Wills, Trusts & Estates Prof Blog

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

Sunday, March 31, 2019

Article on Decision and Persuasion: Re-Conceiving the Role of the Planner Where Undue Influence is Suspected

ActecJames C. Milton and Katheleen R. Guzman recently Article entitled, Decision and Persuasion: Re-Conceiving the Role of the Planner Where Undue Influence is Suspected, ACTEC Law Journal, Vol. 44, No. 1, 137 - 143 (Winter 2019). Provided below is an introduction of the Article.

Our population is aging. Blended familiar are becoming more common, complex, and multi-generational. Conservatorships have increased, along with the incidence of elder and financial abuse claims. While financial abuse is nothing new, modern sociocultural and familiar dynamics have compelled renewed legislative attention where profound decisional control is granted to proxies over the property of those they are supposed to protect. Often, that trust is misplaced. As these data converge and interact, the growth curve in undue influence claims will continue to accelerate, along with attendant and alter estate planning strategies. The world is rapidly changing, and it appears that there is "no turning back."

Into this context comes a timely piece exploring leading edge research over the effect that recent psychological and neuroscientific discoveries might hold for planning and litigation. In Undue Influence: The Gap Between Current Law and Scientific Approaches to Decision-Making and Persuasion, Dominic Campisi, Evan Winet, and Jake Calvert reveal the under-appreciate role that the sub- or unconscious mind plays with complex decision making, and the presumably equally underdeveloped "psychology of percussion" that influencers might wield in search of a desired outcome. As Campisi el al. make clear, an integrated understanding of both should feature prominently or those wishing to avoid, press, or defend an undue influence claim, particularly give the exacerbating effects of age and cognitive decline upon tendencies toward triggered decision making. It takes but a quick look at such undue influence factor as "susceptibility to influence" to see why. How might the law respond?

March 31, 2019 in Articles, Disability Planning - Health Care, Disability Planning - Property Management, Elder Law, Estate Planning - Generally, Guardianship, Science | Permalink | Comments (0)

Friday, March 29, 2019

Allegations Of Abuse Marred Stan Lee’s Last Years — A Guardianship Might Have Protected Him

GuardianshipStan Lee was the beloved grandfather icon of many in the comic book and pop culture realms, and his death last November at the age of 95 saddened millions. But his legacy, unfortunately, was marred in the last years of his life by accusations of elder abuse and financial mismanagement by those closest to him. The idea that the people that should have been protecting the creator of so many heroes was actually taking advantage of him shocked the world.

But this is not an isolated incident, as there are many more people that are aging into their 90's and suffering for mental and health issues, and thus more vulnerable to others. Those a carefully constructed estate plan can protect assets after death, it does not always help them while they are still living. This is where a guardianship can aid the elderly. Though it is the most restrictive means of providing for the care of an individual with mental incapacities, it provides more protection than a power of attorney or other alternatives.

Guardians are appointed by and monitored by the court and are subject to court oversight and various court reporting requirements. Powers of attorney only report to a principal, and thus financial abuse can continue for years without anyone else being aware. According to the Senate Aging Committee, an estimated 1.3 million adults are under the care of guardians, either family members or professional guardians. Late last year, the Senate Aging Committee issued a report recommending ways to improve the guardianship program, including enhanced monitoring, criminal background checks of guardians, and improved training of newly appointed guardians.

See Cozen O'Connor, Allegations Of Abuse Marred Stan Lee’s Last Years — A Guardianship Might Have Protected Him, Lexology, March 13, 2019.

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

March 29, 2019 in Current Affairs, Disability Planning - Health Care, Disability Planning - Property Management, Elder Law, Estate Planning - Generally, Guardianship | Permalink | Comments (0)

Monday, March 25, 2019

Article on Wills, Trusts, Guardianships, and Fiduciary Administration

CourtMary F. Radford recently published an Article entitled, Wills, Trusts, Guardianships, and Fiduciary Administration, 70 Mercer L. Rev. 275-288 (2018). Provided below is an abstract of the Article.

This Article describes selected cases and significant legislation from the period of June 1, 2017 through May 31, 2018, that pertain to Georgia fiduciary law and estate planning. As the most important developments in this time period revolved around the new Georgia legislation, this Article contains only a brief summary of the holdings of significant cases.

March 25, 2019 in Articles, Current Affairs, Estate Administration, Estate Planning - Generally, Guardianship, New Cases, Trusts, Wills | Permalink | Comments (0)

Saturday, March 23, 2019

Legal Fight Between Moonwalker Buzz Aldrin and Kids is Over

Apollo11As the 50th anniversary of the moonwalk approaches, a shadow looming over the impending celebrations has been eradicated. Two children of astronaut Buzz Aldrin that had petitioned to become guardians of their father have withdrawn the petitions, and thus Aldrin also dropped his lawsuit against them and his former manager.

Aldrin, 89, stated that the end of the legal battle will help restore harmony within his family. "This was the most charitable way to manage a difficult situation, as this year, which marks 50 years since we first stepped foot on the moon, is too important to my family, the nation and me." Aldrin was second many ever to walk on the moon, on July 20, 1969, immediately after Neil Armstrong during the mission Apollo 11.

Buzz Aldrin sued two of his three children, Andy and Jan Aldrin, in Florida court after they filed a petition saying their father was suffering from memory loss, delusions, paranoia and confusion. The children said Aldrin was associating with new friends who were trying to alienate him from his family, and that he had been spending his assets as "an alarming rate." Aldrin's oldest son, James, wasn't involved in the legal fight.

See Mike Schneider, Legal Fight Between Moonwalker Buzz Aldrin and Kids is Over, SF Gate, March 13, 2019.

Special thanks to Joel C. Dobris (Professor of Law, UC Davis School of Law) for bringing this article to my attention.

March 23, 2019 in Current Events, Estate Administration, Estate Planning - Generally, Guardianship, New Cases, Science | Permalink | Comments (0)

Friday, March 22, 2019

5 Estate Planning Strategies for Singles

SingleSingle people may have been enjoying the exotic life with no children - socking away money, getting away on numerous weekends, and focusing 100% on their career. But it may not be likely that they put much effort into their estate planning or retirement plans.

Here are 5 tips for single clients as they near retirement:

  • Execute a power of attorney and a healthcare proxy.
    • Even those without children do not live forever, though mortality may not be shouting in their face like a teenager that looks just like them. Establishing a power of attorney and a healthcare proxy will allow another person to make important financial and medical decisions for a single client, if it becomes necessary to do so.
  • Make a will.
    • With no direct descendants nor a spouse, a will is highly efficient as disposing of assets. The client can name the executor to handle the affairs, and a simple solution can be to name a revocable trust as the beneficiary of the estate.
  • Create a revocable trust.
    • The client should go ahead and establish the trust and name themselves as the primary beneficiary.
  • Fund the trust now.
    • If the client funds the trust during their lifetime, and are later incapacitated, the successor trustee will be able to use the funds for the client's care. Without it, those close to them may have to petition the local probate court to have a guardian or conservator appointed.
  • Consider estate taxes.
    • Single clients have no direct descendants, so any beneficiaries will be receiving a windfall. If giving these beneficiaries more and the government less is important, the client should consider charitable giving as a means to lower taxes.

See Christine Fletcher, 5 Estate Planning Strategies for Singles, Forbes, March 15, 2019.

Special thanks to Joel C. Dobris (Professor of Law, UC Davis School of Law) for bringing this article to my attention.

March 22, 2019 in Current Affairs, Disability Planning - Health Care, Disability Planning - Property Management, Estate Administration, Estate Planning - Generally, Estate Tax, Guardianship, Trusts, Wills | Permalink | Comments (0)

Sunday, February 17, 2019

Four Wives, 17 Kids and Wrangling for Control of a Casino Empire

LeongThe massive Macau casino empire created by Stanley Ho has been hotly contested by his family, most of all his fourth wife (technically consort as polygamy was outlawed in 1971) and three of his children from his second wife. In total Ho has four wives, one of which is deceased, and 17 children, two of which are deceased.

Pansy Ho, born in 1962 and the eldest child of Ho's second wife, became chairman of Shun Tak Holdings Ltd after her father stepped down in 2017. She has experience within the ferry and helicopter services company as she was appointed managing director of Shun Tak during Macau’s handover from Portugal to China in 1999. Pansy appears to have joined up with a number of her siblings and the Henry Fok Foundation, thus would hold a combined 53% of Sociedade de Turismo e Diversoes de Macau (STDM), the company that controls the casino operator SJM Holdings Ltd. 

Ho's fourth wife, Angela Leong, was born into a wealthy military family in 1961 and was a billionaire before her "marriage." She is the co-chairman of SJM as well as a director of STDM. She is also a member of the Legislative Council of Macau.

See Jeanny Yu & Blake Schmidt, Four Wives, 17 Kids and Wrangling for Control of a Casino Empire, Bloomberg, January 26, 2019.

Special thanks to Joel C. Dobris (Professor of Law, UC Davis School of Law) for bringing this article to my attention.

February 17, 2019 in Current Affairs, Estate Administration, Estate Planning - Generally, Guardianship, Travel | Permalink | Comments (0)

Wednesday, January 16, 2019

Mandatory Restricted Depository Arrangements in Probate Questioned [Florida]

CourtFlorida statute dictates that when there is just cause a court can authorize that all of the assets of an estate be placed within a restricted depository account, which will only allow withdrawals with a court order. This protection against frivolous and unauthorized spending by the managing person or officer. Under Fla. Stats. §69.031(1), the appropriate reason would be "because the size of the bond required of the officer is burdensome or other cause." It is the word "other cause" that sent a recent case to the appellate level.

A number of counties opted to impose the restricted depository account on all estate cases within their jurisdiction in a form of blanket policy. It was not dependent on the financial restrictions or abilities of the guardian, executor, trustee, or other form of officer. The Fourth Court of Appeals ruled against the policy of mandatory restricted depository accounts, but did hold that the restricted depository order under appeal would stand as the facts of the case constituted it being appropriate.

If the court's opinion becomes final, there is a question of what counties that require a mandatory restricted depository account will do to be in compliance. Especially for the counties outside of the jurisdiction of the Fourth Court of Appeals.

See Charles Rubin, Mandatory Restricted Depository Arrangements in Probate Questioned [Florida], Rubin on Tax, January 9, 2019.

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

January 16, 2019 in Current Events, Estate Administration, Guardianship, New Cases | Permalink | Comments (0)

Wednesday, December 19, 2018

Summer Redstone Ordered to Have a Court-Appointed Guardian

RedstoneSummer Redstone, the 95-year-old controlling shareholder of CBS and Viacom, has been placed under a guardian, presumably because of a speech impediment. Los Angeles Superior Court Judge David Cowan said he was appointing a guardian because of Redstone's extreme difficulty in speaking. It is reported that Samuel Ingram, III has been offered the position, who was the court-appointed of Britney Spears after her unfortunate public mental health breakdown in 2008. In this instance, it does not appear that Redstone's mental capacity is at issue.

The court’s decision on Monday will have no effect on Redstone’s control of his trust, which owns almost 80% of voting stake in the two American media companies. His ownership and control will remain valid until he either dies or is incapacitated. If the latter occurs, the trust would then be overseen by seven trustees, including his daughter, Shari Redstone, and his grandson, Tyler Korff. Redstone has communicated that he approves of the appointment, which is family requested during his court battle with a former girlfriend.

Redstone amended his trust in 2015, removing his former girlfriend as a beneficiary. The ex, Manuela Herzer, claims Redstone’s mental abilities were diminished, which would thus invalidate the amended trust.

See Ariel Zilber, Summer Redstone Ordered to Have a Court-Appointed Guardian Because of a Speech Impediment, Weeks Before Ex-Girlfriend Take him to Court for Cutting her out of his Trust, Daily Mail, December 17, 2018.

Special thanks to Joel C. Dobris (Professor of Law, UC Davis School of Law) for bringing this article to my attention.

December 19, 2018 in Current Events, Estate Administration, Estate Planning - Generally, Film, Guardianship, New Cases, Television, Trusts | Permalink | Comments (0)

Monday, December 17, 2018

New York woman claims a guardian was appointed for her even though not needed

GuardianPhyllis Funk, a 77 year old woman living in New York City, has a master's degree from Columbia University, a pilot license, used financial advisors in both New York and in Maine, and previously freelanced for the Times. But when she crawled under her covers after the 2016 election, she claims she just wanted to shut the world out for a bit of time. Funk says she was not suicidal, but depressed. But when the manager of her building tried to evict her for not paying her rent for months, Adult Protective Services stepped into her apartment in March, 2017, and she entered the world of adult guardianship.

In the eyes of New York States, Funk is considered an "incapacitated person" and unable to manage her personal and financial needs on her own. In the state, anyone can petition to have someone declared incapacitated. A judge may then appoint a family member or a third party, often a lawyer, to be guardian over the person’s physical needs, financial affairs or both. “It’s worse than incarceration,” she said. “At least in prison you have rights.”

In November, the United States Senate Committee on Aging called for a major overhaul in the guardianship system. The Committee is worried that some guardians have used their position over vulnerable people and then “liquidate assets and savings for their own personal benefit.” Funk says she should have hundreds of thousands of dollars to her name, mostly inherited from her parents, but that she has "no access to her accounts."

In a country that guarantees the right to life, liberty and the pursuit of happiness, at what point does a person forfeit the right to make bad decisions?

See John Leland, I'm Petitioning... for the Return of My Life, New York Times, December 7, 2018.

Special thanks to Lewis Saret (Attorney, Washington, D.C.) for bringing this article to my attention.

December 17, 2018 in Current Affairs, Current Events, Disability Planning - Health Care, Disability Planning - Property Management, Elder Law, Estate Planning - Generally, Guardianship | Permalink | Comments (0)

Thursday, October 11, 2018

Podcast: The Uniform Guardianship, Conservatorship, and Other Protective Arrangements Act

ACTEC_FoundationLearn 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.

October 11, 2018 in Guardianship | Permalink | Comments (0)