Wills, Trusts & Estates Prof Blog

Body Disposition -- The Aussie Way

On several prior occasions on this blog, I have discussed or referenced unusual ways in which Americans may dispose of their bodies upon death.  Here is a partial list:

• Diamonds from cremains 
• Cremains as cocaine additive 
• Cremains in fireworks 
• Pictures painted with cremains 
• Green Burial 
• Biker Hearse 
• Scotty's Ashes into Space 
• Event Planners for End of Life Celebrations 
• Cremains as gasoline additive 
• Do it at home cremation

Here are some of the non-traditional body disposition techniques which are used in Australia according to Richard Brewster, How you go out is a matter for style, The Age, Feb. 23, 208, at 10:

• Motorcycle hearse
• Releases, e.g., doves, butterflies, or balloons to symbolize the freeing of the soul
• Designs printed on cardboard coffins (environmentally friendly)

Organ Donation -- Australian Style

Last week was Australia's "Organ Donor Awareness Week."  According to Tim Richards, Unwrap the gift of life for those on hospitals' death row, The Age, Feb. 25, 2008, at 11, "it seems its impact on the number of donations in hospital will be negligible."

The article explains:

In Australia only about 10 people per million are registered as organ and tissue donors, giving Australia around 200 donors to transplant patients on the various transplant waiting lists each year. From these donors, around 650 transplant recipients are created. * * *

However, we have an unbearable situation where about 150 patients on transplant waiting lists die each year in Australia because there are not enough donors. * * *

It is an unbearable situation because there is a solution to the shortage of organs and tissue, a solution which has been applied in other countries, and which is being discussed presently in Britain. The solution provides the basis for having a donor rate of some three to three and a half times that found in Australia.

It is called a presumed consent or opt-out organ donation system, and it is where the law stipulates that everyone is a donor unless a person registers not to donate.

This opt-out type of system is the opposite of Australia’s current system, which is one where a person who wants to donate their organs must register their interest and so they must opt in to donate.

David Kessler Forms Consulting Business to Protect the Elderly

David Kessler is a retired police commander and is now speaking on the topic of exploitation of the elderly.

Here is an excerpt from his website, Protecting the Elderly:

David M. Kessler is a retired Police Officer (former Commander of the Financial Crimes Unit) with the Dekalb County Police Department in Decatur, Georgia. He has dedicated his professional life to providing education and guidance for public and private sector professionals on the topic of exploitation of the elderly, and making certain those who prey on elderly victims are punished.

David was recruited by the Ohio Attorney General in 1999 to serve as Chief Investigator of the Attorney General's Consumer Protection Unit. Within this role, David's primary focus became the protection of senior citizens against those who would prey upon them.

With extensive knowledge and vast experience in the area of elder exploitation, David chose to leave the government sector in 2008 to form his own consulting business, Protecting The Elderly. As a keynote speaker and trainer on the topic of exploitation of the elderly, David addresses all facets of these crimes, including: Undue Influence, Sweetheart Swindles, Power of Attorney Thefts, and Home Improvement Scams.

Call for Information -- AALS Donative Transfer Section Newsletter

Each year, the AALS Section on Donative Transfers publishes two newsletters for its members.

The Section welcomes news about its members' publications, professional activities, conferences, teaching and service.  The Section is in the process of assembling the Spring 2008 newsletter.

Please send any news you would like to share by March 1, 2008 to Professor Bridget Crawford (Pace) at [email protected].

Ex-Microsoft Developer Leaves $65 Million to Benefit Same-Sex and AIDS Organizations

Ric Weiland, who was a high school classmate of Microsoft founder Bill Gates, committed suicide in 2006 at age 53.

Details have recently been released regarding his estate.  According to AP, Ex-Microsoft worker leaves $65 mil to gay rights, AIDS groups, CNN.com, Feb. 24, 2008:

[T]he Pride Foundation said Weiland's estate had established a fund at the foundation that would give $46 million over the next eight years to 10 national gay rights and HIV/AIDS groups, including Lambda Legal; the National Gay and Lesbian Task Force; Parents, Families and Friends of Lesbians and Gays; the Gay & Lesbian Alliance Against Defamation; and amfAR, the Foundation for AIDS Research.

His estate also bequeathed $19 million directly to the Pride Foundation for scholarships and grants supporting the gay, lesbian, bisexual and transgender community in the Pacific Northwest.

Increasing Elder Abuse Calls for Legislative Action

Jane A. Black (J.D. Candidate 2008, St. John's University School of Law) has recently published her Note entitled The Not-So-Golden Years: Power of Attorney, Elder Abuse, and Why Our Laws Are Failing a Vulnerable Population, 82 St. John's L. Rev. 289 (2008).

Here is the conclusion to her Note:

While the allegations of financial abuse and neglect involving Astor may never be proven, the Park Avenue socialite's story brings to the forefront one of the gravest legal issues affecting the elderly in the twenty-first century. The selection of who will hold one's power of attorney is, undoubtedly, one of the most significant decisions an older individual will make. Depending on the type of power granted, such an individual has the ability to thwart the elderly's desired disposition of money after death, or worse, infuse fear, helplessness, and deceit into the final years of an elderly person's life.

Without immediate action by lawmakers though, there is no indication that financial exploitation of the elderly will subside. Abuse is certain to swell as longevity increases, technology improves, and the lines of communication become easier to cross. As evidenced from the cases and statistics above, the day has passed where the American legal system can fail to recognize elder abuse as a widespread attack on the most vulnerable members of our population. To combat these abuses, federal and state legislatures need to enact uniform laws and sanctioning mechanisms to create a legal system with a hard stance against abuse of the elderly.

Trust provision prohibiting the exercise of powers reserved to the settlor by anyone other than the settlor includes the settlor’s agent

The decedent created a revocable trust naming her husband as the trustee.  She also executed a durable power of attorney naming her husband as her agent and giving him the power to transfer property to her revocable trust.  Two years later, her husband purportedly acting as her agent executed an amendment to the trust which removed certain property from the trust which he then transferred to one of the couple’s three children. 

After the decedent’s death, the other children sued to set aside the amendment.  The court held that the language of the trust prohibiting a conservator or guardian of the settlor or “any other person” other than the settlor from exercising the rights reserved to the settlor extended to an agent.  Gurfinkel v. Josi, No. 3D06-1616, 2007 WL 4322156 (Fla. Dist. Ct. App. Dec. 12, 2007).

Prof. Chester Publishes "Dead Hand" Critique

Ronald Chester (Professor of Law, New England School of Law) has recently published his book entitled From Here to Eternity? Property and the Dead Hand (Vandeplas Publishing 2007).

Here is a description of this book:

In this groundbreaking book,  Professor Chester examines dead hand control of property by decedents and how this phenomenon has changed form over the centuries, with particular emphasis on the  period beginning with the 1980’s.   Although there is something essentially human about the desire to control the use of one’s property after death, modern American dead hand control is both less personal and more far reaching than in the past; in addition, it tells us much about the society we inhabit.  While aristocracies were perpetuated in England by restrictions on land that often hindered freedom of bequest, in the modern United States the unleashing of this freedom by law has allowed estate planners to create elaborate plans for the wealthy that themselves may create and perpetuate aristocracy.

   

Since dead hand control of property will always be with us in some form, Professor Chester concludes that exercising it through a charity of one’s choosing best satisfies both this human need and the needs of society in general. Thus, the use of great fortunes primarily for charitable endeavors may provide a compelling antidote to the early 21st century American emphasis on dynasty and greed.

Top SSRN Downloads

Here are the top downloads from December 25, 2007 to February 23, 2008 from the SSRN Journal of Wills, Trusts, & Estates Law for all papers announced in the last 60 days:

Rank	Downloads	Paper Title
1	52	The Strict Rules of Charitable Split Interest Gifts Wendy C. Gerzog, University of Baltimore - School of Law, Date posted to database: January 29, 2008 Last Revised: January 29, 2008
2	48	GST Qualified Severance Regulations: Final and Proposed Marc Chorney, Author - Affiliation Unknown, Date posted to database: December 9, 2007 Last Revised: December 9, 2007
3	46	In Their Own Hand: An Analysis of Holographic Wills and Homemade Willmaking Stephen Clowney, U.S. Court of Appeals for the Third Circuit, Date posted to database: January 15, 2008 Last Revised: February 6, 2008
4	45	Bigelow: The Ninth Circuit on FLPs Wendy C. Gerzog, University of Baltimore - School of Law, Date posted to database: December 17, 2007 Last Revised: December 17, 2007
5	43	The Human and Economic Dimensions of Altruism: The Case of Organ Transplantation Richard A. Epstein, University of Chicago - Law School, Date posted to database: February 3, 2008 Last Revised: February 14, 2008
6	32	Child Labour: The Partial Fiduciary Accountability of Parents Robert Flannigan, University of Saskatchewan, Date posted to database: January 6, 2008 Last Revised: January 6, 2008
7	20	'Living Will' and the Nigerian Law: The Need for Legislative Intervention Ademola Oladimeji Okeowo, Matrix Solicitors, Date posted to database: December 4, 2007 Last Revised: January 14, 2008
8	18	Charitable Trusts: A Comparative Study of India, United Kingdom and the United States Tarun Jain, London School of Economics & Political Science (LSE) - London School of Economics, Date posted to database: January 26, 2008 Last Revised: January 26, 2008
9	15	How Do I Love Thee, Let Me Count the Days: Deathbed Marriages in America Terry L. Turnipseed, Syracuse University College of Law, Date posted to database: January 29, 2008 Last Revised: January 29, 2008

Senior Citizen Benefits Costs Soar

According to Dennis Cauchon, Senior benefit costs rise 24% since 2000, usatoday.com, Feb. 14, 2008:

The cost of government benefits for seniors soared to a record $27,289 per senior in 2007, according to a USA TODAY analysis.

That's a 24% increase above the inflation rate since 2000. Medical costs are the biggest reason.***

USA TODAY used a variety of government data to calculate the cost of providing Social Security, medical benefits and long-term care to an aging population.***

Findings include:

• Medicare experienced the most explosive growth from 2000 to 2007. The Medicare prescription drug benefit, started in 2006, accounts for about one-fourth of the increase in Medicare, which provides health benefits for people 65 and older.
• Long-term care costs per senior have declined slightly in the last three years because of a move away from nursing homes to less-expensive home care.
• The cost of senior benefits is equal to $10,673 for every non-senior household.
• About 35% of the federal budget is spent on senior benefits, up from 32% in 2004.

Special thanks to Neil E. Hendershot, Esq. (Attorney at law, Goldberg Katzman, P.C., Adjunct Professor, Widener University School of Law) for bringing this article to my attention.  You can read more on Neil's blog at PA Elder, Estate & Fiduciary Law Blog.