Wills, Trusts & Estates Prof Blog

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

Wednesday, July 17, 2019

Retired Supreme Court Justice John Paul Stephen Dies

Stevens-johnpaul-adv-obt-slide-B6DN-superJumbo-v3John Paul Stephens, the retired Supreme Court Justice that transitioned from a Republican anti-trust lawyer to the left's outspoken leader, has died at the age of 99. The Supreme Court announced that his death was caused by complications of a stroke that he had suffered the previous day.

Justice Stephens was 90 when he retired in 2010 after sitting on the bench for 35 years, becoming the second-oldest and the second-longest-serving justice ever to sit on the court.  He was born on April 20,He became the senior associate justice in his 19th year in 1994, meaning that he would write the majority opinion when the chief justice was in the dissent. He wrote the majority opinions Atkins v Virginia, Rasul v Bush, and Hamdan v Rumsfeld, and wrote a scathing dissenting opinion in Bush v Gore, the case that effectively decided the 2000 presidential election by stopping the Florida recount.

No one was more surprised of Justice Stephen's migration to the left than he was, and it was a gradual change, particularly on the death penalty and on questions of racially conscious government policies. He was known as bit of a skeptical loner than favored jaunty bow ties. 

See Linda Greenhouse, Supreme Court Justice John Paul Stevens, Who Led Liberal Wing, Dies at 99, New York Times, July 16, 2019.

July 17, 2019 in Current Events | Permalink | Comments (0)

Tuesday, July 16, 2019

Comment on What's Equitable Adoption Got to Do With It?: An Examination of Texas' 2017 Amendment and its Impact on Inheritance Rights

TexasLeah Towe recently published a Comment entitled, What's Equitable Adoption Got to Do With It?: An Examination of Texas' 2017 Amendment and its Impact on Inheritance Rights, 71 Baylor L. Rev. 239-266 (2019). Provided below is an [] of the Comment.

The practice of adoption dates back to ancient times, as biological parents have transferred their children to other adults who wanted the children for "love, labor, and property." Many historians have traced adoption in the United States to Massachusetts' passage of the first "modern" adoption law in the 1850s. Specifically, the Massachusetts Adoption of Children Act promoted the notion that adoption should benefit the welfare of children, rather than adult interests. Since Massachusetts' initial law, all other states continue to implement and reform legislation governing adoptions. As times change and family dynamics evolve, many states have evolved as well, allowing for adoption outside of the statutory, legal process under certain facts and circumstances. The right facts and circumstances often result in a posthumous adoption out of equity, also known as equitable adoption.

Texas has recognized the concept of equitable adoption since the 1930s. While the plain language of the relevant statute has long suggested that equitably adopted children should be treated the same as legally adopted children and natural children for inheritance purposes, the Texas Supreme Court has refused to interpret the statute this way. In response, Texas lawmakers in the 85th Legislative Session of 2017 proposed and passed House Bill 2271 (H.B. 2271), which amended the definition of "child" in Section 22.004 of the Estates Code to include equitable adoption. H.B. 2271 also added a subsection to Section 201.054 to define "adopted child." With these changes, Texas lawmakers have expressed their intent to finally provide the same inheritance rights to both legally adopted children and equitably adopted children.

This Comment will briefly provide some background on the history of adoption in Texas; the history and evolution of equitable adoption in Texas; insight into the 85th Texas Legislature's 2017 amendment, as it could impact intestate succession - and by relation, testate succession and other inheritance rights - in the future; predictions regarding Texas courts' likely response to this amendment; and finally, a peek into the shortcomings of this amendment.

July 16, 2019 in Articles, Current Affairs, Estate Administration, Estate Planning - Generally, New Legislation | Permalink | Comments (0)

Handbook of Practical Planning for Artists, Art Collectors, and Their Advisors

Slugg2Ramsay H. Slugg recently published a Book entitled, Handbook of Practical Planning for Artists, Art Collectors, and Their Advisors (2d ed. 2019). Provided below is a summary of the book.

Art is an asset of passion, as author Ramsay H. Slugg states, yet it also has unique and important financial characteristics. This makes art possibly the most difficult asset to incorporate into an overall estate and financial plan. Handbook of Practical Planning for Artists, Art Collectors and Their Advisors addresses two essential elements of art ownership: planning for the ultimate disposition of the art, including how to address the wealth represented by the art into any estate and financial planning, and also the practical considerations for collectors as they actively collect and plan for the art’s eventual disposition.

After a brief discussion of the art market generally, the book introduces and explains a client-focused process I use when advising art collectors. This process includes explaining both the income, estate and gift tax consequences of various options, as well as the important and often emotional non-tax considerations of collecting and disposing of art. The book also discusses the role and importance of other advisors who are involved in these decisions, including art advisors, risk management professionals and appraisers. To better illustrate the material, the book features enlightening case studies.

July 16, 2019 in Books - For Practitioners, Current Affairs, Estate Administration, Estate Planning - Generally | Permalink | Comments (0)

Family Wants More Time for Dad Declared Brain Dead Before Organs are Donated

OrgandonationAnthony Vallejo, 30, of California suffered a major asthma attack on July 8 that caused his lungs to collapse. By the time the man was rushed to the hospital by paramedics and intubated, his brain had been deprived of oxygen for at least 10 minutes. 

Two doctors have declared the father of two young boys brain dead, and though she says that she respects her husband's decision to be an organ donor, Talia Vellejo posted on her Facebook fundraiser that the family wishes to have more time with him for his brain to possibly heal. His heart is still beating, but according to the according to the National Kidney Foundation, as long as the heart is receiving oxygen, such as from a ventilator, it will continue to beat. Regardless of heartbeat, once a registered organ donor is declared brain dead by two doctors there is a vital window in which to remove organs.

The family has been given a deadline of 7 p.m. on Wednesday, at which time Anthony will be prepped for organ donation.

See Alexandria Hein, Family Wants More Time for Dad Declared Brain Dead Before Organs are Donated, Fox News, July 16, 2019.

July 16, 2019 in Current Events, Death Event Planning, Estate Planning - Generally, Science | Permalink | Comments (0)

Doing These Five Things Could Decrease your Risk of Alzheimer’s by 60%

LeafyApproximately 50 million people have dementia worldwide, and that number is expected to triple by 2050, according to the 2018 World Alzheimer Report. The global cost of dementia in 2018 was roughly $1 trillion, a figure projected to double by 2030. But a study presented at the Alzheimer’s Association International Conference in Los Angeles this past weekend has some crucial suggestions to limit a person's likelihood on developing the condition by 60%.

The  Rush University Medical Center in Chicago followed 2,765 individuals over the span of about a decade, tracking their lifestyle and behavior choices. They assessed study participants’ lifestyles on five metrics: their diet, their exercise regimen, whether they smoked, their alcohol consumption and their “engagement in cognitive stimulation activities.” The researchers were expecting positive results for those that made healthier choices, but they were simply "astounded" by the magnitude of the results.  Individuals who ate a “high-quality diet," performed at least 150 minutes of exercise per week, did not smoke, limited themselves to one alcoholic beverage per day, and stimulated their brain two to three times a week were found to develop dementia 60% less than those that did none of these activities, or even just one of them.

The average ages of the participants were between 73 and 81, and contained both males and females as well as blacks and non-Hispanic whites. The study did not find any variances depending on race or gender. 

See Hannah Nattanson, Doing These Five Things Could Decrease your Risk of Alzheimer’s by 60%, New Study Says, Washington Post, July 14, 2019.

Special thanks to Lewis Saret (Attorney, Washington, D.C.) for bringing this article to my attention.  

July 16, 2019 in Current Affairs, Disability Planning - Health Care, Estate Planning - Generally | Permalink | Comments (0)

Monday, July 15, 2019

Note on Informed Consent and Decision-Making After Loss of Competency in Dementia Patients: A New Model

AlzLauren Padama recently published a Note entitled, Informed Consent and Decision-Making After Loss of Competency in Dementia Patients: A New Model, 28 S. Cal. Interdisc. L.J, 173-201 (2018). Provided below is an introduction of the Note.

After receiving a diagnosis of Alzheimer's, journalist Greg O'Brien analogized his experience with the disease to a plug in a loose socket. The light from the lamp starts to flicker, so he pushes the plug back in to the socket. It flickers more; Greg now becomes frustrated as he continues to push the plug back in. Eventually, the plug falls out of the socket entirely, and the light is extinguished permanently. This metaphor tracks the progression of Alzheimer's as a typical patient loses his memory and other core cognitive functions. It does not, however, consider that the cognitive decline is typically accompanied by a revocation of medical autonomy.

Most adults are familiar with the myriad forms they are required to sign before receiving medical treatment. These consent forms are designed to reiterate a physician's warning of the risks and benefits of the procedures to ensure that the patient is fully informed before agreeing to the procedure. This basic idea was famously articulated by then Judge Cardozo when he noted, "Every human being of adult years and sound mind has a right to determine what shall be done with his own body … ." Since then, every jurisdiction has developed a doctrine of informed consent, which requires the doctor to make a "reasonable disclosure of the available choices with respect to proposed therapy and of the dangers inherently and potentially involved in each." The physician's efforts to apprise the patient of the risks and benefits of the treatment or procedure would, however, be futile if the patient were unable to evaluate the risks and benefits of the procedure and come to an informed decision on whether to accept or reject treatment. Thus, informed consent also requires that the patient have the capacity to consent  to treatment. For patients with Alzheimer's or dementia, the cognitive decline associated with the disease eventually precludes the patient from meeting the medically determined competency standards. This means that the patient can no longer give consent to receive or refuse treatment. The patient is therefore forced to rely on the judgment of the physician or another statutorily approved decision-maker for all medical decisions after loss of capacity.

Informed consent was created to preserve patient autonomy, but dementia effectively revokes a patient's right to consent or decline treatment. A dementia diagnosis is followed by a determination of incompetency at a time when critical treatment decisions are made, such as the decision to administer psychotropic medications. Most decision-makers follow a physician's treatment recommendation, which means psychotropic medications are frequently prescribed to manage symptoms of dementia. When patients refuse, caregivers in both professional and private settings covertly administer medication without the patient's knowledge or consent. 

This article explains the challenges facing both the medical and legal community as the aging population in the United States leads to an inevitable increase in the number of dementia patients. In particular, the variety of accepted instruments used to assess competency has created variability in who is considered incompetent, which forces the patient to rely on statutorily approved methods of decision-making, such as conservators, family members, and advance directives. Since requirements for each vary by jurisdiction, this paper primarily focuses on California law. After discussing the deficiencies with each form of decision-making in the context of concealment of psychotropic medication, this paper explores a new approach to decision-making that focuses on the patient as opposed to the physician's recommendations. The proposed model combines elements of enhanced consent and supported decision-making to create a new method of decision-making. This method of decision-making gives a patient in the early and moderate stages of Alzheimer's more control over her healthcare decisions by forcing decision-makers to communicate directly with the patient instead of assuming the patient's preference. This aims to preserve autonomy in early stages of Alzheimer's by shifting the focus from substituted decision-making to decision-makers actually assisting the patient in deciding whether to accept or reject psychotropic medication and then articulate that choice effectively to the physician.

This paper begins with an overview of dementia and one of the most commonly prescribed treatments for Alzheimer's patients: psychotropic medications. I then discuss informed consent, the right to refuse medication, and assessing capacity both generally and in Alzheimer's patients. After explaining the problems with current competency assessments, I then review the most common methods of decision-making after loss of capacity for Alzheimer's patients as well as alternative methods of decision-making used in other populations. I demonstrate the deficiencies in the statutorily approved methods of decision-making by applying each method to a common real-world problem of medication concealment. Lastly, I illustrate the benefits of utilizing my proposed model, a hybrid of enhanced consent and supported decision-making. This model aims to preserve patient autonomy in the early stages of Alzheimer's while also providing a tool to plan for the later stages of the disease.

July 15, 2019 in Articles, Current Affairs, Disability Planning - Health Care, Disability Planning - Property Management, Elder Law, Estate Planning - Generally | Permalink | Comments (0)

Saturday, July 13, 2019

Disney Reportedly Refuses to Allow Spider-Man Engraving on Tombstone of Dead Boy Who Loved Superhero

Ollie-Jones-1-SWNSOllie Jones, a 4-year-old boy that passed away this past December and suffered from leukodystrophy, a rare genetic condition, will not be allowed to have an etching of his favorite super hero included on his tombstone. His father, Lloyd, sent a request to Disney to be allowed to include an image of Spider-Man on his beloved sons's grave, but the company allegedly refused, citing company policy.

Ollie loved the webslinger so much that his funeral was Spider-Man themed and his last family vacation was to Disneyland to "meet" his hero. The local city council had told Lloyd to forward his request to the Walt Disney Company about including an etching of the character on the tombstone. But the company denied the grieving father's request, claiming that doing so would ruin the "innocence" and "magic" of the company's famed characters, citing a policy that Walt Disney himself instituted when he was alive. Instead, the company offered to send the family a one-of-a-kind illustration of Spider-Man, which would include a special message for the boy.

The denial has outraged many people across social media, and a petition to force the Walt Disney Company to allow the etching on Ollie's grave has surpassed 12,000 signatures. "This meant everything to us. My brother’s life has been shattered, it has shattered the whole family," Ollie's uncle Jason said. "We can’t move on until we have his headstone done — Spider-Man was Ollie’s entire life. He loved it so much."

Ollie's 6-year-old sister, Laillah, also reportedly suffers from the same condition, which damages the brain, spinal cord and peripheral nerves.

See Nicole Darrah, Disney Reportedly Refuses to Allow Spider-Man Engraving on Tombstone of Dead Boy Who Loved Superhero, Fox News, July 11, 2019.

July 13, 2019 in Current Events, Estate Planning - Generally, Film, Television | Permalink | Comments (0)

Friday, July 12, 2019

Article on Wrongful Prolongation of Life - A Cause of Action That May Have Finally Moved Into the Mainstream

HeartbeatSamuel D. Hodge, Jr. recently published an Article entitled, Wrongful Prolongation of Life - A Cause of Action That May Have Finally Moved Into the Mainstream, 37 Quinnipiac L. Rev. 167 (2019). Provided below is the introduction to the Article.

An elderly gentleman with multiple health problems was resuscitated following a near-death experience and vowed not to let it happen again. In an effort to signal his desire to prevent a repeat of such heroic efforts, he executed a do not resuscitate ("DNR") directive following his recovery. A short time later, he developed severe discomfort and was taken to a local emergency room where he was diagnosed with a ruptured aortic aneurysm. None of the medical staff bothered to read his DNR directive, resulting in the elderly man undergoing a potentially unwanted surgery to repair the life-threatening anomaly.

A physician subsequently discovered the DNR directive and discussed the issue with the patient. The man angrily reconfirmed his wish to shun resuscitation efforts and, in response, the physician placed a DNR order in the chart. The surgeon who had performed the complicated operation became furious when he saw the order and changed it back to a "full code," a directive to employ all life-saving measures. This reversal triggered a consultation with the hospital's ethicist, which ultimately resulted in the reinstatement of the patient's DNR order. The elderly man eventually died from a heart attack during his hospital stay, seemingly without any further intervention.

Historically, physicians were able to act with impunity concerning end-of-life decisions because the courts did not recognize an action for wrongful prolongation of life. Many in the medical community believed that if "you do intervene and you shouldn't have, the worst that will happen is that the patient will live a little longer and that you'll never be held accountable if you keep the patient from dying." This attitude is undergoing a metamorphous as an increasing number of patients who have signed DNR orders are suing or subjecting medical providers to disciplinary proceedings for saving their lives. This article will provide a historical background on DNR orders and the various legislative initiatives undertaken to ensure that medical providers honor a person's end-of-life wishes. It will then explore the evolution of the wrongful prolongation of life litigation in a chronological fashion, with a focus on the majority of cases that do not allow recovery and the more recent determinations that have offered patients relief for the failure to honor their end-of-life directives.

July 12, 2019 in Articles, Current Affairs, Estate Planning - Generally, New Cases | Permalink | Comments (0)

Olympia Silversmith Makes Mourning Jewelry with Hair, Teeth, and Ashes

ToothringHailing from Olympia, Washington, silversmith Angela Kirkpatrick has decided to use her skills as a jewelry maker to dive into a niche market. She can use the hair, cremains, or even the teeth of a recently deceased loved one to make special mourning jewelry.

The tradition of mourning jewelry goes back all to the way to Victorian era when people used to wear lockets containing a small amount of a dead family member's hair. “It’s not uncommon to ask for a lock of hair, it used to be something done very regularly," Kirkpatrick said. She works with about 40 clients at a time, walking them through custom designs and since they can be such emotional pieces, sometimes acting like a grief counselor. Some peopled are skeptical of her career choice and believe that it is morbid, but for those that come to her to get specialized mourning jewelry, it is truly very special.

Kirkpatrick is a member of the Order of the Good Death. She also leads the monthly Death Cafe meeting in Olympia, which is an international event that encourages people to get together over tea and cake to talk about death.

See Rachel Belle, Olympia Silversmith Makes Mourning Jewelry with Hair, Teeth, and Ashes, KIRO 7, July 1, 2018; see also here to view the customized jewelry options.

Special thanks to Christine Wakeman (Winstead Attorneys) for bringing this article to my attention.

July 12, 2019 in Current Events, Death Event Planning, Estate Planning - Generally | Permalink | Comments (0)

Wednesday, July 10, 2019

'Willy Wonka' Actress Denise Nickerson Taken off Life Support 1 Year After Stroke

VioletThe actress best known for playing the gum-smacking Violet Beauregarde, Denise Nickerson, was admitted to the ICU after suffering a "major medical emergency" at home on Monday. According to her son, Josh, and daughter-in-law, Jasmine, Nickerson got into her own medicine and "took as many as she could" before Josh stopped her and rushed her to the hospital. Nickerson has previously suffered a stroke and required hospitalization in June 2018.

"She’s had seizures this morning and is in pulmonary and respiratory distress. The doctors have found that she aspirated and has developed pneumonia,” Jasmine posted on Facebook to update the public. "They have upped her oxygen. She’s under a DNR order so they aren’t putting her on a ventilator or feeding tube." She has also requested prayers for her husband because he "is just coming to terms with the reality of the situation and doesn’t know how to process it.

Nickerson also had roles in The Brady Bunch, Dark Shadows, and The Electric Company, but would ultimately leave the lime light to become a nurse.

See Sasha Savitsky, 'Willy Wonka' Actress Denise Nickerson Taken off Life Support 1 Year After Stroke, Fox News, July 10, 2019.

July 10, 2019 in Current Events, Estate Planning - Generally, Film, Television | Permalink | Comments (0)