Friday, October 30, 2020
Due to COVID-19, many people have had to balance working remotely with caring for their children. That being said, many are using their homes as an office and a school, while also maintaining it as a home.
The difficulty balancing, remote learning and homework, virtual meetings and work calls, and shopping, cooking and cleaning has created more housework. It is no surprise that wear and tear and stress levels have increased.
Many are considering moving in with their parents or children are needing to consider the legal implications of doing so. When living with multiple generations, new considerations come into play. These considerations include, "the burdens and the benefits of raising and teaching the children together, dividing the chores, maintaining the home, and pooling their finances together during this time of uncertainty."
Below are a few initial questions that you should discuss with your family when considering living in a multigenerational home:
- Who is contributing to the purchase price?
- Is it a gift, advance on inheritance, loan, or will they hold an ownership interest equal to their capital contribution?
- How do you equalize your estate to the remainder of your family?
- What happens if a couple gets divorced?
- Who has the right to reside in the home and how will the ownership be divided?
- What happens if a parent must later reside in a nursing home for care?
- Do they have sufficient assets in their name to pay for nursing care or will Medicaid look to his or her ownership interest in the home for payment?
- If one of the owners dies, who receives his or her interest in the home?
With all of the uncertainty surrounding us, these questions are very important, and the answers even moreso.
See Rebecca MacGregor, Legal Considerations of Living Together in a Multi-Generational Home, Bowditch & Dewey, Estate, Financial & Tax Planning Group, October 13, 2020.
Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.
October 30, 2020 in Current Events, Death Event Planning, Disability Planning - Health Care, Disability Planning - Property Management, Elder Law, Estate Administration, Estate Planning - Generally, Estate Tax, Gift Tax, Guardianship, Trusts, Wills | Permalink | Comments (0)
Monday, October 26, 2020
Following her public meltdown over a decade ago, Britney Spears has been under a legal guardianship, in which her father Jamie has been in charge of her finances and everyday life.
Spears' makeup artist, Maxi, stated that it is quite possible that Spears would have married an even had children with her boyfriend Sam Asghari if not for the conservatorship forbidding her from doing so.
Maxi stated, "I can tell you what they’re still controlling to this day is whether she has a baby or not, whether she gets married or not, who her friends are, and those are some big things.” Maxi also added, "We're talking about some 'Handmaid's Tale'-type things to keep her from having a baby. Like we're talking... I can't detail and I'm not gonna specifically say, but I will say for sure, she would've had a baby by now. She would've probably been married to Sam by now. She would have groups of friends around her."
Spears has made it quite clear that she is not in favor of her father being her conservator as she has filed court documents fighting the conservatorship.
One thing that fans of Britney Spears have noticed is that she has gained more control over her social media, which she has used to post a couple of questionable videos of her dancing.
Monday, September 14, 2020
Britney Spears filed an objection to a motion from her father to seal a recent filing in the case regarding her conservatorship. Spears claims that the public should know what is happening to her. Spears outwardly showed her support for the #FreeBritney movement driven by her fans, which her father has shown a clear distaste for.
“Britney’s conservatorship has attracted an unprecedented level of scrutiny from mainstream media and social media alike,” the filing says. “Far from being a conspiracy theory or a ‘joke’ as James reportedly told the media, in large part this scrutiny is a reasonable and even predictable result of James’ aggressive use of the sealing procedure over the years to minimize the amount of meaningful information made available to the public.”
Britney Spears father, James Spears, along with he conservatorship's attorneys have consistently fought to have the courtrooms closed and the filings sealed. These efforts have been mostly successful in the past.
The arguments in favor of keeping the filings sealed is to protect Spears' children and trade secrets. However, Spears argues that these things are not revealed in most of the filings in the case.
According to recent filings, Britney Spears' assets totaled around $50 million at the start of 2020.
The most recent motion includes a "shout-out to the fans in the #FreeBritney movement . . ."
“At this point in her life when she is trying to regain some measure of personal autonomy,” the filing says, “Britney welcomes and appreciates the informed support of her many fans.”
See Andrew Dalton, Britney Spears shows love for #FreeBritney in court filing, AP News, September 3, 2020.
Special thanks to Laura Galvan (Attorney, San Antonio, Texas) for bringing this article to my attention.
Tuesday, September 1, 2020
Carol stated, “Due to addiction issues and other circumstances that my daughter, Erin Hamilton, has been struggling with impacting her immediate family dynamic, my husband and I have petitioned the court to be appointed legal guardian of my 14-year-old grandson,”
"Hamilton, a singer, is the youngest of Burnett’s three children, all of them daughters with Burnett’s second husband, TV producer Joe Hamilton."
Carrie Hamilton, another of Burnett's daughters, spoke publicly about her struggles with addiction and her road to her eventual sobriety before her death of cancer in 2002. Carrie Hamilton was 38 when she passed away.
Burnett and Miller have filed documents in Los Angeles Superior Court to take custody of Dylan, Erin Hamilton's son.
See Carol Burnett seeks to be guardian of teen grandson, AP News, August 20, 2020.
Monday, August 31, 2020
For over a decade, Britney Spears has lived in California under a court-approved conservatorship. The conservatorship is a "complex legal arrangement meant to oversee her personal well-being and finances." This conservatorship was spurred after Spears' infamous public breakdowns, which you are probably aware of.
Spears' father, James Spears, is mostly in charge of Britney's affairs who has, for the most part, kept it out of public view. However, fans and family members have begun to worry about the control over Britney and her fortune which has led to the #FreeBritney movement.
Despite her fans and family's worries, Britney had not made many comments about the arrangement until a couple of weeks ago when attorney Samuel D. Ingham III submitted a filing pushing for a change in the conservatorship. It appears that Britney believes that the conservatorship “must be changed substantially in order to reflect the major changes in her current lifestyle and her stated wishes.”
James Spears stepped away from his role as Britney's personal conservator and was replaced (temporarily) by Jodi Montgomery, a licensed professional conservator. Britney now asserts, strongly, that she does not want her father to resume his role as her personal conservator and would like Ms. Montgomery to take over the role permanently.
Britney has also asserted that she wants a qualified corporate fiduciary appointed to serve in the role to take care of her financial affairs.
See Joe Coscarelli, Britney Spears Seeking Substantial Changes to Conservatorship, N.Y. Times, August 18, 2020.
Special thanks to Lewis Saret (Attorney, Washington, D.C.) for bringing this article to my attention.
Thursday, May 14, 2020
In 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.
Saturday, March 28, 2020
The 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.
Thursday, March 19, 2020
The 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.
Wednesday, December 25, 2019
Article on Adult Guardianship and Other Financial Planning Mechanisms for People with Cognitive Impairment in Australia
Terry 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.
Tuesday, December 24, 2019
Pop 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.