S.C.).
• The trustees of James Brown's trust had submitted a list of attorney whom they preferred.
• Now that the court has appointed a guardian, a DNA test on Hynie's child is possible to determine whether James is the father.
• However, the court did not order the paternity test because the child has not yet made a claim against the estate.

Texas Guardianship Law Website

The Guardianship, Probate and Trust Section of Crain Caton & James, P.C. (Houston, Texas) maintains an excellent website, Texas Guardianship and Elder Law Information, as a public service to answer questions and supply information about the Texas Guardianship System. It also contains current case law on Guardianship and Mental Health proceedings along with helpful links to other guardianship materials.

Probate Attorney Resigns in Face of Disciplinary Action

A Texas attorney faced with a disciplinary action for outrageous conduct resigned from the practice of law.

Here is a summary of his evil conduct as described in Disciplinary Actions, 70 Tex. B.J. 274, 267-77 (2007):

[Attorney] was appointed the guardian of the person and estate of his aunt by the presiding probate judge * * *. The probate court had established various safekeeping accounts for the maintenance of the cash assets of the guardianship estate. Beginning in 2003, [Attorney] secured false probate court documents, including orders containing the forged signature of the presiding judge, and presented these documents to various financial institutions as legitimate authorizations to release funds belonging to the guardianship estate.  [Attorney] failed to make an accounting of the estate funds as required by law.

Uganda Modernizes Wills & Estates Laws

On April 4, 2007, the Constitutional Court of Uganda took action which modernized this African nation's wills and estates law.

Here are the highlights according to Anne Mugisa, Uganda: Adultery No Longer a Crime, AllAfrica.com, April 5, 2007:

The court * * * nullified several sections of the Succession Act, which dealt with property for widows, guardianship of children and domicile upon marriage. The judges added that the laws treated women as second-class citizens and were therefore inconsistent with the Constitution. * * *

The Succession Act provisions which were struck out include Section 27, referring to intestacy, meaning a spouse dying without making a Will. The law provided that in such a case the administrator-general took over the family property, leaving the widow with no rights.

The court also agreed with the petitioners that the law was unfair to entitle widows to 15% of the husband's property, while it was silent on the widower, thus assuming he was entitled to 100%.

Also scrapped was Section 26, terminating a widow's rights to the matrimonial property as soon as she remarried, while a widower kept his rights when he remarried.

The court also deleted Section 43, which gave only fathers the right to decide on the guardianship of their children if one parent died. The court agreed that this undermined the mother's rights and presupposed that women were incapable.

Removed was also Section 44, which gave the male lineage rights over the female lineage when a husband dies. The law provided that the husband's male relatives took over the family property and offspring, wresting control out of the widow's hands.

Lillian Glasser Decision

Earlier on this blog, I reported on the case of Lillian Glasser and the battle to control her and her $25 million fortune.  See here, here, here, here, here, and here.

On March 8, 2007, the Superior Court Of New Jersey, Chancery Division – Probate Part Middlesex County issued its opinion.

Here are some of the highlights of this lengthy (82 page) opinion:

• Lillian's daughter, Suzanne Mathews, must return approximately $20 million to Lillian.
• Lillian's earlier will which leaves her estate equally to her two children (Suzanne Mathews and Mark Glasser) remains effective.
• A purported later will which Lillian executed with Suzanne's assistance will be ineffective.
• Lillian is deemed incapacitated and Joseph Cantanese is appointed as her new guardian of the person and Neuberger Berman (a financial planning firm) as guardian of her estate.
• The judge severely criticized Suzanne's conduct determining that she breached fiduciary duties, exerted undue influence over Lillian, and was untruthful with the court.
• Although the judge determined that Mark acted in good faith to assist Lillian, the judge was critical of Mark's "take no prisoners" tactics and his "less than candid" testimony.

According to Zeke MacCormack, Daughter ordered to repay millions, San Antonio Express-News, March 15, 2007, Mark has "heard talk of an appeal."

Special thanks to James Woo (Davidson & Troilo, San Antonio, Texas) for being the first person to bring the Glasser opinion to my attention.

Georgia Update

Mary F. Radford (Professor of Law, Georgia State University College of Law) has recently published her article entitled Wills, Trusts, Guardianships, and Fiduciary Administration, 58 Mercer L. Rev. 423 (2006).  In Prof. Radford's words,

This Article describes the significant Georgia cases and legislation from the period of June 1, 2005 through May 31, 2006 that pertain to Georgia fiduciary law. Specifically, the Article covers cases and legislation on matters relating to wills, trusts, the administration of decedents' estates, and the guardianship and conservatorship of minors and incapacitated adults.

Today's Anna Nicole Smith Developments

Paternity of Dannielynn:  The Broward Circuit Judge hearing the guardianship phase of Anna Nicole Smith's case is not the same judge who heard the body disposition issue.  Judge Lawrence Korda is uncertain whether he has jurisdiction to determine Dannielynn's paternity.   A paternity action is also pending in a California court but Judge Korda is skeptical of whether the California court has jurisdiction either.

Disposition of Anna's Body:  Thomas W. Pirtle, the attorney for Anna's mother Virgie Arthur, indicated that he would file an appeal today (February 23, 2007) of Judge Seidlin's order granting Dannielynn's guardian authority to make disposition arrangements.

Cause of Anna's Death:  The medical examiner, Joshua Perper, has indicated that it may take ten days to two weeks before the results of Anna's autopsy will be known.

See Custody fight switches from Smith to her baby, CNN.com, Feb. 23, 2007.

Texas Guardianship Manual

A valuable new resource has recently been released by the State Bar of Texas.  Here is an except from an e-mail I received advertising this book.

Quickly determine:

• whether guardianship is necessary
• whether there is a less restrictive alternative
• the type of proceeding to be filed, and
• where to go from there

Newly updated to reflect changes as a result of the 2005 legislative session and relevant case law, the Texas Guardianship Manual is a practice guide organized by the logical sequence of events that would occur while following a matter from beginning to end.

New material includes revised forms on creating guardianships, sale of personal property, and medical evidence and discovery. New forms on the release of protected health information have been added to this manual.

The manual includes a CD-ROM, also available for individual purchase, containing all materials as linked and searchable PDF files, with forms in both Word and WordPerfect. New features include a PDF of the Texas Probate Code and Texas case citations linked to a PDF of the case and to an online version of the CaseMaker Web Library.

Order the Texas Guardianship Manual (print and CD-ROM)

Order the Texas Guardianship Manual on Disk

The Immigration Minister of the Bahamas, Shane Gibson, Resigns

The following is from Jessica Robertson, Bahamas immigration minister resigns in flap over pictures with Anna Nicole Smith, AP, Feb. 19, 2007:

Photos of the Bahamas' immigration minister embracing Anna Nicole Smith forced the official to resign amid speculation the Playboy Playmate received special treatment when applying for permanent residency on the island nation.

The residence of Anna at the time of her death may have a tremendous impact on the law applicable to the distribution of her estate and the guardianship of Dannielynn.

Also see Bahamas immigration minister resigns, AP, Feb. 19, 2007.

Custody of Dannielynn

The custody of Dannielynn, Anna Nichole Smith's child, remains undecided.

According to AP, Judge: 'Anna Nicole Smith's Body Belongs to Me'; Hearing Under Way, FoxNews.com, Feb. 15, 2007:

A Bahamian judge issued an injunction Tuesday [Feb. 13, 2007] preventing the baby from being taken out of the country until the custody case is resolved. Arthur [Anna's mother] wants to be named guardian of her granddaughter and sought the order because she feared Stern [Anna's lawyer and partner] would take the child from the Bahamas, her lawyer said Wednesday.

Wealth Strategies Journal January/February 2007 Issue

The following articles have now been posted on the Wealth Strategies Journal and are available for download:

Emotional Issues In Estate Planning: "Planning Considerations In Naming A Guardian For A Minor Child" by Sarah M. Johnson

Abstract: Sometimes given short shrift by estate planning attorneys, the guardianship provision is often the most important aspect of a younger client's estate plan. This article aims to provide information and considerations for the counselor and client in the following areas: (1) the differences in state law regarding the appointment of guardians, (2) factors a parent should consider in naming a guardian, (3) the economics of the guardianship decision and (4) specific provisions regarding the guardian that may be included in the cient's Will.

Elder Law: “Watching The Watchman” by Professor Lawrence A. Frolik

Abstract: Very old, frail and demented elderly need a watchman, but they also need someone who is keeping an eye on the watchman. An essential aspect of planning for agents and surrogates is to provide oversight lest the watchman become the exploiter. As in so many aspects of life, a little planning can prevent a great deal of pain.

Asset Protection: "UTC Section 505(b) - Pandora Opens The Box" by Jonathan E. Gopman

Abstract: Estate planners frequently use Crummey Powers and 5  and 5 powers in plans without realizing such powers may expose trust assets to creditor claims. This article examines the asset protection consequences of using Crummey Powers or 5 and 5 powers in states that have enacted Uniform Trust Code Section 505(b).

Reducing Taxable Wealth Yet Keeping It All In the Family (Courts' Views On Best Method To Take Discounts) by Lance S. Hall

Abstract: Because of a series of IRS court victories in valuation cases, if taxpayers, estate planners, and valuation experts approach the valuation discounting process as they have in the past, there is a strong possibility that they have unwittingly increased the chance for audit, if audited, decreased the chance of favorable compromise and, if taken to Court, increased the chance of losing. This article explores a series of Court cases on the discount for lack of marketability issue that, when taken together, provide a road map to increase the likelihood of having the IRS and Tax Court accept the discount determined.

Delaware Asset Protection Trusts: Basics and Opportunities by William H. Lunger and F. Peter Conaty, Jr.

Abstract: This article describes the basic concepts of Delaware asset protection trusts and planning opportunities that such trusts offer.

The End of Bank Secrecy by Michael C. Durney

Abstract: For many years, there has been a widespread belief in European bank secrecy. However, as this article discusses, the customary rules of bank secrecy may well be a thing of the past and persons subject to U.S. tax had better be aware of this development.

Drafting A Marital Deduction Trust For Second Marriages, by Sebastian V. Grassi, Jr.

Abstract: Second marriages are common today. This article provides eighteen planning ideas to consider when designing marital deduction trusts for a second marriage situation where there are children from a prior marriage (or where the widow wants to control who inherits her estate after her (new) husband’s death).

Developing Confidence in Planning by Henry K. Hebeler

Abstract: While the future is inherently unpredictable, there are things that individuals can do to provide some insulation from uncertainties in retirement planning. This articles discusses such planning, the myth regarding success probabilities in financial planning, and how the foregoing impact retirement planning.

Advanced Elder Law and Guardianship Seminars

The State Bar of Texas is sponsoring a trio of continuing legal education courses on March 8-9, 2007 in Houston, Texas:  Advanced Elder Law; Perfecting Your Elder Law Practice; and Advanced Guardianship.  Some of the cutting edge topics to be discussed include:

• The Twilight Zone: Elders Refusing Help
• Options for Grandparents Raising Grandchildren
• Attorney Ad Litem Certification
• When the Proposed Ward Balks: How to Spark a Guardianship Inquiry

The Astor Couch -- Did She or Didn't She?

Earlier on this blog, I reported on allegations that Anthony Marshall has been mistreating his mother, Brooke Astor, and how the case settled.

Debate is now swirling around the status of her couch as detailed in Serge F. Kovaleski, Cleaned or Not? Mrs. Astor’s Sofa Isn’t Telling, NY Times, Dec. 12, 2006, from which the following excerpts are taken:

At the center of a legal dispute over Brooke Astor’s care and finances were allegations that she had been forced to sleep on a urine-soiled couch in the television room of her Park Avenue duplex during the winter because her bedroom was too cold.

But when lawyers for the parties in the case first inspected the apartment in early August, they found that the couch and just about everything else in Mrs. Astor’s home appeared to be well kept and clean. They even smelled the couch to make sure that Mrs. Astor’s two dogs, Boysie and Girlsie, had not soiled it.

Had someone scrubbed the couch, thus destroying evidence, or had it never been sodden in the first place?

As the report explains, the answer is uncertain.

Special thanks to Neil E. Hendershot of the Harrisburg, Pennsylvania law firm of Goldberg Katzman, P.C., who also authors the PA Elder, Estate & Fiduciary Law Blog, for bringing this article to my attention.

Probate Judge Named as Beneficiary of Ward's Will

Kevin Krause & Brandon Formby, Piece of estate left to those paid to guard it, Dallas Morning News, Nov. 12, 2006, report that:

By all accounts, the sisters in their 90s were no longer able to look after each other or their $824,766 joint estate. Mildred Erle Veatch began to show signs of senility and delirium in 2001. Her sister, Helen, was in worse condition and would die later that year.

Their doctor notified Denton County's probate court that neither sister was able to manage her assets anymore. There were no other relatives to help.

Probate Court Judge Don Windle immediately placed both sisters under court-appointed guardianships, moved them to a Denton nursing home and restricted access to them. By early 2002, Mildred Veatch was rewriting her will – which had not been updated since 1960 – with the help of her court-appointed guardian and attorney.

When Erle, as she was known to friends, died this summer at age 95, the rewritten will was opened and contained a few surprises. Among the 10 beneficiaries were:

•  Judge Windle, who was to receive $50,000.

•  Beverly McClure, the court-appointed guardian of Ms. Veatch and Judge Windle's ex-wife and court investigator, who was to receive $100,000.

•  Duane Coker, a court-appointed attorney who represented Ms. Veatch's interests, who was to receive $50,000.

•  Roy Anderson, Judge Windle's personal accountant, friend and court-appointed guardian of the Veatch estate, who was to receive $50,000. * * *

Darlene Payne Smith, an experienced Houston probate lawyer, said she isn't aware of any legal prohibition against accepting the money. But that doesn't mean someone in that situation should accept it, she said.

Judge Windle has already given up any claim to the money and other beneficiaries may follow suit.

Special thanks to Joan Bui for bringing this situation to my attention.

Interstate Guardianship Problems

On many prior occasions on this blog, I have reported on the case of Lillian Glasser and the battle to control her and her $25 million fortune.

This issue is the focus of an article by Anthony E. Rothert (Legal Director, ACLU of Eastern Missouri) entitled When Wards Leave the State, Will Their Guardians' Authority Be Recognized?, 94 Ill. B.J. 554 (2006).  Here is an excerpt from his conclusion:

Inevitably, conflicts related to interstate guardianship issues will continue until a national consensus is reached. If faced with a court in another state that is hostile toward an Illinois guardianship judgment (or an Illinois court resistant to recognizing the authority of a foreign guardian), provide the judge with the suggestions of organizations that have studied the issue. The Wisconsin Supreme Court seemed particularly receptive to the standards recommended by the National College of Probate Judges, but other guidelines are available.

The National Conference of Commissioners on Uniform State Laws established a framework for transferring the jurisdiction of guardians. The uniform law would allow a foreign guardian to petition for appointment in the new state if venue is or will be established.

The Wingspan Guardianship Symposium, originally convened by the American Bar Association and made up of guardianship professionals from multiple disciplines - including lawyers, judges, healthcare and health services providers, mental health professionals, ethicists, and academics - has developed recommendations on this and other guardianship issues.

Astor Case Settles

Earlier on this blog, I reported on allegations that Anthony Marshall has been mistreating his mother, Brooke Astor.

According to the AP report, Astor's Son Stripped of Guardianship, Oct. 13, 2006:

Brooke Astor's son has been permanently removed as guardian of her estate, according to a settlement announced in court Friday [October 13, 2006].

The agreement allows Astor's court-appointed guardians, Annette de la Renta and JPMorgan Chase, to remain in place, instead of Anthony Marshall, the 82-year-old son of the 104-year-old philanthropist.

Special thanks to Neil E. Hendershot of the Harrisburg, Pennsylvania law firm of Goldberg Katzman, P.C., who also authors the PA Elder, Estate & Fiduciary Law Blog, for bringing this development to my attention.

California's Busy Legislature

Here are some recent developments in California law:

• A will may refer to a writing that directs the disposition of tangible personal property not otherwise specifically disposed of by the will, except for property used primarily in a trade or business.  2006 Cal. Legis. Serv. ch. 280.
• A specific gift distributable under a trust will carry with it the same benefits and burdens as a specific gift under a will.  2006 Cal. Legis. Serv. ch. 569.
• An electronic advance health care directive or a power of attorney for health care is legally sufficient if the existing requirements for directives are satisfied, the directive is acknowledged before a notary public, and any digital signatures used meet specified requirements.  2006 Cal. Legis. Serv. ch. 579.
• Law Revision Commission will study the operation and effectiveness of provisions restricting donative transfers to certain classes of individuals, and to recommend revisions and improvements to those provisions.  2006 Cal. Legis. Serv. ch. 215.
• A guardian or conservator may select the least restrictive appropriate residence of a conservatee or ward.  2006 Cal. Legis. Serv. ch. 490.

Brooke Astor Update

Earlier on this blog, I reported on allegations that Anthony Marshall has been mistreating his mother, Brooke Astor, his response to those allegations, and an editorial regarding the "Brooke Astor Effect."
   

The details of the alleged breach of duty by Mr. Marshall continue to be uncovered as reported in Serge F. Kovaleski, Mrs. Astor's Son Is Accused of Mishandling Millions, NY Times, Sept. 7, 2006.  Here are a few excerpts from this report:

J. P. Morgan Chase, the court-appointed temporary guardian of Brooke Astor’s assets, says in court papers that it is investigating whether her son improperly obtained about $14 million in cash, property and stocks from his ailing mother while managing her finances. The filing suggested that the bank might pursue litigation against the son, Anthony D. Marshall, to get some of the money and property back.
   

The papers also raise questions about Mrs. Astor’s mental competency in 2003, when she signed documents transferring $3.4 million of her securities and her seaside estate in Maine, valued at $5.5 million, to Mr. Marshall. * * *
   

The papers * * * lay out in great detail a blueprint that could form the basis of a court battle over the fortunes of New York’s grande dame of society and philanthropy. The bank’s documents also represent the first substantial examination in the case of how Mr. Marshall has tended to the finances of his 104-year-old mother.
   

Mr. Marshall’s son Philip has accused his father in a court petition of neglecting Mrs. Astor by cutting back on her medications and living expenses and subjecting her to deplorable conditions in her Park Avenue duplex while enriching himself with her wealth.

Special thanks to Prof. Joel C. Dobris of the University of California-- Davis for bringing this report to my attention.

Survey shows courts lack verification of appropriate care

In the August, 2006 edition of Bifocal (Vol. 27, No. 6), Naomi Karp and Erica F. Wood have published their article National Survey of Guardianship Monitoring Practices Shows Courts Lack Verification of Appropriate Care.  They have published their findings from a survey of guardianship oversight practices by courts.
   

Here is an excerpt:
   

Guardianship is a powerful legal tool that can bring good or ill for an increasing number of vulnerable people with cognitive impairments, affording needed protections, yet drastically reducing fundamental rights. Court monitoring of guardians is essential to ensure the welfare of incapacitated persons, identify abuses, and sanction guardians who demonstrate malfeasance. The need for oversight is heightened by ongoing demographic trends that will sharply boost the number of guardianships in coming years. These trends include: growing numbers of older people, individuals with dementia, and people with intellectual disabilities; the rising incidence of elder abuse; and the increasing number of public and private guardianship agencies that must make critical decisions about multiple wards.
   

The purpose of this study is to better understand how courts are monitoring the performance of guardians. It is the first detailed look at guardianship monitoring in over fifteen years. Almost 400 judges, court managers, guardians, elder law attorneys, and legal representatives of people with disabilities responded to the survey. Respondents came from 43 states and the District of Columbia. Of these, over half identified their role as guardians. The 35-question survey focused on actual court practices, seeking to ascertain whether the practices meet, exceed, or fall short of requirements imposed by statutes and court rules and to identify practices that may be “ahead of the curve.”
   

The results of the survey are posted on the AARP website and may be found here.

Wisconsin Guardianship Reform Bill

In the August, 2006 edition of Bifocal (Vol. 27, No. 6), Betsy Abramson has published her article Wisconsin Legislature Passes Major Guardianship Reform Bill.
   

Here is an excerpt:
   

Wisconsin’s new guardianship law, enacted in May 2006 and effective December 2006, is the work of a great number of dedicated members of the State Bar of Wisconsin’s Elder Law Section and other advocates for nearly a dozen years. These practitioners corrected many problems with Wisconsin’s current law. The statute is now reorganized, removes antiquated terms (e.g., “infirmities of aging”), and creates separate, specific criteria and standards for guardianships of persons and guardianships of estates. It also greatly improves due process; for example, the new provisions reverse the current presumption that all rights are removed unless a court specifically retains certain rights and more deference is given to previously-executed powers of attorney. The reforms specify in great and separate detail the duties and responsibilities of guardians of the person and estate and create a procedure for removal of a guardian, reinstatement of rights, and other post-appointment matters.
   

The original Senate bill may be found here.

Planning for Care of Minor

Naomi R. Cahn (Professor of Law, George Washington School of Law) has posted her article entitled  Planning Options for the Daily Care of a Minor in the Event of an Adult's Incapacity or Death on SSRN.
   

Here is the abstract:
   

While most children grow up in their families of origin with at least one of their parents, what happens when the parents die or are incapacitated? While they are alive, parents are presumed to be the legal guardians for their children, and if one dies or has had his/her parental rights terminated, then the surviving parent is generally the sole legal guardian. Even if that parent remarries, the stepparent is not the legal parent.
   

As this chapter shows, parents can give to other adults some of their legal caretaking responsibilities while they are still competent. There are three different methods by which parents can provide for the various types of personal guardianship of their

children: by will, by petition, or through another statutorily-created mechanism, such as standby guardianships. A guardianship by will only comes into effect when both parents are deceased, and it is the nomination made in the will of the last surviving parent which the court will look to in appointing the guardian. The other two means of creating long-term guardianships can occur while one (or both) parents are living.
   

In addition to these primary methods of guardianship, statutes may provide for more limited delegations of authority, such as the right of a non-parent to consent to medical care. A guardian's authority is defined by the statutory grant, so a guardian appointed pursuant to a medical guardianship statute does not have authority with respect to educational decisions.

The "Brooke Astor" Effect

Earlier on this blog, I reported on allegations that Anthony Marshall has been mistreating his mother, Brooke Astor, and his response to those allegations.

In an editorial in today's (August 7, 2006) New York Times entitled The Brooke Astor Effect, the writer explains:

The scandal over Brooke Astor’s care has had the healthy side effect of getting people talking about the needs of the elderly. The 104-year-old former socialite and philanthropist now appears to be getting the attention she needs. But it has inspired people to ask what is being done for old and “older old” people who have no Rockefellers or Kissingers to come to their defense.

Last week the Senate Finance Committee unanimously approved a bill that would expand the federal system for protecting the elderly from physical, psychological and financial abuse. A second crucial measure, the reauthorization of the Older Americans Act, is also being considered by Congress. Important aspects of both bills — like the people they seek to protect — are in danger of sinking beneath the radar as other matters move ahead on the priority list. We’re hoping all the publicity over the alleged mistreatment of Mrs. Astor by her son will change that * * *.

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