Wills, Trusts & Estates Prof Blog

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

Thursday, May 14, 2020

Texas Court Annuls Marriage of Ward Under Guardianship

MArriageIn November 2018 and January 2019, respectively, a man (the ward) was found to lack capacity to care for himself, contract, or marry. Without the consent of the ward's guardians, he married his girlfriend (Martinez) in March of 2019. Following the marriage, the guardians petitioned to annul the marriage and a Texas trial court granted the annulment. Martinez then appealed the decision to the Fourth Court of Appeals in Texas.

Martinez argued that the trial court could not annul her marriage without an evidentiary hearing. Responding to the argument, the Fourth Court of Appeals, citing the Texas Family Code, stated that the trial court has discretion in granting an annulment and is not required to hold an evidentiary hearing before doing so. 

Under Texas law, guardians have the burden of showing that the ward lacked capacity to marry before vows have been exchanged. Martinez asserted that vows were exchanged in March 2019. However, even if true, the ward was found to lack the capacity to marry in November 2018 and January 2019, in which one of the orders expressly stated that the ward, "shall not retain the right to marry." Martinez failed to provide any evidence that the ward's right to marry had been reinstated.

In order to defeat the appeal of the annulment, the ward's guardians also had to show that the ward had not voluntarily cohabited with Martinez following the wedding ceremony. Martinez failed to show that the ward voluntarily cohabited with Martinez, which would have shown that he was able to recognize the marriage relationship. The Fourth Court of Appeals quickly affirmed the Texas trial court's decision to annul the marriage.

In conclusion, if a ward has their right to marry revoked and lacks the capacity required to recognize a marriage, the Texas courts will have a very simple decision to make! Annulment!

See Texas Court Annuls Marriage of Ward Under Guardianship, Probate Stars, May 1, 2020. 

May 14, 2020 in Current Events, Estate Administration, Estate Planning - Generally, Guardianship, New Cases | Permalink | Comments (0)

Saturday, March 28, 2020

CLE on Adult Guardianships: How to Bring and Defend an Action

CLEThe American Law Institute is holding a webcast entitled, Adult Guardianships: How to Bring and Defend an Action, Tuesday, April 28, 2020 from 12:00 to 1:30 PM Eastern. Provided below is a description of the event.

Why You Should Attend

Guardianship is a valuable tool for enabling one person to make decisions on behalf of someone incapacitated or disabled. The potential need to establish adult guardianships may be more in demand in the future as the baby boomer generation continues to age and individuals with developmental disabilities reach adulthood.

In just 90 minutes, this webcast provides a valuable opportunity to learn the essentials of adult guardianship practice, including how these cases are brought and the various factors that practitioners need to take into account when bringing or defending a guardianship action.

What You Will Learn

Taught by experienced estate planners and ACTEC Fellows, this webcast explores the essential aspects of an adult guardianship, including:

    • Whether a guardianship is necessary
    • Full plenary vs. limited guardianship
    • How the initial pleadings might vary depending on whether it appears that the guardianship action will be unopposed or contested
    • The role of the court appointed attorney and how counsel should deal with the court appointed attorney
    • When a guardian ad litem should be requested and what standards the court should use in determining whether to appoint one
    • How the role of the guardian ad litem differs from the role of the court appointed attorney
    • The evidentiary standard for proving that an alleged incapacitated person lacks capacity
    • What factors the court takes into account when choosing the person to serve as guardian
    • Pros and cons of having a professional guardian serve as opposed to a family member or friend of the incapacitated person
    • Abuses in the guardianship system

All registrants will receive a set of downloadable course materials to accompany the program.

 

Who Should Attend

Estate planners and those practicing in elder law will benefit from this CLE on adult guardianships jointly offered by ALI CLE and ACTEC.

March 28, 2020 in Conferences & CLE, Estate Administration, Estate Planning - Generally, Guardianship | Permalink | Comments (0)

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)