Wills, Trusts & Estates Prof Blog

Article: ‘Can a Relative Override a Patient’s Advance Care Directive?’: End-of-life Legal Worries of General Practitioners and Nurses Working in Aged Care

Ben White (Queensland University of Technology - Faculty of Law), Rachel Feeny (University of Queensland), Marcus Sellars (Independent), Penny Neller (Queensland University of Technology), Patsy Yates (Queensland University of Technology), and Lindy Willmott (Queensland University of Technology - Faculty of Law) recently published, 'Can a Relative Override a Patient's Advance Care Directive?': End-of-life Legal Worries of General Practitioners and Nurses Working in Aged Care, 2024. Provided below is an abstract:

Background: This paper aimed to describe the legal worries of Australian general practitioners (GPs) and nurses regarding end-of-life care provided in the aged care setting.

Methods: An analysis of responses to the final, open-ended question of a cross-sectional online survey of GPs and nurses practising in aged care settings in Queensland, New South Wales and Victoria was undertaken.

Results: Of the 162 GPs and 61 nurses who gave valid responses to the survey, 92% (151 GPs and 55 nurses) responded to the open-ended question. Participants identified concerns across all relevant areas of end-of-life law. The most common concerns were substitute decision-makers or family member(s) wanting to overrule an Advance Care Directive, requests for futile or non-beneficial treatment and conflict about end-of-life decision-making. Participants often also identified concerns about their lack of legal knowledge and their fear of law or risk related to both end-of-life care generally and providing medication that may hasten death.

Conclusions: Australian GPs and nurses working in aged care have broad-ranging legal concerns about providing end-of-life care. Legal concerns and knowledge gaps identified here highlight priority areas for future training of the aged care workforce.

Britney Spears settles bitter legal battle with estranged father Jamie Spears

Britney Spears has settled her legal dispute with her estranged father, Jamie Spears, finally ending their conservatorship case. The 42-year-old pop star's life and finances were under Jamie's control for 14 years, but the arrangement ended two years ago. The recent settlement resolves an outstanding issue regarding Jamie's request for Spears to cover his legal fees, with the details remaining undisclosed.

Spears' lawyer, Mathew Rosengart, expressed pride in representing her and stated that her desire for freedom is now fully realized now that she is no longer required to participate in court proceedings related to the conservatorship. 

After her conservatorship ended, Spears had many successful music collaborations and published a bestselling memoir, "The Woman in Me," which reached number one on the New York Times best-seller list in its first weeks.

Rosengart emphasized that Spears' achievements would not have been possible under the conservatorship and reiterated his gratitude for being able to assist in restoring her civil rights and liberties. While Jamie Spears' attorney did not immediately respond to requests for comment, the settlement marks a significant milestone in Britney Spears' ongoing journey towards autonomy and independence.

For more information see Ashley Hume, "Britney Spears settles bitter legal battle with estranged father Jamie Spears" Fox News, April 27, 2024.

Article: The Appropriation of Black Postmortem Rights of Publicity In the Age of Police Brutality

Dane Norvell (Mississippi Law Journal, Forthcoming) recently published, The Appropriation of Black Postmortem Rights of Publicity In the Age of Police Brutality, 2024. Provided below is an abstract:

In America, a lynched man’s circumstance is another man’s paycheck. For Black Americans, the trauma of police lynchings is often accompanied by an economic appropriation of the victim’s name, image, and likeness. With the murder of individuals like Breonna Taylor and George Floyd becoming a modicum of debate for solutions on discriminatory policing habits, public support for the victim’s immediate family is frequently accompanied with consumer goods adopting the deceased’s likeness by way of clothing and food. The profits from these goods often don’t benefit the estate of the individual they purportedly support. Jurisdictions have rushed to provide a remedy for the appropriation of a celebrity’s likeness after death in the form of a Post-mortem Right of Publicity. However, the variety of stances that exist, or the lack thereof, create pathways for opportunist to benefit off the lynchings of Black Americans, harming the financial interest of their estate. This comment provides a remedy in the form of a proposed doctrine, The Postmortem Lynching Doctrine. Its aim being to provide an avenue for courts to expand the scope of the term “commercial exploitation” so that estates of brutality victims, effectively made famous because of their death, have a means to protect their interests.

Article: Directors, Concurrent Fiduciary Duties, and Ad Hoc Fiduciary Relationships

Weiming Tan (National University of Singapore - Faculty of Law) recently published, Directors, Concurrent Fiduciary Duties, and Ad Hoc Fiduciary Relationships, 2024. Provided below is an abstract:

In Tan Teck Kee v Ratan Kumar Rai, the Singapore Court of Appeal had occasion to decide whether, and when, a director of a company may owe concurrent fiduciary duties both to a third-party and to his principal company. Furthermore, the apex court took the chance to consider when an ad hoc fiduciary relationship could arise. This note critically examines the Court’s analysis, and discusses the approaches adopted by the courts in other common law jurisdictions. It concludes that, overall, the decision of the Court of Appeal is to be welcomed.

Majority of US couples do not have an estate plan, study finds

More than half of couples surveyed say they do not have an estate plan set up. Despite sharing financial values right now, a lot of couples have not come to an agreement on how much money they will leave to their family as a part of their estates. 

Marcy Keckler, certified financial planner, offers advice for couples who still need to set up an estate plan. She emphasizes that estate planning is not scary, and should not intimidate people because we all will need to set up an estate plan one day. Having an expert or financial advisor can make the process so much simpler. Guidance from a professional can ensure that every one of your needs and wants are met. Once you get an estate plan set up, you will feel confident that your legacy and your family are protected. 

It is good practice to reevaluate your estate plan every five years to keep it up to date with your wishes and financial situation. If something big happens in your life, revisit it sooner

For more information see Breck Dumas “Majority of US couples do not have an estate plan, study finds”, Fox News, April 17, 2024.

Article: Implications of Voluntary Assisted Dying for Advance Care Planning

Ben White (Queensland University of Technology - Faculty of Law), Madeleine Archer (Queensland University of Technology - Australian Centre for Health Law Research), Casey Haining (Queensland University of Technology - Australian Centre for Health Law Research), and Lindy Willmott (Queensland University of Technology - Faculty of Law) recently published, Implications of Voluntary Assisted Dying for Advance Care Planning, 2024. Provided below is an abstract:

Voluntary assisted dying is now lawful in all Australian states, with territories likely to follow. As this new end-of-life choice becomes more widely available and known, we should anticipate it arising during end-of-life care discussions with patients. In Australia, unlike some international models, voluntary assisted dying is not available to people without decision-making capacity. Therefore, patients cannot request voluntary assisted dying through an advance care directive or other advance care planning document. However, some competent adult patients undertaking advance care planning may want to discuss voluntary assisted dying. Reflection is needed to prepare patients, clinicians and health services for discussions about voluntary assisted dying during advance care planning.

The Ethical Use of Artificial Intelligence in Trust & Estate Law

In today's rapidly evolving legal landscape, the integration of artificial intelligence (AI) is no longer a matter of choice but a necessity. Lawyers must acknowledge and embrace the role of AI in their profession. Lawyers must stay ahead of technological advancements, including AI, recognizing its potential benefits and risks.

Competently utilizing AI requires a nuanced understanding of its limitations and capabilities. The crucial need for vigilance in verifying AI-generated content is demonstrated by real-life cases where AI fabrications led to legal sanctions. While some AI tools provide more reliable results, such as legal-specific platforms like Lexis+ AI and Westlaw’s as practical AI, it is advised to have a stance of "trust but verify" to ensure accuracy and reliability.

The ethical implications of AI extend to client confidentiality and disclosure. It is important to safeguard client information, raising concerns about AI's storage and utilization of data. A cautious approach is suggested, advocating for generic prompts and exploring AI tools with robust security measures. Moreover, transparency with clients regarding AI usage is recommended, aligning with guidelines from various bar associations, like California's suggestion of considering disclosure in engagement letters. As legal professionals navigate this technological frontier, a commitment to ethical AI utilization is paramount, safeguarding both professional integrity and client trust.

For more information see John Challis “The Ethical Use of Artificial Intelligence in Trust & Estate Law”, The American College of Trust and Estate Counsel, April 16, 2024.

Sorry, Boomers, your kids don’t want your beloved china

A change in attitude towards family heirlooms and collectibles, adds a new emphasis to the importance of estate planning to make sure that these timeless items find suitable homes. A social media post about a woman devastated by her children's lack of interest in her valuable china and silverware illustrates how generational shifts and lifestyle changes can alter the significance of family heirlooms. Fox’s Dan Gainor advises against leaving such items to disinterested heirs, advocating for their sale while the owner is still able to secure the best value.

The best solution is proactively planning, especially regarding collections, by identifying which family members will actually appreciate the value and cherish your belongings. Leaving clear instructions in your will is essential in ensuring your items are treasured long after your passing. 

Check your will! Where are your precious heirlooms going? Who actually wants them? This article dives into what estate planning strategies you can use to make sure your belongings are possessions are passed on to those who will appreciate and treasure them, thus preserving their legacy for future generations.

For more information see Carol Roth “Sorry, Boomers, your kids don’t want your beloved china”, Fox News, April 8, 2024.

Meghan Trainor's will ensures her voice can't be used by 'spooky' technology after her death

With the rise of AI technology, Meghan Trainor found a solution to control the use of her voice and likeness after her death. After voicing her concern about what AI can create, she told Fox News Digital that she added a clause in her will stating that no one can use her voice after her death.

Other celebrities, like Robin Williams, have included clauses in their wills that prevent the use of their likeness for a certain number of years in their will. Paul McCartney told BBC Radio 4 that another Beatles song is in the works thanks to an AI generation of John Lennon’s voice. Even though Lennon passed over 40 years ago, AI technology can use a demo of Lennon’s voice and “get it pure” so the band can mix the record as they normally would.  

Though some celebrities are embracing the new advancements of AI and what it can do to bring artists' vocals back to life, others are afraid of their voices being used without their knowledge. Addressing this concern by putting a clause in their will is a definite way to ensure they are in control of their sound and what is created of them after they die.

For more information see Larry Finks “Meghan Trainor's will ensures her voice can't be used by 'spooky' technology after her death”, Fox News, April 19, 2024.

Article: A New Look at Old Money

Miranda Perry Fleischer (University of San Diego School of Law) recently published, A New Look at Old Money, 2024. Provided below is an Abstract:

Taxing wealth—including inherited wealth—is a hot topic, making headlines and generating heated debate. Should millionaires and billionaires face an annual wealth tax, as championed by Senators and former Presidential candidates Elizabeth Warren and Bernie Sanders? Should we strengthen the existing estate tax, as President Biden contends? Or, as opponents argue, are both annual wealth and once-a-generation wealth transfer taxes unfair and impractical? What makes this debate so intractable is not only that the public as a whole is divided on these issues, but many individual Americans hold simultaneous beliefs about wealth, opportunity, fairness, desert, and family that seemingly contradict each other. This Article cuts through that debate by proposing a novel solution for inheritance taxation that reconciles these deeply held beliefs with the benefits of wealth transfer taxation.

Our current estate tax treats the self-made millionaire the same as an heiress who has not earned a cent when they pass their fortunes on to their heirs. But this is misguided. Drawing on recent work on the psychology of taxation, this Article makes the case for an innovative inheritance tax system that taxes old money more heavily than new. This approach would allow individuals to bequeath wealth that they have earned—but not wealth that they have inherited—free of tax. Known as a Rignano tax, this proposal harnesses the finding that many Americans “silo” beliefs about wealth, holding seemingly contradictory beliefs that differ in part based on whether wealth is earned or inherited. By leveraging these findings and building on experience with the existing transfer tax system, this Article elaborates and advances a set of specific and concrete design recommendations for a Rignano tax.

This comprehensive analysis of a Rignano tax—the first in the law review literature—complements philosophical work that advocates for such a tax but does not address key design and policy questions. Further, it contributes to tax scholarship by advancing our understanding of the relationship between a tax’s normative goals and structural design choices. And for both advocates and opponents of the estate tax, it offers a nuanced and fair exploration of the debate surrounding inheritance taxation as well as a potential resolution of the enduring stalemate over taxing wealth.