Wednesday, August 7, 2019
Gerry 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
J. 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.
Monday, July 22, 2019
Note on Baby Got Back? Enforcing Guardianship in International Surrogacy Agreements When Tragedy Strikes
Chelsea E. Caldwell recently published a Note entitled, Baby Got Back? Enforcing Guardianship in International Surrogacy Agreements When Tragedy Strikes, 49 U. Mem. L. Rev. 848-882 (2019). Provided below is an introduction to the Note.
R.H. and her husband M.H., Italian citizens, have tried for eight years to conceive a child - utilizing every avenue of fertility services available to them in Italy, to no avail. Her doctor advises R.H. that it is unlikely she will ever be able to carry a child of her own and that adoption is the only option in Italy for the couple to expand their family. Not ready to give up yet, R.H. contacts a surrogacy agency located in the United States. After timely consultations, the couple is matched with surrogate mother C.E., who lives in Chicago. R.H. and M.H. fly to Chicago several times to complete a cycle of In Vitro Fertilization ("IVF"), creating several viable embryos. To the couples' long-awaited success, surrogate mother C.E. becomes pregnant after the embryo transfer. Nine months go by swiftly and R.H. and M.H. board a flight to Chicago for the birth of their son, S. Unfortunately, their plane crashes, leaving no survivors. The couple indicated in their International Surrogacy Agreement ("ISA") with surrogate mother C.E. that R.H.'s sister in Italy would be the appointed guardian should something happen to them. However, that agreement was drafted and completed in the United States. Italy does not recognize such contracts and, in fact, forbids them. What happens to stateless baby S?
International parents, like R.H. and M.H., come to the United States from foreign destinations where surrogacy is illegal or against public policy in their country of origin; they contract with surrogates in the United States to carry out their pregnancies, fulfilling their dreams of parentage to have a child of their own. The surrogacy agreement, however, is often the easiest part in this situation - international intended parent(s) ("international intended parents") must circumvent their countries' laws not only to carry out the surrogacy agreement but also to successfully establish legal parentage and desired citizenship of the child in their country of origin once the child is born.
Within this delicate situation comes the need for intended parents to address estate planning, specifically considering the possibility of a tragedy befalling them while their child is in utero with a surrogate in the United States. Currently, there is a disconnect in the estate planning realm, even domestically between American intended parents and American surrogates; most patients rely on inadequate consent forms provided by fertility clinics. The legal issues are more complex when considering cross-border surrogacy arrangements and international intended parents who face restrictive and conflicting laws regarding surrogacy.
With rapid medical advances in the Assisted Reproductive Technology ("ART") field and progressive hesitancy in foreign countries toward surrogacy, complexities resulting from prevalent cross-border surrogacy arrangements are sure to only increase, which is this Note's broad focus. Part II of this Note provides a brief introduction to international surrogacy: tracing the history of surrogacy's prevalence beginning in the United States to its expansion across borders and how estate planning is significant in this area. Part III delves further into surrogacy in an international context, offering a comparative view of surrogacy laws in different countries and some resulting, notable but common examples of challenges international intended parents face to establish parentage and citizenship in their country of origin. Thereafter, Part IV circles back to the main issue of estate planning for guardianship purposes and analyzes possible protections and future outlooks on existing international conventions: the Washington Convention and the Hague Convention. Finally, Part V presents a proposed standard of international comity, and Part VI concludes. Taken together, this Note hopes to bring greater clarity to the doctrinal tensions one finds in the contemporary law of international surrogacy.
Thursday, June 27, 2019
A creator of a blog devoted to the theory that singer Britney Spears, 37, is being controlled by her father and appointed conservator, Jamie Spears, 66, has now been sued by Jamie. The singer's father became her conservator (referred to as guardian in other jurisdictions) after her highly public mental breakdown in 2008.
Anthony Elia, the man behind the Absolute Britney blog, may have to explain certain comments that he made about Jamie Spears. The lawsuit claims that Elia made false and malicious claims that Jamie and his conservatorship controlled Britney's Instagram account to make her seem less stable and more in need of psychiatric help than she actually is. The blog has also strongly influenced the #FreeBritney movement, which questions why Jamie still has a conservatorship over Britney, despite the progress she has made in her mental health over the last 11 years. A conservator is usually only appointed for the severally debilitated, whether mentally or physically, or a person in their minority.
The pop singer has not commented publicly on her conservatorship, but did request to speak to the judge in her case at a closed hearing in May. The judge subsequently ordered a court review of Britney's situation before another hearing, currently scheduled for September.
See Jessica Sager, Britney Spears' Father Sues Free Britney Blogger for Defamation Over Conservatorship Comments, Fox News, June 27, 2019.
Tuesday, June 11, 2019
A friend of Mary Max, 52, the wife of artist Peter Max, found her body Sunday inside the couple's 15th floor apartment on Manhattan's Upper West Side on Riverside Drive near West 84th Street. The cause of death is an apparent suicide of nitrogen asphyxiation. Mary and her stepson, Adam, had been steeped in legal turmoil revolving around the failing health of 81-year-old Peter and his artwork.
Peter has an advanced state of dementia, and his mental state has steadily declined in recent years. Adam had sued Mary in 2015 claiming that she was trying to kill his father to gain control over his multi-million dollar art collection. Mary asked then asked the court to appoint a guardian to oversee her husband's business after Adam and three business associates took over the artist's studio, increasing production and profit through a series of art auctions on cruise ships. After the appointment of the guardian, Adam removed his father from his home and moved him around New York for more than a month, to which Mary accused him of "kidnapping" Peter and withholding his whereabouts from her.
A judge ordered Peter to be returned to Mary's care at their Manhattan apartment and that a guardian oversee both his business and personal affairs. Peter's daughter who lives in Los Angeles, Libra, took over her father's studio in January and filed a lawsuit to stop her brother from being able to interact with the company.
See Bridie Pearson-Jones and Ariel Zilber, Mary Max, Wife of Peter Max, is Found Dead of an Apparent Suicide, Daily Mail, June 11, 2019.
Tuesday, April 30, 2019
Article on La protección jurídica de las personas mayores: un reto para el siglo XXI (The Legal Protection of Elder People: A Challenge for the 21st Century)
M.C. García Garnica published an Article entitled, La protección jurídica de las personas mayores: un reto para el siglo XXI (The Legal Protection of Elder People: A Challenge for the 21st Century), Elder Law eJournal (2018). Provided below is an abstract of the Article.
The 21st century is facing a phenomenon of population aging unprecedented in the history of humanity. This is a positive phenomenon in a first approach. However, various international organizations warn us of the growing vulnerability of elder people, as a collective particularly exposed to situations of discrimination, social exclusion, poverty and abuse both personally and economically. Therefore, it is a challenge for legal systems to provide an adequate legal response to the needs of the elderly, from the perspective of safeguarding their autonomy, their dignity and their fundamental rights. In view of this, the present work aims to reflect on this reality, claiming a necessary legislative intervention in the matter.
April 30, 2019 in Articles, Current Affairs, Disability Planning - Health Care, Disability Planning - Property Management, Elder Law, Estate Planning - Generally, Guardianship | Permalink | Comments (0)
Sunday, March 31, 2019
Article on Decision and Persuasion: Re-Conceiving the Role of the Planner Where Undue Influence is Suspected
James 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?
Friday, March 29, 2019
Stan 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.
Monday, March 25, 2019
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.
Saturday, March 23, 2019
As 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.