Wills, Trusts & Estates Prof Blog

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

Thursday, March 19, 2020

CLE on Financial Exploitation of the Elderly: Estate Plan Strategies to Protect You and Your Client

CLEThe American Law Institute is holding a webcast entitled, Financial Exploitation of the Elderly: Estate Plan Strategies to Protect You and Your Client, on Wednesday, March 25, 2020 at 1:00 – 2:30 pm Eastern. Provided below is a description of the event.

Why You Should Attend

Financial exploitation of vulnerable adults is not a new phenomenon. Exploitation of and by prominent celebrities such as Brooke Astor, Anna Nicole Smith, and Stan Lee has shined a spotlight on financial exploitation, bringing it increased attention among practitioners, lawmakers, and Congress. Sadly, this kind of exploitation is not going away. In fact, its prevalence will likely increase because perpetrators are becoming more sophisticated, leveraging technological advances to exploit their victims. Prepare yourself and protect your client with an estate plan that hopes for the best in people but insulates you both from the worst in people. You will learn how to do this and more with the teachings in this webcast.

What You Will Learn

During this webcast, our expert faculty will talk about the planning instruments that will protect your client from financial exploitation, provide you with ethically permissible mechanisms to stop and reverse financial exploitation, without compromising your relationship with your client. Topics of discussion include:

    • Congressional efforts on elder abuse, including funding of state Adult Protective Services (APS), amendments to the Older Americans Act (OAA), and effects of the 2018 federal budget on available services
    • Understanding and identifying victim profiles
    • Discussion of typical scam scenarios
    • More sophisticated exploitation vehicles: power of attorney abuses, mortgage scams, and home maintenance sources
    • Spotting your clients’ indicators of financial exploitation
    • The engagement letter: Identifying the client and taking direction from the client under Model Rule 1.2
    • Prevention planning: disability planning, benchmarking capacity periodically to comply with Model Rule 1.14, and permissible disclosures under Model Rule 1.6 when incapacity is suspected
    • Handling financial exploitation in the absence of a power of attorney or health directive
    • Using guardianships and conservatorships and important considerations under the Uniform Adult Guardianship Protective Proceedings Jurisdiction Act (UAGPPJA)

Who Should Attend

Estate planners, elder lawyers, and general practitioners who handle the affairs of the elderly will benefit from this ALI CLE webcast.

March 19, 2020 in Conferences & CLE, Current Affairs, Disability Planning - Property Management, Elder Law, Guardianship, Professional Responsibility | Permalink | Comments (0)

Wednesday, December 25, 2019

Article on Adult Guardianship and Other Financial Planning Mechanisms for People with Cognitive Impairment in Australia

GuardianshipTerry Carney, AO recently published an Article entitled, Adult Guardianship and Other Financial Planning Mechanisms for People with Cognitive Impairment in Australia, Wills, Trusts, & Estates Law eJournal (2019). Provided below is an abstract of the Article. 

This chapter reviews legal instruments and avenues available for planning support for people with cognitive impairments in Australia, including adult guardianship, durable powers of attorney, representative payee and nominee appointments, and special needs disability trusts; the associated public institutions such as guardianship tribunals, office of the public advocate, and public trustees; and their interaction with service delivery programs such as the National Disability Insurance Scheme and social security. It is argued that the configuration of planning instruments, and the timing of their introduction, reflects adaption to the architecture of its welfare state, including its somewhat unique combination of extensive access to tightly means-tested income support (and reforms to overcome tax minimisation or avoidance), the absence of any expectation of family support, and acceptance of state responsibility for funding of services for disabled people least able to care for themselves.

December 25, 2019 in Articles, Current Affairs, Estate Planning - Generally, Guardianship | Permalink | Comments (0)

Tuesday, December 24, 2019

Britney Spears' Dad Jamie Wins Injunction Against #FreeBritney Blogger

BritneyPop icon Britney Spears has been under a conservatorship since 2008, managed by her father, Jamie Spears. In April of this year, however, fans questioned why the star was going into a wellness facility and whether she was going of her own volition, leading many to protest outside of West Hollywood City Hall. The #FreeBritney movement reached a peak when Jamie received death threats and the police took these seriously.

Absolute Britney blogger Anthony Elia fanned the flames for the passionate fans, claiming that Jamie manipulated Britney's social media to make it appear that she desperately needed help. He said that Britney's father would delete positive comments and highlight negative ones. Jamie's lawyer argued that the claims were defamation, and a judge agreed, ordering that Elia is no longer allowed to comment negatively on the conservatorship.

See Glenn Gardner, Britney Spears' Dad Jamie Wins Injunction Against #FreeBritney Blogger who Accused him of 'Human Rights Violation' with Conservatorship, Daily Mail, December 21, 2019.

December 24, 2019 in Current Events, Estate Planning - Generally, Guardianship, Music, New Cases | Permalink | Comments (0)

Wednesday, November 27, 2019

Working Interdisciplinary Networks of Guardianship Stakeholders: WINGS State Replication Guide 2019

WINGSThe American Bar Association Commission on Law and Aging has completed a new guardianship reform publication entitled Working Interdisciplinary Networks of Guardianship Stakeholders: WINGS State Replication Guide 2019.

This replication guide is a resource for states seeking to establish or enhance a Working Interdisciplinary Network of Guardianship Stakeholders or WINGS. If your state does not have such a court-stakeholder partnership, this guide outlines 10 hallmarks of WINGS and 10 steps for creating one. If your state already has a WINGS or similar reform group, the guide includes tips for strengthening, sustaining and evaluating it.

If guardianship is going to change, an ongoing collective effort by courts and a broad range of community stakeholders will be required. We hope this Guide will help.

November 27, 2019 in Current Events, Estate Administration, Estate Planning - Generally, Guardianship | Permalink | Comments (0)

Friday, November 22, 2019

Iowa Supreme Court Clarifies Powers and Plan Due Dates for Existing Guardianships and Conservatorships

IowascIowa’s new guardianship and conservatorship laws go into effect on January 1, 2020, and this week the state's Supreme Court issued a Supervisory Order clarifying powers and initial plan due dates for existing guardianships and conservatorships.

The Supervisory Order can be found at the Iowa Judicial Branch website here: https://www.iowacourts.gov/collections/448/files/934/embedDocument/

See David B. Gonzalez, Iowa Supreme Court Clarifies Powers and Plan Due Dates for Existing Guardianships and Conservatorships, Dickinson Law, November 21, 2019.

Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.

November 22, 2019 in Current Events, Estate Administration, Estate Planning - Generally, Guardianship, New Legislation | Permalink | Comments (0)

Monday, October 28, 2019

Native Hawaiian Heiress Faces Court Test to Control Millions

Kawananakoa93-year-old Abigail Kawananakoa is considered a princess of Hawaii by the natives because she is descended from the family that ruled the islands before the kingdom was overthrown, but she inherited for $215 million fortune by being the great-granddaughter of James Campbell, an Irish businessman who made his fortune as a sugar plantation owner and one of Hawaii's largest landowners. She suffered a stroke in 2017 and since then has fought over control of her trust.

Kawananakoa married her 63-year-old partner of 20 years, Veronica Gail Worth, shortly after the stroke. She also attempted to fire her longtime attorney, Jim Wright, after he argued that she was incapacitated due to the medical incident became her trustee. He also helped her with the $100 million foundation she created in 2001 for Hawaiians. Attorneys for the foundation filed petitions for a guardianship for Kawananakoa, claiming her wife is manipulating her.

Kawananakoa watched the hearing seated next to her wife, with the couple's little chihuahua on her lap. The judge ruled that the there will be an evidentiary hearing to determine whether there should be a conservator for the heiress, and that she is required to undergo a medical examination before the hearing.

See Andrew Court, Native Hawaiian Heiress Faces Court Test to Control Millions, Daily Mail, October 25, 2019.

Special thanks to Laura Galvan (Attorney, San Antonio, Texas) for bringing this article to my attention.

October 28, 2019 in Current Events, Elder Law, Estate Administration, Estate Planning - Generally, Guardianship, New Cases | Permalink | Comments (0)

Thursday, September 26, 2019

Why Estate Planning is not Just for the Wealthy and Elderly

EstateplanningSociety focuses on youth and being young, and as such many people hesitate to contemplate their mortality. At the same time and for the same reason people incorrectly assume that estate planning is only for the elderly and those that have acquired all the their possible wealth.

Not all documents in an estate plan are to prepare for your death; powers of attorney are documents that protect you in times of incapacity. There are two forms of these documents: healthcare and financial, and both of them allow a designated agent the power to make decisions pertaining to whichever document it is. 

If you have minor children, your death will affect them more than if they were older. To provide for them financially and legally, a guardian should be designated to take over the role of parent if something should happen to you. Without a guardian designation, your most precious assets could go to a family member or someone else that you would not have preferred.

If you are young and relatively healthy, term life insurance is relatively inexpensive and can for a term of 10, 20, or even 30 years. The younger you are, the less the premiums will be to start out. Group life insurance may also be available through your employer and may allow you to purchase additional coverage for you and your spouse.

See Stephanie Fierro, Why Estate Planning is not Just for the Wealthy and Elderly, Jaburgwilk.com, September 25, 2019.

Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.

September 26, 2019 in Current Affairs, Estate Administration, Estate Planning - Generally, Guardianship, Wills | Permalink | Comments (0)

Thursday, September 19, 2019

Britney Fans Insist it is Time to #FreeBritney!

BritneyBritney Spears, the pop princess that dominated the charts in her late teens and early twenties before her extremely public break down in 2008, is still under a conservatorship in California. This year she cancelled her Las Vegas residency and she went to a mental health facility. But her fans believe that she is being silenced and was put into the facility against her own free will, and was able to be forced because of the conservatorship with her father, Jamie, at the helm.

Conservatorships - or guardianships as they may be known in other jurisdictions - are intending to help those who cannot take care of themselves and are unlikely to gain that ability, such as the elderly or mentally disabled. Spears's father is control of her finances and many personal choices (including healthcare), but it is apparent that the musician can provide for herself. She has produced four albums since the start of her conservatorship, was a host on The X Factor, even went on four world tours. Attorney Stanton Stein, whom Jamie has hired for #FreeBritney damage control, rejected the idea that Spears had been coerced or manipulated in any way. “She’s always involved in every career and business decision,” he said. “Period.” There have been no more public outbursts, break downs, or suicide attempts.

So why is there still a conservatorship in place? Her fans believe that she is being micromanaged and manipulated to the point of being under complete control of her father. What really gave the rally cry #FreeBritney fire, however, was a voicemail left on a podcast that dissects Britney's Instagram posts. The caller, identifying himself as a former paralegal for an attorney who worked with Spears’ conservatorship, claimed that the singer’s father was involved in getting her to drop her Las Vegas residency. He also made a series of other allegations and raised concerns about her personal autonomy.

In the meantime, Jamie Spears has requested that the conservatorship be extended to more states, including where his daughter lives to vacation, and his suing individuals with slander over the many accusations.

See Laura Newberry, Britney Spears Hasn’t Fully Controlled Her Life for Years. Fans Insist it’s Time to #FreeBritney, Los Angeles Times, September 18, 2019.

Special thanks to Adam T. Uszynski (Bradicich, Moore & Uszynski, LLP, Victoria, Texas) for bringing this article to my attention

September 19, 2019 in Current Events, Estate Planning - Generally, Guardianship, Music, Television, Travel | Permalink | Comments (0)

Wednesday, August 7, 2019

Article on Estate Planning Highlights of the 2019 Texas Legislature

TexasGerry W. Beyer recently published an Article entitled, Estate Planning Highlights of the 2019 Texas Legislature, Wills, Trusts, & Estates Law eJournal (2019). Provided below is an abstract of the Article.

This article reviews the highlights of the legislation enacted by the 2019 Texas Legislature relating to the Texas law of intestacy, wills, estate administration, trusts, and other estate planning matters.

August 7, 2019 in Articles, Current Affairs, Current Events, Elder Law, Estate Administration, Estate Planning - Generally, Guardianship, Intestate Succession, Trusts, Wills | Permalink | Comments (0)

Wednesday, July 24, 2019

Article on You Settled it, Right? Family Settlement Agreements in Probate, Trust, and Guardianship Disputes

TexastechJ. Ellen Bennett, Mark R. Caldwell, & Donovan Campbell, Jr. recently Article entitled, You Settled it, Right? Family Settlement Agreements in Probate, Trust, and Guardianship Disputes, 11 Tex. Tech Est. Plan. Com. Prop. LJ, 213-254 (2019). Provided below is an introduction to the Article.

In practice, very few cases proceed to trial. Statistically, most disputes are settled (usually through mediation). Probate, trust, and guardianship disputes are no exception. These cases are frequently resolved by utilizing what is known as the family settlement doctrine and entering a family settlement agreement (FSA). Despite the frequency with which these cases settle, drafting effective probate, trust, or guardianship FSAs can be more complicated than anticipated. For a variety of reasons, these FSAs can be both substantively and procedurally tricky. This article highlights some of the common procedural issues the practitioner may frequently encounter in the three key phases of entering a probate, trust, or guardianship FSA: (1) formation; (2) exchanging consideration; and (3) enforcement.

The complexity of probate, trust, and guardianship settlements is driven by a variety of factors. First, it can be challenging to identify all of the necessary parties who must sign a probate, guardianship, or trust settlement as compared to those who should, but are not required, to sign it. This analysis is usually at the forefront of the minds of the parties, who want to finally resolve their dispute and eliminate the possibility for someone to later challenge it or claim that the settlement is not binding on them. Even after all of the necessary parties are identified, however, settling parties who are serving as fiduciaries must be mindful to fulfill their disclosure duties to the appropriate persons before entering a settlement. Additionally, in a typical probate, trust, or guardianship dispute, there are frequently parties, such as administrators, guardians, or attorneys ad litem, who require court authority to enter a settlement or to fulfill its terms. Thus, unlike other areas of the law, a probate, trust, or guardianship settlement may--even after all the parties have signed it--be subject to additional conditions precedent before the parties are actually required to perform their contractual obligations in earnest. Additionally, depending on the terms of the FSA, any later court order may be limited to merely approving the FSA, or the court may adopt and incorporate the FSA into the order, thereby making it the judgment of the court. These different acts significantly impact the parties' options to enforce the FSA.

These unique dynamics present complexities that many settling parties (and their counsel) do not anticipate when drafting the FSA. As with most contracts, the devil can be in the details. Careful attention should be given to expressly stating what happens if things do not go as planned (e.g., when a necessary party ends up not signing the FSA or the parties fail to secure court approval of the FSA) and knowing the applicable law in default.

July 24, 2019 in Articles, Current Affairs, Estate Administration, Estate Planning - Generally, Guardianship, Trusts, Wills | Permalink | Comments (0)