Thursday, October 11, 2018
Learn a little bit about the Uniform Guardianship, Conservatorship, and Other Protective Arrangements Act from ACTEC Fellow Professor David English of Columbia, Missouri, the subject of this recent ACTEC Trust & Estate podcast.
Tuesday, September 25, 2018
R. Kevin Spencer recently published an Article entitled, Standing and Error Correction in Probate, 10 Tex. Tech Est. Plan. & Cmty. Prop. L. J. 299-350 (Summer 2018). Provided below is an abstract of the Article.
Estate and guardianship proceeding are in rem and decisions are binding on the world, often without personal service or direct notice. Error correction in probate is essential because incorrect decisions can adversely affect administrations for years in the future. The Texas state legislature recognizes the importance of inheritance and guardianship and progressively expanded probate jurisdiction, including granting statutory probate courts exclusive jurisdiction over probate matters, and concurrent jurisdiction with district courts over trust and other matters. Statutory probate courts even have the power to transfer cases in other courts in other courts around the state to their own court when the proceeding affects a pending administration - the power affectionately known by practitioners as the "reach-out-and-grab" power. The legislature and courts recognize the difference between a "normal" lawsuit and an ongoing, continuing estate or guardianship administration and the need to accommodate the ability to correct errors well beyond the typical thirty days after an order is signed. The first analysis in every probate proceeding is to determine the parties who have standing in an estate. Persons with standing, i.e. "interest persons" may directly attack orders and judgement for up to two years after entry. Courts have dispensed with the "one-final judgement" rule and instead choose how and when judgements or orders in probate become final and subject to direct appeal to appellate courts. While normal finality and appellate rules apply, direct attack error correction procedures in probate are also allowed beyond the normal appellate timetables. Because probate proceedings can have such a profound impact on peoples' lives and property, judges presiding over probate matters carry a high burden to follow the required procedure, get their decisions right, and afforded a "do-over," if the error standards are met.
Sunday, September 23, 2018
Many adult children see that once their parents reach a certain age, their roles may reverse. The child may be taking care of the parent more and more. But when does the child know that it is time to take the drastic step of establishing a guardianship for their mom or dad? Here are 5 ways that may indicate their your beloved parent may need a court's intervention to protect them and their assets.
- Refusal to sign a power of attorney.
- If your parent either refuses to sign anything in front of them, or you have the frightening feeling that they would sign anything in front of them, a guardianship may be necessary.
- Real property or investments have to be sold.
- Depending on the laws of your state, you may have to have a guardian appointed in order to sell their home or other investments if you have been appointed with power of attorney.
- Disagreement over nursing home.
- If you feel that your parent would be healthier (and safer) in a nursing home and they refused, you may need to petition to be named as guardian.
- Medical intervention beyond the health care proxy.
- If your parent cannot give informed consent anymore because of dementia or Alzheimer's, being appointed as a guardian can give you the authority to authorize medical treatment and certain medications.
- Decision-making is compromised in some areas.
- A limited guardianship may be the best course of action if your parent retains the ability to make decisions in certain areas of their life but not in others, such as financial or investment decisions.
See Christine Fletcher, 5 Ways to Know you Need a Guardianship for Mom (or Dad), Forbes, September 13, 2018.
Special thanks to Joel C. Dobris (Professor of Law, UC Davis School of Law) for bringing this article to my attention.
Thursday, September 20, 2018
Tim Conway's second wife and daughter are dueling in court over sole conservatorship over the actor, who is currently recovering from brain surgery and is also suffering from dementia. Kelly Conway, the daughter of the 84-year-old actor, revealed that a Los Angeles court has decided a permanent conservatorship will be appointed in November. The actor had signed a power-of-attorney and health care directives designating his wife, Charlene Conway, as his caregiver, according to Charlene herself.
The person making decisions for his care must be competent. There are others that surround him that have only their best interest at heart and not my dad’s. That’s why I want to be the one in charge of his care," Kelly claims. She also says that she has been banned from her father's hospital room.
A Los Angeles judge denied Kelly’s petition to be appointed as her father’s conservator, finding that her concerns about Charlene’s medical decisions regarding her father are moot for now, as he’s been hospitalized since September 3. In court documents, Michael Harris, who was appointed to protect Conway’s interest during the ongoing feud between daughter and stepmother, also said the comedian is “unable to communicate” and is “suffering from fluid on the brain.”
See Stephanie Nolasco, 'Carol Burnett' Star Tim Conway Recovers From Brain Surgery as Family Battle Over Comic's Fate Rages on, Fox, September 17, 2018.
Wednesday, August 15, 2018
In late February of 2018, the parents of 18-year-old high school senior Alyssa Gilderhus, Duane and Amber Engebretson, decided to break her out of the Mayo Clinic in Rochester, Minnesota where she had been a patient for 2 months. Alyssa had had a brain aneurysm on Christmas Day and fortunately neurosurgeons saved her life. But Alyssa and her parents became disgruntled with the continued care and their requests to be transferred to another facility were ignored.
So the parents devised a plan to escape, but it had to maneuvered just right because there were now 2 nurses on the door of their daughter's hospital room acting as guards. Pretending the great-grandparent was at the entrance and wanted to see Alyssa, they managed to leave, and their younger daughter Allie filmed the experience.
The next day, after an eventful night of running from the cops and the medical facility that they learned were trying to get the county courts to grant guardianship of Alyssa to, Duane and Amber Engebretson brought her to a non-Mayo owned hospital in South Dakota. The doctors there prescribed her medications and deemed her mentally fit, and discharged them to care for her at home.
See Elizabeth Cohen & John Bonifield, Escape From the Mayo Clinic: Parents Break Teen Out of World-Famous Hospital, CNN, August 13, 2018.
Special thanks to Laura Galvan (Attorney, San Antonio, Texas) for bringing this article to my attention.
Tuesday, August 14, 2018
According to government data, nursing homes are still giving dementia patients medication to treat schizophrenia, mostly for its sedative purposes rather than to treat the disease. The usage has gone down from 1 in 4 nursing homes in 2012 to 1 in 6 nursing homes in 2018, but the truth of the matter is that these facilities are still administrating an improper drug, often without a necessary diagnosis or the patient's consent.
Why? The reasons include, "misperception by nursing home staff that the medications can help people with dementia; a lack of awareness of their dangers, despite the black box warnings; lack of training in dementia care; and, perhaps most significant, to compensate for understaffing. Nursing homes have been exaggerating levels of nursing and caretaking staff for years, according to an analysis of federal data by Kaiser Health News."
See Hannah Flam, Why are Nursing Homes Drugging Dementia Patients Without Their Consent?, Washington Post, August 10, 2018.
Special thanks to Lewis Saret (Attorney, Washington, D.C.) for bringing this article to my attention.
Monday, August 13, 2018
Estate planning does not always have to be complex or expensive, but every person should have a "traditional" estate plan in plan. This is even more important for those with dependents and the court will have to establish guardianship according to the wishes dictated in your will. But what about the time - days or even hours - right after an accident or a death? That is where "micro estate planning" comes into play.
Before legal guardianship can be established, a separate legal document can be drafted to clarify what a babysitter should do or should call in the case of an emergency. Orange County, California estate attorney Darlynn Morgan explains, “If there is no one with clear legal authority the police must call in child protective services (CPS) and the child will go into their custody.”
If you have underage children, ask your estate attorney about adding a separate document to your plan that protects your children when they need it the most.
See Robert Palgiarini, What is Micro Estate Planning and do You Need it?, Forbes, August 8, 2018.
Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.) for bringing this article to my attention.
Sunday, August 12, 2018
The Section of Real Property, Trust and Estate Law of the American Bar Association is holding a webinar entitled, Planning for Individuals with Chronic Illnesses, on August 21, 2018 at 12:00 PM - 1:30 PM CT. Provided below is a description of the event:
Many clients are affected by chronic illnesses and a large number of those are under 64. This program will hopefully help you identify clients affected by chronic illness, understand more planning opportunities, and advise them and their families accordingly.
This program will cover:
- Income tax planning
- Investment and financial planning
- Insurance planning
- Disability planning
- Competency and cognitive issues
- Estate planning
August 12, 2018 in Conferences & CLE, Current Affairs, Disability Planning - Health Care, Disability Planning - Property Management, Estate Planning - Generally, Guardianship, Income Tax, Trusts, Wills | Permalink | Comments (0)
Tuesday, August 7, 2018
A new parent has a plethora of new tasks when it comes to that new baby or child: feeding, cleaning, bathing, and the all-consuming daily tasks that now take over one's life. It is important, however, to have the wherewithal to make a plan for that precious child's future.
- Set up "Living Documents
- By naming a proper health care proxy and executing a power of attorney, a parent who becomes incapacitated can ensure someone else can access their funds for their child’s needs and make proper health care decisions for the parent in the interim.
- Decide on a Guardian or a Trustee
- Both have different responsibilities, but depending on the circumstances, having one or both can be necessary for your plans for your child.
- Establish Post-Mortem Documents
- Creating a will and possibly a separate trust document early in the child's life can alleviate a large amount of stress. If creating both seems too complex, you can create a “testamentary trust” in your last will and testament that is simpler, yet still effective if funded properly.
- Review your Life Insurance Requirements
- Many people don’t have much money when they are young, so life insurance becomes critical to ensuring your child has adequate funds available if you pass away at a young age.
- Update Account Ownership and Beneficiary Designations
- Properly titling accounts and naming the right beneficiaries to your investment accounts and life insurance policies is essential to finalizing your affairs.
See Daniel A. Timins, Estate Planning 101: 5 Lessons for New Parents, Kilpinger, August 6, 2018.
Thursday, August 2, 2018
The actress that played Lieutenant Uhura in the original Star Trek, Nichelle Nichols, is in a legal battle with her family after her dementia diagnosis and supposed memory loss. She has had a friend release a video of her pleading her son, Kyle, to allow her to continue working and attending Star Trek conventions.
In May, an LA Superior Court judge granted a petition from her son to sign over control of Nichelle’s assets to four temporary conservators due to her memory loss. There is a hearing scheduled later this month to determine if the actress should be assigned a permanent guardian. The son's lawyer, Jeffrey Marvan, told the judge he was concerned Nichelle’s manager, Gilbert Bell, had deeded one of Nichol's two $2 million properties to himself. There was also a concern that $259,000 from attending Star Trek conventions had disappeared from the actress's accounts.
See Laura Martina, Star Trek's Nichelle Nichols' Emotional Plea to Family Amid Court Battle to Stop her Working After Dementia Diagnosis, Mirror, August 2, 2018.